The Issue Whether Petitioner's challenge to a question on the Corrections Officer Basic Recruit Training Examination should be sustained and Petitioner’s score increased by award of additional credit for the answer given by her.
Findings Of Fact Respondent is the state agency responsible for testing and certification of corrections officers within the State of Florida. Petitioner is an applicant for certification, having taken the examination on November 20, 1996. The minimum score required to pass Section 5 of the examination is 80 percent. Petitioner received a score of 78 percent. Examination materials were clearly and unambiguously presented when Petitioner took the examination. The challenged examination contained sufficient and correct information for a candidate to select correct responses. Question number 37 is the subject of Petitioner’s challenge. The question and possible answers were posed by Respondent’s examination as follows: A small, injured child requires care. The parents cannot be contacted, but the child says you can help him. You provide care because of . consent informed consent the Baker Act the Medical Practices Act Petitioner selected “informed consent” as the appropriate answer to the question. Respondent deemed that answer inappropriate due to a minor child’s inability to grant informed consent. The correct answer to the question is the first choice, “consent”. The term necessarily includes “implied consent” which is applicable to minor children and others unable to consent to treatment. Correct responses to the exam questions are supported by approved reference materials. Correct responses did not require knowledge beyond the scope of knowledge that could be reasonably expected from a candidate for certification. The examination question challenged by Petitioner was reliable and valid. The challenged question is not arbitrary, capricious or devoid of logic. There exists no evidentiary basis to award Petitioner additional credit for her examination response.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the relief requested by Petitioner. DONE and ENTERED in Tallahassee, Florida, this 22nd day of May, 1997. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1997. COPIES FURNISHED: Chasity L. Durbin 708 MacMahon Starke, FL 32091 Mark P. Brewer, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, III, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 5th day of September, 2018.
The Issue Whether Respondent discriminated against Petitioner based on either his age or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, William T. Mahan, Jr., who was at all times relevant hereto an employee of the University of Florida Institute of Food and Agricultural Sciences (UF IFAS or IFAS) Extension Program, was 59 years old when his age discrimination complaint was initiated. Respondent, UF IFAS Extension Program, is a state-wide program run by the University of Florida that places extension agents in each of Florida’s 67 counties. The core mission of the program is to transfer knowledge that is generated through research at the University to the clientele the extension agent serves, thereby turning research information into practical solutions. Petitioner became a permanent faculty member of UF IFAS in June 1993. Petitioner had permanent status as an Extension Agent IV, with an administrative appointment as County Extension Director (CED) for Franklin County. A CED is an Extension Agent with educational responsibilities; however, a CED also has the administrative task of running the local office, working with an advisory committee, and serving as liaison between UF IFAS and the county government. There is no permanent status in a CED administrative appointment. Petitioner was the CED in Franklin County, Florida, with an office in Apalachicola from June 1993 until October 28, 2013. An IFAS extension office is funded in part by the local board of county commissioners. In Franklin County, at all times relevant hereto, the county paid 20 percent of Petitioner’s salary, as well as the salary of an administrative secretary and expenses of the physical office. The Franklin County Extension Office was a single-agent office. Unlike other CEDs in the northwest district, Petitioner was solely responsible for running the office, working with an advisory committee, serving as liaison to the county, as well as all educational programming and client services. Dr. Pete Vergot, III, is the UF IFAS District Extension Director (DED) for the northwest extension district, encompassing 16 counties in the panhandle of Florida. He was appointed DED in 1997 and supervised all UF IFAS Extension employees in that district. Dr. Vergot was Petitioner’s direct supervisor until December 2013. Dr. Vergot was an ineffective supervisor. During his tenure as DED, Dr. Vergot was counseled by his superiors, and required to take management training courses, in response to complaints from other IFAS faculty about his management and communication style. At one point, Dr. Vergot was required to undergo a “360 performance review” during which administrators interviewed not only employees supervised by Dr. Vergot, but also community members and clientele of the program with whom Dr. Vergot came into contact. Extension Agents are evaluated