The Issue Whether the Respondent discriminated against the Petitioner on the basis of national origin, in violation of the Florida Civil Rights Act of 1994, Section 760.10(1), Florida Statutes (2005).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and on the entire record of this proceeding, the following findings of fact are made: According to the Charter of the City of North Miami ("City Charter"), the City has a "council-manager" form of government. All powers of the City are vested in an elected City Council, including the power "to enact legislation, adopt budgets, and determine policies." The City Council also appoints the City Manager to administer the City's government.2 The City Council consists of four council members and a mayor. The mayor presides at the City Council meetings and is "recognized as the head of the city government for all ceremonial purposes . . . and shall have a voice and vote in the proceedings of the council, but shall have no regular administrative duties."3 The City Manager "shall be the chief administrative officer of the city, responsible to the council for the administration of all city affairs placed in the manager's charge by or under" the City Charter. Among those powers is the power to "[d]irect and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by the charter or by law."4 The City's Police Department is an administrative department of the City, and the Police Chief, as head of the Police Department, supervises and controls the department "subject to the city manager."5 The City Attorney is the head of the City's Department of Law and is appointed by the City Council. The City Attorney's salary is fixed by the council and included in the budget.6 The Department of Law is not an administrative department subject to the direction and supervision of the City Manager.7 The City Manager is responsible for proposing salary increases to the City Council for the department heads under his supervision, which includes the Police Chief. The heads of the various administrative departments are responsible for proposing salary increases to the City Manager for the employees under their supervision. The City Attorney is responsible for proposing salary increases to the City Council for the employees under his supervision, which includes the Deputy City Attorney. The salaries of all City officers and employees, including the City Manager and the City Attorney, must be within the ranges provided in the City's pay plan. If someone is hired at a salary outside the salary range for the position in the pay plan, or if someone is promoted or given a salary increase that is outside the salary range in the pay plan for the position, the pay plan must be amended by the City Council to re-classify the position or to increase the maximum salary for the position. Ms. Boyd was hired as the City's Police Chief in January 2002 at a pay grade of 39-9, the maximum salary for the position. Consequently, she had received only cost-of-living raises since January 2002. In October 2003, after the City Council appointed Ms. Boyd as Interim City Manager, John Dellagloria, then the City Attorney, prepared a Letter of Understanding at the direction of Mayor Celestin to address Ms. Boyd's salary and benefits while serving as Interim City Manager. Ms. Boyd spoke with Mr. Dellagloria as he was preparing the Letter of Understanding and told him that she wanted him to include a provision increasing her salary upon her return to her position as Police Chief. After talking with Mayor Celestin, Mr. Dellagloria included a provision specifying the salary that Ms. Boyd would receive when she left the position of Interim City Manager and returned to her position as Police Chief. Mayor Celestin and Ms. Boyd executed the Letter of Understanding on October 23, 2003. Mayor Celestin's signature on the Letter of Understanding signified his intention that Ms. Boyd would receive a salary increase when she returned to her position as Police Chief. Mayor Celestin understood, however, that he could prepare letters of understanding that implemented resolutions of the City Council that he did not have the power to bind the City by his signature on a document in the absence of a City Council resolution or other directive. The City Council action appointing Ms. Boyd Interim City Manager did not include anything related to her salary when she returned to her position as Police Chief. The salary increase included in the Letter of Understanding for Ms. Boyd when she returned to her position as Police Chief exceeded the maximum salary range specified in the City's pay plan for her pay grade of 39-9. Rebecca Jones, the City's Director of Personnel, noticed this when she prepared the Personnel Action Form to send to the City Manager for his approval of the salary agreement with Ms. Boyd when she became Interim City Manager. Ms. Jones advised Mayor Celestin that the raise could not be given without the City Council's approval of an amendment in the pay plan, but she did not discuss her conclusion with Ms. Boyd as Interim City Manager; Ms. Jones considered that improper because the matter concerned Ms. Boyd. After he executed the October 23, 2003, Letter of Understanding, Mayor Celestin was advised by someone in the Legal Department that he did not have the authority to increase the salary for the head of an administrative department such as the Police Chief. He was told that this authority was vested in the City Manager because the City Manager directly supervised the Police Chief. Clarence Patterson was appointed City Manager by the City Council in January 2004. He took office in late February 2004, and Ms. Boyd returned to her position as Police Chief at the salary she had received before she was appointed Interim City Manager. During the time she served as Interim City Manager, Ms. Boyd served on the screening committee for applicants for the position of City Manager. The committee was to review the qualifications of the applicants and determine those candidates who were minimally qualified for the position. Ms. Boyd presented the report of the committee at the January 27, 2004, meeting of the City Council, and reported that the committee had found only one highly-qualified candidate. Only two candidates attended the January 27, 2004, meeting, Nadine Pierre Louis and Clarence Patterson; Mayor Celestin supported Ms. Louis, and Mr. Patterson was backed by another City Council member. When asked by the City Council if these two candidates were qualified for the position, Ms. Boyd reported that they were not: Ms. Louis did not have the required municipal job experience, and Mr. Patterson did not meet the educational requirements. Ms. Louis and Mr. Patterson were offered to the City Council for a vote; Mayor Celestin walked out of the council room and did not vote; Mr. Patterson was selected by vote of the City Council. Mr. Patterson was aware that Mayor Celestin did not support his candidacy. Shortly after Mr. Patterson began as City Manager, Ms. Jones brought the October 23, 2003, Letter of Understanding between Mayor Celestin and Ms. Boyd to his attention. He reviewed the city charter and advised Mayor Celestin that he did not have the authority to give Ms. Boyd a salary increase. Only the City Manager has that authority under the charger. Mr. Patterson also discussed the matter of the salary increase referenced in the third paragraph of the October 23, 2003, Letter of Understanding with Ms. Boyd. He told her that Mayor Celestin did not have the authority to effect such a salary increase, and he also told her that he was not going to recommend to the City Council that it increase her pay grade to accommodate the salary increase promised by Mayor Celestin. Having reviewed the pay grades of the administrative department heads, Mr. Patterson did not consider a raise for Ms. Boyd appropriate at the time. Because he had been advised that the Police Chief was directly supervised by the City Manager and that only the City Manager had the authority to recommend a salary increase for the Police Chief, Mayor Celestin did not propose to the City Council that it either increase Ms. Boyd's salary as Police Chief or amend the City's pay plan to increase the pay grade for the Police Chief so that Ms. Boyd could receive the salary increase included in the Letter of Understanding dated October 23, 2003. Mayor Celestin did, however, assure Ms. Boyd several times that he would "take care of it." At the last meeting of his tenure as mayor, Mayor Celestin proposed to the City Council that Ms. Saint Vil- Joseph receive a salary increase so that she could retain the same salary when she returned to her position as Deputy City Attorney that she received while serving as Interim City Attorney. Mr. Patterson did not oppose the proposal because the salary increase for Ms. Saint Vil-Joseph was not a "pay raise" as such, but, rather, implemented a prior decision of the City Council to achieve parity between the Deputy City Attorney and Deputy City Manager.8 An amendment in the pay plan to increase the pay grade for the Deputy City Attorney was passed by the City Council by a vote of 4 to 0, and the Personnel Action form dated May 2, 2005, reflecting a change of pay grade for the position of Deputy City Attorney was approved by Hans Ottinot, City Attorney; Ms. Jones, personnel directory; and Mr. Patterson, City Manager. Ms. Saint Vil-Joseph is a Haitian American. In October 2005, Ms. Boyd's pay grade was increased from 39 to 41, and she received a concomitant salary increase. Ms. Boyd presented the following testimony as evidence that the City's legitimate, non-discriminatory reason for failing to increase her pay grade and salary when she returned to her position as Police Chief in February 2004 was a pretext for discrimination on the basis of national origin:9 Q.