The Issue Whether Petitioner, Betty E. New, is entitled to membership in the senior management services class (SMSC) of the Florida Retirement System (FRS) from July 1, 2004, through her retirement in 2015.
Findings Of Fact Petitioner, on February 1, 2002, was employed by the Pinellas County Board of Commissioners (Pinellas County) as court counsel. In her position as court counsel, Petitioner, through an inter-local agreement, was under the supervision and control of the chief judge of the Sixth Judicial Circuit, but her salary and benefits were paid by Pinellas County. Specifically as to benefits, Pinellas County was solely responsible for paying employer contributions to Petitioner’s state retirement account. When initially hired as court counsel, the position was designated in the Regular Class of the FRS. In March of 2003, Pinellas County requested that Petitioner’s position be added to the SMSC of the FRS, and the request was granted by Respondent, retroactive to her hire date of February 1, 2002. On June 30, 2004, Petitioner ceased being employed by Pinellas County and she received a payout of all unused leave, pursuant to the termination payout rules of Pinellas County. Additionally, on June 30, 2004, Pinellas County ceased being responsible for making employer contributions to Petitioner’s state retirement account. On June 30, 2004, Judge David A. Demers, then chief judge of the Sixth Judicial Circuit, requested that Petitioner be paid a $10,000.00 bonus due to the fact that Petitioner would “no longer be a member of the senior management class for retirement purposes.” The bonus was approved and Petitioner accepted the same. Effective July 1, 2004, funding for all court system employees was transferred to the State. Consequently, Petitioner, on July 1, 2004, was reported to the Division of Retirement as an employee of the Office of State Courts, in the Regular Class of the FRS. Petitioner was aware that her position would no longer be included in the SMSC at least as early as September 2004, and chose not to request an opportunity to challenge the determination until several years later. Petitioner asserts that she was continuously an employee of the Office of State Courts from February 1, 2002, and that she was never an employee of Pinellas County. Stephen Bardin credibly testified that if Petitioner had been an employee of the Office of State Courts, rather than of Pinellas County, her position would never have been eligible for inclusion in the SMSC in 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner's request for SMSC credit from July 1, 2004, through the date of her retirement in 2015. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2016.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Between July 25, 1977, and August 10, 1978, petitioner, Douglas A. Charity, was employed with the Division of Security, Department of General Services, first as a Capitol Security Officer I and then as a Surveillance Systems Operator. Thereafter, petitioner was employed for approximately ten months as a legislative intern budget analyst with the Senate Ways and Means Committee. From there, he was employed between June and November of 1979 as a research analyst with the Citizens Council for Budget Research. One of his prime projects in this position was a review and analysis of the Division of Motor Pools in the Department of General Services (DGA). From December of 1979 through August 27, 1980, petitioner was unemployed. He desired to find a position in an administrative, analytical or consulting capacity but was unsuccessful in finding employment. On August 27, 1980, petitioner was offered employment with the Division of Security within DGS. Based upon prior conversations, it was orally agreed between petitioner and administrators within the Division of Security that petitioner would be assigned to and be paid at the salary level for the position classified as a Capitol Security Officer I. The salary for this position was approximately $8,000.00 per year. It was further agreed that petitioner would not wear a uniform nor would he perform the duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties normally required of a Capitol Security Officer. Instead, it was agreed that petitioner would perform duties of an "administrative" nature and assist with the preparation and writing of a four-year plan containing an analysis of the Division of Security. Because the preparation of the four-year plan was not expected to take long and because the salary for a Capitol Security Officer was not as high as petitioner desired, it was anticipated by those within the Division of Security that petitioner would continue to seek other employment. Petitioner did, in fact, continue to seek other employment. One of his reasons for accepting employment with the Division of Security was to enhance his possibilities for employment in an administrative, analytical or consulting capacity through his record at DGS which would show his work on the four-year plan. Some two and a half months prior to petitioner's employment with the Division of Security on August 27, 1980, an outline for the four-year plan had already been prepared and approved. The purpose of the plan was to review the function and performance of the Division of Security and to set a plan for structural