yearly by their DED through the submission of a Report of Accomplishments (ROA). An ROA is written by the employee and summarizes what the employee has accomplished during the prior calendar year. An ROA often includes an employee’s job duties, number of publications, number of programs conducted for clientele in their district, and any other accomplishments of note. CEDs have two components to their evaluation: their performance as an agent and their performance in their administrative position. Petitioner’s employment with UF IFAS was reportedly without incident until 2010. In Petitioner’s annual performance appraisals for program years 2007, 2008, and 2009, Dr. Vergot gave Petitioner an overall rating of “Exemplary.”1/ During an August 2010 Franklin County Commission budget hearing, the county voted to eliminate funding for Petitioner’s position. Petitioner was informed about the decision via media reports the following morning. Petitioner and Dr. Vergot personally met with several county commissioners following the August budget hearing. county funding of the extension office was restored at the final budget hearing on September 20, 2010. The evidence conflicted as to whether the county’s August decision to cut funding of the extension office was related, in any respect, to Petitioner’s performance in the County. However, the record clearly established that, as a result of this incident, Dr. Vergot lost confidence in Petitioner’s ability to perform. On September 24, 2010, Dr. Vergot sent Petitioner an email requesting that he start developing and implementing a new plan of work (POW). The email lists a number of specific ideas to expand and enhance program offerings, including offering additional “Life Skill” areas for youth through 4H programming and volunteer development and support, increasing the master gardener program, and restarting a previously-successful family nutrition program. In the email, Dr. Vergot also asked Petitioner to become part of the 4H PIT team, increase day camping for 4H youth, enhance his presence with the natural resource PIT team, increase teaching in natural resource areas, and enhance reporting to local officials and clientele. The email concluded by requesting Petitioner to review each item and email Dr. Vergot a plan by October 18, 2010. Dr. Vergot did not issue Petitioner his 2010 annual performance appraisal until June 1, 2011. On this appraisal, Dr. Vergot rated Petitioner “Improvement Required (IR).” Of the various categories in the appraisal, Petitioner was rated IR on “Financial Support,” wherein Dr. Vergot noted Petitioner needed to “find continued financial support” and that “your internal and external funding is lacking.” Dr. Vergot also rated Petitioner IR in “Delivery/Contacts and Statistical Report” noting “we need you to increase your Extension teaching in all of your program areas, just attending meetings is not Extension programming.” In “CED Program Leadership and Coordination,” on which Petitioner also received an IR rating, Dr. Vergot noted, “you had a severe issue with commissioners supporting your program this year, we need for you to work on communications and relationship with all commissioners and county government to reverse this issue.” IFAS maintains a Sustained Performance Evaluation Program (SPEP) to evaluate long-term performance of tenured and permanent status faculty. In addition to annual performance evaluations, tenured and permanent status faculty members are evaluated every seven years on their previous six years’ performance. According to IFAS regulations, the purpose of SPEP is to document adequacy of sustained performance and encourage continued professional growth and development of faculty. The SPEP review is conducted by the faculty member’s administrator and is based on the performance evaluations from the prior six years and “any related evaluative or other information relative to the faculty member during this period of time.” The administrator must rate the faculty member as either “satisfactory” or “below satisfactory.” A faculty member receiving a “below satisfactory” rating receives a written reprimand, and is required to submit a summary of accomplishments (SOA) to the administrator within two months to be reviewed by a peer advisory committee (PAC). Two members of the PAC are selected by the administrator and one by the faculty member. If, after an in-depth review of the SOA, the PAC agrees that the faculty member’s performance requires improvement, the faculty member is required to submit a performance improvement plan (PIP) within two months. On July 25, 2011, Petitioner received a letter entitled “PIP/Written Reprimand” from Dr. Vergot “for your ‘improvement required’ annual work performance review dated June 1, 2011.” The letter informed Petitioner that his accomplishments over the last six years would be reviewed by a PAC and that he may be asked to submit a PIP. The letter reiterated many of the issues raised in Dr. Vergot’s 2010 evaluation of Petitioner—need for more educational programming rather than meetings, as well as maintaining and increasing funding sources. Other specific requests included increasing creative works and publications, redesigning reporting to commissioners, and de-cluttering and managing his office in a