The Issue The issue for determination is whether Petitioner, Steven A. Ramunni, owner of Steven A. Ramunni, P.A., employed by the City of Moore Haven, Florida, as the part-time city attorney, is entitled to participate in the Florida Retirement System from November 25, 1986, through the present.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, and the entire record compiled herein, the following relevant and material facts are found: The City of Moore Haven, Florida (City), is a Florida Municipal Corporation classified as a local agency and participates in the Florida Retirement System (FRS). The city attorney part-time position is established by Article IV of the City of Moore Haven Charter. The City has no legal department. The cost for legal services rendered by its part-time city attorney is included in the City's annual budget. Petitioner, Steven A. Ramunni (Mr. Ramunni), owner of Steven A. Ramunni, P.A., was hired November 25, 1986, as the City's part-time city attorney. His immediate supervisors are the mayor and the City Council of Moore Haven (City Council). Mr. Ramunni's primary legal duties consist of mandatory appearances at two regularly scheduled monthly meetings and attendance at special meetings at the discretion of the City Council. He performs the legal duties and services needed or required by the City Council. He represents the City in all litigation and official business. He provides legal advice/opinions to the mayor, the City Council, and to all city department heads. Mr. Ramunni, by virtue of a monthly retainer, is obligated to be available as needed by his retainer client on a daily basis, if necessary. The City provides administrative assistance to Mr. Ramunni when he is engaged in legal projects for the City. However, the City hires and supervises the administrative staff. Additionally, Mr. Ramunni has authority and does use his private law firm's administrative staff to assist him in performing legal services for the City. The City is billed separately from the monthly retainer agreement for other legal services. The City pays for those legal seminars attended by Mr. Ramunni that are related to local agencies as that term is defined in Subsection 121.021(52)(b). Mr. Ramunni is responsible for attending and making payment for additional seminars necessary to comply with mandatory Florida Bar requirements. Mr. Ramunni has held the position of part-time city attorney for the City and has continuously performed legal services as the part-time city attorney continually since November 25, 1986. There was no formal contract of employment entered into by Mr. Ramunni and the City on November 25, 1986, and no formal contract of employment presently exists. Reimbursement for legal services rendered to the City For attending City Council meetings twice a month, Mr. Ramunni is on a fixed monthly retainer. Other than attending the two monthly City Council meetings, Mr. Ramunni has no other established legal duties as the part-time city attorney. He is available and he does provide requested legal counsel and engages in litigation when needed only on those issues determined by the City Council and/or the mayor. Other than his fixed monthly retainer for attending City Council meetings, any and all other legal services performed for the City require additional compensation, billed by the hour, plus cost, to be paid to Mr. Ramunni. This hourly billing rate plus expenses is separate and apart from his fixed monthly retainer for attending City Council meetings as part- time city attorney. Reporting income paid Mr. Ramunni for services rendered Mr. Ramunni asserts that he has not received an Internal Revenue Service (IRS) Form 1099 or a Form W-2 reflecting annual compensation paid him by the City from November 25, 1986, to the present. The Department of Management Services, Division of Retirement's (the Agency), ERQ-1 form, dated October 3, 2002, question 15, page 3, completed with the assistance of Maxine Brantley, City Clerk, and submitted to the Agency, answered the question, "How did the worker report the earnings for income tax purposes?" to the contrary. Answering the above question regarding how monies paid to Mr. Ramunni are reported to state and federal agencies for income tax purposes, the ERQ-1 form confirms that the City does not report annual earned income payments made to Mr. Ramunni as "Wages" for income tax purposes by Form W-2. The City chose to report, and Mr. Ramunni acquiesced, annual earned income paid to Mr. Ramunni by the City as "self employed income" for tax purposes by using Form 1099. The City chose, and Mr. Ramunni acquiesced, not to withhold federal income taxes and federal social security deductions from Mr. Ramunni's payment for services rendered. The City chose, and Mr. Ramunni acquiesced, not to withhold medicare deductions from Mr. Ramunni's annual pay. The City chose, and Mr. Ramunni acquiesced, not to make matching contributions for Mr. Ramunni's federal social security or medicare payments. The City chose, and Mr. Ramunni acquiesced, not to provide statutorily required workers' compensation coverage for Mr. Ramunni. The City is insured by its Public Risk Management Self Insurance coverage, to include legal work performed on behalf of the City by Mr. Ramunni. This coverage is not insurance coverage for legal malpractice claims that may be made against Mr. Ramunni, personally. Mr. Ramunni maintains a law firm, Stevens A. Ramunni, P.A., with offices in LaBelle and Fort Myers, Florida, offering legal services to the general public. Mr. Ramunni does not have office equipment or office space on the City's premises. The City makes remittance of the monthly retainer and of fees charged by Mr. Ramunni to Steven A. Ramunni, P.A., and not Mr. Ramunni personally. The City's remittance checks are deposited in the Steven A. Ramunni, P.A., law firm's account and not Mr. Ramunni's personal banking account. Mr. Ramunni, at his sole discretion, uses the administrative staff of his private law firm to assist him with the City's legal projects. The cost for use of the administrative staff of his private law firm is an integrated portion of his hourly total billing totals to the City. Although Mr. Ramunni may terminate his independent relationship with the City as city attorney without personal financial liability, he continues to have a professional and ethical duty to assist in the transition of ongoing litigation to a new attorney. As part-time city attorney, Mr. Ramunni may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from the City Council and the mayor. Based upon the Findings of Fact herein above, the evidence demonstrates that Mr. Ramunni's relationship as the part-time city attorney is not that of an "employee" of the City as that term is defined by rule of the Agency, for participation in the FRS. Based upon the Findings of Fact herein above, Mr. Ramunni has failed to prove that his part-time city attorney relationship with the City is and always has been an employer- employee relationship as that term is defined by rule of the Agency and that he is eligible for participation in the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request to participate in the Florida Retirement System from November 25, 1986, through the present. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 3rd day of September, 2003. COPIES FURNISHED: Steven A. Ramunni, Esquire Post Office Box 1118 LaBelle, Florida 33975 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue The issue in this case is whether the Respondent, the Department of Insurance (the Department), has an unpromulgated agency rule not to reimburse routine defense fees at more than $85 per hour when providing for the defense of civil actions against state employees.