[by Ms. Whitfield] And that's really your issue here, isn't it? You believe that he [Mayor Celestin] violated his letter of understanding with you, correct? He violated his letter of understanding and he's discriminated against me because of the clashes that we had pertaining to the hiring of Haitian African, the clash that we had over his referring to some of my directors are racist, and because I would not void a ticket that was given by another white officer, and the fact that I would not hire some of the people that he -- Q. Well, let me ask you this. When all of that happened, was that before he signed a letter of understanding with you or after? A. It was afterwards. Q. Was is [sic] before you went back to being police chief or after? A. It was during the period. Q. So it was during that period? A. It was before I returned to my position as police chief. Q. Okay. So when? When was it? A. There were several incidents. A couple of police applicants who he referred, one was a personal friend and I had to find out why they were turned down. Another incident pertaining to the -- he thought we weren't doing enough to hire Haitian applicants and wanted me to do away with the -- Q. Let me ask you this. You were both the interim city manager and the police chief at the same time? A. No. I was not. Q. Okay. Who was head of the police department then? A. I had my two assistant chiefs to alternate service as the acting police chief. Q. So as acting police chief, they would be responsible for making recommendations and hiring decision to take to the city manager? A. No. What they would do, if [sic] they would do the complete background process and they will [sic] decide on who was qualified and who was not, and because a couple of people did not get hired the mayor asked me about this and I had to meet with the assistant chief to find out why those individuals were disqualified. And they were for valid reasons, but the mayor did not want to believe me. He thought we were just not doing enough to hire Haitian Africans and made a suggestion -- or made the remark that he was going to bring Guy Eugene (phonetic_. who is a police lieutenant, Haitian police lieutenant with Miami, that maybe he would want my job as police chief. Q. Do you have any documentation or anything else to corroborate what you're telling use was said by Mayor Celestin about your hiring of Haitians or not hiring of Haitians? A. Only the testimony of my staff at the police department. Q. My question is, do you have any documentation here -- A. I didn't write that down. I didn’t -- discussions every day because I was trying to just get through the interim period and returning to be police chief.
Recommendation Based on 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 from Unlawful Employment Practice filed by Gwendolyn Boyd. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2008.
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2032 to Daniel Memorial, Inc. (Daniel), is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2032 on April 2, 2007. The RFP solicited proposals for a “20-slot day treatment program for youth placed on Probation, being released from a residential program, transitioning back into the community or classified as minimum risk, and a 100-slot service- oriented Intervention program with comprehensive case management services for youth which the programs are currently located in Pinellas and Pasco Counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $948,308, and prospective providers were required to propose a price at or below that amount EYA and Daniel submitted timely, responsive proposals in response to the RFP. Daniel’s proposal offered a slightly lower price than EYA’s proposal.1 On June 11, 2007, DJJ posted notice of its intent to award the contract to Daniel. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to Daniel. The RFP provides that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and Daniel, the prospective provider operated other DJJ-contracted non-residential programs in Florida. The proposals could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP provides that the proposal that receives the highest total points will be awarded the contract. Daniel’s proposal received a total of 600.13 points, which was the highest overall score. Daniel received 176 points for Attachment C, including 30 points for Part III. EYA’s proposal received a total of 573.46 points, which was the second highest overall score. EYA received 143.7 points for Attachment C, including zero points for Part III. EYA contends that Daniel should not have received any points for Part III, which would have resulted in Daniel’s overall score being 30 points lower, or 570.13, and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Council on Accreditation (COA). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by COA, but its non-residential juvenile justice programs are not accredited. EYA is currently seeking COA accreditation for the services provided in its non-residential programs based, in part, on DJJ’s scoring of Daniel’s proposal in this proceeding. Daniel listed three programs in its response to Part III: a behavioral management program in Circuit 4; a conditional release program in Circuits 6 and 13; and a behavioral management program in Circuit 7. The documentation provided by Daniel to show that the listed programs are accredited was a letter from COA dated August 18, 2006. The letter confirms that Daniel is accredited by COA; that the accreditation runs through September 30, 2010; and that the accreditation includes “the following programs:” Mental Health Services Psychosocial and Psychiatric Rehabilitation Services Employee Assistance Program (EAP) Services Case Management Services Foster and Kinship Care Services Supported Community Living Services Residential Treatment Services The letter does not on its face refer to the three programs listed by Daniel in its response to Part III. The letter does not on its face reflect whether the listed services were accredited in non-residential programs (as compared to residential programs) or in juvenile justice programs (as compared to adult programs or juvenile programs that do not involve the juvenile justice system). Each of the three programs listed by Daniel in its response to Part III is a non-residential program operated under contract with DJJ. Those programs were also listed by DJJ contract number in Daniel’s response to Part I of Attachment C. Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C, was familiar with the three programs listed in Daniel’s response to Part III. He knew from his experience and his review of Part I of Attachment C that the programs were non-residential juvenile justice programs and he knew that the programs provided case management services and mental health services. Mr. Hatcher acknowledged that the COA letter does not specifically mention the three listed programs. He nevertheless considered the letter to be sufficient documentation of accreditation for the three programs because the letter indicated that Daniel, as an organization, was accredited and that it had specific accreditation for the services provided at the three listed programs. COA accredits organizations and services, not specific programs.2 On this issue, Dr. Hilda Shirk, a member of the COA Board of Trustees and an experienced COA peer reviewer, testified that “COA accreditation applies to the entire organization and the services that it provides” and that Daniel’s accreditation includes all of its programs that fall under the service areas listed in the COA letter, which is consistent with Mr. Hatcher’s interpretation of the letter. COA does not separately accredit services provided in residential and non-residential settings, nor does it separately accredit services provided to adults or juveniles. The standards used to evaluate case management services and mental health services, for example, are the same notwithstanding the setting or the type of client being served. COA performed its on-site accreditation review of Daniel in April 2006. It is unlikely that two of the three programs listed by Daniel in response to Part III -- the conditional release program in Circuits 6 and 13 (DJJ Contract No. P2013 and the behavior management program in Circuit 7 (DJJ Contract No. G8101 -- were evaluated by COA as part of that review because those programs had just started. That does not mean, however, that those programs are not accredited. Indeed, Dr. Shirk testified that an organization is not required to submit each new program to COA for review if the services offered in the program fit within a service area for which the organization has been accredited.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order dismissing the EYA’s protest and awarding the contract for RFP No. P2032 to Daniel. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 14th day of December, 2007.