and program development and change. A portion of the plan pertained to position descriptions and classifications and the Division of Security's need for additional positions classified as management analyst and administrative assistant. The plan ultimately concluded that such positions were not needed within the Division of Security. The four-year plan was completed in February of 1981. In addition to his work on the four-year plan, both before and after February of 1981, petitioner performed duties in the following areas: reports on security personnel, procedures and problems; administrative correspondence and paperwork; budget issues; legislative bill analysis; and the attendance of meetings with DGS officials and legislative staff persons. His duties varied from day to day, dependent upon instructions he received from the Division Director or Assistant Director. Construing the facts presented at the hearing with respect to the duties actually performed by petitioner from August 27, 1980 through January 10, 1982, in a manner most favorable to petitioner, his actual duties compared with the job description for the classification of Administrative Assistant I. During the entire period in question, petitioner was classified as and received the salary of a Capitol Security Officer I. He never wore a uniform and he never performed the duties of a Capitol Security Officer I which duties included patrolling and maintaining the security of the Capitol Building and Legislative facilities on an assigned shift, locking doors, raising and lowering flags, maintaining logs and related security duties. Petitioner's immediate superiors within the Division of Security, as well as the Executive Director and those within the personnel office of DGS, were aware that petitioner was performing out-of-class duties for the Division of Security. Various efforts were made by DGS officials to help petitioner find employment in a higher position. The possibility of creating a management analyst position in another Division was considered, but that position was never established. Petitioner did not qualify for such a position until approximately October of 1981. The Chief of the Bureau of Personnel Management Services performed an audit of the Division of Security to ascertain if additional administrative positions were needed. While the first draft of the audit report recommended a reorganization of the Division to include an Administrative Assistant I position, it was ultimately concluded that the Division needed only two administrative positions -- the Director and the Assistant Director. Petitioner was informed of a position as an Assistant Facilities Services Coordinator in the Bureau of Property Management, but chose not to apply for that position. Though efforts were made by officials within DGS to either create a higher position for petitioner or place him in a vacant higher position, petitioner was never promised a specific position. Instead, he was informed of possibilities for placement in the future. He was also told that should such positions become established or available, he would have to qualify for the position and compete with other applicants. Petitioner discussed his increasing frustrations with his employment situation with officials within DGS. He also sought advice from a Personnel Program Analyst with the Department of Administration (DOA). She advised him that he could request an audit of his position through his supervisor, his own personnel officer or the DOA Bureau of Program Assistance, whose function is to perform desk audits to ascertain whether the duties performed by an employee are the same as the position description for that employee. She also informed petitioner that he could resolve his difficulties through the career service system or the grievance procedure set forth in the collective bargaining agreement. She indicated to him that he may wish to wait and see if the management analyst position (which had been discussed) would become available, in which case the problem might resolve itself if he were able to fill that position. The Department of Administration was never furnished with a current position description accurately reflecting the duties of petitioner's position. No one ever requested the DOA's Bureau of Program Assistance to perform a desk audit appraisal of petitioner's duties and classification, and petitioner's position was not among those randomly selected for desk audit review. By late November and throughout December of 1981, officials within DGS were becoming increasingly concerned with the fact that petitioner was performing out-of-class duties. Though efforts were maintained to find a position for petitioner which would more accurately reflect his actual job duties, such efforts were not successful. In mid-December 1981, petitioner filed a grievance pursuant to the collective bargaining agreement. After the final draft of the audit of the Division of Security indicated that no additional administrative positions were needed in that Division, petitioner was informed that he would be required to cease out-of-class work and that he must commence to perform the official duties of a Capitol Security Officer I effective January 11, 1982. Petitioner did assume the duties of a Capitol Security Officer on January 11, 1982, and has since functioned in that capacity.