professional manner. The letter raised two programming issues in specific areas of the County: (1) a youth program in the minority area of Apalachicola which “[y]our County Commissioners requested,” and (2) extension and educational programming for clientele on St. George Island. With respect to the youth program, Dr. Vergot stated “we need to see a major positive program developed before the budget year of the county begins for 2012.” With respect to the St. George Island programming, Dr. Vergot requested Petitioner meet with the commissioner for that district, as well as Petitioner’s advisory committee representatives, determine the type of programming appropriate, and develop, implement and report to Dr. Vergot on the plan and progress. In February 2012, the PAC issued its review of Petitioner’s six year ROA. Excerpts from the PAC “comment form” were a mixture of positive and negative feedback. The overall feedback on Petitioner’s creative works was negative—PAC members indicated that Petitioner’s attendance at county commission meetings and reports to the county commission were not considered creative works, that he needed to develop creative works and publications that are used in teaching, and that he was “weak in this area.” As for publications, the PAC noted that Petitioner submitted “lots of newspaper columns” but had only published two abstracts in six years, was a junior author on one peer-reviewed article, and “need[ed] improvement in this area.” Under extension programming, PAC members commented that Petitioner’s speaking engagements and use of media is not a concise program of adult environmental education with objectives and outcomes, and that Petitioner did not have enough work in this program to constitute 25 percent of his job. An overall comment notes, “[n]eed to keep balance with meetings and teaching. Seem to be off balance, and need to remember primary job is to teach.” The PAC comments also noted a disconnect between the six-year record of Petitioner’s works and Dr. Vergot’s “Exemplary” evaluations during the same time period. The PAC noted, “[p]revious appraisal ratings by DED conflict with the total picture presented to the committee.” Dr. Thomas Obreza is the Senior Associate Dean for Extension, to whom Dr. Vergot reports. Dr. Obreza first became involved in review of Petitioner’s performance when Petitioner contacted him to complain of the 2010 “Improvement Required” rating. At Petitioner’s request, Dr. Obreza reviewed Petitioner’s previous POWs and ROAs, as well as some of his prior performance evaluations. Dr. Obreza concluded that not only was Dr. Vergot’s criticism of Petitioner’s 2010 performance justified, but also that Dr. Vergot had been “really lenient” in prior evaluations and may have engaged in “grade inflation.” On December 16, 2011, Dr. Obreza wrote Petitioner a three-page letter in response to his concerns with his 2010 evaluation. Dr. Obreza concluded that Petitioner “should have never received ‘Exemplaries’” for 2007, 2008, and 2009. On February 20, 2012, Dr. Vergot issued Petitioner a PIP request “in response to your 6-yr. Summary of Accomplishments . . . and the subsequent [PAC] review.” The letter required Petitioner to submit a PIP within two months detailing his “plans, paths and timeline for overcoming deficiencies identified in the July 25, 2011 letter of reprimand.” The letter listed 14 deficiencies, many of which reiterated items noted in Petitioner’s June 1, 2011 performance evaluation and July 25, 2011 letter of reprimand. On March 9, 2012, Petitioner submitted a revised POW to Dr. Vergot for review and comment. Petitioner submitted his PIP on April 19, 2012. The PIP referenced each one of the 14 issue areas outlined in the February 20, 2012 PIP request and included a response thereto. On the first three issue areas, all of which related to planning educational programs and teaching activities, rather than meetings, Petitioner indicated they were addressed in his revised POW on which he was awaiting comments before finalizing. On some of the issue areas, Petitioner provided a mix of excuses and updates. For example, in response to the need to increase creative works, Petitioner responded that closure of one of the local newspapers and sale of another had “reduced my newspaper publications.” Petitioner reported that he was planning new “fact sheets” for 2012, was working to obtain column space in the monthly “Coastlines” publication, and had developed several Powerpoint presentations. In response to the direction to develop programming for clientele on St. George Island, Petitioner noted that he had met with the district commissioner, that she had no programming recommendations, and that he “plan[ned] to regularly check with her on my programming efforts.” In response to efforts to obtain new funding, Petitioner expressed some frustration (“You say my internal and external funding is very low. What exactly does that mean?”), but reported having recently jointly applied for $300,000 in funding for an oyster-related project, of which Petitioner could be awarded $60,000 for “educational components of the proposal.” In response to the request to redesign his reports to the county commission, Petitioner noted: This is an issue that came up a few years ago when Alan Pierce and one