The Issue The issue is whether Petitioner is entitled to a permanent Florida Educator's Certificate.
Findings Of Fact Petitioner was born on May 25, 1976. She was educated predominantly in the Tampa Bay area, having attended two years of elementary school, all of middle school, and all of high school in Largo. Petitioner is Hispanic and conversant in Spanish, which is the first language that she learned at home, but her primary language is now English, which she speaks fluently and without accent. Petitioner attended the University of South Florida (USF), from which she graduated on July 1, 1998, with a bachelor of science degree and a 3.3 grade point average. She majored in English education and completed the state-approved teacher education program for English certification for grades 6-12. While attending USF, Petitioner participated in an internship under the supervision of a reading teacher with 11 years' teaching experience. During the internship, which ran from January to April 1998, Petitioner taught language arts and drama to Hillsborough County middle-school students who were predominantly Hispanic. Petitioner's supervising teacher gave her two employment references: the first to the Hillsborough County School District and the second to the Pinellas County School District. In the first reference, which is dated April 5, 1998, the supervising teacher evaluated Petitioner as "excellent" in all categories. The categories are "appearance," "English usage," "cooperation and dependability," "emotional stability," "mature judgment," "leadership," "ability to get along with others," and "ability to work with children in a friendly and understanding way." In her remarks, the teacher stated: "We will be lucky to have her." The teacher enthusiastically recommended that Petitioner be employed as a substitute. In the second reference, which is dated September 18, 1998, the supervising teacher assigned Petitioner the highest score in all categories except "ability to discipline," "professional attitude & growth," and "sympathetic understanding and treatment of students," for which the teacher assigned Petitioner the second highest rating. In response to a question if she know why Petitioner should not work with students, the supervising teacher responded, "Absolutely not." In response to a question if she would employ Petitioner, the supervising teacher stated that she would. Under additional comments, the supervising teacher added: "[Petitioner] motivated students on every level. She has the management skills of a ten year teacher." This case arises out of Petitioner's employment during the summer of 1998 as a residential counselor with the Summer Migrant Institute at the University of South Florida (Migrant Institute). This was Petitioner's first job after college. Her prior employment consisted of working at Walgreens pharmacy, escorting USF teachers and students to ensure their safety while walking the USF campus at night, working in the USF Marriott cafeteria, and serving as a substitute teacher in Hillsborough and Pinellas counties. Her present employment is in customer service at the Home Shopping Network. The Migrant Institute is a six-week program sponsored jointly by USF and the Hillsborough County School District. Each summer, eligible middle- and high-school students from throughout Florida live in USF dormitories and attend remedial academic instruction in USF classrooms. The Migrant Institute employs teachers and residential counselors, among other staff. During the summer of 1998, the teachers, residential counselors, and three administrators in charge of the program all resided in the dormitories with the students. The residential counselors performed a variety of supportive roles, such as serving as liaisons with the parents, advisors to the students, and assistants to the teachers. The administrators assigned female residential counselors to female students and male residential counselors to male students, at about a 1:10 ratio. Residential counselors, but not teachers, were required to eat their meals with the students in the cafeteria. There is some dispute, even among the administrators, as to what the administrators told the residential counselors they could and could not do with the students. The record suggests that the assistant director, in particular, was somewhat ambitious in his description of the guidelines and prohibitions that the administrators gave the residential counselors. Of course, nothing in the record suggests that Petitioner lacked the common sense to recognize that she could not voluntarily have sexual contact with a 13-year-old male student. The record is less developed as to what the Migrant Institute rules required Petitioner to do if a 13-year-old male student kissed her, once or even twice. However, the evidence does not support, and even contradicts, the assertions of the administrators that the rules of the Migrant Institute prohibited any contact whatsoever between staff and students of the opposite sex. The student involved in this case is A. M., who was born on August 21, 1984. He had failed most of his classes during the prior school year. He attended the Migrant Institute at the suggestion of his school counselor, who hoped that he could acquire sufficient skills to earn a promotion to the next grade. A. M. took five or six classes during the six-week summer program and earned grades of Bs, Cs, and Ds in his courses. A. M.'s first four weeks at the Migrant Institute passed without incident. In the fourth week, A. M. met Petitioner. Although she was not his residential counselor, A. M. approached Petitioner one afternoon while walking to the dormitories from his last class. During this initial conversation, Petitioner and A. M. spoke only about baseball. However, later in the fourth week, Petitioner and A. M. spoke about other matters, such as his grades and personal problems that he was having that interfered with his academic performance. A. M. missed his father, who was working in Mexico. During the fourth week, Petitioner asked A. M.'s teacher to release him from class, so that Petitioner and A. M. could talk about his problems and academic performance. One day, during the fourth week, after Petitioner and A. M. had spoken three or four times, Petitioner and A. M. happened to encounter each other in a stairwell in the dormitory. It was late in the afternoon after the recreation period, just before the students were to prepare to eat supper. Someone had directed Petitioner to find another boy. After she had found him, Petitioner was climbing the stairs to return to her room when she met A. M. walking down the stairs. Petitioner and A. M. spoke for about a minute on the stairs. Then, without warning, A. M. kissed Petitioner briefly on the lips. Completely surprised by A. M.'s behavior, Petitioner pushed him hard, saying, "What the fuck are you doing?" Obviously unhurt by the push and unoffended by the language, A. M. replied that Petitioner had nice lips. She ignored A. M.'s impertinent comment and warned him never again to misbehave in this manner. A. M. apologized and said that he knew he should not do that. Petitioner added that she did not want to get into trouble or be fired from the program, and A. M. said that he understood. Due to her concerns that she would get into trouble for getting kissed and pushing and swearing at a student, Petitioner decided not to report the incident to the administrators. The next time Petitioner saw A. M. neither of them said anything about the incident, and their relationship returned to how it had been prior to the incident. On one other occasion, Petitioner removed A. M. from class to talk to him. On one occasion, Petitioner sat next to A. M. in the cafeteria and ate lunch with him. Two or three days after the stairwell kissing incident, Petitioner encountered A. M., again late in the afternoon. After having walked her students back to their dormitory following class, Petitioner returned to the classroom building to tutor some boys in a study hall. Knowing Petitioner's teaching background, someone had asked her to tutor the boys because, the prior day, one of the boys' tutors had left the program to return to Mexico. A. M. was among the boys in the study hall. For about 45 minutes, Petitioner tutored the boys, but A. M. was disruptive for the entire time, slamming books and throwing paper. Petitioner told him to stop being disruptive and do his work, but he ignored her. Unable to summon assistance, because she would be leaving the study hall unsupervised, Petitioner tried to deal as best she could with A. M., who was a reasonably large, well developed boy. At the end of the study hall, Petitioner dismissed the other students for dinner, but told A. M. to remain so she could speak to him. Petitioner told A. M. that she did not appreciate his behavior and that other students had a right to learn. Petitioner and A. M. were both sitting, facing each other. Suddenly, A. M. leaned over and kissed Petitioner briefly again. Petitioner was upset, although not angry. She said that they had spoken about this before, and he needed to consider the position in which his behavior left both of them. A. M. again agreed not to attempt this behavior. Again, Petitioner did not report the incident due to concerns that she would get into trouble. It is difficult to describe Petitioner's characterization of these two incidents. At the hearing, Petitioner seemed somewhat shy and even intimidated. In her dealing with the authority represented by the persons at the hearing, Petitioner seemed a very young 24 years old and presumably was an even younger 23 years old