The Issue The issue is whether Petitioner's application for certification as a minority business enterprise should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this licensing dispute, Respondent, South Florida Water Management District (District), has proposed to deny an application of Petitioner, Everglades Surveying Joint Venture (Everglades), for certification as a minority business enterprise (MBE) under the District's Supplier Diversity & Outreach Program (Program). If the application is approved, Petitioner would be listed on the District's contract solicitation and vendor lists as a minority contractor. In its proposed agency action, as later amended, the District contends that the application should be denied because: the minority owner fails to meet the criteria in Rule 40E-7.653(5) and (6), Florida Administrative Code; the documents provided by Petitioner "do not support that the day- to-day operations are controlled by the minority applicant, nor is there evidence that the minority applicant possesses the authority to direct the management and policy of the business"; the minority business does not meet the size standard of a small business as required by Section 288.703, Florida Statutes; and the minority owner does not possess the necessary license to qualify the firm in its area of specialty as required by Rule 40E-7.653(5), Florida Administrative Code. In simpler terms, the District has contended that Petitioner's application is deficient in the areas of "management and control, the size standards[,] and the licensure." Petitioner disputes these allegations and contends that it meets all criteria for certification. As to the remaining requirements for certification in Rule 40E-7.653(4), (7), (8), and (9), Florida Administrative Code, the parties have stipulated that all of these criteria have been satisfied. The Minority Owner's Corporate Structure Ray J. Berryman, an Asian-Pacific American, is the minority owner seeking certification. Mr. Berryman is a professional engineer who has been in the engineering and surveying business for almost forty years. After working with other engineering firms for over a decade, in 1975 he started his own firm in California. At that time, the firm was known as Berryman & Stevenson, but its name was later changed to BSI Consultants, and then to Berryman & Henigar, Inc. The firm provides civil engineering and surveying services to public agencies on the West Coast. In 1994, Mr. Berryman acquired a Florida corporation known as Henigar & Ray, Inc., which was engaged in the business of providing surveying and civil engineering services. Although the company initially operated under the name of Henigar & Ray, Inc., doing business as Berryman & Henigar, in 1998 Mr. Berryman changed its name to Berryman & Henigar, Inc. (BHI), the same name as the California corporation. Mr. Berryman serves as director, chief executive officer, and operating manager of BHI. The firm's headquarters are in Orlando, and it has branch offices in Jacksonville, Tallahassee, Tampa, Ocala, and West Palm Beach. In March 1994, Mr. Berryman formed a Nevada holding company known as Berryman & Henigar Enterprises (BHE), in which he owns 77.5 percent of the stock and serves as chairman of the board and chief executive officer. BHE owns all of the stock in Berryman & Henigar, Inc. (the California corporation); Berryman & Henigar, Inc. (the Florida corporation); Employment Systems, Inc., a "staff easing company" incorporated in California in 1992; BHE Technical Staffing, a Nevada corporation; and Therapy Network, a Nevada corporation. However, BHE Technical Staffing and Therapy Network are no longer in business. Consolidated financial statements are issued for all of the companies. BHE was formed for the purpose of serving as a vehicle "to allow a relationship to exist" between the Florida and California corporations. After BHE was formed, Mr. Berryman changed the name of both the Florida and California firms (Henigar & Ray, Inc., and BSI Consultants, respectively) to Berryman & Henigar, Inc., one a Florida corporation, the other a California corporation, so that he could have "the strength, if you will, of both companies with a similar name." Except for a few administrative personnel, BHE has no other employees and it performs no professional services. Besides being the owner of BHE and the wholly-owned subsidiaries named above, Mr. Berryman also is a majority owner of at least one affiliated company known as GovPartner, a California firm providing "e-Government solutions for cities, courts, and governmental agencies." Whether Mr. Berryman controls other affiliated companies was not disclosed at hearing. Other MBE