The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
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 denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of March, 1995.
The Issue Whether Petitioner was discriminated against based on his race in violation of Chapter 760.10, Florida Statutes.
Findings Of Fact Petitioner, Fabian L. Dixon, is an African-American male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Children and Families as a Unit Treatment and Rehabilitation Specialist–Forensic Corrections at Florida State Hospital, Chattahoochee, Florida. Petitioner was aware of Florida State Hospital’s strict policies regarding Falsification of Records or Statements; Willful Violation of Rules, Regulations or Policies and Conduct Unbecoming a Public Employee. Petitioner was also aware that violations of such policies could result in dismissal of the employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. 4. On June 22, 2001, at 8:32 a.m. and 8:33 a.m., Unit 21 received two faxed copies of Inter Agency Leave Transfer forms from Petitioner, each donating twenty-four hours of sick leave for a total of forty-eight hours and both purportedly signed by Norman Torres. Mr. Torres subsequently discovered that over twenty-four hours had been deducted from his sick leave balance, and discovered that forty-seven hours had been used by Fabian L. Dixon. Mr. Torres then informed his timekeeper that he only donated twenty-four hours of sick leave to Petitioner. In reviewing the sick leave donation forms it appeared the date was changed on one of the forms, then the two forms were faxed to Unit 21. Written statements from Mr. Torres indicated that he only donated twenty-four hours of sick leave to Petitioner. Because of the serious nature of the violation, and given Petitioner's past history of discipline, Respondent terminated Petitioner on September 21, 2001. The employment decision was not based on Petitioner's race and was consistent with Respondent’s disciplinary policy. On October 1, 2001, AFSCME elected to file a grievance on behalf of Petitioner under the provisions of the Master Contract between the State and the American Federation of State, County and Municipal Employees. The grievance was initially reviewed by the Department of Children and Family Services and it was determined that there was cause for Petitioner’s dismissal. The grievance was then appealed to Step 3 of the grievance procedure, which provided for review of agency action by the Department of Management Services. The issue determined at Step 3 was whether the Department had just cause to discipline Petitioner. Review of the Department’s actions revealed that the Department had just cause to discipline Petitioner and that the penalty imposed was within the range for each charged violation. The grievance and relief requested was denied. On December 4, 2001, a “Request for Arbitration” was filed by AFSCME on behalf of Petitioner and a hearing was scheduled for June 2, 2003. On May 20, 2003, AFSCME filed a Notice of Withdrawal of Arbitration. In response to the notice, the hearing was cancelled and an Order Closing the File of the Department of Management Services was issued on May 20, 2003. At hearing, Petitioner admitted that he altered the Inter Agency Leave Transfer Form, but contended that the hospital did not terminate other white employees for similar offenses. However, Petitioner failed to present any independent testimony to corroborate this claim and made absolutely no showing that there was any relationship between his race and his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 23rd day of July, 2003. COPIES FURNISHED: Fabian L. Dixon 4634 Century Road Greenwood, Florida 32443 Kathi Lee Kilpatrick, Esquire Florida State Hospital Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent's construction of Section 11.062, Florida Statutes (2006), is an unadopted rule, described in Subsection 120.56(4), Florida Statutes (2006); whether rulemaking is not feasible for a reason authorized in Subsection 120.54(1)(a), Florida Statutes (2006); and whether either of the petitioners is a person substantially affected by the unadopted rule. (Statutory references are to Florida Statutes (2006)).1
Findings Of Fact Petitioner, Capital Collateral Regional Counsel-Middle Region (CCRC-MR), is one of three governmental units authorized in Section 27.701 to provide collateral legal representation for certain persons convicted and sentenced to death in the state. Each governmental unit functions in a distinct multi-county region identified in the statute as either the northern, middle, or southern region. The middle region in which CCRC-MR is statutorily required to function consists of eight judicial circuits. The judicial circuits are statutorily identified as the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, and Thirteenth Judicial Circuits. Petitioner, John W. Jennings, is the Capital Collateral Regional Counsel with statutory responsibility for administering CCRC-MR. The Supreme Court Judicial Nominating Committee recommended Mr. Jennings to the Governor, the Governor appointed Mr. Jennings, and the Florida Senate confirmed the appointment. Each appointment is for a three-year