Findings Of Fact The Petitioner, Richard L. Windsor (Windsor), was an attorney employed by the Department of Environmental Regulation (DER, now called the Department of Environmental Protection, or DEP) when he and another DER employee were named along with the DER as defendants in a counterclaim filed in 1995 in a lawsuit (the Coxwell case) that had been brought by DER, through Windsor as its attorney of record, in state circuit court in Okaloosa County to remedy alleged intentional violations of state environmental laws and regulations. The "counterclaim" initially was not served on Windsor, and DER declined Windsor's request to defend him at that time. Instead, it was decided to ignore the "counterclaim" against Windsor until it was served on him. In 1996, after Windsor terminated his employment with DEP, the "counterclaim" was served on him. Windsor requested that DEP defend him, and DEP agreed to refer the matter to Risk Management. Risk Management agreed to defend Windsor and in September 1996 assigned the defense to an Okaloosa County attorney named Jim Barth, who agreed to an hourly rate of $75. Barth telephoned Windsor to discuss the case, and Windsor suggested that Barth investigate an out-of-state property rights organization Windsor said was sponsoring and financing the claim against him and the other DEP employee. Barth rejected Windsor's suggestion. Windsor was discomforted from Barth's decision but decided not to press the issue. In a subsequent meeting with Barth, Windsor suggested that Barth should assert the government employee defense of qualified immunity from suit. It seemed to Windsor that Barth accepted the idea. In May 1997, with trial set for July, Barth telephoned Windsor to tell him that trial was set for July 1997, and a court-ordered mediation conference was scheduled for June 1997. Windsor asked about the immunity defense and felt that Barth tried to avoid answering the question. At the mediation conference in June 1997, Barth and Risk Management made a nominal settlement offer, while DEP's lawyer refused to make any offer of settlement on the ground that the counterclaim was frivolous. Although Barth's settlement offer was rejected, Windsor became very concerned about the quality of Barth's representation. He also established through conversation during the course of the day that Barth had not asserted the immunity defense on his behalf. With trial set for July 1997, Windsor decided that he no longer could rely on Barth but would have to raise the defense on his own. Windsor consulted Davisson F. Dunlap, Jr., a Tallahassee attorney with the Carlton Fields law firm. Windsor knew Dunlap from Dunlap's representation of another DER employee who had been named along with DER as a defendant in a counterclaim filed in a previous lawsuit that had been brought by DER, through Windsor as its attorney of record (the Dockery case). Windsor was impressed with Dunlap's work on the Dockery case, including his filing of a motion for summary judgment on behalf of his client on the defense of qualified governmental immunity. Dunlap explained that his hourly rate at Carlton Fields was $175, and Windsor agreed to hire Dunlap at that rate to help get Windsor's defense where Windsor and Dunlap thought it should be. Based on this understanding, Dunlap immediately began preparing a motion for summary judgment. At Windsor's request, Dunlap presented his work product to Barth, who agreed to use it to file a motion for summary judgment. When Windsor learned that Barth missed the court's deadline for filing motions, Windsor became completely dissatisfied with Barth and eventually requested that Risk Management reassign his case from Barth to Dunlap. Risk Management agreed, contacted Dunlap, and entered into a Legal Services Contract with Dunlap's new law firm at the same $85 hourly rate in the Pennington law firm's contract. At some point (probably before Dunlap and the Carlton firm actually entered into the Legal Services Contract with Risk Management), Dunlap reported to Windsor that the contract would be for $85 an hour and that the Carlton firm would not allow Dunlap to undertake representation at that rate of pay. Windsor, who was happy just to have gotten Dunlap substituted for Barth, assured Dunlap that Dunlap would receive his full $175 an hour, as initially agreed between them, and that Windsor would pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. Neither Dunlap nor Windsor advised Risk Management of the agreement for the payment of Dunlap's full $175-an-hour fee after Risk Management's Legal Services Contract with the Carlton firm at $85 an hour. However, Windsor had in mind that, at some point in the future, he would raise the issue and be able to persuade Risk Management to contribute more towards the payment of Dunlap's $175-an-hour fee. In October 1997, Windsor began an exchange of correspondence with Risk Management that went on for several months. While touching on a number of different topics, Windsor's primary initial concern in this correspondence was the payment of Dunlap's fees for work done on Windsor's case before Dunlap's Legal Services Contract with Risk Management. Risk Management agreed without much question (notwithstanding Windsor having retained Dunlap without notice to Risk Management), since Risk Management determined that Dunlap's work did not duplicate much of Barth's. When Risk Management indicated its intent to pay Dunlap for the work at the contract rate of $85 an hour, Windsor advised Risk Management for the first time that Windsor was obligated to pay Dunlap for the work at the rate of $175 an hour; Windsor requested that Risk Management "make him whole" by paying Dunlap's full fee of $175 an hour. However, Windsor did not make it clear to Risk Management in this correspondence that he also wanted Risk Management to pay Dunlap $175 an hour for work done after Dunlap's Legal Services Contract with Risk Management. Neither Windsor nor Dunlap made it clear to Risk Management either that Dunlap also had a contract with Windsor, in addition to the Legal Services Contract, for work done by Dunlap after Dunlap's Legal Services Contract with Risk Management, or that the additional contract was for $175 an hour, which obligated Windsor to pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. By letter dated July 1, 1998, Risk Management's Director, R.J. Castellanos, advised Windsor that Risk Management would not pay Dunlap more than $85 an hour for the work done before the Legal Services Contract. The letter explained that review did not disclose support for Windsor's contention in correspondence that Risk Management was negligent, requiring Windsor to retain Dunlap at $175 an hour prior to the Legal Services Contract. It pointed out that Windsor retained Dunlap at the time without any notice to Risk Management and that Risk Management was "deprived of any opportunity to