Findings Of Fact The Respondent, a public employer, has its principal place of business in Lake City, Florida, where it engages in the business of operating a school system. Respondent is created directly by the Florida state constitution or legislative body so as to constitute a department or administrative arm of the government, and is administered by individuals who are responsible to public officials and/or to the general electorate (Stipulation.) The Respondent now and has been at all times material to these proceedings, a public employer within the meaning of Section 447.203(2) of the Public Employees Relations Act (Stipulation.) The Charging Party is now, and has been at all times material herein an employee organization within the meaning of Section 447.203(10) of the Act (Stipulation.) Since on or about July, 1973, up to and including June 30, 1975, Jack W. Adams was a public employee within the meaning of Section 447.203(3) of the Act (Stipulation.) On or about April, 1975, and continuing thereafter, Adams engaged in employee organization-related activities designed to acquaint fellow employees of Respondent with the benefits of organizing and collective bargaining on behalf of the Charging Party (Testimony of Adams.) Adams was hired in July, 1973, by the Respondent as a Refrigeration Mechanic I in the Maintenance Department of the Columbia County school system. There was no one in this position at the time. Adams' duties were to service and maintain the refrigeration and air conditioning equipment at the various county public schools. Shortly after he was hired, he was given an apprentice, Henry Williams, to assist him in his functions. His first supervisor was Henry Stalmaker. Later, the maintenance and transportation functions were separated into different departments and Stalmaker became the Coordinator of Transportation. Ulis Taylor, who had been the "lead man" in the Maintenance Department, became the Coordinator of Maintenance in the summer of 1974. The equipment which Adams serviced had many problems when he was first hired. He improved the state of the equipment during the period that he worked under Stalmaker and the latter received no complaints during that time as to his attitude or the quality of his work (Testimony of Adams, Stalmaker.) In August, 1974, Adams talked to some Maintenance Department employees about the possibility of having a civil service system established for county employees. He received information on such a program and showed it to the employees, but found that they were not interested in pressing for the institution of such a system. In September, Dr. Frank Phillips, Superintendent of Schools, Columbia County, had a meeting with Adams at which he suspended him for two days for being involved in an incident at one of the local schools in which Adams' son allegedly had used a faculty lounge without authority while serving as a high school work-trainee with his father. The son was suspended from school as a result of this incident which allegedly involved the use of profanity by Adams and his son. Adams sought assistance from a school board member to intercede on his own suspension. The board member did so because Adams had not been afforded an opportunity to present his version of the incident. The matter was resolved after the board member discussed the situation with Phillips. Also during the September meeting, Phillips informed Adams that his discussions with employees on civil service had disturbed the school board, and told him to refrain from any further such activities (Testimony of Adams, Williams, Phillips, Markum.) On April 28, 1975, a group of school bus drivers approached Adams to become the president of the Columbia County Transportation and Maintenance Workers Association. He met with the group at the Transportation Department on that day. Authorization cards were notarized at the meeting. Taylor approached Adams and Williams thereafter and informed Adams that he should not go back to the Transportation Department for any reason and that he should keep away from association activities. He further stated that union business got people "ticked off" and upset and not to engage in it any further (Testimony of Adams, Williams). Prior to the above conversation, Taylor, on April 21, 1975, had rendered an annual employee performance evaluation on Adams wherein he rated him as "very satisfactory-substantially exceeds all requirements". This was the second highest evaluation which could be made on an employee. He also at that time recommended him for reappointment for the 1975-76 school term. Taylor's 1974 evaluation of Adams also had been in the second highest bracket with his major strength listed as "promotes unity with the Maintenance Department personnel." Although Adams had an excellent working relationship with Taylor on April 21, 1975, he and Williams testified that after the April 28th incident, Taylor started questioning everything that they did. Taylor, on the other hand, testified that, although the 1974 performance evaluation was basically accurate, he had experienced problems with Adams' attitude and gave him an inflated evaluation on April 21st, hoping that it would influence him to improve and have better relationships within the Department. However, at that time; he was of the opinion that Adams' work performance was perfectly satisfactory. Shortly after that, he sent Adams to an elementary school to repair a freezer. Although Williams worked on the unit, Adams concurred in his judgment as to the problem which later proved to be incorrect. Taylor was of the opinion that they had lied to him concerning the work required, although the evidence supports a finding that they were merely mistaken. The evidence, however, also supports a finding that there had been a number of problems with refrigeration units during the 1975 spring term that were due, in some respect, to an inefficient method of ordering parts by others and also because many compressors had to be replaced. About four years previously, the school system had purchased a rather large amount of refrigeration equipment. These same problems had been in existence prior to Adams' tenure with the school system (Testimony of Taylor, Adams, Williams, Watts; Exhibit 5 & 6.) On May 8, 1975, Taylor wrote to Phillips recommending that the Refrigeration Department be reduced to one man, a Refrigeration Mechanic II (a lower grade than mechanic I), with major problems to be handled by utilization of local contractors. The letter pointed out the difficulties that had been encountered and expressed dissatisfaction with the attitude and competence of the Refrigeration Mechanic I (Adams). In effect, this letter reversed Taylor's prior recommendation that Adams be rehired for the ensuing school year (Exhibit 4.) On or about May 12, 1975, Williams, who was assisting Adams in employee organization work, talked to the president of the secretaries association of the school system at her house concerning the subject of organization. He could not answer all of her questions and it was arranged that Adams would meet with the secretaries the following day. He did so in the school library at 4:15 p.m. after working hours. The next day it was reported to the executive secretary for the school board that Adams had told the group they would have difficulties in securing job benefits unless they were organized. She believed this information was erroneous and had Adams call her on the telephone. He declined to discuss the subject during working hours. Phillips had planned to have a meeting with Taylor and Adams that morning at 9:45 a.m. When he came into the office, the executive secretary told him of her discussion with Adams and he told her that he had had complaints in the Maintenance Department and was going out there to see what the problem was. He was concerned that the maintenance personnel were playing "catch-up" rather than preventing maintenance problems from arising in the first place. These problems had occurred in all areas of the Maintenance Department, including refrigeration work. At the meeting that morning, Phillips informed Taylor that he was suspended because of maintenance complaints, Williams was suspended for incompetence and Adams because of committing an unfair labor practice for allegedly speaking to the secretarial group on school time. At this time, Phillips told Adams that the School Board was not ready for collective bargaining that year, but maybe the next year. Adams informed him that he would continue to engage in employee organization, and Phillips stated that "Well, if you don't cease, you and all personnel involved in this association will all be fired and we will hire new personnel." In spite of Phillips' statements concerning suspension, he informed the employees that he would let them know by that Friday what he was going to do in regard to their status. He did not pursue the question of suspension any further and, as a result, Adams filed an unfair labor practice charge against the school board on May 20, 1975 (Testimony of Adams, Mock, Williams, Wilson, Taylor, Phillips.) Respondent's method of extending the employment of non- instructional personnel was for the superintendent to confer with the department head and, if he concurred in the department head's recommendation as to an employee, the matter would be presented to the Board of Public Instruction for approval. No contracts were involved for such employees, but Respondent operated normally on a school year basis from July 1 to June 30 as the term of employment. Phillips testified that, in May of 1975, he was reevaluating the need for support personnel and decided to look into the possibility of procuring services by contract with commercial firms. He was particularly unsatisfied with the Maintenance Department and disruptions that had occurred therein. He dispatched a letter on May 23 to Adams advising him that his name did not appear on the list of recommendations for reappointment at that time, but that he might be recommended at a later date should a position become available in his field. Since Phillips had until June 30th to make final decisions concerning rehiring of personnel, he investigated and determined that contract services were not feasible and therefore decided to stay with an "in-house" maintenance program. However, in view of the May 8th letter from Taylor concerning Adams, and the problems in refrigeration that had been occurring in the Spring, he recommended to the Board of Education that Adams not be continued as an employee. Nine of the eleven employees in the Maintenance Department received the same letter from Phillips, but Adams was the only one of that group who was not rehired. Adams never received anything further in writing on the matter and was not shown Taylor's letter of May 8 at that time (Testimony of Phillips, Adams, Exhibit 3.) Although the Board did not have a formal system for grievances or appeal of dismissals, Adams was accorded a hearing before the Board on July 10. This was prompted by his discussion with a school board member who showed him Taylor's May 8 letter for the first time and advised him to ask for a hearing before the Board. At the hearing, Adams was given an opportunity to respond to the allegations contained in Taylor's letter except as to Item 10 concerning work orders of which he had no knowledge. The hearing was then continued until July 24th in order to provide Adams more time for his defense. During this period, he secured letters attesting to his good work and cooperative attitude from nine principals of various schools in Columbia County. At the July 24th board meeting, Adams was confronted with a July 21st revision of Taylor's May 8th letter that was rewritten in order to eliminate "inconsistencies" which had appeared in the June 8th letter. The later letter added an allegation that Adams had gone into the Maintenance Department personnel files without Taylor's permission while Taylor was on vacation. This allegation stemmed from an incident in early June when Adams and Williams went into an open file cabinet in the Maintenance Department that was used to store secondary personnel files as well as work orders and manuals, and extracted a copy of their latest evaluation reports. Although they did not seek authorization for this, they informed the acting supervisor that they had obtained what they had gone in for. (Testimony of Adams, Williams, Murdock; Exhibit 3, Composite Exhibit 7, Exhibit 8.) Adams was given an opportunity to present matters at the July 24th Board meeting and the Board voted to support the superintendent's recommendation that he not be rehired. Subsequent to Adams' dismissal, Williams had taken his place for a short period of time and thereafter a new man was hired. Problems with refrigeration equipment have been minimal during the past year, it having been discovered that the wrong type of gas had been used in replacement compressors in the past (Testimony of Taylor, Watts, Williams, Martin.) Respondent has drawn unemployment insurance of $82.00 a week since October 1, 1975. Although he registered with the Florida State Employment Service for a position as a commercial air conditioner and refrigeration mechanic, there have been no jobs of that nature offered to him in the area where he resides (Testimony of Adams.)