former Commissioner felt that my reports to the Board were getting a little long. When notified, I immediately made my reports shorter and it hasn’t been an issue since. As requested, I spoke with Alan about my reports and he stated that my current report format and length is good and nobody has a problem. He recommended that I continue to use my current reporting format. In February 2011, all the northwest region CEDs were instructed to undertake “listening sessions” in their respective counties as part of a 10-year long-range planning process. At a district CED meeting, the CEDs were given instructions regarding conducting listening sessions to gather input from their communities on strengths and weaknesses, as well as where extension could provide new services. The listening sessions had to be conducted within a particular timeframe as an initial step in the long-range planning process. Petitioner planned a series of listening sessions, the first at a Rotary Club meeting and another at an upcoming chamber of commerce meeting. When Petitioner reported to Dr. Vergot the plan for community sessions, Dr. Vergot was upset and instructed Petitioner not to hold the sessions at civic clubs, but to solicit information from a broader community base. Petitioner described his situation as “scrambling” to put together additional sessions within a short timeframe. Petitioner was unable to reschedule the listening sessions in a timely manner, in part because of preexisting plans to visit his son in the military. Petitioner attended the May 13, 2011 northwest district extension meeting at which he presented the results of his listening sessions. Petitioner presented the input he received from a meeting with the Franklin Promise Coalition and a group in the City of Carabelle, as well as input he received from “one-on-one” communication with individuals. On July 25, 2011, the same day Petitioner received the PIP/Written Reprimand for his 2010 annual performance evaluation, Dr. Vergot issued Petitioner a Written Reprimand for failure to hold the required public extension listening session. Dr. Vergot’s letter referred to Petitioner’s May 13, 2011 report to the northwest extension directors as “deceiving,” chastised Petitioner for failure to follow directives, and ordered Petitioner to “refrain from attempting to cover up [his] misdeeds through deceptive behavior.” The letter instructed Petitioner to complete the listening session process by August 26, 2011. Notably, Dr. Vergot included the following: This is yet another example of why Franklin County would rather withdraw funding and close Extension the office [sic] than continue with an ineffective CED. Although we were able to convince them last year not to withdraw their support, our ability to do so again is now greatly compromised. Only a change in your attitude and performance will make a difference moving forward. I expect you to comply with the directives that I have presented above, and I will be closely monitoring your performance during the next 3 months. Petitioner’s 2011 Performance Appraisal, completed by Dr. Vergot and dated June 1, 2012, showed an overall rating of “Standard Professional Performance,” suggesting that Petitioner had cured any perceived deficiencies in his work product by the end of the calendar year 2011. On January 31, 2013, Petitioner received a draft of his 2012 annual performance appraisal from Dr. Vergot in person with an overall rating of “Standard Professional Performance.” On June 12, 2013, Petitioner received through e-mail a final copy of his 2012 annual performance appraisal from Dr. Vergot with an overall rating of “Improvement Required.” Dr. Vergot did not contact or in any way discuss a change in the overall rating with Petitioner prior to issuing the final performance appraisal. On October 28, 2013, Dr. Vergot personally delivered Petitioner a Notice of Non-Reappointment informing Petitioner that his CED appointment to Franklin County would not be renewed the following year. This notice informed Petitioner that October 29, 2014, would be the last day of his employment. The letter further instructed Petitioner to report the following day to Marjorie Moore, CED for the Bay County Extension Office, and perform the duties assigned to him by Ms. Moore. During this meeting with Petitioner, Dr. Vergot mentioned to Petitioner that if he was considering early retirement, he would not be eligible for medical insurance until he was 59 and one half years old, and that “you ain’t there yet.” Dr. Vergot’s tone was sarcastic. Petitioner inferred that his job may be further jeopardized prior to the purported October 2014 “last day of employment.” Dr. Vergot admitted making the statement about early retirement and eligibility for medical benefits. However, the statement was made at the request of an HR employee, who asked Dr. Vergot to advise Petitioner of the age requirement to obtain continued medical benefits in the event Petitioner chose early retirement. Although Petitioner was removed from his administrative position as CED, he remained an Extension Agent IV and neither his pay nor his benefits were reduced. To effect the issuance of the Notice of Non- reappointment and the involuntary reassignment of Petitioner, Dr. Vergot and UF IFAS relied on UF Regulation 