contract with a firm at a negotiated rate" for those services (as it was able to do for subsequent services when it entered into the Legal Services Contract with Dunlap's firm). For those reasons, the letter explained, Risk Management "reimbursed you at an $85.00 rate, which is the maximum amount we pay as routine defense fees." Windsor contends that the latter quotation is, or is evidence of, an unpromulgated Division rule. The intent of the statement in Castellanos' letter was to explain why, under the circumstances, Risk Management would not reimburse Windsor more than $85 an hour for the fees he incurred for work Dunlap did before the Legal Services Contract; it was not intended to even address Dunlap's fees after the Legal Services Contract. At the time the statement was made, Castellanos did not realize there was any issue as to payment of Dunlap's fees for work done after the Legal Services Contract. The statement in Castellanos' letter was not a statement of general applicability. Risk Management generally does not reimburse defense fees; rather, it negotiates contracts directly with lawyers to provide those services and pays the fees directly to the lawyer under contract. Rather, the statement in Castellanos' letter was intended to explain that, under the circumstances, Risk Management was not going to reimburse more than maximum amount it pays attorneys with whom Risk Management contracts directly. As a matter of fact, Risk Management has approximately 250 open-ended contracts for legal services with law firms all over Florida. (It is not clear from the evidence when these contracts were negotiated, or which are still in use.) The hourly rates for those contracts range from a low of $65 an hour to a high (in approximately five or six of the 250 contracts) of $85 an hour for routine defense cases. (Hourly rates for trademark and copyright specialties are $150 an hour.) These included the $85-an-hour legal services contracts with Dunlap, once as a member of the Pennington firm and again as a member of the Carlton Fields firm. The evidence also did not prove that Risk Management has an unpromulgated rule not to exceed a fee of $85 an hour in negotiating directly with attorneys for legal services contracts for routine defense cases. The evidence was that Risk Management considers itself to be bound by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 when contracting with attorneys for legal services. The maximum fees allowed by the statute and those rules exceed $85 an hour for routine defense cases. In addition, the statute and rules allow agencies such as Risk Management to exceed the maximum standard fees under certain circumstances. See Conclusion of Law 21, infra. Risk Management interprets Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 to require it to negotiate fees below the maximum standard fees. Id. When negotiating with a lawyer or law firm, Risk Management attempts to utilize the leverage it enjoys from the ability to offer lawyers an open-ended contract with the possibility of volume business contract to negotiate for the lowest possible fee for quality services. To date, these legal services contracts have been for $85-an-hour or less for routine defense cases. But it was not proven that Risk Management has established an $85-an-hour maximum for routine defense in conflict with the maximum standard fees established in Rule Chapter 2-37. Windsor seems to make a vague argument that Section 111.07, Florida Statutes (1997), which requires an agency such as Risk Management to reimburse a prevailing employee a "reasonable" attorney fee when the agency declines to provide legal representation to defend the employee, and common law (which Windsor does not elaborate), requires Risk Management to reimburse him for Dunlap's services and that such reimbursement is not limited by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2-37. Windsor seems to further argue that the statement in Castellanos' letter was generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments. But it was not apparent that Windsor was making these arguments until post-hearing submissions in this case. Clearly, Risk Management does not agree with Windsor's arguments (the merits of which are not subject to determination in this proceeding); more germane to this proceeding, Risk Management never understood or considered such arguments at the time of the statement in Castellanos' letter, and Castellanos clearly did not intend the statement in his letter to be generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments.
Findings Of Fact On December 6, 1985, Petitioner, Johnnie J. Williams, filed an application with Respondent, Department of State, Division of Licensing (Department), for a Class "G" armed guard license. By letter of April 30, 1986, the Department advised Petitioner that his application had been denied. Petitioner filed a timely request for formal hearing. The basis of the Department's denial was predicated on its conclusion that Petitioner (a) had failed to list alias names on his application, (b) had, under an alias name of Hubert Jackson, been convicted of aggravated assault, (c) had, under an alias name of Harry Hill, been convicted of carrying a concealed firearm, unlawful possession of central nervous system stimulant, unlawful possession of narcotic drug, and unlawful possession of implements for central nervous system stimulant, (d) had failed to submit a sufficient Firearms Proficiency Certificate, and (e) did not possess a valid Class "D" license. The Department's conclusions were, however, ill founded. Petitioner is not the same person as Hubert Jackson or Harry Hill, and has never been known by a name other than his own. At hearing, the Department agreed to stipulate that it had erred in attributing the offenses committed by Jackson and Hill to the Petitioner, and further agreed that Petitioner possessed a valid and current Class "D" license. With respect to the only other basis for denial, possession of a sufficient Firearms Proficiency Certificate, Petitioner's application facially complied with the Department's requirements and was not shown to be lacking in any particular. Although the reasons advanced by the Department for denial in its April 30, 1986, letter were ill founded, evidence was presented at hearing concerning three events involving Petitioner which could affect his qualification for licensure. Petitioner has at various times driven a taxi cab for a living, and routinely carried a registered, but unlicensed gun in his cab for personal protection. In 1966, Petitioner was found guilty of disorderly conduct, a misdemeanor, and fined $100 for producing his gun in response to a threat to his person. While its possession in a concealed manner was not legal, the proof established that Petitioner's response was motivated by a well grounded fear that his antagonist was about to assault him with a firearm. In 1970 Petitioner was arrested and charged with carrying a concealed firearm in his taxi cab. Petitioner was found guilty of the charge, adjudication was withheld, and he was placed on one year probation with the restriction that he not carry any weapons. Petitioner successfully completed his probation, and is currently possessed of his full civil rights. The final event which could bear on Petitioner's