Certifications In June 1996, or before the District had a rule on MBE certifications, Henigar & Ray, Inc., doing business as Berryman & Henigar, applied with the District for certification as a MBE to provide civil engineering, surveying, environmental sciences, and construction management services. The application was approved, and a one-year certification was issued. The District then changed from a one-year to a three-year certification, and after an application for recertification was filed in 1997, Henigar & Ray, Inc., was reissued a certification that expired in 2000. By then, the District had adopted a rule which required, among other things, that the minority owner have a professional license in all fields in which the certification was granted. Through what the District calls an "error" or oversight, it failed to note that Mr. Berryman did not hold a professional surveyor's license, and it erroneously continued to certify BHI in the area of surveying. On August 26, 1999, the firm was given "graduated" status, which meant that it was no longer eligible for continued participation in the District's Program as a prime contractor due to the business having a net worth of more than $3 million and/or an average net income of $2 million after federal taxes for the preceding two years. However, the firm could still be counted (as a subcontractor) towards a prime contractor's goal attainment. In November 2000, the firm, then known as BHI, again applied for recertification as a registered vendor. The application was approved on March 1, 2001, for another three-year period, this time in the areas of surveying, civil engineering, and construction management. Whether BHI is still in the graduated status is not known. Besides holding MBE status with the District, BHI has been certified as a MBE with several local governments in Florida, including the City of Tampa, City of Orlando, Tampa Port Authority, and Orange County. Copies of BHI's applications filed with those governmental entities have been made a part of this record. The Joint Venture As an Asian-Pacific American, Mr. Berryman qualifies for minority status. Although not disclosed by the parties, but presumably because BHI has graduated status, and cannot serve as a prime contractor, or because its certification as a MBE in surveying may be taken away, Mr. Berryman desires to become a District MBE through another legal entity and provide surveying services as a prime contractor on the Comprehensive Everglades Restoration Project (CERP) now being undertaken by the District. Before filing his application, Mr. Berryman considered three options: filing as a corporation, a partnership, or a joint venture. He chose a joint venture since it gives the entity "the ability to have control outside of a corporate board." According to Mr. Berryman, even though the joint venture is theoretically controlled by a control board, under the make-up of the venture established here, that board can only represent "what Berryman & Henigar, Inc. commands and requires it to represent." Mr. Berryman also desired to have other members in the joint venture who would "provide a unique geographical location for projects being performed by [CERP]," and thus enhance its "probability of obtaining work through the District as a minority." To this end, Everglades was formed as a joint venture pursuant to a Joint Venture Agreement (Agreement) executed on October 12, 2001. So that Everglades would have a "formidable surveying company that would be able to win work," its members included BHI; GCY, Inc. (GCY), a Florida corporation providing surveying services; Jeffrey C. Cooner and Associates, Inc. (Cooner), a Florida corporation providing surveying services; and Southern Mapping Technology, Inc. (Southern Mapping), a Florida surveying corporation. According to the Agreement, the ownership of the joint venture is as follows: BHI - 51 percent GCY - 16.33 percent Cooner - 16.33 percent Southern Mapping - 16.33 percent Mr. Berryman opted for BHI to have 51 percent ownership in the joint venture so that he would control the entity. At the same time, however, he desired to give the other participants as much ownership as possible without giving up control. The Agreement establishes a Board of Control (Board) which has the responsibility and authority for the conduct and management of Everglades to approve and execute contracts, formulate and determine the policies of Everglades, approve consultants and subcontractor agreements, approve budgets and schedules, determine the allocation of work among members of Everglades, and decide all other matters necessary to its operations. After the joint venture's formation, five individuals were