during the summer of 1998, as she credibly claims to have felt uncomfortable with the three administrators. On balance, the most compelling view of all of the evidence is that Petitioner felt that A. M.'s behavior was a relatively minor annoyance--a product of an otherwise-harmless crush that he had on her and, if revealed, a potential source of trouble for her with her supervisors. Regardless of her handling of A. M.'s advances, Petitioner unwisely did not discourage his flirting, as she admits even to have engaged in some undescribed flirting herself with A. M., "explaining" that he had told her that he was 16 years old. On Sunday, July 19, the director of the Migrant Institute summoned Petitioner to his room to discuss with him, the assistant director, and the residential counselor supervisor reports that they had heard that Petitioner had an improper relationship with A. M. The director, Patrick Doone, was a USF employee. For the most part, he delegated responsibility for the residential counselors to the assistant director, Sundy Chazares, an assistant principal of a high school within the Hillsborough County School District, and the residential counselor supervisor, Rosie Mendez, also a USF employee, who had been a residential counselor for the preceding seven years before becoming the residential supervisor in the summer of 1998. The meeting consisted of two parts. In the first part, which lasted 15 minutes, Mr. Doone began by asking Petitioner if there was "anything going on" between her and a student, possibly naming A. M. Petitioner said that there was not. Mr. Chazares then took over, saying that he knew that A. M. and Petitioner had kissed. Petitioner admitted that she and A. M. had kissed, but added, "it's not the way you think it is." The meeting quickly became confrontational, with Mr. Chazares and Ms. Mendez loudly making accusations, rather than asking questions and giving Petitioner a chance to explain. Illustrative of the level of discourse was Ms. Mendez's rhetorical question, "So you like 14- year-old boys?" Petitioner began to cry and did not say anything else. Mr. Doone then told Petitioner to return to her room, which she did. After a brief discussion among the three administrators, they decided to terminate Petitioner from the Migrant Institute program that night. Mr. Doone summoned Petitioner from her room and told her, "Pack up your bags and leave the premises as soon as possible." After packing her clothes and saying goodbye to the girls whom she had supervised, Petitioner left the USF campus that evening and did not return, nor did she have further contact with A. M. As a result of her termination from the Migrant Institute program, Petitioner lost the job that she had been given to start teaching fulltime in the Hillsborough County School District in the fall of 1998. On September 14, 1998, Petitioner completed an application for a teaching position with the Pinellas County School District. Submitted the next day, the application discloses the employment with the Migrant Institute. Petitioner answered "no" to the question, "Have you ever been suspended without pay, or dismissed from employment or resigned while an investigation was in progress for possible disciplinary action?" The declaration above Petitioner's signature states in part: "I declare that the answers given by me to the foregoing questions and statements are true and correct without pertinent omissions." At the time that she responded to this question, Petitioner was represented by counsel concerning the incidents of the summer of 1998. However, the Administrative Law Judge excluded evidence of reliance upon advice of counsel. Petitioner testified that she felt that a confidentiality directive issued by a Hillsborough County School District investigator precluded the disclosure of her termination, but this explanation is inadequate. If Petitioner had developed evidence of reliance upon advice of counsel, the evidence might have been mitigative, but not entirely exculpatory because such reliance must be justifiable. The application squarely asked whether the applicant had ever been terminated, and Petitioner failed to answer the question. No legal advice can overcome these simple facts. The incidents during the summer of 1998 do not constitute gross immorality or moral turpitude. These incidents do not constitute personal conduct that seriously reduces Petitioner's effectiveness as an employee of the school board. These incidents do not constitute a violation of any of the rules cited in the proposed recommended order of Respondent. Petitioner did not kiss A. M., but was kissed by him. Petitioner mishandled the misbehavior of A. M. by not reporting it to one of the administrators, at least by the second occasion, although it appears likely that Petitioner justifiably feared that she might lose her job, even if she had reported the misbehavior after the first incident. In any event, Petitioner clearly did not enter into a sexual relationship with a 13-year-old student. The omission of the termination from the Pinellas County School District application was material and dishonest. By answering the question in the negative, Petitioner made a fraudulent nondisclosure of information that is crucial to the hiring decision that any school district must make. Lying on this application denied Petitioner's prospective employer of the right that it has to learn of material facts concerning job applicants, weigh this information, and then arrive at an informed employment decision.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a Florida Educator's Certificate. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. 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 26th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 B. Edwin Johnson Attorney at Law 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 33756 J. David Holder Law Offices of J. David Holder, P.A. Post Office Box 489 DeFuniak Springs, Florida 32435
The Issue The issue in this case is whether Petitioner has just cause to terminate the employment of Respondent.
Findings Of Fact Mr. Wheeler was employed as a teacher with Lee County School District (Lee County) from 1989 to May 6, 2004. From 1994 to 2003, Mr. Wheeler taught driver education at Lehigh Senior High School (Lehigh). Mr. Wheeler taught health at Lehigh during the 2003-2004 school year. In addition to teaching at Lehigh during 2000 to 2004, Mr. Wheeler owned a driver training school and traffic school. When Mr. Wheeler taught driver education at Lehigh, he was authorized by the Department of Highway Safety and Motor Vehicles (DHSMV) to be a third-party tester. As a third-party tester, Mr. Wheeler was allowed to test secondary school students on their knowledge of road rules and road signs and their road skills. Mr. Wheeler was authorized to issue Driver Education Licensing Assistance Program (DELAP) waivers to his high school students who passed the tests and were applying for a driver license so that they could bypass the driver license tests conducted by the DHSMV. The DELAP waivers had to be signed by an authorized representative of Lehigh. Mr. Wheeler misused his authorization as a third-party tester and granted DELAP waivers to students in his private driving school, who were not high school students. Sometime in the summer of 2003, Mr. Wheeler became the subject of a criminal investigation concerning the issuance of DELAP waivers to students through his employment at Lehigh to students in his private driving school. On August 6, 2003, the DHSMV received a complaint against Mr. Wheeler concerning his issuance of a DELAP waiver to a person who was not a high school student. On the same date, the DHSMV stopped accepting any DELAP waivers issued by Mr. Wheeler. On August 29, 2003, the Department of Education (DOE) notified Mr. Wheeler that a complaint had been filed against him, alleging that he had engaged in inappropriate conduct. On January 22, 2004, Mr. Wheeler was arrested on charges of driver license fraud. On April 16, 2004, a No Information Notice was filed by the State Attorney’s Office, advising the Clerk of the Court of the Twentieth Judicial Circuit that the State Attorney’s Office was declining to prosecute Mr. Wheeler. No further criminal actions were taken against Mr. Wheeler based on the issuance of DELAP waivers. By letter dated February 11, 2004, the DHSMV advised Mr. Wheeler that his certification as a commercial driving school instructor had been cancelled. In early 2004, Lee County began investigating Mr. Wheeler for possible disciplinary action regarding his issuance of DELAP waivers. By letter dated March 30, 2004, Lee County advised Mr. Wheeler that probable cause was found to discipline him and that a recommendation would be made to the Lee County superintendent of schools to terminate Mr. Wheeler’s employment. Mr. Wheeler resigned from his employment with Lee County effective May 6, 2004, citing that the reason for his resignation was personal reasons. Mr. Wheeler’s resignation was accepted by Lee County on the condition “that should [Mr. Wheeler] apply at a later time for employment with the District, the District in its sole and exclusive discretion, may refuse such application and/or deny him employment should it believe [Mr. Wheeler] has not been sufficiently rehabilitated in relation to the issues raised in the investigation which preceded his resignation.” Mr. Wheeler agreed to the condition imposed by Lee County. On May 11, 2004, Mr. Wheeler submitted an on-line application to the School Board for employment as an instructor. On his application he stated that he had 16 years of teaching