period. Mr. Jennings is currently subject to reappointment. The administration of CCRC-MR is supervised by the Commission on Capital Cases (Commission). The Commission has exclusive statutory responsibility for the oversight of each regional office pursuant to Section 27.709. The Commission consists of six members each of whom serves a term of four years. The Governor appoints two members to the Commission. The President of the Senate and the Speaker of the House each appoint two members. One of the two members appointed by the President and Speaker, respectively, must be a member of the majority party, and the other appointee must be a member of the minority party. The Office of Legislative Services is statutorily required to provide staff support to the Commission. Salaries for each regional office must be submitted annually to the Justice Administrative Commission and the offices of the President of the Senate and the Speaker of the House in accordance with Subsection 27.705. However, Section 27.702(1) provides, in relevant part: The three capital collateral regional counsels' offices shall function independently and be separate budget entities, and the regional counsels shall be the office heads for all purposes. The Justice Administrative Commission shall provide administrative support and service to the three offices to the extent requested by the regional counsels. The three regional counsels shall not be subject to control, supervision, or direction by the Justice Administrative Commission in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters. Respondent is a state agency authorized in Section 17.002. Respondent is an executive agency described in Subsection 20.121. Section 11.062, in relevant part, prohibits an executive, judicial, or quasi-judicial department from using public funds to retain a lobbyist other than a full-time agency employee (outside lobbyist) to represent the department before the legislative or executive branches of government (prohibited lobbying). If public funds are misused for prohibited lobbying, the statute provides that Respondent "shall" deduct the amount of misused public funds from the salary of the responsible state employee and that the offending department will be barred from authorized lobbying for two years.2 It is undisputed that Petitioners have registered and paid outside lobbyists to lobby the legislative and executive branches of government on behalf of CCRC-MR from 2001 through 2005. The primary purpose of the lobbying effort has been to ensure annual budgets that are adequate for effective legal representation of persons convicted and sentenced to death in those judicial circuits that are within the functional and territorial purview of CCRC-MR. Between April 15, 2002, and June 22, 2005, Petitioners submitted approximately 28 invoices to Respondent totaling $119,000. Two invoices on April 15 and May 23, 2002, were for $10,000 each. Five invoices from August 25, 2003, through January 26, 2004, were for $2,600 each. The remaining 21 invoices ranged from $3,400 to $7,500 each. Each of the invoices were earmarked as payments for "consulting services." However, Respondent has been aware since 2001 that CCRC-MR has engaged outside lobbyists to represent CCRC-MR before the legislative and executive branches of government. Respondent approved all of the invoices. A primary dispute between the parties involves the issue of whether CCRC-MR is an agency of the executive branch of government (executive agency) or an agency of the legislative branch (legislative agency). Respondent construes Section 11.062 to mean that CCRC-MR is an executive agency and that Section 11.062 prohibits CCRC-MR from using public funds to lobby the legislative or executive branches of government. Petitioners construe Section 11.062 to mean that CCRC-MR is a legislative agency that is not prohibited from using public funds for prohibited lobbying.3 A determination of whether CCRC-MR is an executive or legislative agency is not necessary for the disposition of this rule challenge. A rule challenge conducted pursuant Section 120.56(4) does not require a determination that Respondent's statutory construction of Section 11.062 is invalid because it exceeds the scope of delegated legislative authority or for any of the other reasons described in Subsections 120.52(8)(b) through (f). The scope of this rule challenge is limited to a determination of whether the challenged statutory construction is invalid solely because Respondent has failed to promulgate the statutory construction as a rule within the meaning of Subsection 120.52(8)(a). For Petitioners' rule challenge to succeed, Subsection 120.56(4) first requires the evidence to show that the challenged statutory construction is a rule. Subsection 120.52(15) defines a rule, in relevant part, to mean: . . . each agency statement of general applicability that implements, interprets, prescribes law or policy [but] . . . does not include [the express exceptions in Subsections 120.52(15)(a)-(c)]. Subsection 120.52(15) imposes several requirements that must be satisfied in order for Respondent's construction of Section 11.062 to be defined as a rule. First, Respondent must express the challenged statutory