qualifications concerns a domestic disturbance which occurred between him and his wife in March or April 1986. Although Petitioner was arrested as a result of that disturbance, there is no evidence that any physical force was used upon his wife or that Petitioner possessed or exhibited any weapon during the dispute. Subsequently, what ever charges had been made against Petitioner were withdrawn, and no further action was taken. While Petitioner's possession of a weapon, without proper licensure cannot be condoned, his concern for his personal safety can be appreciated. Consequently, the events detailed in paragraph 4 supra, much less the events detailed in paragraph 5 supra, do not detract from the evidence of good moral character Petitioner has been demonstrated to possess, nor his satisfaction of the licensure requirements established by Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application be approved, and that he be issued a Class "G", armed guard, license. DONE AND ENTERED this 9th day of October 1986 in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of October 1986. COPIES FURNISHED: Jay M. Kolsky, Esquire 239 Northeast 20th Street Miami, Florida 33137 James V. Antista, Esquire Senior Attorney Department of State The Capitol, Lower Level 10 Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Thomas G. Tomasello, Esquire General Counsel Department of State 1801 The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner James Joseph Richardson has met his burden of proving actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact On October 25, 1967, Petitioner's wife prepared a breakfast of grits for their seven children. In a separate pot she prepared the children's lunch of beans, gravy, rice, and hogs head meat. She also fried some fresh chicken which she used to make sandwiches for her and Petitioner's lunch. She and Petitioner then left to get a ride to the grove where they worked picking fruit. It was their routine for Petitioner's wife to cook the food. The eldest child, eleven-year-old Betty Jean Bryant, would later serve it to all the children after the Richardsons left for work. It is not clear whether the children actually ate their breakfast grits that day. The school-age children went to school while the younger children remained at home. It was the routine for Petitioner's neighbor Betsy Reese to look after them. Petitioner's family and Betsy Reese and her children lived in the same structure, assumedly similar to a duplex. There was a common porch across the front. There was also a shed in the back yard. The school-age children returned to the home at lunchtime. Reese divided the food in the second pot into seven equal portions, and the children ate lunch. Right after the children returned to school after lunch, they began exhibiting terrible symptoms, such as leaking from their orifices, twitching, and rigidity. Teachers began grabbing the Richardson children and rushing them to the hospital. One of the teachers, knowing there were younger children at home, drove to the Richardson home. Those children were on the shared porch, displaying the same symptoms. Reese was sitting on the porch, holding one of the children. The teacher took them to the hospital. Petitioner and his wife were summoned to the hospital. Six of the children died that same day, and the seventh child died early the next morning. At the hospital, medical personnel did not know what substance was causing the illness and deaths. Sheriff Frank Cline went to the Richardson home and conducted several searches of the home and the shed attempting to find what had poisoned the children. When Petitioner and his wife arrived at the hospital, Cline obtained from Petitioner the key to the refrigerator and searched again. The next morning Reese and Charlie Smith, who was described as the town drunk, found a bag of parathion, a highly- toxic insecticide, in the shed behind the house. Cline and his deputies had searched the shed approximately four times during the day the children became sick and Cline had searched the shed by himself late that night, and no bag of parathion had been seen by them. It was determined that parathion was present in the pot the grits were cooked in, the pot the lunch was cooked in, the frying pan the chicken may have been cooked in, flour, corn meal, sugar, and other substances found in the refrigerator. It was also determined that parathion is what killed the children. Petitioner had a key to the refrigerator as did his wife. Indications are that a third key was left on the refrigerator for the babysitter's use. Petitioner was tried for the first degree murder of the eldest child Betty Jean Bryant and was convicted. The jury did not recommend mercy, and he was sentenced to death. His conviction was reviewed by the Supreme Court of Florida. Richardson v. State, 247 So. 2d 296 (Fla. 1971). Petitioner's death sentence was commuted to life when Florida's death penalty was held to be unconstitutional the following year. In October 1988, 21 years after the seven children were murdered, the official file, which had been stolen ten years earlier from the office of the assistant state attorney who had prosecuted Petitioner, appeared in the office of the Governor of the State of Florida. Governor Bob Martinez ordered the Florida Department of Law Enforcement (FDLE) to investigate the disappearance and re-appearance of the file and accompanying information. That investigation resulted in new information and admissions surrounding the circumstances leading to the arrest and conviction of Petitioner. The Governor entered an Executive Order on July 31, 1989, appointing Janet Reno, State Attorney for the Eleventh Judicial Circuit of Florida, to provide prosecutorial assistance to FDLE. That Executive Order further directed FDLE to continue its investigation into all statements and evidence concerning Petitioner's arrest and conviction and to also investigate any violations of the criminal laws or misconduct by public officials relative to the events surrounding the deaths of the children and the arrest and conviction of Petitioner. On February 13, 1989, another Executive Order, amending the first, was signed by the Governor assigning State Attorney Reno to the Twelfth and Twentieth Judicial Circuits to discharge the duties of the State Attorneys in those Circuits relating to the investigation and prosecution of Petitioner's case. On March 31, 1989, a third Executive Order was signed. It amended the first two and recited that Reno and FDLE had reported their findings to the Governor and that Reno had also advised the Governor that Petitioner had filed a motion for post-conviction relief in the Circuit Court for the Twelfth Judicial Circuit. The Executive Order directed Reno to assume and discharge the duties of the State Attorney relating to any post-conviction proceedings involving Petitioner. A fourth Executive Order was then entered amending the first three by adding to Reno's duties consideration of any further prosecution of Petitioner. As a result of the extensive investigations conducted by Reno and FDLE, Reno joined in Petitioner's pending motion for post-conviction relief. Petitioner's request that his conviction and sentence be vacated was granted, and Petitioner was released from prison. Reno also made the decision that