experience. However, he listed his employment at Lehigh as commencing in 1994 and ending in 2000; his employment at Gulf Middle School as commencing in 1992 and ending in 1993; and his employment at Riverdale High School as commencing in 1989 and ending in 1992. The employment dates listed for these three schools totaled 11 years. Mr. Wheeler also listed that he had been employed from December 2000 to February 2004 as the owner- instructor of a private driving school. On his application, Mr. Wheeler listed the reason for terminating his employment with Lee County as personal. Although this reason is technically correct, Mr. Wheeler should have disclosed the circumstances under which he resigned, meaning that he should have disclosed that Lee County intended to discipline him and that he reached a settlement agreement in which he resigned for personal reasons. Mr. Wheeler listed Brian Botts, who was an assistant principal at Lehigh, as a reference. Although Mr. Botts completed a reference form, nothing on the form eluded to the problems that Mr. Wheeler had when he taught at Lee County. Mr. Wheeler submitted a resume to the School Board as part of his application package. The resume correctly listed his employment dates with Lee County and correctly listed his employment with Lehigh as commencing in 1994 and ending in 2004. In addition, Mr. Wheeler’s resume listed a year of employment at Temple Christian School in Connersville, Indiana. The number of years of teaching experience listed on the resume totaled 16 years as he had stated on his on-line application. On August 25, 2004, the School Board received a Verification of Teaching/Experience from Lee County, showing that Mr. Wheeler had been continuously employed by Lee County from 1989 to 2004. Mr. Wheeler was hired by the School Board as a substitute teacher effective August 18, 2004. Although Mr. Wheeler incorrectly listed the dates of employment at Lehigh on his on-line application, such incorrect listing was not intentional based on the evidence as a whole, particularly the submission of the resume as part of the application package, the listing of Brian Botts as a reference, and the statement on the on-line application that correctly showed the number of years Mr. Wheeler had been employed as a teacher. The School Board was not duped concerning the number of years that Mr. Wheeler had taught at Lehigh because the School Board had received an employment verification form from Lee County, which accurately showed the number of years that Mr. Wheeler had worked as a teacher at Lehigh. Although Mr. Wheeler did not intend to deceive the School Board about the number of years that he worked for Lee County, he should have at least informed the School Board of the circumstances surrounding his resignation from Lee County. Such information had a direct bearing on his qualifications for teaching and should have been disclosed. For the 2004-2005 school year, Mr. Wheeler worked for the School Board as a substitute teacher. Most of his teaching during this period was done at Immokalee High School (Immokalee). Mr. Manny Touron was the principal at Immokalee during the time Mr. Wheeler worked as a substitute teacher. Ms. Troy Kirkland, an assistant principal at Immokalee, was familiar with Mr. Wheeler’s work while he was substituting. By letter dated April 1, 2005, DOE notified Mr. Wheeler that a complaint had been filed with DOE, alleging that Mr. Wheeler had engaged in inappropriate conduct. DOE further advised Mr. Wheeler that an investigation was being conducted based on the allegations. In the summer of 2005, a full-time teaching position came open at Immokalee for a health teacher. Mr. Touron recommended Mr. Wheeler for the position. Mr. Touron completed a Recommendation/Personnel Action Form, indicating that he had contacted two references concerning Mr. Wheeler. One of the references was Ms. Kirkland. The other reference was Ms. Darlene Weber, who had worked with Mr. Wheeler at Lehigh. At the time Mr. Touron recommended Mr. Wheeler for the health teacher position, he was aware Mr. Wheeler had been arrested for fraud at one time. On July 18, 2004, Mr. Touron sent an e-mail to an investigator with the School Board’s Human Resources Department. The e-mail stated: Peter, I just sent a recommendation for Russell Wheeler for the position of Health. He has been subbing for us all year and has done a great job. He taught at Riverdale and Lehigh. At Lehigh there was an issue that he was arrested for fraud. Something to do with drivers [sic] licenses. I need to know if he has been cleared from that charge. I assume that he has because of his sub status. Please let me know. Two days later Mr. Touron received a reply from the investigator, stating that Mr. Wheeler had been cleared of the criminal charges. On July 22, 2005, Mr. Wheeler completed a Criminal Record form in which he omitted to say whether he had ever had a criminal record expunged. At some time, Mr. Wheeler did have his arrest records expunged, but he does not know when that was done. Mr. Wheeler was hired on an annual contract basis, effective August 3, 2005, as a full-time health teacher at Immokalee. In November 2005, a full-time position for a driving education teacher position came open at Immokalee. Mr. Touron recommended Mr. Wheeler for the position, and Mr. Wheeler’s assignment was changed from health teacher to driver education teacher. Ms. Debra Ogden, who was the coordinator of the driver education program, gave Mr. Wheeler an Application for Driver Education Teacher Certification as a Third Party Tester to complete and submit.1 Mr. Wheeler did not advise Ms. Ogden that his certification as a third-party tester had been cancelled when she asked him to complete and submit the application form. Mr. Wheeler submitted the application certification as a third- party tester, and the application was denied in December 2005. Ms. Ogden learned of the denial in January 2006. Ms. Ogden asked Mr. Wheeler about the denial of his application, and he explained that he had lost his certification as a third-party tester and that his certification as a commercial driving school instructor had been cancelled. He told her that he had had some problems in Lee County concerning DELAP waivers, but that he was trying to take care of the problem and was working on getting recertified as a third-party tester. Ms. Ogden contacted a driver education teacher at another school in Collier County and arranged to have that teacher do the third-party testing for the students at Immokalee. She advised Mr. Touron that she had arranged to have another teacher do the third-party testing for Mr. Wheeler. On April 3, 2006, the commissioner of education filed a six-count Administrative Complaint against Mr. Wheeler, alleging that Mr. Wheeler “engaged in inappropriate and unprofessional conduct in that he fraudulently issued waivers to individuals who were not students at Lehigh Senior High School but in fact were customers of his private business” and that he “resigned in lieu of termination.” The Administrative Complaint charged that Mr. Wheeler violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(4)(c), 6B- 1.006(5)(a), and 6B-1.006(5)(h). When Mr. Wheeler received the Administrative Complaint, he did not advise any of the School Board’s administrators, including Mr. Touron, that an administrative complaint had been filed against him. On July 24, 2006, Mr. Wheeler and the commissioner of education entered into a settlement agreement (Settlement Agreement), which was contingent on being accepted by the Education Practices Commission (EPC). The Settlement Agreement stated that Mr. Wheeler “neither admits nor denies, but elects not to contest the allegations set forth in the [commissioner of education’s] Administrative Complaint.” Mr. Wheeler agreed to accept a letter of reprimand and to be placed on probation for two employment years. The Settlement Agreement further provided that, if Mr. Wheeler was currently employed as a teacher, the probation would begin upon the issuance of a final order by the EPC, accepting the Settlement Agreement. Among other conditions, the Settlement Agreement provided that Mr. Wheeler would contact DOE within ten days of the issuance of the final order and provide the name and address of his work site as well as the name, address, and telephone number of his immediate supervisor. The Settlement Agreement required Mr. Wheeler to “make arrangements for his immediate supervisor to provide the EPC with a true and accurate copy of each written annual performance evaluation or assessment prepared by his supervisor within ten (10) days of it[s] preparation.” At the time he entered into the Settlement Agreement, Mr. Wheeler did not advise any of the School Board’s administrators that he had executed a settlement agreement with the commissioner of education. The School Board gave Mr. Wheeler an annual contract for the 2006-2007 school year. By letter dated October 5, 2006, Mr. Wheeler was advised by the EPC that the Settlement Agreement had to be accepted by the EPC and that a final order would be issued by the EPC upon the EPC’s acceptance of the Settlement Agreement. The EPC filed its Final Order on February 8, 2007, accepting the Settlement Agreement. On February 20, 2007, Mr. Wheeler sent a facsimile transmission to Rita Healy, his probation officer with DOE, advising her that his supervisor was Mr. Touron and providing contact information. Mr. Touron was advised by Mr. Wheeler that a Final Order had been issued, placing Mr. Wheeler on probation for two years. Mr. Wheeler also told Mr. Touron that Mr. Touron would need to provide