appointed to the Board: Mark A. Stokes and Steve Sharpe, both BHI employees appointed by Mr. Berryman; George C. Young, Jr., of GCY; Jeffrey C. Cooner of Cooner; and James S. Richmond of Southern Mapping. All members of the Board are non-minorities. In response to the District's proposed denial of the application, in May or June 2002, or six or seven months after it was filed, Mr. Berryman assumed a seat on the Board, replacing Mr. Sharpe.1 However, because of a District policy that no amendments to an application will be considered after the application is filed, the District has not taken into account this change in the Board's membership. Petitioner has not challenged the use of that policy. Paragraph 4.3 of the Agreement provides that the Board "shall reach decisions by simple majority vote of total votes cast. BHI shall cast 51 votes; GCY shall cast 16 votes; Cooner shall cast 16 votes; and Southern Mapping shall cast 16 votes." Thus, BHI has ultimate control over all of Everglades' decisions. At the same time, however, there is nothing in the Agreement which says that the Board must consult with Mr. Berryman, and obtain his approval, before a decision is taken. Rule 40E-7.653(5) Criteria Paragraph (5) of the rule requires, among other things, that the applicant establish that the minority owner "possess[es] the authority to control and exercise dominant control over the management and daily operations of the business." The District contends that Mr. Berryman does not exercise such control since he does not sit on the Board, Mr. Stokes and Mr. Sharpe, both non-minorities, are the individuals who actually cast votes on behalf of BHI, and nothing in the Agreement requires Mr. Stokes and Mr. Sharpe to consult with Mr. Berryman before they make a decision. In reality, Mr. Berryman has absolute control over all of the decisions made by Mr. Stokes, who occupies one of the two BHI seats on the Board. This was confirmed by Mr. Stokes at the hearing and was not contradicted. Even if Mr. Sharpe (who has been replaced by Mr. Berryman) were still on the Board, he would be subject to the same constraints. This is because Mr. Berryman has made it clear that he would quickly replace any BHI Board member who did not vote in accordance with his wishes. Since BHI (and Mr. Berryman) effectively controls the joint venture through 51 percent of the Board's voting power, it is found that the minority owner exercises dominant control over the management and daily operations of the joint venture, as contemplated by the rule. Rule 40E-7.653(6) Criteria Subparagraphs (6)(c) and (d) of the rule require that the applicant establish that "the net worth of the business concern, together with its affiliates, does not exceed five (5) million [dollars]," and that it "employs two- hundred (200) or fewer permanent, full-time employees," respectively. In determining the net worth, the same rule provides that the District shall "consider the most recent federal tax returns or annual financial statements for the business." After concerns were raised by the District over BHI's net worth and number of permanent employees, BHI filed a letter with the District on April 2, 2002, indicating that it had 118 full-time employees and a negative net worth of $1,460,176.00. On June 6, 2002, its counsel also filed an affidavit by BHE's Controller, together with consolidated financial reports for the year ending March 29, 2002, reflecting a negative net worth of $1,293,435 for BHE and all of its subsidiaries, including BHI. Counsel also provided an affidavit by the BHE Benefits Coordinator listing 96 full-time BHI employees as of May 17, 2002. In separate documents submitted earlier by the other joint venture participants, the net worth and number of permanent, full-time employees of each of those participants were as follows: GCY - $553,000.00 and 25 employees as of November 30, 2001; Cooner - $300,000.00 and 8 employees as of December 31, 2001; and Southern Mapping - $527,000.00 and 6 employees as of December 31, 2001. While the fiscal years of the participants are not identical, collectively these figures produce a total positive net worth of all Everglades members (including BHE, the parent of BHI) of $86,565.00 and less than 200 full-time employees at or about the date the application was filed. Despite this showing by Everglades that it met the net worth and size thresholds for a MBE, over the past two years BHI has made a number of filings with the District and other governmental entities which caused the District to doubt the veracity of the numbers submitted by Everglades and to ultimately deny the application. For example, in its application for recertification filed with