Petitioner would not be re-tried for the murder of Betty Jean Bryant and would not be prosecuted for the murders of the six other children. On May 5, 1989, Reno issued a 35-page Nolle Prosse Memorandum explaining in detail the evidence she had reviewed, the conflicting evidence she had considered, the apparent- perjured testimony that had been given at Petitioner's trial, and the conflicting witness statements which the State had before trial but had not disclosed to Petitioner's attorneys despite a court order to do so. The Memorandum discussed additional problems she had encountered because the physical evidence from the trial 21 years earlier had been misplaced or destroyed, a witness had later recanted his trial testimony, and key witnesses had died since the trial had taken place. Further, as a result of the publicity surrounding her investigation a number of persons had come forward claiming to have evidence, but they had never come forward during the initial investigation. Reno and the two Assistant State Attorneys who worked with her on her investigation determined that in evaluating whether Petitioner should be given post-conviction relief and whether Petitioner should be re-tried, they would only consider the files, records, and evidence that existed at the time that Petitioner was tried. They considered the evidence that had not been disclosed to anyone for 21 years to be unreliable. Some of it was also conflicting. She signed the Nolle Prosse Memorandum as did the two Assistant State Attorneys Don L. Horn and Richard L. Shiffrin. At the final hearing in this cause Don Horn testified extensively as to the contents of the Memorandum. Although he, Shiffrin, and Reno had discussed the misconduct they discovered on the part of the Sheriff and the prosecuting attorneys, they knew that the statute of limitations prevented taking action against those public officials, so the Memorandum did not discuss any action to be taken against them. It only considered the evidence against Petitioner. The Memorandum concluded that a "totally inadequate and incomplete investigation" into the deaths of the seven children had been conducted. Obvious leads had not been pursued, inconsistencies were not resolved, and standard investigative procedures had not been followed. The Memorandum further opined that at the time that Petitioner was charged with murder, the State did not have sufficient evidence to prove his guilt beyond and to the exclusion of a reasonable doubt. The Memorandum concluded that Petitioner "was probably wrongfully accused" based upon the evidence that existed at the time. Three years later a 260-page Memorandum Opinion prepared by United States Attorney Robert Merkle and indicating a need for further investigation into the 1968 prosecution of Petitioner was presented to the Treasurer of Florida. The Opinion, which was not admitted in evidence, was described as a "scathing indictment" of Reno's investigation. As a result, Governor Lawton Chiles issued a confidential Executive Order on October 16, 1992, appointing State Attorney Reno to further investigate all matters pertaining to or arising from the issues raised in the Opinion involving Petitioner's prosecution. On October 30, 1992, the Governor issued a second Executive Order deleting the provisions of his prior Order requiring that it be sealed and confidential. Assistant State Attorney Richard L. Shiffrin, who participated in Reno's first investigation, and Gertrude M. Novicki, Reno's Chief Assistant for Special Prosecutions, were assigned to conduct this investigation. Both of those Assistant State Attorneys signed the Response of the State Attorney of the Eleventh Judicial Circuit. The Response is not dated but a word-processing notation suggests it may have been issued on or about April 30, 1993. At the final hearing, Novicki testified regarding her Response. Rather than responding to or explaining each of the details set forth in Merkle's Memorandum Opinion, Novicki and Shiffrin re-examined the propriety of both the vacating of the original judgment of guilty and the decision to enter a nolle prosse. In doing so, they reviewed the original prosecution in light of the evidence at trial and of the law as it existed in 1968 and also reviewed the ability to re-prosecute Petitioner in light of the evidence currently available and admissible. The Response concluded that the Order granting Petitioner's motion to vacate his conviction and sentence was supported by the facts and the law and that the decision to enter a nolle prosse reached in 1989 was proper. The Response's summary states that the physical evidence against Petitioner did not establish guilt beyond a reasonable doubt, the testimonial evidence as to Petitioner's admissions of culpability were of dubious admissibility and value, the evidence of motive was equivocal at best, and the decision to enter a nolle prosse was unquestionably correct. The summary ends as follows: "Whether or not [Petitioner] is guilty of this horrible crime is uncertain. What is certain is that proof beyond a reasonable doubt of guilt is lacking." The prior proceedings involving Petitioner and the prior reviews of those proceedings have focused on the criminal law standard of guilty beyond a reasonable doubt. That standard, however, is not applicable to this proceeding. In this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense. Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. Petitioner testified that he did not poison his children, that he did not kill his children, and that he never told anyone that he did. He also testified that he did not aid or assist anyone in poisoning or killing his children. In order to provide verifiable and substantial evidence in support of his testimony that he is innocent, Petitioner has taken two approaches. The first is by relying on the investigation detailed in the 1989 Nolle Prosse Memorandum and the testimony of Don Horn, one of the authors. (In its defense, the State offered the 1993 Response and the testimony of Gertrude Novicki, one of its authors.) In so doing, Petitioner has offered clear and convincing evidence that the investigation leading up to Petitioner’s prosecution and conviction was incomplete. The investigation revealed conflicting evidence about whether Petitioner had obtained life insurance policies on his children the night before they were murdered, which he had not, and whether Petitioner believed that he had. The investigation did not determine how the parathion got into the pots and skillet and various food products in the refrigerator or when. The investigation appeared to focus only on Petitioner as a suspect and not also on others whose involvement was suspicious. Toward the end of the investigation and prior to Petitioner’s criminal trial, the prosecutors wrote memos expressing concern about the weakness of their case and their possible inability to present even a prima facie case. After those memos were written, the Sheriff produced three jailhouse informants to testify that Petitioner admitted to them his crimes. They also gave statements that Petitioner said he thought that Reese did it and gave details of different motives she might have had. Rather than resolving the conflicting statements, the prosecution withheld the conflicting statements from the defense. The