6C1-7.013, entitled “Rules of University of Florida 7.013 Non-Renewal of Non-Tenured and Non-Permanent Status Faculty Appointments: Notice of Ending of Employment of Non-Tenured and Non-Permanent Status Faculty.” Petitioner was surprised by the non-reappoinment and reassignment. On November 18, 2013, Petitioner met informally with Dean Nick Place, UF IFAS Dean and Director, to discuss Petitioner’s reassignment. During that meeting, Petitioner brought to Dean Place’s attention that 6C1-7.013 did not provide a basis for reassigning Petitioner, who was a tenured, permanent faculty member. UF Regulation 6C1-7.048 governs disciplinary actions against tenured, permanent faculty members. The regulation authorizes reassignment, among other disciplinary actions, for “just cause,” which is defined as “incompetence or misconduct” and includes specific examples thereof. The regulation requires written notice by hand delivery or certified mail/return receipt of the proposed discipline to the faculty member, specifying the reasons therefor. Further, the regulation provides for a 10-day response period and an opportunity to meet with the individual issuing the notice, and for filing a grievance. The Notice on Non-Reappointment did not cite this regulation. Dr. Place advised Petitioner to file a written formal Step 1 grievance if Petitioner disagreed with his reassignment. Grievance Procedures UF Regulation 7.042 governs the faculty grievance procedure. Pursuant to the regulation, a “grievance” is “a dispute or complaint alleging a violation of the regulations of the University or the Board of Governors concerning tenure, promotion, non-renewal, and termination of employment contracts, salary, work assignments, annual evaluation . . . and other benefits or rights accruing to a faculty member . . . .” The purpose of the grievance procedures is to “provide a prompt and efficient collegial method for the review and resolution of” faculty grievances. Under the general procedure, a grievance must be filed with the chief administrative officer (CAO) within 30 days of the act or omission complained of, a Step 1 meeting with the CAO held within 7 to 15 days, and the CAO’s written decision issued no more than 30 days after the Step 1 meeting. At the Step 1 meeting, the grievant may present evidence in support of the grievance. After the Step 1 meeting, the CAO “shall establish through conferences and review of the appropriate documentation” the facts giving rise to the grievance. For grievants holding IFAS appointments, the Step 1 review may include two levels: one by the dean and one by the appropriate vice president. Under that procedure, if a grievant is dissatisfied with the dean’s review, he or she may request review by the vice president no later than 15 days after receipt of the dean’s decision. The vice president shall review the grievance and issue a written decision with findings of fact and the reasons for the decision reached, within 30 days. If the grievant is not satisfied with the decision in Step 1, the grievant may file a written request with the Office of the Provost for a Step II grievance review within 15 days after the date the grievant receives the Step 1 decision. The provost shall meet with the grievant (and his or her representative) in an effort to resolve the grievance no later than 15 days following receipt of the request for review. The provost shall issue a written decision with respect to the grievance, giving findings of fact and the reasons for conclusions reached, within 30 days of the meeting. Petitioner’s Step 1 Grievances On November 27, 2013, Petitioner filed a Step 1 grievance against UF IFAS (PV 131127), alleging that the October 28, 2013 Notice of Non-reappointment was issued in violation of university regulations and that Petitioner was being discriminated against by his supervisor, Dr. Vergot, on the basis of his age. The grievance suggested that Dr. Vergot intentionally issued the non-renewal to interfere with Petitioner’s eligibility for early retirement. Petitioner testified that Dr. Vergot called him a “dinosaur” sometime while they were outside of a meeting, either a district faculty meeting or a CED meeting, but was unable to recall the timeframe or any other details. Dr. Vergot denied ever having called Petitioner a dinosaur. On November 27, 2013, Dean Place issued a letter to Petitioner rescinding the October 28, 2013 Notice of Non- reappointment “due to an administrative error.” At final hearing, Mary Ann Morgan, Director of IFAS Human Resources (HR), confirmed that the regulation did not apply to Petitioner, and accepted responsibility for the error. The letter of rescission reiterated that Petitioner was to continue reporting to the Bay County CED. Thus, the November 27, 2013 rescission reversed Petitioner’s non- reappointment, but not his involuntary reassignment to Bay County. Petitioner met with Dr. Place again on December 16, 2013, formally regarding his Step 1 grievance of the October 28, 2013 Notice of Non-Reappointment. In attendance were Petitioner, Dean Place, Ms. Morgan, and Kevin Clarke, then- Employee Relations Manager/EEO Investigator. Mr. Clarke was asked to join the grievance meeting concerning Petitioner’s allegation of age discrimination. On December 24, 2013, Petitioner