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED: That the relief sought by petitioner from the Department of General Services and the Department of Administration be DENIED, and that the petitions filed in Case Nos. 82-2733 and 82-3381 be DISMISSED. Respectfully submitted and entered this 14th day of October, 1983, in Tallahassee, Florida. DIANE D. TREMOR 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 14th day of October 1983. COPIES FURNISHED: Robert B. Beitler, Esquire Post Office Box 12921 Tallahassee, Florida 32317 Sylvan Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32301 Daniel C. Brown, Esquire General Counsel 435 Carlton Building Tallahassee, Florida 32301 Thomas M. Beason, Esquire Suite 858, Barnett Bank Building Tallahassee, Florida 32301 Secretary Nevin Smith Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Thomas Brown, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32301
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, the City of Crystal River, is required to report Myrl David Sallee as a member of the Senior Management Services Class (SMSC) of the Florida Retirement System (FRS) for the period from June 7, 1999, through July 2000, and remit the required contributions for that period.
Findings Of Fact The Petitioner, the City of Crystal River (City) is a Florida municipal corporation which has elected to participate in the Florida Retirement System (FRS). The Respondent is an agency of the State of Florida charged with administering the Florida Retirement System and enforcing the statues and rules which pertain thereto. On June 7, 1999, the City hired Myrle David Sallee as its City Manager, pursuant to a written contract which required Mr. Sallee to begin his employment on that date. The City's contract with Me. Sallee provided, "City shall contribute an amount equal to 24 percent of salary to agreed upon retirement plan in lieu of city retirement." The term "city retirement" refers to the FRS, of which the city normally was a participating member. Upon commencement of his employment, Mr. Sallee elected to have his city retirement contributions paid into a retirement plan operated and managed by the International City Manager's Association (ICMA) and the city agreed. From the date of his employment with the city until his employment terminated on June 6, 2001, the city made the required 24 percent contributions for Mr. Sallee to the ICMA plan. Mr. Sallee's position as city manager was one which is required to participate in the FRS Senior Management Service Class pursuant to Section 121.055(1)(b)1, Florida Statutes, and Rule 60S-1.0057(1)(c)2, Florida Administrative Code. Persons in such a position may, however, elect to withdraw from the FRS altogether, pursuant to Section 121.055(1)(b)2, Florida Statutes. There is no rule that corresponds to such an unconditional withdrawal; however, Rule 69S-1.0057(2)(c), Florida Administrative Code, provides that some person eligible to participate in the Senior Management Service Class of the FRS, including city managers, may elect to participate in a lifetime annuity program provided by their employer, in lieu of being a member of the FRS Senior Management Service Class. Local government employees participating in the FRS Senior Management Service Class are obligated by Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, to complete and file with the division a form SMS-3 and a form FRS-M10. Pursuant to Rule 60S-1.0057(3)(b)2, Florida Administrative Code, the election to withdraw from the FRS altogether and participate in an employer-provided lifetime annuity program is also made by filing a form SMS-3. According to Rule 60S-1.0057(2)(c)1, such an election is effective the first day of the month following the month in which the form SMS-3 is received by the Division. Mr. Sallee was unaware of his obligation to participate in the FRS until July 7, 2000, at which time he completed and filed with the Division a form SMS-3. In his form SMS-3, Mr. Sallee elected to withdraw from the FRS and participate in an employer-provided annuity program instead. Mr. Sallee never did file with the Division a from FRS- M10. The City made a required FRS contribution for Mr. Sallee for July of 2000, but no other. On November 20, 2000, the Division notified the City, by letter, that FRS contributions were due for Mr. Sallee from the date of his employment, June 7, 1999, until the effective date of his election to withdraw from the FRS, August 1, 2000. By various telephone calls and letters, the City informed the Division of its position and requested relief from making the contributions payments that the Division claimed were due. On September 30, 2002, the Division notified the City, by letter, that it had not changed its position and that the letter of that date constituted final agency action, to the effect that the Division was maintaining its claim that the City owed the contribution payments at issue. Rule 60S-1.002(2), Florida Administrative Code, provides that the Division "shall deny membership" in the FRS to any employee who does not comply with statutory requirements for membership or requirements for membership set forth in Chapter 60S, Florida Administrative Code. In addition to Rule 60S- 1.0057(3)(b)1, Florida Administrative Code, Rule 