the District in November 2000, BHI reflected that it then had a positive net worth of $1,013,790.00 and 305 full-time employees. In a Statement of Intent to Perform as a MBE Subcontractor dated October 23, 2001, BHI indicated that its net worth was $1,012,979.00 and that it employed 102 permanent employees. Almost identical numbers were shown in other filings made with the District on November 1, 2001, April 18, 2002, May 24, 2002, and May 31, 2002. However, in a Statement of Intent to Perform as a MBE Subcontractor executed by a BHI corporate officer (Mr. Stokes) on June 18, 2002, and filed with the District, the net worth of BHI was shown as $4,106,000.00 and the number of permanent, full-time employees was given as 350. Assuming these latter figures are accurate, Everglades would have a total net worth exceeding $5 million and more than 200 full-time, permanent employees, both of which exceed the thresholds permitted by the rule. In addition, on April 3, 2000, BHI filed certification documents with Orange County reflecting that it had 305 full-time employees and a positive net worth of $123,415.00. Identical figures were reflected in a filing made with the City of Tampa on April 3, 2002. In contrast, in a MBE certification filing made with the City of Orlando on May 20, 2002, which included net worth and number of employees for the latest three-year period, BHI represented that it had 97 employees in the years 2000, 2001, and 2002, and that its net worth for those years was a negative $898,676.00, a negative $1,376,645.00, and a negative $1,586,216.00, respectively. To add to the confusion, in an undated document filed with the City of Tampa, BHI indicated that it had 345 full-time employees and 35 part-time employees. However, in a June 12, 2002, filing with the Tampa Port Authority, BHI indicated that it had 116 full-time employees and a negative net worth of $1,586,216.00. Mr. Berryman conceded that the different filings were "embarrassing" and confusing, and he attributed them to mistakes by careless or untrained in-house personnel. As to the document reflecting a net worth of BHI in excess of $4 million, it was established that a secretary erroneously filled out the document and Mr. Stokes hurriedly signed it without verifying the numbers. Mr. Berryman also maintained that the numbers submitted by BHI to the District in the April 2, 2002, letter, as supported by the financial reports and affidavits filed on June 6, 2002, are the most accurate reflection of its net worth and number of employees. This assertion is accepted since all of the filings over the years (except the one on June 18, 2002) have consistently indicated that the net worth of BHI is far less than the $5 million threshold. Moreover, the more credible evidence supports a finding that the number of permanent, full-time employees of BHI and the other joint venture participants is less than 200. Based on these considerations, it is found that Everglades meets the net worth and employee thresholds prescribed by the rule. Professional Licensure Requirement Rule 40E-7.653(5), Florida Administrative Code, requires that the minority owner (Mr. Berryman) seeking certification "be the license holder, or the professional license holder" in the specialty for which certification is sought. Here, Everglades seeks to provide surveying services. The application filed with the District identified five BHI individuals who had professional surveying licenses which authorized the work, all non-minorities. Mr. Berryman was not identified as being one of them. The rule itself is clear and unambiguous and requires no interpretation. Since its adoption in late 1996, the District has consistently construed it to mean just what it says -- that in order for a minority owner to be certified, the owner must have a professional license in the area being certified. This interpretation of the rule was not shown to be unreasonable or clearly erroneous. Therefore, because Everglades intends to provide surveying services, Mr. Berryman, as the minority owner, must hold a surveyor's license under Chapter 472, Florida Statutes, in order to qualify as a MBE. While it is true that Mr. Berryman is a registered professional engineer (under Chapter 471, Florida Statutes) in the State of Florida (as well as 3 other states), and he can perform almost all of the surveying services under his engineering license,2 he does not hold a Florida surveyor's license, as required by the rule. While this result may seem unfair and based on highly technical grounds, it is consistent with the plain requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order denying the application of Everglades Surveying Joint Venture for certification as a minority business enterprise. DONE AND ENTERED this 4th day of September, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2002.
