The Issue The issues are whether the Florida Commission on Ethics (Ethics Commission) has jurisdiction over Counts I and IV of the Advocate's Amended Recommendation, pursuant to section 122.322(1), Florida Statutes; if jurisdiction exists over Count IV, whether Respondent, while a commissioner and vice mayor of the City of Margate (City), violated section 112.313(7), Florida Statutes, by appearing before the City commission on behalf of his employer, which was seeking a beer and wine license for consumption on the premises (2COP); and whether Respondent is entitled to an award of attorneys' fees and costs, pursuant to section 57.105(5), Florida Statutes.
Findings Of Fact The Complaint is on a Ethics Commission form (Form 50) that asks the complainant for a full explanation of the complaint. The complaint form refers twice to documents. The complaint form asks the complainant not to attach copies of lengthy documents; the form assures that, "if they are relevant, your description of them will suffice." The oath printed on the complaint form states: "I . . . do depose on oath or affirmation . . . that the facts set forth in the foregoing complaint and attachments thereto are true and correct to the best of my knowledge and belief." The Complaint, which is signed and notarized, contains no explanation or narrative, but Complainant attached 11 pages of copies of documents, which are marked as pages 3 through 13. Page three of the Complaint is an article dated March 8, 2012, and posted on MargateNews.net.5/ This article reports that, by a 3-2 vote, the City commission reprimanded Respondent for abusing City credit card privileges, even though Respondent claimed to have repaid any unauthorized charges. The article reports that one commissioner expressed a belief that Respondent misused a City credit card and committed a "few other abuses." At page four of the Complaint is a copy of the City credit card agreement signed by Respondent. Handwritten notations add: "This (i.e., the credit card agreement) states that he (Respondent) cannot use card for personal use in which he did[.] [H]e bought beer and wine for his bar with cash advance. Says he paid it back in cash be has no repcit (sic) for it." All handwritten notes on documents attached to the Complaint and Amended Complaint were made by Complainant.6/ At page five, a MargateNews.net article dated August 16, 2010, reports alleged tax and purchasing violations by McLean's Bar & Grill, which was located at 2160 Mears Parkway. This article mentions other matters, including Respondent's voting a pay raise for City commissioners and a property-tax hike, Respondent's "history of financial instability . . . and fiduciary irresponsibility," and Respondent's two residential evictions from 1996-2006 for lease defaults. At page six is an unsigned, typewritten letter about Respondent. This letter twice charges that Respondent misused a City credit card and also alleges that he failed to repay $15,000 from "a Margate taxpayer"--Complainant--and violated unspecified tax and purchasing laws as to alcoholic beverages. A handwritten note adds: "I read this at the commissioner meeting." Below this note is printed Complainant's name. At pages seven and eight, a MargateNews.net article dated October 30, 2011, states that Complainant had lent Respondent $15,000 for a kitchen addition at McLean's Bar & Grill, but Respondent had failed to repay the loan after the business closed. This article alludes to some bad debts and judgments against Respondent or his businesses, but portions of the article are illegible, and the meaning of these portions of the article is unclear. The same article reports that Respondent was now operating Dave's Tiki Bar, which was located at 238 North State Road 7. Part of this portion of the article is also illegible, but seems to report that Jean LeBlanc, a co-owner with Respondent of a "former Tiki Bar," cancelled the bar's 2COP beer and wine license, effectively closing the bar. To reopen the Tiki Bar, according to the article, Respondent convinced his fellow City commissioners to hold a special meeting of the City commission in August 2011 to grant a 2COP license to "Tiki bar petitioner, Kenneth Suhandron," whom the article describes as Respondent's "partner." The article notes that Respondent abstained from voting due to a conflict of interest. The article states that Respondent acquired the corporate owner of the bar days after the special meeting, so Respondent now holds the temporary 2COP license, even though he had not paid for it. An online update indicates that Respondent paid for the 2COP license on November 1, 2011. At page nine, a MargateNews.net article dated August 20, 2011, describes a special meeting of the City commission on August 15. This article states that Respondent had been managing the Tiki Bar when a disagreement between him and his partner, Mr. LeBlanc, resulted in the cancellation of the bar's 2COP beer and wine license. According to the article, Respondent found a new investor, Mr. Suhandron, to apply for a new 2COP license and called for a special meeting of the City commission to provide the necessary City approval for the applicant to obtain a 2COP license. The article notes that Respondent appeared at the meeting to represent the listed applicant, Mr. Suhandron, but abstained from voting due to a conflict of interest. At pages 10 through 12 are a final summary judgment against Respondent and McLean's Bar & Grill, Inc., for $29,638.60 and a final judgment against Respondent for $20,073.63. At page 13 is an email from Complainant that pertains to the charge of Respondent's misuse of a City credit card. Redacted from the email is reportedly an email that another City commissioner had sent to Complainant, who added a handwritten note to this effect. The Amended Complaint is on the same form as the Complaint and is also notarized.7/ Like the Complaint, the Amended Complaint contains no explanation or narration of the charges, but it contains 41 pages of copies of documents, which are attached as pages A-3 through A-43. At pages A-3 through A-4, a letter dated May 16, 2012, from the Ethics Commission to Complainant focuses on Respondent's alleged failure to