Recommendation That the Public Employees Relations Commission issue an order requiring the Columbia County Board of Public Instruction to cease and desist from unfair labor practices as defined in Section 447.501(1)(a) & (b), Florida Statutes, with respect to the Columbia County Transportation and Maintenance Workers Association, and to take prompt action to reinstate Jack W. Adams as a Refrigerator Mechanic I with back pay from July 1, 1975 to date of reinstatement, plus interest at 6 percent per annum, less amounts the aforesaid individual has received from state governmental sources during the stated period. Done and Entered this 7th day of June, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Thomas W. Brooks, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Terry McDavid, Esquire Box 1328 Lake City, Florida =================================================================
The Issue Whether or not on or about November 8, 1977, a licensing worker of the Petitioner visited and encountered several violations of the staff ratios in the facility of the Respondents, (among these, five infants completely unsupervised in one room, and eighteen children in two connecting rooms without supervision), in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Whether or not on January 24, 1978, the visit by an employee of the Petitioner to the facility of the Respondents disclosed that the infant area was short one staff member, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Whether or not on March 8, 1978, an employee of the Petitioner visited the Respondents' facility and found seventeen infants, eleven of whom were under one year of age, supervised by only one staff worker, in violation of Rule 10C- 10.22-(2)(e), Florida Administrative Code. Whether or not on March 8, 1978, an employee of the Petitioner visited the Respondents' facility and discovered one child alone in a room in the facility completely unsupervised, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Whether or not on March 15, 1978, an employee of the Petitioner in a visit to the Respondents' facility found two children in a room completely unsupervised, in violation of Rule 10C-10.22(2)(e), Florida Administrative Cede. Whether or not on March 15, 1978, an employee of the Petitioner visiting the licensed facility of the Respondents found eleven infants in one room supervised by one staff person, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Whether or not on March 15, 1978, an employee of the Petitioner while visiting the Respondents' facility discovered on the outside part of the premises, four infants with a group of about fifteen older children being supervised by only two staff persons of the Respondents, in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Whether or not subsequent to March 15, 1978, an employee of the Petitioner visited the Respondents' facility on three separate occasions and found less than the minimum required staff on duty in violation of Rule 10C- 10.22(2)(e), Florida Administrative Code. Whether or not on April 5, 1978, an employee of the Petitioner visited the Respondents' facility and found nine infants completely unattended in the infant area of Respondents' licensed premises, in violation of Rule 10C-10.22 (2)(e), Florida Administrative Code. Whether or not on that same date, an employee of of the Petitioner visited the facility of the Respondents and discovered that a mattress and springs of one of the cribs had become dislodged in one corner, so that the corner of the mattress and springs had fallen to the floor causing one of the nine infants that was in the crib to be trapped between the mattress and the bottom of the crib.
Findings Of Fact This cause came on for consideration on the complaint letter of the Petitioner dated April 17, 1978, served upon Mr. Ted and Juanita Porth d/b/a Kiddie World. The petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of the State of Florida, charged with the duty of licensing and regulating "Child-care facilities" under the authority of Chapter 402, Florida Statutes. The Respondents, led and Juanita Porth are licensed by the Petitioner to operate a "Child-care facility" and under that license do business as Kiddie World at the location 8142 Lone Star Road, Jacksonville, Florida. This action has been brought by the Petitioner against the Respondent under the terms and conditions of Chapter 402, Florida Statutes. Section 402.301, Florid Statutes, sets out the legislative intent and declaration of purpose and policy and Section 402.302, Florida Statutes, defines "Child-care and "Child-care facility." The Respondents are providing "Child-care" within the meaning of that definition and are operating a "Child-care facility" within the definition set forth. The Respondents by Section 402.302, Florida Statutes, are within the meaning of the Section, the "Operators" of the "Child-care facility." Section 402.305, Florida Statutes, enables the Petitioner to establish certain licensing standards for the operation of a "Child-care facility." Among those are minimum standards, to include standards for personnel working in a "Child-care facility." Specifically, in Section 402.305(1), Florida Statutes, the language reads: 402.305 Licensing standards.-- The state minimum standards shall be designed to protect the health, sani- tation, safety, and well-being of all children under care by ensuring com- petent personnel, adequate physical surroundings, and healthful food. All standards established under this act shall be in accordance with the appro- priate minimum standards used by the state fire marshal for child-care facilities. The minimum standards for child-care facilities shall include the following areas: (1) PERSONNEL.-- Minimum standards for child-care personnel, whether employees or volunteers, which shall include minimum age requirements, periodic health exami- nations, minimum levels of training in first aid, and ratios of personnel to children. It is the minimum standards for personnel, in terms of the ratios of personnel to children, which is the underlying basis of action against the Respondents. The rule on minimum standards for personnel which the Petitioner claims to have been violated by the Respondents. is Rule 10C-10.22(2)(e), Florida Administrative Code, and it states the following: (e) Ratios of Personnel to Children: General The following staff ration is based on direct supervision of children: AGE OF CHILDREN RATIO Under 1 year of age 1 person for 6 children year of age 1 person for 8 children years of age 1 parson for 12 children years of age 1 person for 15 children years of age 1 person for 20 children years of age 1 person for 25 children The groups of mixed age ranges, where infants are included, one (1) person shall not be responsible for more than six (6) children of any age group. Where infants are not included, the staff ratio shall be based on the age of the majority of children in the group. There shall be an arrangement for another adult to be readily available to substitute for the adult in charge in case of emergency. If both non-handicapped and handicapped children are served, it may be necessary for the operator to make an adjustment in the staff ratio to insure adequate and propar care of the handicapped child . . . One further reference is necessary. In defining the meaning of "infant," reference is made to Rule 10C-10.22(1)(i), Florida Administrative Code, which defines "infant" as ". . . child less 24 months of age." For the alleged violation of the minimum standards established under the provisions of Section 402.305(1), Florida Statutes, the Petitioner is attempting to revoke the Respondent "Operator's" license to operate a "Child- care facility" as Kiddie World, at 8142 Lone Star Road, Jacksonville, Florida. The authority for such action and revocation is found in Section 402.310(1), Florida Statutes, which states: 402.310 Hearings upon denial or revocation of license.