The Issue The issue to be resolved in this proceeding is whether Petitioner was terminated from his employment with Respondent because of his race in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Chester R. Cooper, is an African-American male. He was employed by Respondent, Gulf Coast Treatment Center, on May 19, 1998, as a youth care worker at its facility in Fort Walton Beach, Florida (assignment center). Petitioner was terminated on November 5, 1998. During his employment, Petitioner worked the "midnight shift" from 10:00 p.m. to 6:00 a.m. His supervisor was Ollie Rainwater. Respondent operated its facility under a contract with the Florida Department of Juvenile Justice (DJJ). The Fort Walton Beach facility performs behavioral, medical, educational, and psychological assessments and completes a 21-day report to DJJ prior to the assignment of a each youth to a residential commitment facility. The program director of the Center was Mikel Currie. In November 1998, four of the five shift supervisors were African-Americans, and approximately 50 percent of the youth care workers at the Center are African-Americans. Pursuant to the requirements of the DJJ, the Center promulgated and briefed all employees on a Use of Force Policy, which provided in relevant part, that mechanical restraints, such as handcuffs or leg cuffs, may be used upon the youths only to prevent injury or property damage. The policy prohibits the shackling of youths together and the practice of hog-tying. Hog-tying is securing a youth's legs and hands together behind the youth's back. The policy also required that any use of mechanical restraints be reported in writing by the staff member involved within two hours of the incident. All youth care workers are provided with some training in this area. The Employee Conduct Policy expressly prohibits the "shielding" of any employee from the consequences of misconduct and imposes a duty upon all employees to report any misconduct. The language of this policy does not limit these reporting obligations to one's immediate supervisor. Such reports may be made to the program director or any member of the administration. Petitioner was aware of the policy to report misconduct, but believed that he was supposed to report the misconduct to his immediate supervisor, who was the person who was actually perpetrating the misconduct involved in this case. On November 4, 1998, Petitioner was assigned to the Boys' Unit of the Assignment Center. His shift began at 10:00 p.m., on November 4, 1998, and ended at 6:30 a.m., on November 5, 1998. Ollie Rainwater (African-American), shift supervisor, and Jimmy Coleman (African-American), youth care worker, were the only other employees assigned to the Boys' Unit on Petitioner's shift. Jesse Mathews (Caucasian) worked on November 3 and 4, 1998, on the second shift, from 2:00 p.m. to 10:00 p.m. On November 3, 1998, Annette Whittlesay, a youth care worker on the female side of the facility observed Ollie Rainwater and Jesse Mathews, handcuff two youths together. However, she never reported this information to anyone in the administration. The Boys' Unit is comprised of two residential sides, each of which is approximately 75 to 80 feet long. The residential sides form a hallway divided by double doors. When Petitioner arrived at work on November 4, 1998, he observed Quentin Williams and Ricky Sheets handcuffed together. The handcuffing occurred when Petitioner was at the other end of the hall. The doors were closed and Petitioner did not see the actual handcuffing. The youths told Petitioner that Mr. Rainwater, along with Jimmy Coleman, handcuffed them. It took a while for Petitioner to obtain this information because the two youths were fighting each other while cuffed. During this time Petitioner sat down. Petitioner then went to find the key to the cuffs to uncuff the boys. Upon the program director's arrival at the Center, around 5:00 a.m., on November 5, 1998, one of the youths, Quentin Williams, reported to him that he had been handcuffed together with another youth, Ricky Sheets, by Ollie Rainwater and Jimmy Coleman. Quentin Williams reported that one of his wrists and one of his ankles had been shackled to the wrist and the ankle of Ricky Sheets, and that they had fought with each other while shackled together. During this struggle, Quentin Williams had been bitten on his finger by Sheets. Quentin Williams also told Mikel Currie that Petitioner had sat in a chair and laughed at them while they struggled. Mikel Currie sent Quentin Williams