filed a second formal grievance (PV 140102) of the October 28, 2013 involuntary reassignment to Bay County, which was unresolved by rescission of the non-renewal letter. Internal EEO Investigation Mr. Clarke’s investigation of Petitioner’s complaint consisted of interviewing both Petitioner and Dr. Vergot, and reviewing Petitioner’s employment file. Mr. Clarke counted the December 16, 2013 meeting as his interview of Petitioner. On January 10, 2014, Mr. Clarke issued an investigative report of his findings in which he concluded that Petitioner’s claim of age discrimination was unsubstantiated. The report concludes as follows: The allegations of discrimination based on age could not be substantiated. Annual evaluations and documents related to ongoing efforts to establish a Performance Improvement Plan for the Grievant provide evidence that the Grievant’s job performance has been unsatisfactory and an issue for some time prior to the non-renewal and relocation. Petitioner faults Mr. Clarke for failing to interview him separately from the Step 1 meeting which included other faculty and HR employees. No evidence was offered to establish the University EEO procedures. Thus, the undersigned has no evidence on which to base a finding that Mr. Clarke’s investigation was contrary to University policy. Step 1 Grievance Review On January 13, 2014, Dean Place issued his Step 1 review letter to Petitioner regarding grievance PV 131127. As to Petitioner’s first contention, that his non-reappointment was based on an inapplicable regulation, Dean Place concluded that the “University acted in error” in issuing the October 28 letter, but that the issue had been corrected by rescission of the letter. As to Petitioner’s claim of age discrimination, Dean Place concluded, based upon his review of Mr. Clarke’s Investigative Report and “discussing the findings with the investigator,” there was no basis for the allegation. Dean Place’s Step 1 review letter did not directly address Petitioner’s complaint regarding his involuntary transfer to Bay County. The letter offered, as if in passing, “Further, University Regulation 7.042(2)(c) enables the reassignment of employees.” In closing, Dean Place informed Petitioner that the University “is exercising its discretion to ‘forward this Step 1 review and all grievance materials to IFAS Senior Vice President Dr. Jack Payne for review as part of the Step 1 process[.]’” University regulation 7.042(2)(c) sets forth the applicable burden of proof for faculty grievances. This rule, cited by Dean Place as “enabling the reassignment of employees,” has no bearing on reassignment of, or for that matter, any disciplinary action against, faculty members. Petitioner responded to Dean Place in writing on January 22, 2014, noting that Dean Place’s letter failed to address Petitioner’s continued involuntary transfer to Bay County, and pointing out that University Regulation 7.042 does not authorize the “reassignment of employees.” In his response, Petitioner requested that this grievance (PV 131127) be combined with PV 140102 for purposes of review by the vice president. After the December 16, 2013, meeting with Dean Place for a formal grievance discussion concerning his complaint of involuntary reassignment and age discrimination, Petitioner discovered that UF IFAS had posted a notice for the position of CED for Franklin County that same date. Petitioner filed a formal grievance (PV 14011A) alleging the posting was a continuation of discrimination and retaliation against him. On December 23, 2013, one day before UF’s Christmas break, Dr. Vergot issued Petitioner a Notice of Proposed Suspension citing Petitioner’s lack of participation in previous PIP processes. Petitioner filed a formal grievance (PV 140100B) in response to this notice, but was subsequently notified that because the suspension was a “proposed” action, it was not grievable. On January 27, 2014, Petitioner was issued a PIP entitled “Boat anchorage/mooring mapping and ranking for the Florida panhandle (Bay county and west),” outlining specific tasks to be completed within six months. The PIP purports to take into account Petitioner’s “experience, professional expertise, contacts and academic credentials,” but Petitioner has no experience in boat anchorage mapping. According to the University’s policies, the purpose of a PIP is to address deficiencies and weaknesses identified in a faculty member’s annual performance evaluation or SPEP process. A PIP should identify particular deficiencies and lay out a plan and timelines to address the deficiencies. The PIP presented to Petitioner bears little, if any, relationship to any individual deficiency noted in the various performance evaluations or Petitioner’s SPEP. The plan directs Petitioner to prepare a publication rating mooring sites in the Florida Panhandle by various qualities (safety, bottom type, etc.) and provide boater maps to those sites, which is important to both recreation and safety during storm events. It is an assignment to develop a publication for the Panhandle similar to one existing for southwest Florida. Outcome of Second-Level Step 1 Review On February 27, 2014, Dr. Payne submitted his Step 1 review of Petitioner’s grievances. The letter again acknowledged error in the Notice of Non-reassignment