to DOE a copy of Mr. Wheeler’s annual evaluation when it was completed. On March 20, 2007, Ms. Healy advised Mr. Touron that a Final Order had been issued by the EPC, placing Mr. Wheeler on probation for two years. Ms. Healy sent a copy of the Final Order to Mr. Touron by facsimile transmission and by e-mail. For some unknown reason, the Final Order was never placed in Mr. Wheeler’s personnel file, In the 2006-2007 school year, Immokalee was on status as an “F” school. In order to rehabilitate the school, a new principal, Ms. Linda Salazar, was appointed as principal at Immokalee for the 2007-2008 school year. Ms. Salazar met with the faculty at Immokalee to determine which teachers she would retain for the 2007-2008 school year. She interviewed Mr. Wheeler, and there was no discussion concerning the Final Order that had been issued by the EPC, reprimanding Mr. Wheeler and placing him on probation for two years. Mr. Wheeler thought that Ms. Salazar knew about the disciplinary action against him because he had told Mr. Touron about the Final Order. Mr. Touron did not advise Ms. Salazar or the School Board’s Human Resources Department about the Final Order disciplining Mr. Wheeler. By letter dated March 15, 2007, Ms. Salazar notified Mr. Wheeler that he had been selected to teach at Immokalee for the 2007-2008 school year. His employment at Immokalee for the 2007-2008 school year was on an annual contract basis. Mr. Wheeler sent Ms. Healy a copy of his evaluation for the 2006-2007 school year after he received it in April 2007. Mr. Wheeler also sent a copy of his evaluation for the 2007-2008 school year to Ms. Healy. Although, the Settlement Agreement required that Mr. Wheeler make arrangements for his immediate supervisor to provide the EPC with a copy of the annual evaluation, Ms. Healy considered it to be Mr. Wheeler’s responsibility to make sure that she received copies of the evaluations, regardless of who actually sent them. There was no dispute regarding the authenticity of the evaluations which Mr. Wheeler provided to Ms. Healy. On June 11, 2008, Mr. Wheeler entered into a professional service contract with the School Board. Unlike the annual contracts, the professional service contract was to “be renewed each year in accordance with and subject to the provisions of F.S. §1012.33 and in conformity with Board policy and any applicable collective bargaining agreement then in place.” In August 2008, Mr. Wheeler again applied to the DHSMV for his third-party tester certification. On or about August 1, 2008, he dropped off the application for Ms. Salazar to sign as representative of Immokalee. At this time, Ms. Salazar was unaware that Mr. Wheeler’s third-party tester certification had been canceled and assumed that the application was a recertification document that teachers often left in her mail box to be signed. Ms. Salazar signed the application form. On September 9, 2008, Ms. Ogden sent an e-mail to Ms. Salazar, requesting that Ms. Salazar write a letter of recommendation for Mr. Wheeler for his third-party tester application. The e-mail stated: Hi, Linda, would you be willing to write a letter of support for Russ Wheeler to become a Third Party Tester through the DMV, so he can legally administer the written and road test and issue waivers for your students? I am not sure if you know the history, but there were charges brought against him in Lee Co. and the [sic] he is having trouble getting the state to allow him to become a Third Party Tester. I will be writing one for him and if you are willing, here is the contact information. . . . Ms. Salazar asked Mr. Wheeler to come and talk about the charges that had been brought against him. Mr. Wheeler brought all the documentation that he had relating to the criminal charges. He explained to Ms. Salazar that the charges had been dropped. He told her that he had owned a private driving school and that he had been framed for fraud, and that was the reason that he resigned from Lee County. No mention was made by Mr. Wheeler that disciplinary action had been taken against him by the EPC. Mr. Wheeler assumed that Ms. Salazar knew about his probation because he had discussed the issue with Mr. Touron. Ms. Salazar declined to write a letter of support on behalf of Mr. Wheeler. At this time, Ms. Salazar was unaware that Mr. Wheeler had been reprimanded and was on probation. Mr. Wheeler received his third-party tester certification on October 24, 2008. On November 21, 2008, Ms. Debbie Terry, the School Board’s director of Staffing, Recruitment, and Retention, conducted an Administrator Academy Training for personnel of the School Board, which included training school principals on the use of the internet website, myfloridateacher.com, which is maintained by DOE to document discipline taken against teachers holding Florida Educator’s Certificates. Ms. Terry advised the administrators attending the training that in hiring a new teacher they would be required to contact the applicant’s previous employers, access the DOE website to determine if there had been disciplinary action against the applicant, and to speak with the applicant’s references. The School Board had instituted a policy of not renewing annual contracts of teachers who had been disciplined by the EPC. Additionally, applicants for teaching positions who had been disciplined by the EPC were not hired. Ms. Terry checked the DOE website and found that Mr. Wheeler was listed as having been disciplined by the EPC. In December 2008, Ms. Terry called Ms. Salazar to inquire why Mr. Wheeler had been recommended for a professional service contract when he had been disciplined by the EPC. Ms. Salazar was unaware until Ms. Terry contacted her that Mr. Wheeler had been reprimanded and placed on probation by a Final Order from the EPC. The School Board started an investigation concerning Mr. Wheeler. The investigation included interviewing Ms. Healy, who told the School Board’s staff that she had sent a copy of the Final Order to Mr. Touron. Mr. Wheeler was also interviewed. On December 12, 2008, the School Board sent Mr. Wheeler’s evaluations for the prior two years to Ms. Healy. On December 5, 2008, Mr. Wheeler again sent Ms. Healy by facsimile transmission copies of his evaluations. The fax cover sheet stated that Ms. Salazar was the principal at Immokalee. After the investigation was complete, the superintendent advised Mr. Wheeler by letter dated May 18, 2009, that he would be recommending to the School Board that Mr. Wheeler’s employment be terminated. The superintendent alleged in the Notice of Intent Recommendation to Terminate Employment that the recommendation for termination was based on the following acts: Count 1: [He] falsely indicated the reasons for [his] separation from Lee County, Florida schools. In addition, [he] failed to disclose pertinent and relative information on [his] employment application; specifically, that [he] resigned from Lee County, Florida, schools “in lieu of termination.” Count 2: [He] falsely represented in [his] employment application the correct termination date of May 6, 2004, leaving a four-year employment discrepancy. Count 3: [He] violated the terms of [his] probation and settlement agreement with the Florida Department of Education by failing to disclose that [his] immediate supervisor, effective August 2007, was Linda Salazar, principal of Immokalee High School. In addition, [he] did not disclose the fact to Ms. Salazar that [he] entered into a settlement agreement. At some point in time, Ms. Salazar confronted [him] after learning that there was an issue relative to [his] certifying drivers’ education certificates; however, [he was] not forthcoming and indicated to her that there wasn’t a problem and assured her that the FLDOE case had been dropped. Count 4: In furtherance of [his] deception, [he] failed to follow the directive of [his] settlement that required that [his] evaluations be forwarded to the FLDOE by [his] supervisor. [He] directly forwarded the evaluations to FLDOE without the knowledge of [his] supervisor and the FLDOE. Count 5: [He was] found “guilty of an act involving gross immorality or an act involving moral turpitude” and attempted to conceal this knowledge from the school district. On May 5, 2008, Mr. Wheeler was approved to teach a driver education course for migrant students during summer school. Mr. Wheeler was to work 32 hours per week for nine weeks at a rate of pay of $40 per hour. His total compensation for the summer school employment was to have been $11,520. By e-mail dated May 27, 2009, Ms. Salazar advised Mr. Wheeler that he could not teach during summer school because of the recommendation to terminate his employment. Mr. Wheeler successfully completed his probation with DOE. Ms. Healy notified Mr. Wheeler by letter dated March 20, 2009, that the probation was closed. Ms. Healy did not consider that any actions by Mr. Wheeler during his probation constituted a breach of the Settlement Agreement which would be prosecuted by the EPC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order finding that Mr. Wheeler is guilty of failing to disclose the relevant and pertinent information on his employment application in violation of Florida Administrative Code Rule 6B-1.006(5)(i) and School Board Policy 3121; finding that Mr. Wheeler is not guilty of the other violations set forth in the notice of intent to terminate; suspending Mr. Wheeler without pay for eight months, beginning May 18, 2009; and reinstating Mr. Wheeler to his employment at the end of his suspension. DONE AND ENTERED this 22nd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of December, 2009.