-- (1) When the department or local licensing agency, whichever is applicable, has rea- sonable cause to believe that grounds for the denial or revocation of a license exist, it shall notify the applicant or licensee in writing, stating the grounds upon which the license is being denied or revoked. If the applicant or licensee makes no written request for a hearing to the local licensing agency or the department, whichever is applicable, within 15 days from receipt of such notice, the license shall be deemed denied or revoked. The Petitioner by its letter of April 17, 1978, served upon the Respondents, has notified the licensees/Respondents of the grounds upon which the license is being subjected to possible revocation. In particular, the actionable part of the complaint letter is found, beginning on the first page where it points out selected alleged violations beginning with November 8, 1977, (inclusive of the beginning of the second page) through incidents alleged to have occurred on April 5 1978. The facts in the case show that on November 8, 1977, Nancy Corley, an employee of the Petitioner, working in the area of day-care licensing, went to the licensed premises to make a routine check. During the course of that inspection, she found five infants, (within the meaning of Rule 10C-10.22(1)(i), Florida, Administrative Code), who were unattended by any adult in the room in which the children were seen. This was a violation of the minimum standards for ratio's of the personnel to children, within the meaning of Rule 10C- 10.22(2)(e), Florida Administrative Code. On that same visit, the inspector found eighteen additional children in two connecting rooms, who were without supervision, again in violation of Rule 10C-10.22(2)(e), Florida Administrative Code. Ms. Corley waited in the office area of the licensed premises and made one of the Respondents aware of the violation and that Respondent agreed with the findings and indicated that corrections would be made. Ms. Corley testified that she made a later visit to the licensed premises on January 24, 1978, and discovered that the operators were short one adult in the infant room. No further testimony was offered in support of this ultimate face conclusion, therefore, no violation has been established of the requirement of ratios of personnel to children, as set forth in Rule 10C- 10.22(2)(e), Florida Administrative Code. On March 8, 1978, a new employee of the Petitioners working in the day- care licensing unit of the Department of Health and Rehabilitative Services went to the address of Kiddie World. That employee was Nora Hall. Her inspection was unannounced. (Neither one of the Respondents were at the licensed premises at that time.) In one room she discovered seventeen children being supervised by one adult and there were children in the group who were under the age of two years, thereby being classified as infants. Consequently, this was a violation of the ratios of personnel to children in that this mixed group which included infants could not have had a ratio of supervisory persons to children in which any one supervisory person was responsible for more than six children of any age group, as explained in Rule 10C-10.22(2)(e) 1.B., Florida Administrative Code. On that same visit, Ms. Hall found one child in the lobby who was completely unattended by a supervisory person, in violation of the ratios of personnel to children required by Rule 10C-10.22(2)(e), Florida Administrative Code. Ms. Hall spoke to the person working in the infant room and explained the violations and later explained the violations to the Respondent Mrs. Porth. On March 15, 1978, Ms. Hall returned to Kiddie World for a further inspection. She observed one staff member in one of the rooms attending eleven children two years old or younger. Again, this is in violation of Rule 10C- 10.22(2)(e), 1.B., Florida Administrative Code, which requires that groups with mixed age ranges which contain infants should have a ratio of supervisory personnel to children which has at 1oat one adult for every far every six children. On the outside, she found a group of twenty children, including four infants, which were being supervised by two persons. This was also a violation of Rule 10C-10.22(2)(e) 1.B., Florida Administrative Code, requiring a minimum of one personnel for every six children in a group of mixed age ranges whereby infants are in the group. There was a further allegation in the complaint letter that stated that on the same date, two children were in a room totally unsupervised. There was no testimony to that effect and no violation has been established. On March 17, 1978, on a further visit Ms. Hall again found some children unattended by personnel of the operators, in violation of Rule 10C- 10.22(2)(e), Florida Administrative Code. No other violations as alleged to have occurred subsequent to March 16, 1978 and before April 5, 1978 were proven. Ms. Hall made her next inspection on April 5, i978. At that time she discovered nine children in the so-called infant room of the operators' facility who had no adult in attendance. This is a violation of the requirements of ratios of personnel to children set forth in Rule 10C-10.22 (2)(e), Florida Administrative Code. It was several minutes before any adult came into the room. Testimony revealed that some of the children in the room were asleep; however, one of the children had become lodged between the mattress of the baby bed and the railing of that bed and was struggling to become free of this entanglement. Mrs. Porth was made aware of the observations of Ms. Hall on a visit subsequent to April 5, 1978. It was shown in the course of the hearing that a meeting was held between Mr. Porth, one of the Operators, and Bruce Rhodes, a day-care licensing supervisor employed by the Petitioner, on May 31, 1978, at which time discussions were entered into on the issue of the necessity to maintain proper personnel to children ratios within the Child-care facility. On July 21, 1977, Mr. Rhodes wrote to Respondents, as seen by Petitioner's Exhibit No. 1 admitted into evidence. This letter apprises the Respondents of some problems with the ratios. Respondents replied by letter of July 28, 1977, indicating the corrective actions and the observations of Respondents. That letter of July 28, 1977, may be found as Petitioner's Exhibit No. 2. Mr. Rhodes subsequently wrote to the Respondents on March 16, 1978, setting out some of the alleged violations which were the basis for the complaint letter of April 17, 1978, and which violations have been proven in the course of this hearing. These alleged violations alluded to in the March 16, 1978, correspondence from Mr. Rhodes to the Respondent were discussed in the meeting between Rhodes and the Respondents at a time prior to the April 17, 1978, complaint letter.
Recommendation After a full consideration of the facts in this cause and those matters in mitigation and aggravation, it is recommended that the license of the Respondents to operate a "Child-care facility" at 8142 Lone Star Road, Jacksonville, Florida, be revoked, but that that revocation be withhold pending the satisfactory completion of a two-year probationary period, during which time the Respondent shall abide by the provisions pertaining to their licensure as a "Child-care facility" with a condition of the probation being that the failure to abide by those requirements shall subject the Respondents to revocation. DONE and ENTERED this 21st day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg Department of HRS District IV Counsel Post Office Box 2417F Jacksonville, Florida 32231 William Nussbaum 549 Florida National Bank Building Jacksonville, Florida 32202
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of her age.