60S-1.002(2), Florida Administrative Code also requires an employee to file a form FRS-M10 with the Division for enrollment into the FRS. The Division has admitted that the City does not have to make FRS contributions for employees who are not me member of the FRS. Within a week after Sallee was hired by the City, the City's Finance Director and Assistant Finance Director resigned their positions. According to witness Linda Stilson, during the thirteen months from when Sallee was hired on June 7, 1999, until July 7, 2000, the date he completed and filed with the Division a form SMS-3 (electing not to be a participant in the FRS) the City hired and lost another finance director; hired another finance director who left in October of 2000; hired and lost another assistant finance director; and hired Ms. Stilson as assistant finance director on May 25, 2000. It was Ms. Stilson who discovered that Mr. Sallee had not been enrolled in the FRS. Although the Division put on testimony that the City had been sent notices of the general requirements for enrollment in the FRS, there was no testimony that the City had actually received such notices prior to Mr. Sallee's hiring. Rule 60S- 3.011(2) provides for the assessment of delinquent fees for FRS contributions which have not been timely made; however, Florida Administrative Code Rule 60S-3.011(4) allows the Division to waive delinquent fees because of exceptional circumstances beyond an employer's control.
Findings Of Fact William Marcum is a career service employee with appeal rights to the Career Service Commission. In April, 1977, Marcum received a written reprimand from his supervisor, Alphonso Crowell, for being asleep on the job. On July 19, 1977, Alphonso Crowell observed Marcum, who was on duty in the dormitory of the Okeechobee School for Boys, from outside the dormitory through a large window. Crowell observed Marcum seated at his desk with his head leaning against the wall. Crowell could not see Marcum's face, but Marcum did not move for approximately twenty (20) minutes during which time Crowell observed him. Crowell directed Mr. George LaGrange, Marcum's direct supervisor, to relieve Marcum immediately. This incident resulted in counseling by the superintendent of the school, who determined that Marcum was suffering from arthritis and taking aspirin for this problem. Marcum was counseled but no disciplinary action was taken because he had been taking medication and was scheduled to be hospitalized. On August 15, 1977, Marcum returned to work having been pronounced fit for duty by his doctor and the agency's doctor. On August 17, 1977, George LaGrange walked into the dormitory to which Marcum was assigned at approximately 4 A.M. and approached Marcum from the right rear. LaGrange, wearing boots, walked to within six (6) feet of Marcum and observed Marcum for about five (5) minutes. Marcum was slumped forward in his seat and did not move during this period. LaGrange then spoke to Marcum and Marcum immediately returned and replied to LaGrange. Marcum denies that he was asleep on either occasion, but asserts that he was absorbed in thought about his personal affairs. Marcum pointed out that neither Crowell nor LaGrange observed his face and therefore could not tell whether he was asleep. Marcum's duties were direct custodial supervision of the children in the dormitory to which he was assigned.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends to the Career Service Commission that they sustain the disciplinary action taken by the agency against William Marcum. DONE and ORDERED this 28th day of April, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1978. COPIES FURNISHED: William Marcum Route 3, Box 3575 Okeechobee, Florida 33472 K. C. Collette, Esquire 1665 Palm Beach Lakes Boulevard Suite 800 West Palm Beach, Florida 33401 Dorothy Roberts, Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304 Art Adams, Director Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for consideration herein is whether Petitioner should be granted certification as a law enforcement officer in Florida.
Findings Of Fact In early November, 1988, the Palmetto, Florida Police Department submitted an application for certification as a police officer for Petitioner herein, James L. Foy, to the Criminal Justice Standards and Training Commission. The CJSTC is the agency in Florida charged with the certification of law enforcement personnel in this state. The Affidavit of Compliance submitted with the application reflected that "all criminal history records have been expunged under the provisions of Section 943.058(6)(a)", Florida Statutes. By letter dated February 8, 1989, the CJSTC notified Petitioner that it was denying his application for certification because: You knowingly engaged in sexual intercourse with a minor female person, after you had attained majority and while employed and certified as a law enforcement officer, though off duty. The parties stipulated, and it is so found, that the CJSTC has not conducted an independent background investigation of the Petitioner and relied solely on the single incident as set forth above as establishing that the Petitioner is not of good moral character. Petitioner served as a police officer with the Bradenton Police Department from April, 1982 to June, 1985 when he resigned. In