repay the $15,000 loan from Complainant and Respondent's misuse of a City credit card. To this letter, Complainant added a handwritten note stating: I cannot prove he use[d] [a City credit card for cash advances] for alcohol. . . for bar but just the cash advance alone is breaking the law over [sentence abruptly ends]. Just last week he got fined again for selling illigiel [sic] beer that he bought from a gas station in his bar[.] It will be in margate news.net next week[. I]f you want I can email you a copy. This man is a con artist. Pages A-5 through A-8 comprise a promissory note evidencing the $15,000 loan from Complainant. Complainant handwrote on the note: "He never gave me 1 payment or any interest payments." Pages A-9 through A-14 are the minutes of a meeting of the City commission on March 7, 2012. The sole handwritten addition to these minutes is at the top of the first page: "Each one of the following [commissioners?] has info on it[. A]ll are highlighted or outlined for your use." According to the minutes, one commissioner stated that she believed that Respondent had misused a City credit card and wanted him to resign, but he refused to respond to her statement or, clearly, to resign. This commissioner asked the City attorney to identify the options available to the City commission. The City attorney informed the commission that there had not been a determination that Respondent had violated the standards of conduct or code of ethics in his use of a City credit card and advised that the City commission could order an investigation, prospectively clarify the restrictions on the use of City credit cards and provide for forfeiture of office for a violation of these restrictions, publicly censure or reprimand a City commissioner, or prohibit a City commissioner from using a City credit card. According to the minutes, another commissioner--the mayor--then stated that what Respondent had done was wrong. The commissioner who had called for Respondent's resignation then asked for an investigation to be conducted by the county Board of Ethics or the Ethics Commission. The mayor responded that either this commissioner or a resident would need to file such a request because the City commission was not in a position to do so itself. A motion to censure Respondent, revoke his City credit card, and order an investigation then failed for the lack of a second. A motion followed to censure Respondent and revoke his City credit card. This motion was amended to add a directive to the City attorney to add restrictions to the use of City credit cards and provide for forfeiture of office for their violation. Prior to a vote on this amended motion, someone made a motion to table the amended motion, but the motion to table failed by a 2-3 vote. The commission then considered the amended motion, which passed 3-2. Respondent voted to table the amended motion and against the amended motion. At pages A-15 through A-21, the minutes of a meeting of the City commission on March 21, 2012, state that Respondent asked the City manager to cancel his City credit card "in light of the recent inquiries on his use of the card." (It appears, though, that the adoption of the March 7 amended motion should already have resulted in the cancellation of Respondent's City credit card.) According to the minutes, Respondent then "apologized for the mistrust the matter had caused" and added that "he did not intentionally misuse his position to mistrust anyone." Reverting to more conventional syntax, Respondent concluded: "He could not change what happened, but he had made it right and said it would not happen again." Complainant drew a box around this paragraph of the minutes, and he drew an arrow pointing to a corner of the box. Later in the meeting, the City commission unanimously agreed to advertise an ordinance restricting the use of City credit cards and providing for the dismissal of any employee violating these restrictions. A handwritten note states that Respondent should nonetheless be removed from office for his misuse of a City credit card because "[h]e used card for cash advances and said he paid city back in cash, but no one has a record of him doing that." Pages A-22 through A-37 are the minutes of a meeting of the City commission on April 18, 2012, and four executed memoranda of voting conflict that appear to have been attached to the minutes. These minutes describe City commission votes on alcoholic beverage licenses as to which Respondent abstained from voting due to his employment, but the establishments seeking City commission approvals appear to have been unrelated to Respondent. As indicated in the joint factual stipulation, at all material times, Respondent served as a commissioner and vice mayor of the City commission, and, as such, Respondent was subject to part III, chapter 112, Florida Statutes. As indicated in the joint factual stipulation, Respondent misused a City credit card. As indicated in the joint factual stipulation, while serving as a commissioner and vice mayor of the City, Respondent represented his employer before the City commission in the employer's application for a license from the City commission. Respondent timely disclosed his employment relationship to the City commission, abstained from voting on the issue, and timely filed a Memorandum of Voting Conflict. Under the circumstances, the appearance of Respondent, as an employee of the Tiki Bar, at the August 15, 2011, special meeting of the City commission did not constitute, or serve as a precursor to, a continuing or frequently recurring conflict between Respondent's private interests and public duties, nor did this appearance impede the full and faithful discharge of Respondent's public duties. The key facts are the lack of significant regulatory jurisdiction of the City commission over the issuance and use of 2COP licenses, the one-time nature of the Tiki Bar's need for City commission approval for its request for a 2COP license, the employment relationship that existed between Respondent and the Tiki Bar, and the absence of any responsibilities imposed on Respondent due to his employment with the Tiki Bar to represent other parties in requests before the City commission.