Findings Of Fact Respondent, the Pasco County Board of County Commissioners, is a governmental entity, and the Pasco County Library System is one of its departments. Petitioner, a female, was born on July 2, 1955. Respondent first employed Petitioner on or about September 8, 1997, as a Library Assistant II, a paraprofessional position. When Respondent hired Petitioner to this position, she was 42. On April 9, 2001, Petitioner was promoted to a Librarian I trainee position, at the age of 45. On February 4, 2002, Petitioner was promoted to a Librarian I position, at the age of 46, after she earned a Master's Degree in Library Science. The position of Librarian I is an at-will position, meaning that the person serving in such position can be terminated for no cause. Petitioner continued to work in the position of Librarian I until Respondent terminated her on or about March 24, 2005. Prior to 2002-2003, Petitioner's annual evaluations were favorable. Even after Petitioner was promoted to the Librarian I position, her annual evaluations rated her job performance in several categories, as well as her overall job performance, as "meets standards." The rating of "meets standards" indicates that the employee's performance "generally meets the supervisor's expectations on most performance criteria." Notwithstanding Petitioner's overall ratings of "meets standards," in the annual evaluations for 2002-2003 and 2003- 2004, her performance in some categories was rated as "needs improvement." Petitioner's annual evaluation for the period from April 2, 2002, to April 9, 2003 (the 2002-2003 evaluation), rated Petitioner's performance as "needs improvement" in several sub-categories under the following three categories: (1) Application of Professional Skills; (2) Performance of Routine and Special Assignments; and (3) Working Relationship, Communication, and Coordination with Other Personnel. Under each broad category, there were four sub-categories as well as a sub-category for the total rating in that particular category. On Petitioner's 2002-2003 evaluation, under the category, "Application of Professional Skills," Petitioner was rated as "needs improvement" in one sub-category. That sub- category was, "no unnecessary delays are encountered in performing assignments or resolving problems." On the 2002-2003 evaluation, under the category, "Performance of Routine and Special Assignments," Petitioner's performance in all sub-categories was rated as "needs improvement." These sub-categories were as follows: (1) conformance with schedules, standards, and plans does not require close supervision; (2) deviations in instructions, work schedules, and standards are approved by supervisor or corrected; (3) new and additional assignments are readily accepted and performed; and (4) work is of sufficient quality and quantity to meet supervisor's expectations. With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the evaluation indicated notes that Petitioner should be at her assigned work location at scheduled times, and should obtain approval in advance from her supervisor prior to changing her work location and/or assigned work times. The written comments on the evaluation also stated that Petitioner had difficulty accepting a new supervisor, but indicated that Petitioner was responsible for readily accepting and implementing instructions from her supervisor. The 2002-2003 evaluation rated Petitioner's performance in all the sub-categories under the category, "Working Relationship, Communication, and Coordination with Other Personnel," as needs improvement. The sub-categories were as follows: (1) conflicts or problems in working relationships are usually resolved without intercession of higher authority; (2) needs, problems, and procedures are communicated to affected parties; (3) desired results are accomplished through subordinate and other personnel; and (4) few and only minor problems occur because of inadequate communication and coordination of activities. With reference to the category, "Working Relationship, Communication, and Coordination with Other Personnel," on the 2002-2003 evaluation, Petitioner's supervisor wrote, Petitioner has the propensity for starting projects at the last minute which negatively affects other team members. Furthermore, in the written comments on that evaluation, the supervisor directed Petitioner to communicate regularly with other team members when collaborating on projects and to communicate needs and problems to her supervisor before deadlines. On the 2002-2003 evaluation, under the category, "Other Factors Important to Supervisor," Petitioner's supervisor noted that Petitioner "is encouraged to learn and adapt to change." Petitioner's second annual evaluation (the 2003-2004 evaluation), while employed as a Librarian I, covered the period of April 9, 2003, to April 9, 2004. Petitioner's 2003-2004 evaluation, like her 2002-2003 evaluation, rated her overall performance as "meets standards." However, on the 2003-2004 evaluation, Petitioner's supervisor rated her performance in three sub-categories as "needs improvement." In the 2003-2004 evaluation, the first category in which Petitioner was rated as "needs improvement" was "Application of Professional Skills." The specific sub-category in which Petitioner was rated as "needs improvement" was "no unnecessary delays are encountered in performing assignments or resolving problems." With regard to the category, "Application of Professional Skills," on the 2003-2004 evaluation, Petitioner's supervisor wrote that Petitioner has excellent reference skills, is resourceful and determined to provide good customer service, has highly developed problem solving skills, and has made many helpful and logical suggestions that have benefited the library. However, the supervisor's written comments also noted that, "the strength of some of [Petitioner's] ideas may occasionally make it difficult for [her] to adjust quickly when a decision is made to proceed in a fashion that differs from the way she believes is correct." On the 2003-2004 evaluation, in one of the four sub- categories under the category, "Performance of Routine and Special Assignments," Petitioner's performance was rated as "needs improvement." That sub-category was "new and additional assignments are readily accepted and performed." With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the 2003-2004 evaluation indicate that Petitioner served as reference support for many branches throughout the county, that her efforts are appreciated by staff and supervisors at those branches, and that her willingness to travel to the various locations on an ever-changing basis is commendable. The supervisor further noted that in addition to her other assignments, Petitioner developed a series of on-line tutorials. However, in addition to the foregoing commendations about Petitioner's work, the supervisor wrote that "there has been occasional reluctance to initiate some assignments in a timely fashion on [Petitioner's] part." The third area in which Petitioner was rated as "needs to improve" was a sub-category under the category, "Working Relationship, Communication, and Coordination With Other Personnel." The specific sub-category under that category in which Petitioner's performance was rated "needs to improve" was "conflicts or problems in working relationships are usually resolved without the intercession of higher authority." With regard to this category, the evaluation notes that Petitioner is a respected member of the Pasco County Library System. However, the evaluation states that Petitioner "is reminded that she should strive to complete her assigned duties in a timely fashion so as not to affect her co-workers in a negative way." Petitioner's 2003-2004 evaluation also made detailed comments in an area designated "Other Areas Important to Supervisor." While acknowledging that Petitioner is an intelligent and thoughtful employee, and that her suggestions are consistently logical and well thought out, the supervisor's written comments on the evaluation stated, "[Petitioner] has been told . . . that she needs to develop her ability to accept and implement decisions that she may not agree with. She has also been told to focus more of her efforts on being a team player rather than defending her own position (no matter how defensible that position may appear)." Petitioner received and signed the 2002-2003 and