the fall of 1984, when he was twenty-four years old, Petitioner was performing security services, in an off duty capacity, at a high school football game in Bradenton. After the game, Petitioner's supervisor in the police department, Corporal Simpson, invited him to come home with him after the game for some refreshments. Petitioner agreed, and subsequently met Simpson, Simpson's fourteen year old daughter, and another girl at the Simpson home. Shortly after going inside, Simpson excused himself and left the room with the other girl, leaving Petitioner along with Ms. Simpson on the couch in the living room. Almost immediately, Ms. Simpson began making sexual advances toward Petitioner to which he was initially receptive, believing her to be somewhat older than she was. He knew she was not 18, but did not know that sex with someone over 15 was against the law. Shortly after Ms. Simpson began sexual advances toward him, loosening his trousers and rubbing his penis, leading to her committing fellatio on him, Petitioner became uncomfortable with the situation, terminated the encounter, and left the Simpson house. During the course of an investigation into an allegation of sexual involvement of one or more Bradenton police officers with minor females in April, 1985, Captain Mayer, of the Manatee County Sheriff's Department interviewed Ms. Simpson and Petitioner's name came up. At that time, Mayer felt she looked older than she actually was. She wore "overdone" makeup and her speech and demeanor were promiscuous. She was obviously trying to make herself look older through the clothes she wore and admitted frankly she had initiated the contact with Petitioner. She also indicated she had sex with others, including other police officers, and could see nothing wrong with it. Mayer later interviewed Petitioner about this at the Bradenton Police Department. Petitioner was not under arrest at the time and frankly admitted the one involvement with Ms. Simpson at her house, as described above. After completing the investigation, Mayer made his report to the Assistant State Attorney who charged Petitioner with having sex with a child under age 16. No evidence was presented as to the outcome of that charge. While serving as a police officer with the Bradenton Police Department, Petitioner received several written and verbal commendations and was named police officer of the year in 1984. He had no disciplinary record with the department. He was well liked and respected by his fellow officers and superiors on the force and was rated as having excellent law enforcement officer abilities and characteristics. His reputation for truthfulness and integrity within the department was outstanding. Petitioner is also highly thought of within the remainder of the law enforcement community in Manatee County even though the incident with Ms. Simpson is well known throughout that community. He still has an excellent reputation for truthfulness and integrity within the community and those who know his character feel he can function effectively as a law enforcement officer notwithstanding this incident. In 1988 the Palmetto Police Department conducted a background investigation of petitioner relevant to his prospective employment with the department. This thorough investigation included a polygraph examination and interviews with his previous employers, friends, neighbors, and others who know and have known him for years. The ultimate conclusion of this investigation was that Petitioner is of good moral character. A similar investigation by the Hardee County Sheriff's Department in 1989 established the same. Other individuals on the periphery of the law enforcement community, who have: know Petitioner and his family for many years are satisfied his character and his reputation for honesty and integrity in the law enforcement and business communities are superb.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Criminal Justice Standards and Training Commission find that Petitioner, James L. Foy meets the good moral character requirement of the certification statute and, all other qualifications being met, grant him certification as a law enforcement officer in Florida. RECOMMENDED this 3rd day of January, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. COPIES FURNISHED: Gene Johnson, Esquire Florida Police Benevolent Association, Inc. General Counsel 300 East Brevard Street Tallahassee, Florida 32301 Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P. O. Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Post Office Box 1489 Tallahassee, FL 32302 FDLE P. O. Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Petitioner was a supervisory employee as defined by Section 110.205(2)(x), Florida Statutes (2001), and was therefore properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact Petitioner became employed by the Commission as an Engineering Supervisor in 1984, and held Select Exempt status prior to 1991, when he was reclassified to a Career Service employee. From 1997 until his retirement, he held Position No. 00168, titled “Utility Systems/Communications Engineer Supervisor.” The first paragraph of his October 1, 1997, Position Description states: This is work supervising engineers in the Bureau of Economic Regulation. The primary duty of the employee in this position is to spend the majority of time communicating with, motivating, training and evaluating employees, planning and directing their work; and having the ability to effectively recommend to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline subordinate employees. The October 1, 1997, Position Description was in effect at the time Petitioner was reclassified to Select Exempt following enactment of the Service First Initiative. Following the decision of the District Court of Appeal in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (1st DCA 2003), Petitioner was notified of his right to seek an administrative hearing for the purpose of challenging his reclassification. Petitioner timely requested a hearing on August 13, 2003. Petitioner does not dispute the supervisory nature of the job outlined in the Position Description. He claims that despite his Position Description, his position was not truly “supervisory” as a practical matter and thus did not fit within the authorized grounds for reclassification under Section 110.205(2)(x), Florida Statutes (2001). The Position Description alone is not controlling, because it is possible the actual nature of Petitioner’s job changed and the Position Description had not been amended to reflect that. It is therefore appropriate to look behind the Position Description to see whether the actual duties expected of Petitioner were supervisory in nature. To support his claim that his responsibilities had “eroded” to the point they were no longer supervisory in nature, Petitioner points to the hiring of several individuals to work in the section for which he was responsible. Several individuals (Ed Fuchs, Ted Davis, Gerald Edwards, and Jeanette Sickel) were hired to work under Petitioner by the Commission. Petitioner objected to the hiring of some of those persons on the ground that they lacked qualifications, educational and otherwise, for their positions, but they were hired nevertheless. Another individual, Wetherington, was hired with Petitioner’s assent after interviewing with Petitioner and the Bureau Chief. Once the individuals were hired, they worked under the supervision of Petitioner. He was responsible for approving their time sheets, conducting their annual evaluations, approving travel and leave requests, and training. Petitioner was responsible for assigning the work to employees Sickel, Munroe, Davis, Edwards, and Wetherington, and for monitoring its quality. It was Petitioner who the Commission held responsible for the work product of the section. Petitioner directed the manner in which the employees performed their work on a day-to-day basis. Petitioner answered to Marshall Willis, Bureau Chief of Rate Filings. Willis was responsible for evaluating Petitioner’s performance on the basis of how well Petitioner managed the performance of employees under Petitioner’s supervision, and Petitioner was rated and held accountable to communicate, train, direct, and assign work to subordinate employees assigned to him. Petitioner’s evaluation by Mr. Willis dated December 8, 2000, notes that Petitioner must put forth greater effort in reviewing the work of his engineering section and in improving the analysis reflected in written recommendations. Similar issues had been raised in an earlier evaluation. In response to a November 1998, evaluation of his performance by Mr. Willis, Petitioner acknowledged deficiencies in the performance of his engineering section, and provided assurance that he would “strive to do a better job of supervising my staff” in the future. At all pertinent times, Petitioner’s position was not of a routine, clerical, or ministerial nature, and did require the application of judgment. Petitioner had a significant role in personnel administration, as he served as the officer trusted by the state to verify the hours worked, to direct the amount and quality of work performed during those hours, and to be held accountable for the collective performance of the employees in the engineering section. Petitioner did lack the ultimate authority to hire and fire personnel, but that does not make his role in personnel administration insignificant. While hiring and firing are indeed important decisions, in state government the ultimate authority to hire and fire always resides with the agency head or office head. The bulk of the day-to-day management of personnel does not consist of hiring and firing, but rather of assigning the work and monitoring its successful completion. In addition to the expectations set out in the Position Description, the course of conduct and of communications received from his Bureau Chief establish that supervisory responsibility was in fact a requirement of Petitioner’s position. Petitioner was actually expected to spend a majority of his time communicating with, motivating, and training employees, and planning and directing their work. The clearly established expectations for Petitioner’s position would place upon the incumbent the responsibility for making effective recommendations for hiring, transfer, suspension, layoff, recall, promotion, discharge, assignment, reward, or discipline of subordinate employees. The instances of other Commission officials declining to follow Petitioner’s recommendations regarding hiring reflect the officials’ lack of satisfaction with the way Petitioner was carrying out those supervisory responsibilities, not an acknowledgement that those responsibilities do not exist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Public Service Commission enter a final order that Petitioner’s position was properly reclassified as Selected Exempt Service. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S S. SCOTT STEPHENS 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 December, 2003. COPIES FURNISHED: Robert J. Crouch 245 Pond Court Havana, Florida 32333 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32302-1906 Christiana T. Moore, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanco Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Richard D. Melson, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue The matter presented here for consideration concerns the termination of the Petitioner, George Nelson, from his employment with the Respondent, State of Florida, Department of Agriculture and Consumer Services, premised upon the purported authority set forth in Rule 22A-13.04, Florida Administrative Code, following the Petitioner's alleged decision to qualify as a candidate for office in the State of Florida, without first gaining permission of the appropriate authorities as set forth in Subsection 110.233(4)(a), Florida Statutes, and Chapter 22A-13, Florida Administrative Code.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the petitioner notified the Respondent of his intention to run for a School Board seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Joint Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the petitioner that he would not be allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the petitioner determined to offer his candidacy without the permission of his agency head, and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by a Joint Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the petitioner to inquire why the petitioner had offered his candidacy without permission of the agency. The petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as Joint Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Joint Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the School Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the petitioner were ones of resignation from his position as Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the School Board of Wakulla County and also -he concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the Department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that he had not. Subsequent to that latter conversation with Wood, the petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Joint Exhibit No. 5. This letter informed the petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1980, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. That correspondence from Carl T. Dierking, Chief of Personnel Management and Employee Relations for the Department of Agriculture and Consumer Services, went on to say that in view of the Petitioner's decision to qualify as a candidate being made after the request to allow him to run had been initially denied by the Department and in keeping with Rule 22A-13.032, Florida Administrative Code, that the Petitioner could request an administrative hearing "toward obtaining an additional review of your situation." This request was to be forwarded through Robert Chastain, Esquire, General Counsel, State of Florida, Department of Agriculture and Consumer Services. After August 15, 1980, the petitioner was removed as a permanent party Career Service employee with the Respondent. On August 27, 1980, the Petitioner corresponded with Mr. Chastain through a letter which stated, "I would like to have an appeal of my dismissal of August 15, 1980, reason, not just cause." A copy of this petition letter may be found as Joint Exhibit No. 6 admitted into evidence. In turn Mr. Chastain contacted the Director of the Division of Administrative Hearings requesting that a Hearing Officer be assigned and a hearing be set. A copy of that correspondence addressed to the Director of the Division of Administrative Hearings may be found as Joint Exhibit No. 7, admitted into evidence. Through that correspondence, Mr. Chastain expressed his opinion that Rule 22A-13.032(1), Florida Administrative Code, provides that an employee has the right to a Section 120.57, Florida Statutes, hearing. Subsequent to the case assignment herein, the Petitioner through his counsel has filed a rules challenge to the Rules 22A-13.04 and 22A-7.10(4)(a), Florida Administrative Code, which may be found in the Division of Administrative Hearings Case No. 80-1925R. In addition, the Petitioner in Division of Administrative Hearings Case No. 80-2049R has attacked the Joint Exhibits Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. In fact, the Petitioner's duty assignment as a forest ranger would conflict at times with his function so School Board Member, in that some of the meetings of the School Board would be held at times when the Petitioner was actively on duty. In addition, the Petitioner is also on call and required to be available in his off-duty time should an emergency arise requiring his assistance as a forest ranger. The petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary forest ranger at this time.