The Issue Whether Respondent's license as a real estate salesperson in the state of Florida should be revoked, suspended or otherwise disciplined based on the allegations of misconduct alleged in the Administrative Complaint.
Findings Of Fact Upon consideration of the testimony of the witness and the documentary evidence received as evidence in this case, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the state of Florida, having been issued license number 0569982. Respondent was initially licensed in December 1990. The last license issued to Respondent was as a salesperson, c/o Tangerine Realty Corporation, 390 Gulf of Mexico Drive, Longboat Key, Florida 34228. Respondent is also a licensed real estate broker in the state of South Carolina, with thirteen (13) years experience, where she operates Linda McKenzie Realty Company. On or about August 24, 1992, the Respondent submitted to the Petitioner a Renewal Notice form with her signature affixed to the form requesting renewal of the Respondent's license as a real estate salesperson for the period beginning October 1, 1992. Along with license renewal request, Respondent enclosed her bank check in the sum of $53.00. Respondent's signature on the Renewal Notice (Petitioner's Exhibit 2) affirms that she had read and agreed with the statements made on the reverse side of the notice. However, it is clear that due to circumstances set out below requiring her immediate attention, the Respondent did not read the reverse side of the Renewal Notice and did not understand the significance of affixing her signature to the affirmation. In that regard, the Respondent was negligent. The reverse side of the Renewal Notice is entitled "Affirmation of Eligibility For License Renewal" and among those matters which the Petitioner affirmed is that she "met all of the requirements for license renewal, including any applicable continuing education requirements set forth by the Department and or the Professional Board indicated on the reverse side of this notice". The Department of Professional Regulation, Division of Real Estate is indicated on the front of the Renewal Notice. There is no specific reference to any statute or rule on the Renewal Notice. Apparently, this is a form utilized by all Professional Boards for which the Department is the regulatory agency. Respondent was aware at the time she signed and mailed the Renewal Notice containing the affirmation that she had not completed the required postlicensure salesperson continuing education. Respondent's license as a real estate salesperson was reissued by the Respondent prior to the September 30, 1992 expiration date with an effective date of October 1, 1992. Respondent was scheduled to take the 45 hour course necessary to complete postlicensure salesperson education during the weeks of August 14, 1992 and August 21, 1992. However Respondent had to cancel this course due to her medical condition as discussed below. Respondent was seen in Charleston, South Carolina on August 3 & 4, 1992 and diagnosed as having a tumor requiring surgery. Respondent was scheduled to be admitted to surgery for a suspected malignancy on August 17, 1992 in Charleston, South Carolina but instead obtained a second opinion in Sarasota, Florida. Emergency exploratory surgery for an ovarian tumor was performed on August 21, 1992 in Sarasota, Florida. Respondent underwent surgery on August 25, 1992 to remove a serous cystadenofibroma of the right ovary. This surgery was not of an elective nature. Prior to surgery, Respondent attempted to take care of personal matters that she felt needed immediate attention. One of those matters was the Renewal Notice. It was Respondent's understanding that she would have until September 30, 1992 (expiration date of current license) to complete any postlicensure education. Therefore, after returning from surgery Respondent enrolled in a September 11, 1992 course. Respondent was notified on September 9, 1992 that the course was cancelled. Thereafter, Respondent enrolled for the November 18, 1992 course which was cancelled on November 17, 1992. Respondent advised the Petitioner by letter dated September 16, 1992 that she had been unable to complete her postlicensure education. In this letter Respondent requested an extension of time until at least December 1992. Respondent did not receive any response from Petitioner to this request for extension. Respondent enrolled in a course to complete her postlicensure education on November 30, 1992, completed that course on December 4, 1992 and advised the Respondent of her completion by letter dated December 6, 1992. There is competent substantial evidence in the record to establish facts to show that at the time Respondent signed and mailed the Renewal Notice to Petitioner it was not Respondent's intent to give false or misleading information or to conceal the fact that she had not completed the required postlicensure educational requirements, notwithstanding the fact that her signature affirmed that she had completed the required postlicensure educational requirements. Respondent's license as a real estate salesperson in the state of Florida has never been disciplined in any fashion by the Petitioner. The public was not harmed as a result of Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent. In making this recommendation, consideration has been given to the mitigating factors in relation to the disciplinary guidelines set out in Chapter 21V-24, Florida Administrative Code. Also, taken into consideration was the purpose of regulating any profession, the protection of the public by requiring compliance with those laws governing the profession. In this case, a reprimand will serve that purpose, the public has not been hurt, compliance has been accomplished and the penalty is sufficient to remind the Respondent to be more diligent in the future. Adding any further penalty, including an administrative fine, would be punitive. DONE AND ENTERED this 30th day of September, 1993, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1943 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. Petitioner's Proposed Findings of Fact: 1. Unnecessary. 2.-5. Adopted in substance as modified in Findings of Fact 2-15. Respondent's Proposed Findings of Fact: Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 James H. Gillis, Esquire Department of Professional Regulation, Division of Real Estate Legal Section, Suite N 308 400 West Robinson Street Orlando, Florida 32801-1772 Linda B. McKenzie 343 South Washington Drive Sarasota, Florida 34236
The Issue The issues to be resolved in this proceeding are as follows: Whether Respondent had an instructional employment contract that required cause for termination. Alternatively, if Respondent had a contract requiring cause for termination, whether there is cause for termination of that contract within the meaning of Section 231.36, Florida Statues, and Rule 6B-1.001 and 6B-1.006, Florida Administrative Code.