construction as an agency statement. Second, the agency statement must satisfy the test of general applicability. Third, the statement of general applicability must, in relevant part, implement, interpret, or prescribe law or policy. Finally, the statement of general applicability that implements, interprets, or prescribes law or policy must not fall within one of the express exceptions to the definition of a rule. Respondent has expressed the challenged construction of Section 11.062 in several statements of longstanding agency policy. That policy traces its roots to the early 1990s, and Respondent has iterated its policy through various means of government communication. Most recently, Respondent stated its policy in a letter to Mr. Jennings dated September 27, 2006, approximately eight days after Petitioners filed the instant rule challenge. In relevant part, the letter states: This is in response to your letter to the Bureau of State Payrolls dated September 20, 2006, regarding your W-4 Form. Whenever state employees are under investigation for possible misuse of state funds, we routinely flag their W-4 record in our payroll system; your payroll account was flagged because of questions surrounding lobbying expenditures you authorized. Because of this action, however, our data processing system automatically generated a new W-4 form that was inadvertently sent to you twice. Please disregard both of these W-4 forms. No action of any kind has ever been taken by this office as a result of the duplicate forms you received. We apologize for any inconvenience that may have been caused. Petitioner's Exhibit(P)- 9. Respondent previously stated the challenged statutory construction in an investigative report precipitated by several complaints against the Capital Collateral Regional Counsel for the Southern Region (CCRC-SR), the last of which Respondent received on March 29, 2005. Respondent's Office of Fiscal Integrity (OFI) initiated a formal investigation of CCRC-SR and subsequently expanded the scope of the investigation to include the lobbying activities of CCRC-MR. Respondent issued a final report of the investigation on August 29, 2006. In relevant part, the report expressed the challenged statutory construction as follows: CCRC officials have argued that CCRC's are not part of the executive branch, claiming this would make them exempt from the provisions of Section 11.062. . . . A legal opinion dated January 11, 2006, by DFS counsel indicates that although CCRC's were initially created in the judicial branch, they were moved to the executive branch in 1997. The legal opinion noted that the CCRC's have been repeatedly defined by statute as executive branch agencies. . . . Examples include Section 23.21(1). , which notes that CCRC's are included as "principal administrative unit(s) within the executive branch of state government. . . . CCRC's are also defined by name in Section 186.003(6) . . . as state agencies, which are in turn defined in this section as "any official, officer, commission, board . . . or department of the executive branch of state government.[4] * * * In the case of the CCRC-Middle office, a staff attorney working for Jennings wrote an opinion saying essentially that the CCRC's were exempt from the provisions of Section 11.062 . . . because in their opinion, they are not part of the executive branch. In Jennings sworn statement, he acknowledged that he did not seek a legal opinion from anyone outside of his office. According to Jennings' sworn statement, he continues to pay . . . for lobbying services even though the contract reflects "consulting services." Jennings, on behalf of CCRC-Middle authorized payments . . . totaling $119,000. * * * It is recommended that . . . DFS legal staff initiate action against . . . Jennings to recover . . . funds that were inappropriately paid by Jennings to lobbyist[s] in violation of Sections 11.062 and 216.311. P-1 at 19 and 20. Respondent has also stated the challenged statutory construction in an Interoffice Communication dated January 11, 2006, and in a memorandum to state agencies dated March 31, 2003. Respondent issued the latter memorandum as a direct result of the lobbying expenditures of CCRC-MR but did not deliver the memorandum to CCRC-MR. Respondent argues that it has not uttered an agency statement, in relevant part, because the recommendation in the Report of Investigation has no force or effect without the authorization of the agency head.5 The argument ignores substantial evidence of other iterations of the agency statement over the years as well as the consistent interpretation by agency witnesses of the force and effect of the statement in its various iterations. The agency statement of the challenged statutory construction satisfies the test of general applicability. Respondent intends the agency statement to have the force and effect of law. Respondent applies the statement in a manner that requires compliance by all state agencies and employees with the direct and consistent effect of law. The statement creates enforcement rights in Respondent and imposes substantive standards on state agencies and employees who are not described in the express terms of Section 11.062. According to the Program