Recommendation It is RECOMMENDED that the Ethics Commission enter a final order dismissing Counts II and IV, determining that Respondent violated section 112.313(6) as alleged in Count I, and imposing an administrative fine of $3000, censure, and a reprimand against Respondent. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014. 1/ Available at
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. Final Order No. DEO11-0004 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correc copies have been furnished to the persons listed below in the manner described, on this Wai" of October 2011. riam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O'Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0004 Bobet and White, GF. A ATTORNEYS AT LAW 1111 Hypoluxo Road, Suite 207 fe ‘y . Sertune, Keeridde BEY JOHN CORBETT TELEPHONE (561) 586-7116 TRELA J. WHITE TELECOPIER (561) 586-9611 BRADLEY W. BIGGS** KEITH W, DAVIS* R. MAX LOHMAN * Board Certified in City, County and Local Government Law ABIGAIL FORRESTER JORANDBY * State Certified County and Circuit Court Mediator JENNIFER GARDNER ASHTON September 7, 2011 RECEIVED Via U.S. Mail William A. Buzzett SEP 12 201 Secretary Department of Community Affairs Olfice of Secretary 2555 Shumard Oak Boulevard Depraswens of Community Atala Tallahassee, Florida 32399-2100 Re: Final Order Entered In Case No. 10-10373 (The Cenacle Convent of Palm Beach County, Inc. Petitioner v. Town of Lantana, Respondent; Patrick F. Smith and Mark O’Donnell, Intervenors). Dear Mr. Buzzett: T represent the Town of Lantana, Florida (the “Town”). I am in receipt of the Department of Community Affairs’ (the “Department”) Final Order dated August 25, 2011 regarding the above-mentioned case. A copy of the Final Order is attached to this letter for your review. The Final Order provides that the Town’s Ordinance No. O-13-2010 is “in compliance” with Chapter 163, Florida Statutes. The Final Order appears to have been entered in error given that the Town Council reconsidered Ordinance No. 0-13-2010 and subsequently denied its adoption before it became effective pursuant to Section 163.3187(3)(a), Florida Statutes. Once the Ordinance was denied adoption, it no longer needed to be reviewed by the Department. The Department was notified of the Town Council’s decision in this regard through the Cenacle Convent of Palm Beach County, Inc.’s (“Cenacle”) Motion to Voluntarily Dismiss its DOAH case with prejudice. The Department was served with a copy of this Motion. The Motion discusses the Town Council’s decision to deny adoption of the Ordinance, which made Cenacle’s challenge moot. I have attached copies of both the Moticn and the Administrative Law Judge’s April 15, 2011 Order Closing File to this letter for your review. To provide you with more specific details regarding the Town Council’s actions, please note that on October 28, 2010, the Town Council passed Ordinance No. O-13-2010 amending the Town’s Comprehensive Plan to change the Cenacle Property’s (the “Property”) future land use designation from Commercial Low Density (C-1) to Residential Medium (R-3). September 7, 2011 Page 2 On November 23, 2010, Cenacle filed a Petition for Formal Administrative Hearing challenging the compliance of the Town’s Comprehensive Plan Amendment, as adopted by Ordinance No. 0-13-2010, on the basis that the Amendment was not in compliance with applicable law. The Cenacle’s filing of the Petition prevented Ordinance No. O-13- 2010 from becoming effective during the pendency of the DOAH proceeding. During the March 28, 2011 Town Council meeting, the Town Council voted to reconsider Ordinance No, O-13-2010 at its next regularly scheduled council meeting. The Town provided proper public notice that Ordinance No. O-13-2010 would be reconsidered during its next regularly scheduled Town Council meeting of April 11, 2011. During the April 11, 2011 Town Couricil meeting, the Town Council held a public hearing during which public comment was heard from members of the public wishing to speak. After closing the public portion of the hearing and following Town Council discussion, a motion to deny Ordinance No. O-13-2010 was made and seconded. The Town Council subsequently voted on the motion to deny Ordinance No. O-13-2010, the motion passed and the Ordinance was rejected. See Ordinance O-13-2010, a copy of which is attached to Cenacle’s Motion for Voluntary Dismissal. The “nay” votes indicated on the Ordinance represent the votes in favor of the motion to deny. Once Ordinance No. 0-13-2010 