Findings Of Fact Petitioner, the Escambia County School Board (Board), is a unit of local government charged with the operation of the public school system in Escambia County, Florida, including the employment of teachers under certain contract conditions. Contracts and terms of service for regular members of the instructional staff are required to be in writing. See Section 230.23(5)(d), Florida Statutes. The Escambia County School Board also provides instructional services to juveniles under detention at the Juvenile Justice Center. Respondent was employed by the Board as a teacher during the 1994-1995 school year. During the 1994-1995 school year, Respondent was assigned to teach at the Juvenile Detention Center in Pensacola, Florida. Student S.C. met Respondent at the Pensacola Detention Center of the Juvenile Justice Center while he was an instructor at the Center. After she left the Pensacola Detention Center, she moved to North Carolina to live with her step-mother and father. While there, she wrote to Respondent; and sometime in early September she allegedly received correspondence from Respondent, including one letter dated September 5, 1995. The letter S.C. sent and the letter of September 5, 1995, do not appear to be discussing the same things. Respondent turned the letter S.C. wrote him over to his supervisor at school when he received it. Respondent denies writing or sending the letter of September 5, 1995 addressed to S.C. The September 5 letter's envelope had a return address which belonged to Respondent, and was signed "Ri" or "Rc". However, S.C. was unable to testify as to whom the letter actually came from. She did not recognize the handwriting as that of Respondent. More importantly, the Petitioner attempted to have the handwriting analyzed to determine whether the Respondent wrote the letter. The handwriting analysis determined that "the evidence falls short of that necessary to support a conclusive opinion" that Respondent wrote the September 5, 1995 letter. The Respondent also has been accused of sending other letters to people, including a threatening letter to the President of the United States, which he denied having done. All these letters came from a Rick Sapp in Pensacola but were not from the Respondent. So, too, during the pendency of these proceedings, an accusation was made that the Respondent had sent a letter to another student at the detention center. The Respondent did not send such a letter. The letter alleged to have been sent by the Respondent other than being signed "Rick" cannot be established to have been from the Respondent since it omits his phone number, address, and has a different return address and name on the envelope and was mailed from Panama City. Student S.C. ran away from North Carolina sometime in September 1995. She was subsequently detained at the Panama City Detention Center. S.C. testified that Respondent called her on the telephone, gaining access by identifying himself as a counsellor. Respondent allegedly told her that he was in love with her and wanted her to call him. Respondent allegedly gave her his telephone number. However, when she reported the call to the staff, other than transferring a "call from a counsellor," she did not say the call was from Respondent but someone sounding like Respondent. S.C. provided a telephone number to the detention worker who called it and asked to speak to Respondent. The party answering the phone said that Respondent was not there and identified himself as Respondent's roommate. S.C. testified she recognized the voice as that of Respondent which recognition is not credible. The Panama City Detention Center maintains a log of phone calls and activities occurring at the facility. The log indicates that on November 19, 1995, the controller received a call for S.C. The controller reported the caller identified himself as the counsellor for S.C. After receiving the call, student S.C. reported to the supervisor that the caller was not her counsellor, but was someone sounding like Respondent. S.C. reported Respondent had left a telephone number which in fact is one of Respondent's telephone numbers. Gene Rochelle called that number on the speaker phone asking for Respondent. The party answering the phone stated he was Respondent's roommate and that Respondent was not at home. Student S.C.'s report and the subsequent telephone call to the same number were noted in the log of the Juvenile Justice Center. S.C. also claimed to have received a letter from Respondent which she turned in to the Panama City Detention Center. The letter, although signed "Rick," has a return address showing the name "Hess" and the address, 1723 17th Avenue, Pensacola, Florida 32501 (not Respondent's) and appears to have been postmarked in Panama City, Florida. The letter also appears to have different handwriting than the September 5, 1996 letter. Although the letter asks S.C. to call or write, it omits the Respondent's telephone number or address and suggests only that a call be made to 411 in Pensacola to find it. Respondent denies calling or writing S.C. while she was at the Panama City Detention Center and was surprised that she had been there. On the whole, while it may be true that a number of letters were sent, the evidence falls short of disclosing that Respondent sent any of the letters, including the letter of September 5, 1995. The evidence regarding any of these contacts is at best inconclusive. Therefore the charges against Respondent involving S.C. should be dismissed. The District also alleges Respondent maintained an inappropriate relationship with a male student from the detention center, T.R. The original allegations were made by the older brother and lawful custodian of T.R., Michael Jarrell. Although the guardian of the student, T.R., did make an initial statement to Dr. Garber of the School Board accusing the Respondent of wrongdoing, shortly thereafter, upon learning the identity of the person earlier believed to have been the Respondent, T.R.'s guardian, Michael Jarrell, made a second statement clarifying that the person who was identified as Respondent was not the man who had been improperly interacting with his minor brother. Given these facts, the Petitioner has failed to produce any substantial evidence to demonstrate that Respondent engaged in an inappropriate relationship with T.R. Therefore the charge of misconduct as it relates to T.R. should be dismissed. Prior to the beginning of the new school year Respondent's 1994-1995 employment contract had expired. On August 14, 1995, William McArthur, Director of Human Resources for the Escambia County School District, signed, at the direction of Superintendent W. L. Maloy, an "Instructional/Administrative Appointment Request" form appointing Respondent to the position of teacher for the 1995-1996 school year. The practice of the Superintendent's office is to fill out the appointment request form on people whom the Superintendent intends to recommend for an annual contract to the Board. The form is placed in the teacher's personnel file and then the Superintendent formally recommends the employment of that person to the School Board by submitting the request form to the Board. The recommendation is required by statute to be in written form. See Section 230.23, Florida Statutes. The Superintendent of Escambia County Schools, among other things, is authorized by statute to recommend to the School Board those employees he determines should receive instructional contracts. See Section 230.33(7), Florida Statutes. The School Board, once recommendation is made by the Superintendent for employment of an instructor pursuant to contract, must act on that recommendation rejecting the Superintendent's recommendations only for good cause. Section 230.23(5), Florida Statutes. The Superintendent never submitted the request form nor recommended Respondent for employment to the School Board. The Superintendent of Escambia County Schools directed William McArthur, Director of Human Resources, to contact Respondent and tell him to return to work as an instructor at the Juvenile Detention Center in Pensacola, Florida. Mr. McArthur contacted Respondent who then reported to the Juvenile Detention Center for instructional duties around August 14, 1995. Since the Superintendent had not recommended Respondent to the Board, the Board never approved a written annual contract for Respondent. Therefore, Respondent could only be working under an oral or implied contract on a day to day basis with no specified term of employment. Approximately one month after Respondent went to work at the Juvenile Detention Center, Dr. Garber, Assistant Superintendent for Human Resources, was notified by a representative of the State Attorney's Office at the Juvenile Detention Center of a complaint regarding Respondent from a parent relative to his alleged communications with S.C., a female juvenile that had been detained at the center. The representative of the Office of the State Attorney at the Detention Center expressed concern about letters Respondent had allegedly sent to S.C. and wanted him removed from that Detention Center. The School District subsequently received copies of the letters Respondent was alleged to have written to the female student formerly under his instruction at the detention center. Because of the complaint and letters, Respondent was placed on administrative leave with pay while the District investigated the allegations. At the conclusion of the investigation the Respondent was notified by letter dated October 16, 1995, that the Superintendent would not recommend to the Board the award of an annual instructional contract. On October 16, 1995, Respondent was presented with a letter notifying him that he would not be recommended for any further employment with the school district. The October 16, 1995, letter was the first written notification that his employment would terminate. Respondent stopped working for the School Board on October 16, 1995.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board dismissing the charges of misconduct but upholding the termination of the Respondent, Ricky Sapp, on October 16, 1995 since he was not recommended for annual contact status and did not fall under the protections of Chapter 231, Florida Statutes. DONE and ENTERED this 28th day of August, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1996. APPENDIX The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of Petitioner's proposed findings of fact are adopted. The facts contained in paragraphs 13 through 18 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 through 22, 27, 28 and 30 of Respondent's proposed findings of fact are adopted. The facts contained in paragraphs 13, 23 through 26, 29 and 31 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 Cervantes Street Pensacola, Florida 32501-3125 William Maloy, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 November, 2011.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. 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 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue The issue for determination is whether Petitioner is entitled to creditable service in the Florida Retirement System for service in the Florida Virtual School from September 15, 2001, through June 30, 2002.