Manager in charge of OFI, it is unlawful for Petitioners to expend funds for outside lobbying irrespective of whether CCRC-MR is an executive agency or legislative agency. "The issue of whether they're an executive agency is just an issue of collection." Respondent's Director of the Division of Accounting and Auditing agrees with the testimony of the Program Manager. The agency statement of general applicability interprets and implements Section 11.062. Section 11.062 does not expressly define an executive agency to include CCRC-MR.6 The agency statement defining CCRC-MR as an executive agency interprets law within the meaning of Subsection 120.52(15). The executive branch of government is constitutionally and statutorily required to organize its executive agencies into no more than 25 departments.7 The executive departments enumerated in Chapter 20 do not expressly identify CCRC-MR as an executive agency. The agency statement that CCRC-MR is an executive agency interprets law within the meaning of Subsection 120.52(15). Respondent relies on Subsection 23.21(1) to define CCRC-MR as an executive agency for the purposes of Section 11.062. Subsection 23.21(1), in relevant part, defines the term "department" to include "a principal administrative unit within the executive branch . . . and includes . . . the Capital Collateral Representative. . . ." However, the quoted definition is expressly limited to "the purposes of this part", i.e., the Paper Reduction provisions in Sections 23.20 through 23.22. Expanding the quoted definition for purposes other than Paper Reduction, including the purposes of Section 11.062, interprets law within the meaning of Subsection 120.52(15). In similar fashion, Respondent relies on Subsection 186.003(6) to define CCRC-MR as a state agency. Expanding the definition beyond the purposes of Chapter 186 to include the purposes of Section 11.062 interprets law within the meaning of Subsection 120.52(15). Respondent states in the alternative that CCRC-MR is not an agency but is a subdivision of an executive agency. The parties devoted a substantial amount of evidence in an effort to demonstrate that CCRC-MR is a unit of either a legislative or executive agency of government. As previously stated, the scope of this proceeding does not require a resolution of the dispute between the parties. The competing evidence, however, does demonstrate that the challenged agency statement interprets law within the meaning of Subsection 120.52(15). The agency statement of general applicability that interprets law and implements Section 11.062 does not fall within an express exception to the definition of a rule in Subsection 120.52(15). The iteration of the agency statement in the letter to Mr. Jennings that followed the report of investigation is not an internal management memorandum, legal memorandum, or memorandum to other state agencies within the meaning of Subsections 120.52(15)(a), (b), or (c). The iteration of the agency statement in an internal management memorandum issued as a direct result of the lobbying efforts of CCRC-MR affects the private interests of Mr. Jennings, if for no other reason, by subjecting his salary to garnishment. The challenged statutory construction is a rule within the meaning of Subsection 120.52(15). Respondent has not promulgated the rule pursuant to the rulemaking procedures prescribed in Section 120.54. A preponderance of evidence does not support a finding that rulemaking is not feasible within the meaning of Subsection 120.54(1)(a)1. Respondent argued but offered no factual evidence to support such a finding. Nor did Respondent initiate rulemaking in accordance with Subsection 120.56(4)(e). Mr. Jennings is a person substantially affected by the unpromulgated rule within the meaning of Subsection 120.56(4)(a). Subsection 11.062(1) requires Respondent to garnish the salary of Mr. Jennings if Respondent determines that Mr. Jennings violated the statutory prohibition against outside lobbying. After Respondent concluded the administrative investigation on August 29, 2006, the Director of the Division of Accounting and Auditing directed the Bureau Chief for the Division of State Payrolls to access the personal payroll account of Mr. Jennings on two occasions. Respondent subsequently exercised prosecutorial discretion not to garnish the salary of Mr. Jennings. Mr. Jennings is currently subject to reappointment to his position of employment. Mr. Jennings must disclose to the Supreme Court Judicial Nominating Committee that he is currently under investigation by OFI. The disclosure subjects Mr. Jennings to a potential loss of reappointment. CCRC-MR is a person substantially affected by the unpromulgated rule. A change in leadership would impair the institutional knowledge required to adequately represent persons in eight judicial circuits who have been convicted and sentenced to death. Placement of CCRC-MR within the executive branch of government creates a potential conflict of interest for CCRC-MR. Such a placement arguably would make the legal representative of death row inmates responsible to the executive branch of government which, in turn, must either execute the clients of the representative or commute their death sentences.