to the nurse for treatment of his finger and immediately commenced an investigation of the matter. Mikel Currie determined that no report of any use of mechanical restraints had been made by anyone from the night shift. Mikel Currie directed each of the youths who had been shackled or had witnessed the shackling or hog-tying to prepare a written statement in their own words. In order to avoid any collusion, the youths were separated from each other as they prepared their written statements. After the youths completed their written statements, each one was interviewed separately by Mikel Currie and Keith Williams (African-American), the first shift supervisor. Quentin Williams told Mikel Currie and Keith Williams that he had been shackled to Ricky Sheets by Ollie Rainwater and Jimmy Coleman on two consecutive nights. He also told them that "Mr. Cooper was sitting in a chair laughing" while he and Sheets were fighting. The youth did not state that any other employee was involved in the incident. Ricky Sheets' report was consistent with that of Quentin Williams. He identified Ollie Rainwater and Jimmy Coleman as the two staff members who had shackled him to Quentin Williams and did not state that any other employee was involved in the shackling. Youth, Frederick Alls, confirmed that Jimmy Coleman and Ollie Rainwater had shackled Quentin Williams and Ricky Sheets together on two nights and that Ollie Rainwater had hog- tied Alls with a set of leg cuffs earlier that morning. Alls did not state that any other employee was involved in the shackling or hog-tying. Youth, Brandon Mason, told Mikel Currie and Quentin Williams that two youths had been shackled together by Ollie Rainwater and Jimmy Coleman. He also told Mikel Currie and Keith Williams that Petitioner sat in a chair watching while Ollie Rainwater and Jimmy Coleman shackled Quentin Williams and Ricky Sheets together. Mason identified Ollie Rainwater, Jimmy Coleman, and Petitioner as the only employees involved in the shackling incidents. Two other youths, Edward Roberson and John Croshat, were interviewed and identified Ollie Rainwater and Jimmy Coleman as the staff members who shackled the two youths together. During the investigation, none of the six youths who were interviewed ever told Mikel Currie or Keith Williams that Jessie Mathews, a white youth care worker assigned to the evening shift (2:00 p.m. to 10:00 p.m.) had participated in any mechanical restraints or misconduct of any nature. From the youths, Mikel Currie determined that the shackling incidents occurred around 1:00 a.m., several hours after Jessie Mathews had left the Center. Neither Mikel Currie nor Keith Williams had any reason to suspect Jesse Mathews was involved. Mikel Currie and Keith Williams interviewed Ollie Rainwater on the afternoon of November 5, 1998. Ollie Rainwater admitted his involvement in the shackling and hog-tying incidents of November 4 and 5, 1998. He was terminated for violations of the Center's Use of Force and Employee Conduct policies. Ollie Rainwater never claimed that Jessie Mathews, or any other white employee, had been involved in misconduct. Mikel Currie and Keith Williams also interviewed Jimmy Coleman that same afternoon. Jimmy Coleman admitted that he was involved in the incidents on November 4 and 5, 1998. His role had been to bring the restraints to Ollie Rainwater when he ordered him to do so. Jimmy Coleman was terminated from employment. At hearing Jimmy Coleman testified he told Mikel Currie and Keith Williams that Jesse Mathews had participated in a similar incident the day before. However, the assertion is not credible because Mikel Currie and Keith Williams both testified unequivocally that Jimmy Coleman never mentioned that Jesse Mathews, or any other white employee, had been involved. This testimony is bolstered by the interviews given by the various youths. Mikel Currie attempted to reach Petitioner several times by telephone on November 5, 1998, but was unsuccessful. Keith Williams reached Petitioner by telephone around 1:00 p.m. on that date, as detailed in his contemporaneous memorandum of this conversation. Keith Williams asked Petitioner if he was aware of the shackling incidents and Petitioner denied any knowledge. Petitioner repeated several times that he knew nothing about the incidents. He made that statement because he did not directly see the handcuffing of the youths. He did not reveal his knowledge regarding events after the act of handcuffing. Mikel Currie and Keith Williams did not believe Petitioner's claims that he knew nothing about the incident because the Boys' Unit is a relatively small area (150 feet in length), Ollie Rainwater and Jimmy Coleman