Nolle Prosse Memorandum discusses these statements and informants and finds that one of the jailhouse informants recanted his testimony after Petitioner’s trial and one was drunk when he testified. The third one, whose statements were given under circumstances that made them highly doubtful, died before the trial, and his testimony given at the preliminary hearing was given to the jury in the form of five witnesses who testified as to their recollections of his testimony. The informants were not the only ones to provide perjured testimony at Petitioner’s trial; the Sheriff also appears to have done so. A review of the Nolle Prosse Memorandum and the detailed evidence it discusses makes it clear that Petitioner was wrongfully accused based upon the evidence and lack of evidence the prosecution had gathered. It is further clear that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. It is further clear that re-trying Petitioner would be fruitless because the evidence available 21 years after the murders was insufficient: the physical evidence was missing or destroyed, many of the key witnesses were dead, and the evidence that might have been admissible for a re-trial was conflicting. However, the inability of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of committing the murders or aiding in the commission. Petitioner’s second approach to providing verifiable and substantial evidence of his actual innocence is attempting to show that Reese, not the Petitioner, murdered the children. The 1989 investigation showed that, at the time the Richardson children were poisoned, Reese was on parole for killing her second husband with a gun. Although there was also a rumor that she had poisoned her first husband, no evidence was found to support that rumor. Parenthetically, there was also a rumor that Petitioner killed his three other children in Jacksonville, but that was also untrue. Similarly, there was a rumor that Sheriff Cline fathered Reese’s granddaughter and that was why he steered the investigation away from her. The blood tests of all concerned done as part of the 1989 investigation proved that rumor also untrue. Petitioner relies also upon the facts that Reese was the last person in the Richardson home on the day in question, the person who served the children the poisoned lunch, and the person who found the parathion in the shed. Her unconcerned behavior while the Richardson toddlers were exhibiting horrible symptoms on her porch and her lack of concern about whether her children who were playing there might be at risk from whatever was making the Richardson children so sick are suggested to be evidence that she knew why the Richardson children were sick and why her children would not be. It was also suggested that she must have been the murderer since her third husband had gone to Jacksonville with Petitioner and his wife but they had returned without Reese’s husband who never did return to her. Petitioner relies heavily on evidence which he suggests constitutes admissions of her guilt by Reese. The 1988 investigation considered an affidavit by one certified nursing assistant and a taped interview of another, both of whom worked at a nursing home where Reese became a patient in 1986. The affidavit by Belinda Romeo asserts that Romeo asked Reese on more than 100 separate occasions if she killed the seven Richardson children, that Reese replied that she did, and that Reese was competent at the times Romeo asked that question. On the other hand, the transcript of a taped interview of Doris Harris, who was present several times when Romeo questioned Reese, is clearly contrary to that affidavit. Harris states that by the time Reese was admitted to the nursing home, she was incontinent, unable to walk, unable to feed herself, only “half way aware,” unable to say what day or year it was, "back to a child's state," and suffering from Alzheimer’s. When Romeo would ask if she killed the children, she would say that she killed them, say the name Charlie, and then lapse into incoherent mumbling. Harris believed that Reese was saying she killed them because she was the one who fed them the poisoned food, and not because she was the one who put the poison in the food. Reese’s “admissions” are, therefore, ambiguous and not trustworthy. Petitioner also introduced into evidence a 1988 affidavit of Richard H. Barnard, the Chief of Police who began an investigation into the children’s deaths. After he got Reese to admit she was in the Richardson home that day and served the children their lunch, he was removed from the investigation by the “Governor’s office” in a phone call which he believes Sheriff Cline instigated. His affidavit undermines the statements of the jailhouse informants, expresses his concern that Sheriff Cline may have tampered with the jury, and states his opinion that Sheriff Cline framed Petitioner. He concludes with his opinion that Petitioner was innocent and Reese was guilty. The hearsay evidence and suggestions that Reese was guilty of the murders do not constitute verifiable and substantial evidence of Petitioner’s innocence. Opinion testimony does not constitute verifiable and substantial evidence of Petitioner's innocence. The Nolle Prosse Memorandum and the Response do not constitute verifiable and substantial evidence of Petitioner’s innocence. The testimony of Horn and Novicki as to what they considered during their investigations does not constitute verifiable and substantial evidence of Petitioner’s innocence. Lastly, Petitioner’s own testimony denying his guilt is not verifiable and substantial evidence of his innocence. Simply put, the evidence in this proceeding does not establish Petitioner’s actual innocence. Since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” Petitioner argues that the definition should be that based upon the evidence it is more likely than not that no reasonable juror would have convicted him. That definition is found in Supreme Court of the United States and Supreme Court of Florida cases. Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Mills v. State, 786 So. 2d 547 (Fla. 2001). Petitioner’s argument is not persuasive. All of those cases involved motions for post-conviction relief, not claims for money damages. That definition of actual innocence was likely utilized when Petitioner was granted post-conviction relief by having his conviction and sentence vacated and being released from prison, which is the relief which results from meeting that definition. That definition of actual innocence tests the legal sufficiency of evidence. The Statute regulating this proceeding does not consider legal sufficiency; rather, it considers factual sufficiency by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. A review of the two investigations of Petitioner’s prosecution clearly shows an absence of evidence proving Petitioner guilty beyond a reasonable doubt. However, a review of the two investigations does not show that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of August, 2009. COPIES FURNISHED: Robert I. Barrar, Esquire Law Offices of Ellis Rubin & Robert I. Barrar 6619 South Dixie Highway, No. 311 Miami, Florida 33143 Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500 Miami, Florida 33145 Dennis Nales, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237 Earl Moreland, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237