Findings Of Fact Petitioner is a regular class member of the Florida Retirement System (FRS). On October 23, 2003, Petitioner entered the Deferred Retirement Option Program (DROP) and left her employment on June 30, 2004. Petitioner worked most of her career as a teacher and an administrator for the Pasco County School Board (School Board). The School Board is a local education association (LEA) and a local agency employer within the meaning of Subsection 121.021(42)(a), Florida Statutes (2001). Beginning with the 2001-2002 school year, Petitioner undertook additional employment by working in the Florida Virtual School (FVS) in accordance with former Section 228.082, Florida Statutes (2000).1 Petitioner undertook additional employment to increase the average final compensation (AFC) that Respondent uses to calculate her retirement benefits. From September 15, 2001, through June 30, 2004, Petitioner worked for the LEA and served in the FVS. During the 2001-2002 school year, Petitioner was a full-time employee for the LEA and also served part-time in the FVS. Beginning with the 2002-2003 school year, Petitioner served full-time in the FVS and also worked for the LEA during the summer. The LEA paid Petitioner annual salaries as a full-time employee for all relevant school years and made the necessary contributions to the FRS. The AFC includes compensation Petitioner received from the LEA, and that compensation is not at issue in this proceeding. With one exception, the AFC includes the compensation Petitioner received for service in the FVS. The AFC does not include $6,150 (the contested amount) that Petitioner earned during her first year of service in the FVS from September 15, 2001, through June 30, 2002 (the contested period).2 Sometime prior to April 2004, Petitioner requested that Respondent include the contested amount in her AFC. In a one- page letter dated April 6, 2004 (the preliminary denial letter), Respondent notified Petitioner that Respondent proposed to deny the request. The grounds for denial stated that Petitioner earned the contested amount in a temporary position and that FVS did not join the FRS until December 1, 2001. In relevant part, the preliminary denial letter states: . . . you filled a temporary instructional position as an adjunct instructor whose employment was contingent on enrollment and funding pursuant to Section 60S- 1.004(5)(d)3, F.A.C., copy enclosed. As such, you are ineligible for . . . FRS . . . participation for the time period in question. The School joined the FRS on December 1, 2001 and past service was not purchased for you since you filled a temporary position. Effective July 1, 2002, you began filling a regularly established position with the Florida Virtual High School and were correctly enrolled in FRS. The School has reported your earnings from July 1, 2002, to the present to the FRS. Respondent's Exhibit 2 (R-2). A two-page letter dated June 23, 2004 (the denial letter), notified Petitioner of proposed final agency action excluding the contested amount from her AFC. The only ground for denial stated that Petitioner earned the contested amount in a temporary position. The denial omits any statement that FVS did not join the FRS until December 1, 2001. However, the denial letter includes a copy of the preliminary denial letter and is deemed to include, by reference, the stated grounds in the preliminary denial letter. In relevant part, the denial letter states: By letter dated April 6, 2004 (copy enclosed). . . [Respondent] advised you filled a temporary instructional position as an adjunct instructor from September 15, 2001 through June 30, 2002. We have reviewed the information submitted in your recent letter and maintain our position that you were an adjunct instructor from September 2001 through June 2002, pursuant to Section 60S-1.004(5)(d)3, F.A.C. (copy enclosed). Your employment with the Florida Virtual School during the time period in question was contingent on enrollment and funding. Since you filled a temporary position, the School was correct in excluding you from the [FRS]. This notification constitutes final agency action. . . . R-3 at 1. The legal definition of a temporary position varies depending on whether the employer is a state agency or a local agency. If the employer is a state agency, a position is temporary if the employer compensates the position from an account defined as "an other personal services (OPS) account" in Subsection 216.011(1)(dd), Florida Statutes (2001) (OPS account). If the employer is a local agency, a position is temporary if the position will exist for less than six consecutive months; or as otherwise provided by rule. § 121.021(53), Fla. Stat. (2001). The distinction is based, in relevant part, on the practical reality that local agencies do not maintain OPS accounts for "the fiscal affairs of the state." § 216.011(1), Fla. Stat. (2001). The employer that paid Petitioner the contested amount was not an LEA. Three different employers may have been responsible for payment of the contested amount. Some evidence supports a finding that the employer was the Board of Trustees of FVS (the Board). Contracts of employment for service in FVS identify the employer as the Board.3 The Board has statutory authority over personnel serving FVS and has statutory authority to govern FVS. Other evidence supports a finding that the employer that paid Petitioner the contested amount was FVS. The record evidence identifies the employer that enrolled in FRS and made contributions on behalf of Petitioner as FVS. Finally, there is evidence that the Orange County School Board, acting as the statutorily designated fiscal agent for FVS (the fiscal agent), was the employer that paid Petitioner the contested amount. The contested amount was paid from funds administered by the fiscal agent in the name of FVS. The Board, FVS, and the fiscal agent each exemplify distinct characteristics of a state agency defined in Subsection 216.011(1)(qq), Florida Statutes (2001). The Board consists of seven members appointed by the Governor for four-year staggered terms. The Board is a public agency entitled to sovereign immunity and has authority to promulgate rules concerning FVS. Board members are public officers and bear fiduciary responsibility for FVS. The Board has statutory authority to approve FVS franchises in each local school district. §§ 228.082, Fla. Stat. (2000) and 1002.37, Fla. Stat. (2001). FVS is administratively housed within an office4 of the Commissioner of Education, as the Head of the Department of Education (Commissioner). The fiscal year of FVS is the state fiscal year. Local school districts cannot limit student access to courses offered statewide through FVS.5 The fiscal agent of FVS is a state agency. The fiscal agent receives state funds for FVS and administers those funds to operate FVS for students throughout the state. The Board, FVS, and the fiscal agent each satisfy judicial definitions of a state agency pursuant to "territorial" and "functional" tests discussed in the Conclusions of Law. Each agency operates statewide in accordance with a statutory mandate to serve any student in the state. Each serves students in public and private schools; in charter schools; in home school programs; and in juvenile detention programs. Unlike an LEA, the scope of authority and function of the employer that paid the contested amount to Petitioner was not circumscribed by county or other local boundaries; regardless of whether the employer was the Board, FVS, or the fiscal agent (collectively referred to hereinafter as the employer). The employer did not pay the contested amount from an OPS account. The fiscal agent for FVS is the presumptive repository of funds appropriated for FVS. The fiscal agent is organically structured as a local agency even though it functions as a state agency in its capacity as fiscal agent. Unlike a state agency, an organic local agency does not maintain an OPS account, defined in Subsection 216.011(1)(dd), Florida Statutes (2001), for the "fiscal affairs of the state." The legislature funded FVS during the contested period in lump sum as a state grant-in-aid provided in a line item appropriation pursuant to Subsection 228.082(3)(a), Florida Statutes (2000). The legislature subsequently began funding of FVS through the Florida Education Finance Program (FEFP). Each FVS student with six-credit hours required for high school graduation is included as a full-time equivalent student for state funding. Each student with less than six-credit hours counts as a fraction of a full-time equivalent student. A local LEA cannot report full-time equivalent student membership for courses that students take through FVS unless the LEA is an approved franchise of FVS and operates a virtual school. As student enrollment in FVS increased, the legislature changed the funding formula to avoid paying twice for students in FVS; once to fund FVS and again to fund local LEAs that were authorized to earn FTE funding for students enrolled in FVS. The employer that paid the contested amount to Petitioner was a state agency that did not compensate Petitioner from an OPS account defined in Subsection 216.011(1)(dd), Florida Statutes (2001). Petitioner did not earn the contested amount in a temporary position within the meaning of Subsection 121.021(53)(a), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(62). Respondent argues that Petitioner earned the contested amount in a temporary position in a local agency defined in Subsection 221.021(42), Florida Statutes (2001), and Florida Administrative Code Rule 60S-6.001(36). A temporary position in a local agency is generally defined to mean a position that will