admitted their involvement and several of the youths had stated that Petitioner had observed the shackling incident. Accordingly, Mikel Currie and Keith Williams decided to terminate Petitioner for knowingly attempting to mislead Keith Williams during the course of the investigation, failure to report the improper restraint of the youths, and humiliating the youths by laughing at them while they were shackled. Petitioner was terminated on November 7, 1998. Contrary to his testimony, Petitioner never advised Mikel Currie, Keith Williams, or any other member of management that Jessie Mathews had any alleged involvement in the improper use of restraints. In his "Letter of Rebuttal" submitted to the Center four and one-half months after his termination, Petitioner never mentioned any involvement on the part of Jessie Mathews. He did, however, admit in this letter that he did observe the two youths shackled together while they fought. Since Respondent did not know of Jessie Mathews' similar behavior, Jessie Mathews was not terminated or otherwise disqualified. Later, however, Jessie Mathews, the white employee involved in the November 3, 1998, handcuffing was involved in an argument with another shift supervisor. Mr. Mathews used profanity and acted unprofessionally. He was suspended and demoted as a result of his misconduct. During the two months following the termination of Ollie Rainwater, Jeremy Coleman, and Petitioner, a majority of the individuals hired as youth care workers at the Center were minority group members (7 African-Americans and 1 Hispanic out of 15 hirees). Robert Cannon, a white youth care worker, was terminated by Mikel Currie on October 16, 1998, for suspicion of being under the influence of alcohol and refusing to take a drug/alcohol test. Neither Mikel Currie nor Keith Williams had any knowledge of any prior misconduct of this nature on the part of Robert Cannon. Tammy Curry, a white female youth care worker, was subject to an assault by a female youth on December 13, 1998. Mikel Currie placed Tammy Curry on leave while he investigated the incident. Based upon his investigation, Mikel Currie reinstated Tammy Curry because he determined that she had been punched in the face and pulled down the hallway by her hair by a youth in an unprovoked attack. Mikel Currie concluded that she had acted properly in self-defense. The youth was charged with battery and Tammy Curry was reinstated. Additionally, the Inspector General at the Department of Children and Family Services conducted its own investigation and cleared Tammy Curry of any wrongdoing. The Robert Canon and Tammy Curry incidents are not similar to Petitioner's circumstances. Respondent, including the unit presently known as the Okaloosa Youth Academy, actively pursues a policy of affirmative action designed to recruit minorities. As of the spring of 2000, the Center employed 138 individuals, the majority of whom (72 employees ) were African-American. After Petitioner's termination from the Center, Petitioner sought employment to replace the income he lost from this employment. On February 21, 2000, Petitioner began working for Correctional Services Corporation as an on-call youth worker. His earnings through the date of the hearing are $8,013.56. He earns $8.30 per hour. He averages approximately 24 hours per week.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 28th day of February, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501-3308 Kevin L. O'Dea, Esquire McGlinchey Stafford 643 Magazine Street New Orleans, Louisiana 70130 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner has proved just cause for the termination of Respondent's employment as a teacher.
Findings Of Fact Respondent has taught at Booker T. Washington High School for five years and has taught in Petitioner's school system for 26 years. He has been a fulltime industrial arts teacher since 1988. Prior to coming to Booker T. Washington High School, Respondent taught at Miami Edison High School. Respondent has never previously been disciplined during his long career as a teacher. Article XXI, Section 1.B.1.a of the contract between Petitioner and United Teachers of Dade, which was in effect from 2003-06, authorizes Petitioner to suspend or dismiss any member of instructional staff for "charges . . . based upon Florida Statutes." During the 2005-06 school year, Respondent's duties included classroom instruction, teacher education, and faculty administration. His instructional duties included teaching students computer skills in a computer lab. His administrative duties consisted of serving as the department head of the vocational education program at Booker T. Washington High School. While