and confirmed that Petitioner’s reassignment to Bay County was not the result of age discrimination. Dr. Payne disagreed with Petitioner’s allegation that Dean Place’s reference to Regulation 7.042 as “allowing reassignment of employees” was in error. However, in order to rectify the situation, Dr. Payne rescinded the November 27, 2013 Step 1 review letter, rescinded the Notice of Proposed Suspension, and confirmed revocation of the October 28, 2013 Notice of Non-reappointment. Dr. Payne replaced the Notice of Non-reappointment with a letter stating that Petitioner’s administrative appointment as Franklin County CED was removed effective October 28, 2013, pursuant to University Regulations 7.003(5)(b) and 7.004(3)(e). Regulation 7.003(5)(b) provides that a faculty member holding an administrative position may be moved or reassigned to other institutional duties “at any time during the term of the appointment.” Regulation 7.004(3)(e) provides “[t]he administrator directly responsible for the appointment and supervision of an academic-administrative classification or an administrative position may choose not to renew, to remove, or to reassign a faculty member at any time during such an appointment.” Thus, the University finally identified for Petitioner a regulation authorizing his reassignment approximately four months after he was reassigned. Petitioner exercised his right to a Step 2 grievance review by the University Provost for Academic and Faculty Affairs, Dr. Angel Kwolek-Folland. Dr. Kwolek-Folland issued her Step 2 review of Petitioner’s grievance on June 18, 2014, finding no merit in Petitioner’s allegations that he was reassigned based either on his age or in retaliation for complaints of discrimination. Erik Lovestrand, who is younger than Petitioner, was eventually awarded the position of Franklin County CED. The record does not support a finding of Mr. Lovestrand’s age at the time of appointment. Petitioner filed his Complaint of Discrimination with the FCHR on February 20, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201400215. DONE AND ENTERED this 4th day of February, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2016.
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.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (Respondent) due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Paul Sondel, was born on August 13, 1928. He was 72 years old at the time that he applied for Respondent's Position No. 01891/Education Supervisor I. His application was timely received by Respondent personnel. The minimum qualifications for the education supervisor were, inter alia, two years' teaching experience and possession, or eligibility for a current professional State of Florida Educator's certificate in adult or vocational administration. Mary Bass, a personnel technician for Respondent, reviewed all applications for the education supervisor position to make an initial determination as to whether applicants met the required minimum qualifications. She was not required to telephone applicants concerning the minimum qualifications and relied solely upon the information contained on the employment applications to make the initial determination of eligible applications. She completed her review of all applications in the same manner. Further, her inspection was done without regard to the ages of the applicants as set forth in the applications. In reviewing Petitioner's application, Bass could not determine whether Petitioner, in fact, had two years of teaching experience; nor could she determine that he currently possessed or was eligible for a professional State of Florida educator's certificate in adult or vocational administration. Since his application did not contain information indicating that either of these two minimum qualifications had been met, Bass determined that Petitioner did not meet minimum qualifications for the job and did not merit further consideration. Had Bass made a determination that Petitioner's application did meet minimum qualifications, such a determination would have merely permitted inclusion of his application with other eligible applicant applications and would not have necessarily led to an interview or obtainment of the position by him. Based on Bass' initial screening of his application, Petitioner was notified by Respondent personnel via letter dated January 24, 2001, that he had not been selected for the position of Education Supervisor 1. As established by the evidence adduced at final hearing, the individual eventually hired by Respondent for the position at issue in these proceedings had six years of teaching experience and current possession of a State of Florida teaching certificate. The age of this individual is not in evidence. Mary Bass' determination that Petitioner's application did not meet minimum qualifications for the position of Education Supervisor 1, was based solely on a good-faith review of Petitioner's application. Bass had no agenda that included dispensing with Petitioner's application on the basis of his age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 D. Paul Sondel 2135 Victory Garden Lane Tallahassee, Florida 32301-8507 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
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