last less than six months, except as otherwise provided by rule. By rule, Respondent defines a temporary position to include temporary instructional positions that are established with no expectation of continuation beyond one semester. Fla. Admin. Code R. 60S-1.004(5)(d)3. Respondent supports its argument with limited documentary evidence (the documents). The documents consist of several items. An undated FVS Information Sheet indicates the employer started Petitioner as an adjunct instructor on September 15, 2001. An FVS memorandum dated several years later on March 16, 2004, indicates Petitioner started an adjunct position on September 6, 2001, and includes a parenthetical statement that it was seasonal employment.6 The employer paid Petitioner $3,150 during 2002 as miscellaneous income and reported it to the Internal Revenue Service (IRS) on a "Form 1099-Misc." An undated letter of intent for the 2002-2003 school year, which requests submission before March 8, 2002, indicates that Petitioner intended to continue her adjunct employment status and requested a full-time position if one became available.7 Use of labels such as "adjunct" to describe employment status during the contested period would be more probative if the duties Petitioner performed were limited to the duties of a part-time, on-line instructor. As discussed hereinafter, Petitioner earned the contested amount while occupying a dual- purpose position in which she performed both the duties of an instructor and significant other duties unrelated to those of an instructor. The trier of fact would be required to disregard a substantial body of evidence to find that Petitioner's position was limited to that of a part-time, on-line instructor. The IRS requires taxpayers to report miscellaneous income paid to independent contractors on Form 1099-Misc. Neither the denial letter nor the preliminary denial letter includes a statement that Petitioner occupied a non-employee position as an independent contractor. Judicial decisions discussed in the Conclusions of Law give little weight to the use of IRS Form 1099-Misc in cases such as this one where there is little other evidence of independent contractor status or where the evidence establishes an employer-employee relationship. The record evidence discussed hereinafter shows that Petitioner and her employer enjoyed a continuing employment relationship within the meaning of Florida Administrative Code Rule 60S-6.001(32)(f). Respondent was not a party to the employment contract and did not witness the employment relationship between Petitioner and her employer. Nor did Respondent call a witness from FVS who was competent to testify about events that occurred during the contested period. The testimony of Petitioner is supported by the totality of evidence. In relevant part, Petitioner disclosed to her supervisors at FVS at the time of her employment that she sought employment to enhance her retirement benefits. The proposed exclusion of the contested amount from the AFC is inconsistent with a material condition of employment. Respondent asserts that the documents satisfy requirements for notice and documentation of a temporary position in Florida Administrative Code Rule 6.1004(5). The rule requires an employer to notify an employee at the time of employment that the employee is filling a temporary position and cannot participate in the FRS; and to document the intended length of the temporary position. However, the terms of the documents from Respondent are ambiguous and insufficient to provide the required notice and documentation. The documents did not expressly notify Petitioner she was filling a temporary position that did not qualify as a regularly established position in the FRS. None of the documents use the term "temporary" or "temporary position." The notice and documentation requirements of the rule must be satisfied, if at all, by implication from terms on the face of the documents such as "adjunct," "adjunct position," and "adjunct employment status." Unlike the term "temporary position," neither the legislature nor Respondent defines the term "adjunct." One of the several common and ordinary uses of the term "adjunct" can mean, "Attached to a faculty or staff in a temporary . . . capacity." The American Heritage Dictionary of the English Language, at 21-22 (4th ed. Houghton Mifflin Company 2000). The employer used an undefined term such as "adjunct" as an ambiguous euphemism for a temporary position. The ambiguity of the term "adjunct" is underscored when each document from Respondent is considered in its entirety. The letter of intent form requested Petitioner to indicate whether she intended to continue her "adjunct employment status" and whether she would be interested in "a full-time position." The form did not refer to either a "temporary position," or a "part-time position." Petitioner reasonably inferred that "adjunct employment status" was the part-time alternative to "a full-time position." The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. Respondent also does not define part- time employment to exclude a regularly established position. The FVS utilized different contracts for adjunct and part-time instructors. The contracts of record pertaining to Petitioner are not contracts for adjunct instructors (adjunct contracts). The contracts are annual contracts. Even if Petitioner were to have signed a contract for adjunct instructors, the contract used for adjunct instructors was ambiguous. In relevant part, the adjunct contract included a caption in the upper right corner labeled, "Terms of Agreement for Part-Time Instructional Employment." (emphasis supplied) As previously found, a part-time position may be a regularly established position. Use of the term "part-time employment" on a contract for an adjunct instructor supported a reasonable inference that the employer was using the terms "adjunct" and "part-time" synonymously to differentiate part-time employment from full-time employment. The employer required Petitioner, unlike adjunct instructors, to sign in on an instructor log sheet and to attend training sessions and staff meetings. Petitioner attended training sessions on September 8 and 22, and October 24, 2001. Petitioner attended other training sessions on February 26 and 27, 2002, and on March 27 and April 10, 2002. The employer also issued office equipment to Petitioner that the employer did not issue to adjunct instructors. Petitioner performed significant duties in addition to those required of a part-time instructor. Petitioner wrote grant applications and assisted in writing a procedures manual for FVS. By November 30, 2001, Petitioner had completed and submitted a federal "Smaller Learning Communities Grant" for $230,000. On December 27, 2001, Petitioner began working on the procedures manual, finalized the work on January 3, 2002, and was listed in the credits in the manual. The additional duties assigned to Petitioner continued through the second semester of the contested period. On February 26 and 27, 2002, FVS asked Petitioner to develop their "FCAT" course for the eighth grade. Petitioner wrote and developed the course. By May 30, 2002, Petitioner had written and submitted three more grant applications and was a member of a team that developed strategies for additional fundraising. For the 2002-2003 school year, Petitioner entered into an annual contract for a full-time non-instructional position, as Grants Manager, and a separate contract for employment in a part-time instructor position. Each contract was terminable only for "good cause" within the meaning of Subsection 1002.33(1)(a), Florida Statutes (2002). The expectation of continued employment is further evidenced by the general business experience of FVS leading up to the contested period. In the 1997-1998 school year, approximately 25 students were enrolled statewide in FVS. In the next three years, enrollment grew to 5,564. Professional staff grew from 27 teachers to 54 full-time teachers. Legislative funding was adequate for the growth FVS experienced, and the legal contingency of enrollment and funding was not a realistic condition of continued employment. There was nothing temporary in the expectations of the employer and Petitioner during the contested period. FVS staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. The employer also had legitimate reasons to expect continued employment of Petitioner based on the individual experience the employer enjoyed with Petitioner, the ongoing and continuous nature of Petitioner's work, and the significant additional duties assigned to Petitioner. The employer, in fact, employed Petitioner continuously after the contested period. When FVS enrolled in the FRS on December 1, 2001, some employees purchased past credit. Petitioner was not on the list of employees for whom past credit was purchased. That omission is consistent with Petitioner's understanding that she was already receiving FRS credit. By rule, Respondent required the employer to make an affirmative disclosure that Petitioner did not occupy a position qualifying for FRS credit. After FVS enrolled in the FRS on December 1, 2001, FVS was required to make contributions to the FRS on behalf of Petitioner for approximately 208 days during the remainder of the contested period. FVS did not make the required contributions to the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order including in the AFC that portion of the contested amount earned on and after December 1, 2001, and excluding the remainder of the contested amount from the AFC. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2005.
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2008.