The Issue May Petitioner proceed to a hearing on the merits of her charge of employment discrimination or does the untimeliness of her Petition for Relief bar her claim?
Findings Of Fact On March 10, 1997, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging that Respondent Department of State had discriminated against her because of her race (Black) when it had discharged her on October 1, 1996. The Commission concluded its investigation into the matter, and on January 31, 2000, the Commission issued its "Determination: No Cause." A "Notice of Determination: No Cause" was mailed by the Commission to Petitioner on January 31, 2000. It contained the following statements: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this cause. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2000.
Appeal For This Case Unless expressly waived by a party such as in a stipulation or in other similar forms of settlement, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Agency Clerk of the Department of Management Services, and a copy, accompanied by. filing fees prescribed by law, with the Clerk of the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. Certificate of Clerk: Filed in the office of the Clerk of the Department of Management Services on this 96% day of December » 2012. MLE Agency Clerk Page 3 of 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’BRIEN, Petitioner, DOAH Case No. 12-3396 vs. Department of Management Services, Notice of Voluntary Dismissal Division of State Group Insurance, Respondent. / This Respondent files this notice of voluntary dismissal on behalf of both parties, and states: This matter was held in abeyance, pending an external medical review. Based upon that report, the Petitioner has chosen to dismiss his appeal . See Attachment A. Wherefore, the Parties request that this matter be dismissed with prejudice. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U. S. mail, this 10th day of December 2012, to 1833 Halstead Blvd., Apt. 214 Tallahassee, Florida 32309. Respectfully submitted, onja’P. Mathews Florida Bar ID No. 163680 Allison Deison Florida Bar ID No. 0143855 Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 850-922-9665- Telephone 850-922-6312- Telecopier Page 1 of 1 Filed December 10, 2012 1:06 PM Division of Administrative Hearings Mathews, Sonja . From: O'Brien, Michael Sent: Monday, December 10, 2012 11:18 AM To: Mathews, Sonja Subject: appeal Ms. Mathews, | have received MCMC’s review of my case and am hereby dropping my appeal. Thank you, Mike O’Brien Michael O’Brien GIS / Data Services Florida Natural Areas Inventory Florida State University 850-224-8207 ext. 211 mobrian@fsu.edu A\odewact A STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICHAEL GLEN O’ BRIEN, ) Petitioner, ) vs. Case No. 12-3396 SERVICES, DIVISION OF STATE ) ) DEPARTMENT OF MANAGEMENT ) ) GROUP INSURANCE, ) Respondent. ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the parties’ Notice of Voluntary Dismissal filed December 10, 2012, and the undersigned being fully advised, it is, therefore, ORDERED that the file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Management Services, Division of State Group Insurance. DONE AND ORDERED this llth day of December, 2012, in Tallahassee, Leon County, Florida. Unw We SUZANNE VAN WYK 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 11th day of December, 2012.