at Miami Edison High School, Respondent had taught Corey Wittey, who was then a student at the school. Respondent had known Mr. Wittey since he had been in ninth grade when he was 15 or 16 years old. Based on a recent, chance encounter, while Mr. Wittey was moving furniture or equipment into Booker T. Washington High School, possibly while students were not present, Respondent had regained the acquaintance of Mr. Wittey, who was now in his early 30s. In speaking with Mr. Wittey, Respondent learned that he had acquired a certificate of proficiency in computers, but he also learned of a life of unrealized goals. Respondent seemed ambivalent about whether he also learned of Mr. Wittey's criminal problems, but he did. Specifically, Respondent learned that Mr. Wittey had been arrested and was on probation for having sex with a minor. At one point, probably after Mr. Wittey had started working for Respondent, Respondent even bailed Mr. Wittey out of jail. (It is possible that this was in connection with the incident described below.) Early in the 2005-06 school year, Respondent decided that he could use some help in discharging his responsibilities at school, and he knew that Mr. Wittey could use some help too. Respondent offered to pay Mr. Wittey if he would come to Respondent's office, which is adjacent to his classroom, and perform certain tasks, such as downloading software patches and updates onto Mr. Wittey's computers and performing certain nondiscretionary grading tasks. Respondent and Mr. Wittey worked out a fairly flexible arrangement under which Mr. Wittey could come to Respondent's classrooms and perform the work that Respondent assigned him. Mr. Wittey came to Respondent's classrooms on Wednesdays and sometimes Fridays on at least 15 occasions. During those visits, Mr. Wittey did not have contact with Respondent's students, but, about one-fifth of the time, worked on computers in Respondent's office while Respondent was not present. At no time when visiting the school did Mr. Wittey present himself to the security guard in order to obtain a visitor's pass. Respondent was aware of the procedure at Booker T. Washington High School, which required visitors to sign in, produce identification, and obtain a visitor's badge. Respondent claims that he told Mr. Wittey to inform security that Mr. Wittey was in the building, but he did not. The absence of a badge clearly revealed to Respondent repeatedly that Mr. Wittey never underwent the security procedure imposed on school visitors. In fact, Mr. Wittey was properly classified as a volunteer, as he was a nonemployee of Petitioner performing services at the school on a regular basis and Petitioner was not paying him. Volunteers must be screened and must register, but Mr. Wittey never was screened and never registered. Nor had Respondent even informed the school principal of Mr. Wittey's repeated presence in the building. In September 2005, agents of the Federal Bureau of Investigation raided Respondent's office and classroom and seized computers in connection with an investigation involving a missing female from St. Lucie County. Mr. Wittey was arrested in connection with this matter and his failure to register as a sex offender. The agents also questioned Respondent in connection with their investigation. The Administrative Law Judge excluded hearsay evidence concerning what was found on the seized computers. It is also unnecessary to address the issue concerning whether Respondent's employment of Mr. Wittey may itself serve as a ground for termination, due to the findings and conclusions below. Petitioner has just cause to terminate an employee who: 1) repeatedly assists a visitor or volunteer in bypassing the security procedures in place at the employee's school and 2) recklessly disregards the security procedures by so assisting a visitor or volunteer who has a criminal history involving sex with a minor. After usurping security responsibilities that were not assigned to him, Respondent now tries to shield himself from accountability by claiming, after the FBI raid on the school, that he did not know aspects of Mr. Wittey's history and that he acted in good faith to help Mr. Wittey. The former claim is probably untrue, although the latter claim is probably true, but, regardless of the truth of these claims, the whole point of these school security procedures is to vest in security professionals, not individual teachers, the responsibility for regulating the presence of outsiders on the school campus.
Recommendation It is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment contract. DONE AND ENTERED this 6th day of November, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2006.