failed to pass, three things occurred. First, the previous land use designation of Cl-Commercial Low Density, which had been assigned to the subject property through the adoption of Ordinance No. 0-02-2009 on April 27, 2009, remained intact and continues to be in effect and applicable to the Property. Second, the basis for Cenacle’s DOAH Petition became moot. As a result, Cenacle moved to voluntarily dismiss the case and the Administrative Law Judge closed the file. Third, there was no need for your agency to conduct a review of Ordinance No. 0-13-2010 or issue a Final Order. For these reasons, the Town respectfully requests that your agency rescind the Final Order issued on August 25, 2011. On a final note, during my review of this case file I discovered that the Town never received a copy of the Final Order acknowledging the compliance of Ordinance No. O- 02-2009, which was adopted by the Town Council on April 27, 2009. If a Final Order has been entered, please forward me a copy at your earliest convenience. Please contact me with any questions or concerns regarding the above and thank you for your assistance in this matter. Sincerely, Tow? Attorney for the Town of Lantana September 7, 2011 Page 3 cc: Alfred J. Malefatto, Esq., Attorney for Petitioner Brian Joslyn, Esq., Attorney for Intervenors Michael Bornstein, Town Manager for the Town of Lantana David Thatcher, Development Services Director for the Town of Lantana Y:\docs\Lantana\Letters & Memosiltr-william buzzett department community affairs re final order cenacle.doc
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets, which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request. INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office. CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P. M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City. Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M. This day was also a work day for Respondent for which he was paid by Petitioner. USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch. Most of the time Respondent would not eat lunch but would work through lunch. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office. Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data. RESPONDENT'S OFFICE SITUATION Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time, Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused. Respondent's performance is not an issue in this proceeding. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour. SUSPENSION/DISMISSAL On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995.
The Issue After investigation, an order was issued by the Commission on Ethics on January 24, 1992, finding probable cause that Respondent, Rubin DeLeon, violated Section 112.3145, F.S. by failing to file a statement of financial interests for the year 1989. The issue in this public hearing, therefore, is whether the violation occurred, and if so, what penalty should be recommended.
Findings Of Fact In a list submitted to Shirley Taylor, Financial Disclosure Coordinator for the Florida Commission on Ethics, the City of Lantana, Florida, identified Rubin DeLeon as a member of the Lantana Civil Service Board. In a list submitted to the Ethics Commission on October 3, 1990, Rubin DeLeon was identified as an officer who failed to file a statement of financial disclosure for the year 1989. To date, Rubin DeLeon has still failed to file the required disclosure, to the best of the knowledge and belief of Shirley Taylor.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission on Ethics enter its Final Order and Public Report finding insufficient evidence to conclude that the Respondent, Rubin DeLeon, violated Section 112.3145, F.S. and dismissing the complaint. DONE AND RECOMMENDED this 8th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1993. COPIES FURNISHED: Laura Rush Asst. Atty. General Acting Advocate for the Commission on Ethics Dept. of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Rubin DeLeon 310 West Palm Street Lantana, FL 33462 Bonnie Williams, Executive Director Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006 Phil Claypool, General Counsel Ethics Commission P.O. Box 6 Tallahassee, FL 32302-0006
The Issue Whether David Berrones (Respondent), while a member of the Board of Directors of the Homestead Housing Authority (HHA), violated section 112.3143(3)(a), Florida Statutes (2010), by voting on February 15, 2011, to hire Oscar Hentschel (an alleged business associate) as the Executive Director of the HHA.