the 2003-2004 annual evaluations, and was verbally counseled by two of her supervisors. There is no dispute that Petitioner was a competent librarian and well trained for the position. Moreover, Petitioner did a good job on her work-related assignments if they were assignments that she liked, but she tended to ignore assignments that she did not want to do. Such conduct created problems on the job by requiring other employees to do some work-related tasks assigned to Petitioner. Following Petitioner's 2002-2003 and 2003-2004 evaluations, there was an work-related assignment which ultimately culminated in Respondent terminating Petitioner's employment. The assignment was an important, extensive, and comprehensive project that required team work. That assignment, referred to as "weeding," was given to all librarians in or about October 2003. The project required the librarians to "weed" assigned sections in the library by removing outdated and damaged books and materials. New books and materials were to be ordered to replace those outdated and damaged books and materials. Petitioner believed the "weeding" project was a 15- month project with a projected completion date of December 2004. In April 2004, Petitioner's supervisor asked her when she would complete her portion of the weeding project. Petitioner did not respond to her supervisor's question. Instead, Petitioner asked her supervisor if the deadline for completing the project had changed. In August 2004, Petitioner's supervisor again asked her when she would have her assigned weeding project complete. As she had in April 2004, Petitioner responded to this inquiry by asking her supervisor if the "deadline" had changed. Petitioner never gave her supervisor a specific or approximate time when she would complete the project, but only said she would complete the project "soon." This response was non- responsive and gave the supervisor no information regarding how much of the Petitioner's weeding assignment was complete, how much of the assignment remained to be done, or when she would complete the assignment. After Petitioner failed to respond to her supervisor's inquiry about when she would complete the weeding assignment, the supervisor pulled Petitioner off the weeding assignment. He then assigned another librarian to complete Petitioner's weeding assignment that she had not yet completed. That librarian completed Petitioner's assigned weeding in about a day and a half. Based on Petitioner's failing to complete her assignment described in paragraph 25, Petitioner's supervisor conferred with appropriate human resources personnel about terminating Petitioner's employment. Upon completion of the review process, Petitioner's employment was terminated. In a letter dated March 24, 2005, Respondent notified Petitioner that, effective immediately, her services at the Pasco County Library Services were no longer required. The letter did not give a reason for Respondent's termination. Petitioner's employment as a Librarian I was an at- will position. Accordingly, Respondent was under no duty to give Petitioner a reason for her termination and could, in fact, terminate her for no cause. Petitioner alleged that she was terminated in retaliation for following a supervisor's directive that Petitioner terminate the services of a library volunteer. Petitioner also alleged that Respondent terminated her employment, based on her age, in order to bring in younger librarians and to move out the older librarians. Petitioner's allegation that she was terminated based on her age is not supported by the evidence. First, the allegation that her employment was terminated because she followed a supervisor's directive to terminate the services of a library volunteer does not in any way establish that Petitioner was terminated because of her age. Second, although Petitioner alleges that there was an effort to bring in young librarians and to move out the older librarians, the evidence established that there was no interest in or effort to hire only young librarians and fire the older librarians. Rather, there was an effort to promote persons currently in Librarian I positions with the Pasco County Library System, regardless of their age, and to bring in new librarians into the entry level positions. The average age of professional and management staff in the Pasco County Library System is 46, even though the Librarian I is an entry level professional position and may attract younger candidates. The reason Petitioner was terminated as a librarian, with the Pasco County Library System, was because of her job performance and not because of her age.
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 finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 31st day of January, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 31st day of January, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara DeSimone Pasco County Board of County Commissioners d/b/a Pasco County Library System 7530 Little Road New Port Richey, Florida 34654 Cyd Johnston Stewart 3801 Allen Road West Virginia, Florida 33541 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's furlough should be revoked based on his failure to comply with the terms of the furlough agreement which he executed on April 6, 1981. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found.
Findings Of Fact Petitioner, Samuel Grant, is a seventeen (17) year-old male who was furloughed to the Department of Health and Rehabilitative Services, Youth Services Division, on April 14, 1981. At that time he agreed to abide by a furlough agreement which required, inter alia, that he (1) obey all laws; (2) not change or leave his residence, employment, or school, or leave the county without the consent of his counselor or other authorized HRS representatives; (3) that he keep in contact with his counselor and (4) that all instructions of his counselor be carried out. Additionally, he agreed to abide by a 9:00 P.M. curfew on week days and an 11:30 P.M. curfew on weekends; attend community mental health for counseling; attend school or find gainful employment and make weekly contact with his counselor on Wednesdays of each week. (Petitioner's Exhibit 2.) On September 8, 1981, the Youth Services Division revoked Petitioner's furlough agreement based on the following facts: (1) Petitioner failed to obey laws and he gambled for his income; (2) failed to follow instructions of his parents and counselor; (3) continuously violated his curfew and (4) failed to attend school or maintain employment. (Petitioner's Exhibits 1 and 3, and Testimony of Jesse Morris, Petitioner's counselor while furloughed at the Belle Glade Youth Center.) The evidence herein also reveals that Petitioner was expelled from school because he possessed marijuana and his mother testified herein that he violated his curfew on numerous occasions. Petitioner's mother indicated that he spent nights away from home on a number of occasions and that he was afforded an opportunity to work with his father, a contractor, who extended a job offer to Petitioner. Petitioner has repeatedly run afoul of criminal laws from December, 1978, through October, 1980, including, but not limited to: (1) unauthorized use of a motor vehicle; (2) malicious mischief; (3) resisting arrest with violence; (4) possession of burglary tools, night prowling, and (5) burglary and grand larceny. Petitioner does not dispute the above findings; offered that he felt that he was not breaking the law and that he did not consider that it was "right" for him to attend school. He offered no explanation as to his failure to accept the offer of employment extended by his father.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's Order of September 8, 1981, revoking Petitioner's furlough, and ordering him to be reassigned to another program or facility as soon as practical, be SUSTAINED. RECOMMENDED this 1st day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1982. COPIES FURNISHED: Samuel L. Grant c/o Florida School for Boys Route 7, Box 250 Okeechobee, Florida 33472 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401
The Issue The nature of the instant controversy is whether Petitioner has just cause to terminate Respondent under section 1012.33, Florida Statutes (2015),1/ and whether Respondent's acts and/or omissions disqualify him from being employed in the Indian River County School District ("School District").