Findings Of Fact 1. Petitioner (Randolph) is an African-American female. 2. Petitioner was hired by Respondent on June 2, 1997, and was terminated by Respondent from her employment on September 30, 1997. 3. When initially hired, Petitioner’s official employment class title was Other Personnel Services (OPS) Paralegal Specialist. 4. On July 1, 1997, approximately one month after her date of employment, Petitioner’s official employment class title was changed to Administrative Secretary and Petitioner’s pay plan status was changed from OPS to Career Service. 5. On September 1, 1997, Petitioner's class title was reclassified to Paralegal Specialist. 6. From July 1, 1997, until the date of her termination, Petitioner was employed in a probationary status by DOAH with her primary job responsibilities being that of a proofreader. 7. Probationary employees are not entitled to progressive discipline and can be terminated at will pursuant to Florida Administrative Code Rule 60L-36.005. 8. Ann Cole, the clerk of DOAH, interviewed all candidates for the newly created proofreader position. 9. There were several applicants for the proofreader position and after a series of tests and interviews Ann Cole determined that Petitioner was the best applicant for the proofreader position and Petitioner was hired for the job. 10. Approximately one month after Petitioner was hired, a second proofreader (Dr. Rappendelli) was hired. Dr. Rappendeli is a white female. 11. Both Petitioner and Dr. Carol Ripandelli were supervised at DOAH by Ann Cole. ATTENDANCE HISTORY 312. During the first month of her employment Petitioner shared a work area in DOAH’s mailroom with current DOAH employee Elma Moore, an African-American female. 13. Elma Moore typically arrived at work between 7:00 and 7:15 a.m. even though the required start time for employees of the clerk’s office was 8:00 a.m. 14. Elma Moore was able to directly observe the times during which Petitioner arrived at work. Ms. Moore noted that Petitioner reported to work forty-five minutes late on her first day. Ms. Moore further noted that Petitioner would often be late. 15. Elma Moore was relocated to another part of the clerk’s office when Dr. Rappendelli was hired. 16. Elma Moore, even from her new workstation, continued to be situated such that she was able to observe the times at which Petitioner customarily arrived at work. 17. Elma Moore testified that during the four month period that Petitioner worked for DOAH, at least two to three times each week, Petitioner would arrive at work approximately ten to thirty minutes beyond the mandatory 8:00 a.m. start time for employees. 18. The testimony of Elma Moore is further corroborated by the affidavit of Deanna Hartford. 19. Ms. Hartford, who was the Deputy Clerk Supervisor for DOAH during Petitioner’s period of employment, stated that she observed Petitioner arrive to work late, without notice, on several occasions during her OPS employment and during her career service probationary employment. 20. Ms. Hartford stated in her affidavit that around the first week of September 1997 she was asked by Ann Cole to observe Petitioner’s attendance. Ms. Hartford noted that during this period of observation Petitioner arrived to work at’ the following times on the dates as indicated: September 8, 1997, 8:20 a.m.j; September 9, 1997, 8:25 a.m.; September 10, 1997, 8:10 a.m.; and September 17, 1997, 8:20 a.m. 21. Ms. Hartford reported to Ann Cole, Petitioner's supervisor, that Petitioner was frequently late for work. 22. This is consistent with Elma Moore’s testimony that Petitioner, at least two to three days per week, was customarily late for work in excess of ten minutes. 23. Petitioner attempted to contradict the testimony of Elma Moore and the affidavit of Deanna Hartford by testifying that she was told by her supervisor, Ann Cole, to make up her tardy time thereby excusing the fact that she was habitually late for work. 24. Ms. Cole stated the importance of proofreaders being punctual to work, and testified that she and Petitioner had at least two meetings where they discussed Petitioner’s tardiness issue prior to her termination. 25. Ms. Cole stated that she spoke with Petitioner about her timesheet and attendance, and the need for Petitioner to tell her when she is late and how she plans to make up her time. 26. Ms. Cole stated that Petitioner’s communication regarding her promptness and plans to make up time never improved. 27. Ms. Hartford stated that she never observed Petitioner disclose her late arrivals to her supervisor, Ms. Cole. On more than one occasion, Ms. Hartford stated, she reported Petitioner’s tardiness to Ms. Cole, who indicated she was unaware of the late arrival. PHONE USE 28. Unlike some of the other jobs in the clerk's office, the proofreader’s duties and responsibilities did not require the utilization of the telephone. 29. Elma Moore stated that during the time that she shared an office with Petitioner, her desk was in close proximity to Petitioner’s desk and that on several occasions she noticed that Petitioner was talking on the telephone. 30. Elma Moore stated that Petitioner was using the telephone for personal calls frequently. 31. Elma Moore further testified that she knew that the responsibilities and duties of the proofreader did not require Petitioner to use the telephone. 32. Deanna Hartford noted in her affidavit that she personally observed that Petitioner was always on the phone. 33. Ms. Hartford also noted in her affidavit that other employees at the Clerk’s office had complained to her about Petitioner’s excessive use of the telephone. 34. Ms. Hartford advised her supervisor Ann Cole about Petitioner’s excessive phone use. 35. In response to the complaint about Petitioner's excessive use of the telephone, Ms. Cole contacted DOAH’s information services department and requested that they audit all of the telephone extensions for the clerk’s office. 36. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 85.5 outgoing phone calls. 37. Petitioner, however, had 294 outgoing calls attributed to her extension during this period. Dr. Carol Ripandelli, the other proofreader, had 79 outgoing calls attributed to her extension during this same period. 38. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 1.6 outgoing calls that exceeded ten minutes in duration. 39. The number of outgoing calls exceeding ten minutes in duration that were attributed to Petitioner's extension during the audit period totaled thirteen. Dr. Carol Ripandelli had only two outgoing calls that exceeded ten minutes in duration attributed to her extension during the audit period. 40. Petitioner denied having made the number of phone calls attributed to her extension. Petitioner also charged that it was possible that other employees could have made outgoing calls from the phone on Petitioner’s desk. 41. Elma Moore testified that it was neither the practice nor the custom of employees of the clerk’s office to regularly use the telephone of other employees. INITIATIVE 42. Deanna Hartford, in her affidavit, noted that in July of 1997 she was asked by Ann Cole to provide additional training to the proofreaders. 43. Petitioner and the other proofreader were instructed to inform Ms. Hartford when they were caught up with their work so that the additional training could be provided. 44. Dr. Carol Rappendeli, the OPS proofreader, sought and received additional training in several areas including filing, assisting in the quarterly file purge and destruction, outgoing docketing procedures, and maintaining the Florida Administrative Code supplements. 45. Petitioner never sought additional training as requested. 46. Ann Cole observed Petitioner nodding off on at least three occasions while in an important proofreading standards meeting. 47. Ms. Cole observed Petitioner cutting coupons at her desk the morning of September 22, 1997, during business hours. 10 48. Elma Moore also testified to the fact that Petitioner, during business hours would frequently work on a personal book when she wasn’t proofreading. DISRUPTIVE AND RUDE BEHAVIOR 49. Ms. Cole testified that along with the attendance problems and telephone usage, Petitioner also had attitude problems. 50. On two occasions, Petitioner felt the need to apologize for rude comments made to her supervisor, Ms. Cole. 51. Ms. Cole observed rude behavior by Petitioner directed toward Dr. Ripandelli when they were discussing proofreading on a particular order. 52. Ms. Cole stated that when Petitioner gets in one of her moods, teamwork between Petitioner and Dr. Ripandelli is ineffective. 53. Ms. Cole testified that she had to speak with Petitioner about her radio and that it was so loud it caused a disturbance in the break room. 54. Dr. Ripandelli testified that Petitioner’s radio was so loud that she bought herself headphones in order to drown out Petitioner’s radio. i 55. In contrast, Ms. Cole testified that Dr. Ripandelli gets along with all the judges and that Dr. Ripandelli interacts fine with her. TERMINATION 56. Ms. Hartford stated that Petitioner never discussed with her any need to accommodate her for a disability or for her religion. 57. Ms. Hartford further stated that Petitioner never mentioned that she was being discriminated against for any reason. Ms. Hartford never observed Petitioner walk with a limp, or have sores or bandages on her legs. 58. Petitioner was terminated on September 30, 1997, due to her chronic tardiness, excessive use of the telephone, and her general failure to demonstrate initiative.
Conclusions Petitioner: Ms. Audrey Randolph, Pro Se 2644 Edgewood Avenue, West Jacksonville, FL 32209-2431 904-713-9913 For Respondent: Mr. Linzie F. Bogan, Esquire Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 850-414-3300 ext. 4650
Recommendation 29 In the present case, Respondent showed a legitimate reason for discharging Petitioner. Petitioner failed to establish a prima facie case of discrimination based upon her race, religion, disability or marital status. Petitioner also failed to demonstrate that Respondent discriminated against her in retaliation for Petitioner engaging in an activity that was protected by Section 760.10(7), Florida Statutes. 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 4A day of Vabir ; 2003, in Tallahassee, Leon County, kative Law Judge sd Way, Bin A-0 32398-1703 Filed with the clerk of the Florida Commission of Human Relations this 2" day of December 2003. 30 COPIES FURNISHED: Ms. Audrey Randolph 2644 Edgewood Avenue, West Jacksonville, FL 32209 Mr. Linzie F. Bogan, Esq. Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 Harry Hooper Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Secretary of Commission Mike Hanson Room 1801, The Capitol Tallahassee, Florida 32399-0001
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times material to this proceeding; Respondent was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission (Commission). Respondent was issued certificate number 99-002310 by the Commission on October 27, 1978. On January 5, 1983, Respondent, then the duly elected Sheriff of Flagler County, Florida, was suspended from the Office of Sheriff of Flagler County, Florida, by Executive Order 83-1 issued by Bob Graham Governor of the State of Florida (Governor). The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offenses of misfeasance, malfeasance neglect of duty and/or incompetence. On March 23, 1983, Executive Order 83-1 was amended by Executive Order 83-40 enlarging the grounds upon which the suspension was initially based and continued Respondent's suspension from office as Sheriff of Flagler County, Florida. The Executive Order alleged that Respondent had failed to comply with his oath of office as Sheriff of Flagler County, Florida, and had committed acts which constituted the offense of misfeasance, malfeasance, neglect of duty, incompetence and/or commission of a felony. During May 1983, a hearing upon the allegations of Executive Order 83-1 and 83-40 was conducted by Special Master D. Stephens Kahn (Special Master) appointed by the Senate President on January 13, 1983. The Respondent was present and represented by counsel at the hearing. On June 1, 1983, the Report and Recommendation of Special Master was filed with the Florida Senate (Senate) setting forth the Special Master's findings of fact (findings) and sustained nine (9) out of twelve (12) charges or subcharges brought by the Governor. Based on those findings, the Special Master recommended, among other things, that Respondent be removed from the Office of Sheriff of Flagler County, Florida. On June 2, 1983, the Report and Recommendation of the Special Master was received and approved by the Senate. On the same day the Senate voted to remove the Respondent from the Office of Sheriff of Flagler County, Florida. The Senate's Report and Order was filed on June 3, 1983. Other than the findings of the Special Master, there was no evidence presented at the hearing to show that Respondent had committed the acts alleged by the Governor in his Executive Order of suspension or those acts which formed the basis for the Senate's action in removing Respondent from office.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations as charged in the Second Amended Administrative Complaint and that the Second Amended Administrative Complaint be DISMISSED. Respectfully submitted and entered this 17th day of July 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 17th day of July 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0013 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact submitted by the Petitioner Covered in the preliminary material. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. The first (1st) two (2) sentences of subparagraph 1 adopted in Finding of Fact 4. The third (3rd) sentence of subparagraph 1 rejected as immaterial. The second (2nd) and third (3rd) subparagraphs adopted in Finding of Fact 5. A Subparagraphs 4(a-i) are rejected as hearsay uncorroborated by any substantial competent evidence that has no probative value and alone are insufficient to establish a finding. Adopted in Finding of Fact 5 but modified. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Rulings on Proposed Findings of Fact Submitted by the Respondent 1-8, 11 and 12. Rejected as legal argument. 9 and 10. Rejected as immaterial and irrelevant. COPIES FURNISHED: Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl O. McLaughlin Criminal Justice Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daniel H. Bennett Post Office Box 19493 Bunnell, Florida 32010