Findings Of Fact Based on the evidence presented at the final hearing, the undersigned makes the following findings of relevant and material facts: Respondent was employed by the School Board as a classroom teacher. As a teacher, Respondent was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida, and all School Board policies. Testimony of William Fritz William Fritz, assistant superintendent for Human Resources and Risk Management, testified for the School Board. One of his primary duties is to conduct employee disciplinary investigations for the School Board. He is considered the "point person" for such matters. Fritz was informed by the fingerprint specialist in his office that Respondent had been arrested for felony DWLS. Subsequently, the same person informed him that Respondent had been convicted of the felony DWLS on October 6, 2015. The felony designation for Respondent's DWLS was based on this being his third or subsequent DWLS offense. The Judgment of Conviction dated October 6, 2015, designated the crime as "Driving While License Revoked-Permanently Revoked." Pet.'s Ex. F. After learning of Respondent's felony conviction, Fritz conducted an internal investigation. He had an informal discussion with Respondent to discuss the matter. This occurred in November 2015. When they met, Respondent told Fritz that he felt he did not need to self-report the conviction because the School District was automatically notified by the court.2/ Respondent explained to Fritz that there were some extenuating circumstances for the car trip that day involving a visit to a very ill friend. As a follow-up to the meeting, Fritz reviewed the School Board policies pertaining to discipline. He concluded that the situation likely warranted termination. He requested to meet with Respondent again, but his invitation was declined by Respondent. During the course of his investigation and review of Respondent's personnel file, Fritz concluded that Respondent had been put on employment probation by EPC in 2012 and that the probation was still active when the 2014 arrest and subsequent conviction in 2015 occurred. The EPC order proscribed certain conduct by Respondent during probation. The EPC order provided that Respondent "violate no law and shall fully comply with all District School Board policies, school rules, and State Board of Education rules." Fritz concluded that the DWLS conviction violated that provision of the EPC order, as well as certain School Board employee rules and policies. Notably, Fritz concluded that Respondent's 2015 felony DWLS conviction was a Category 3 violation of School Board Policy 3121.01. Convictions for Category 3 offenses, by definition, expressly prevented the hiring or retention of an employee "under any circumstances." Pet.'s Ex. K.3/ After reviewing all of the relevant documents and concluding his investigation, Fritz met with the School Board superintendent and recommended that Respondent be terminated. In arriving at that recommendation, Fritz took into account the mitigating factors explained by Respondent during their first meeting, namely needing to visit a sick friend. Fritz noted during his investigation that another final order of EPC had also been entered in 2007, disciplining Respondent for a conviction for driving under the influence ("DUI"). Fritz testified that there had been a termination of another teacher in the School District for a felony offense. The termination occurred in 2013 and was referred to DOAH, which recommended that termination was appropriate. There was no suggestion or testimony during the course of Fritz's testimony that the recommendation to terminate Respondent was related in any manner to problems with Respondent's job performance or other conduct on the job. Rather, the felony conviction violated School Board policy requiring termination and also constituted violations of the EPC order and resulting EPC probation. On cross-examination, Fritz acknowledged that the most recent felony conviction in October 2015 had not yet been addressed or ruled on by EPC insofar as Respondent's teaching certificate was concerned. Fritz further testified that a collective bargaining agreement ("CBA") exists which governs the discipline of teachers, including Respondent. Article 5.1, section (A) of the CBA, states as follows: Discipline of an MBU shall be progressive. Progression shall be as follows: documented verbal warning presented in a conference with the MBU, a letter of reprimand, suspension, termination. Serious first offenses may result in an immediate, strong consequence up to and including termination. Resp.'s Ex. 18. Fritz testified that Respondent's felony conviction for DWLS was a "serious first offense," which gave the School District the discretion to move directly to termination under Article 5.1, section (A) of the CBA.4/ When questioned by Respondent as to whether or not a felony conviction for a worthless check offense, for instance, could also result in a termination, Fritz pointed out Petitioner's Exhibit K, which specifically designated worthless check convictions as a different and separate "Category 5" offense. Category 5 offenses, by express definition and unlike Category 3 offenses, afforded the School District considerable leeway on discipline, on a case-by-case basis. Conversely, Fritz testified that a felony conviction for DWLS fell under a different category, "Category 3," and was considered significant and serious enough to warrant termination of the employee. Testimony of Brian Krystoforski Respondent started teaching in 1984 and is in his 24th year of teaching in the state of Florida. Respondent testified, and emphasized throughout the proceeding, that the School District was aware of a prior criminal traffic conviction and EPC sanctions in 2012 but, nonetheless, permitted Respondent to continue to teach in the School District.5/ Respondent testified that the 2012 EPC final order related, as well, to a prior DWLS felony conviction. Respondent testified that, on the date he was arrested for the 2015 DWLS conviction, he was driving to visit a good friend who had serious medical issues and was very depressed. However, he acknowledges his trip was a "bad decision." He characterized his plea of no contest on October 6, 2015, as more of a plea of convenience believing that his explanation for driving that day would mitigate the effect of the criminal plea and conviction before the circuit court judge. The undersigned has considered the collection of exhibits offered by the parties and admitted into evidence. The undersigned has also reviewed the plea colloquy from October 2015 before the circuit court judge who took Respondent's felony plea to DWLS.6/ Respondent emphasized that his felony conviction for DWLS should be evaluated using several mitigating factors found in Florida Administrative Code Rule 6B–11.007, Disciplinary Guidelines.7/ Insofar as the severity of this conviction is concerned, Respondent felt that he was just guilty of using "bad judgment." Furthermore, Respondent argues that he is not a danger to the public under one of the mitigating factors outlined in the Florida Administrative Code. Another mitigating factor Respondent felt should be considered is that he has been an educator for a long period of time. He felt that his commitment and participation as the football defensive coordinator at Vero Beach High School should also be considered a mitigating factor. Respondent felt that there had been no actual damage, physical or otherwise, caused by his driving while license suspended. Furthermore, in 24 years of teaching, he has never been considered for termination for any other conduct or offenses. Finally, he argues that the effect of termination on his livelihood and ability to earn a living warrants consideration. On cross-examination, the evidence revealed that Respondent had a conviction for DUI in 1988, a conviction for DUI in 1990, and a conviction for a DUI in 2002. In 2004, adjudication was withheld for driving while intoxicated on a revoked license. Respondent also conceded that EPC warned him that a permanent revocation of his educator certificate could occur under certain circumstances, particularly if the educator's certificate had been sanctioned by EPC on two or more previous occasions. Respondent testified that he had, indeed, been sanctioned by EPC on two previous occasions prior to this 2015 conviction for DWLS. There is also evidence to show that Respondent has been characterized as a "highly effective" teacher during recent evaluations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board implement its preliminary decision to terminate the employment of Respondent. DONE AND ENTERED this 2nd day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 2nd day of May, 2016.
The Issue The issue is whether Respondent is entitled to recover an alleged overpayment of $499.76 in salary previously paid to Petitioner.
Findings Of Fact Respondent employs Petitioner as a Juvenile Detention Officer in Sarasota, Florida. On October 1, 2004, Respondent issued a warrant to Petitioner for the payroll period from September 10 through 23, 2004. The gross amount of the warrant was $1,132.73. After authorized deductions, including taxes and retirement contributions, the net pay to Petitioner was $773.87. The warrant overpaid Petitioner in the amount of $499.76. The warrant paid Petitioner for 60.5 hours of overtime, but Petitioner actually worked only 27.25 hours of overtime. Respondent overpaid Petitioner for 33.25 hours of overtime. During the payroll period at issue, Respondent paid Petitioner a standard hourly rate of $10.85. The hourly rate for overtime was $16.275, equal to the mathematical product calculated when the standard hourly rate of $10.85 is multiplied by a factor of 1.5. The amount of overpayment for 33.25 hours may be calculated mathematically as $541.14, equal to the product determined when 33.25 of overtime is multiplied by the hourly rate of $16.275. The difference between $541.14 and $499.76 is not explained in Respondent's PRO, and Respondent did not order a transcript of the testimony of Respondent's witness during the hearing. The worksheet exhibits purporting to explain the difference are partially unclear copies of the original worksheets. The difference between $541.14 and $499.76 cannot be explained in this Recommended Order based on the available evidence. However, Respondent stipulates that the net overpayment is $499.76. Respondent explicated the reason for the overpayment as a problem encountered during the period in which Respondent converted its payroll system from the Cooperative Personnel System (COPES) to the People First system. In an effort to avoid delays in payroll payments to employees, Respondent requested managers and supervisors to ensure that their employees submit estimated time sheets in advance of the due date. Compliance with the request required employees to estimate their hours for the payroll periods August 27 through September 9, 2004, and September 10 through 23, 2004. For the latter of the two payroll periods, the supervisor for Petitioner submitted an estimated time sheet for Petitioner. Petitioner did not sign the estimated time sheet because Petitioner was not working on the date the supervisor submitted the estimated time sheet. The estimated time sheet predicted Petitioner would work 33.25 hours of overtime during the payroll period. Petitioner actually worked 27.25 hours of overtime during that period and subsequently submitted a corrected time sheet showing the 27.25 hours of overtime actually worked. Respondent paid Petitioner for 60.5 hours of overtime, including both the estimated and actual overtime worked. Respondent is entitled to reimbursement for the amount of overpayment that Petitioner received.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Respondent overpaid Petitioner in the amount of $499.76 and ordering Petitioner to repay the amount of overpayment. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S 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 31st day of July, 2006. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Steven Kelm 4589 Las France Avenue North Port, Florida 34286