Findings Of Fact Respondent is a volunteer member of the Board of Directors of the HHA. Mr. Hentschel is the current Executive Director of the HHA. Respondent voted to appoint Mr. Hentschel as the Executive Director of the HHA on February 15, 2011 ("the Subject Vote"). On September 22, 2010, Respondent and Mr. Hentschel formed an entity called Xcaret to conduct "any and all lawful business." Department of State records listed Respondent and Mr. Hentschel as the only officers of Xcaret. Xcaret was administratively dissolved by the Department of State in September 2011, when no annual report was filed. Xcaret was a legal entity on the date of the subject vote. Xcaret was utilized by Respondent and Mr. Hentschel with the hope of engaging in potential business with a particular group of real estate investors, which consisted of Mr. Hentschel's brother-in-law, and a group of individuals from Mexico, who were introduced to Mr. Hentschel by Mr. Hentschel's brother-in-law (hereinafter "the Investment Group"). Specifically, the Investment Group had expressed their interest in purchasing two particular distressed real estate properties in Miami, which Respondent and Mr. Hentschel referred to as: 1) the Sixth Avenue Property; and 2) the Triangle Property. At no point did Xcaret own, or have any legal interest in, the Sixth Avenue Property or the Triangle Property, or any other real estate. Other than Xcaret, Respondent and Mr. Hentschel had no prior business relationships and have since created no other business relationships. Respondent and Mr. Hentschel did not form Xcaret for the purpose of engaging in general real estate business; rather, they formed Xcaret for the sole purpose of showing the Investment Group, who expressed their interest in investing in two particular properties (i.e., the Sixth Avenue Property and the Triangle Property), that there was a legal entity ready to accept the Investment Group's particular investment funds. In November 2010 (approximately two months after Xcaret was formed and approximately three months prior to the date of the subject vote), the Investment Group informed Respondent and Mr. Hentschel that they were no longer interested in purchasing the Sixth Avenue Property or the Triangle Property. Because the Investment Group informed Respondent and Mr. Hentschel that they were no longer interested in purchasing either the Sixth Avenue Property or the Triangle Property, Mr. Hentschel and Respondent devoted no further resources or time whatsoever to Xcaret, after November 2010. When the investors from Mexico decided not to invest in Miami in November 2010, Mr. Hentschel told Respondent to close Xcaret. Prior to the subject vote, neither Respondent nor Mr. Hentschel checked to determine whether Xcaret had been dissolved. The parties stipulated that: No income whatsoever was ever realized by Xcaret; No contracts were ever entered into on Xcaret's behalf; No bank account was ever opened in Xcaret's name; No assets were ever acquired in Xcaret's name; Xcaret never issued any stock; Xcaret never obtained or purchased any options to buy or lease any real estate or other property; Xcaret, and/or Respondent or Mr. Hentschel, individually, never made any offers to purchase the Sixth Avenue Property or the Triangle Property or any other real estate; and Respondent and/or Mr. Hentschel never engaged in any communications or transactions with any of the owners of Sixth Avenue Property or the Triangle Property or any other real estate. Prior to the subject vote, in response to the question whether anyone had a relationship with Oscar Hentshel, Respondent disclosed to the HHA Board that: "He [Hentschel] is a very good friend of my brother's and I met him about ten years ago through my brother. He is a smart guy." Prior to the subject vote, in response to the question if anyone had a relationship with Oscar Hentschel, Respondent did not disclose to the HHA Board, Respondent's and Mr. Hentschel's involvement with Xcaret. While Xcaret was a legal entity on the date of the subject vote, the record is clear that it was not an active business enterprise on that date.1/ Respondent and/or Mr. Hentschel never received any monetary benefit or gain, whatsoever, as a result of the subject vote, other than the salary and benefits Mr. Hentschel ultimately received by virtue of his employment as Executive Director for the HHA.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report that finds that Respondent, David Berrones, did not violate section 112.3143(3)(a). It is FURTHER RECOMMENDED that the final order dismiss the complaint filed against David Berrones, with prejudice. DONE AND ENTERED this 28th day of February, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 28th day of February, 2014.
The Issue The issue in this case is whether Respondent, Florida A & M University Board of Trustees (“Board of Trustees”), improperly reassigned Petitioner, Dale Cassidy, to an alternative position at Florida A & M University (“FAMU” or the “University”); and, if so, whether Petitioner is entitled to damages or other relief.
Findings Of Fact Petitioner is a former employee of the University. He was hired in 2014 as vice president of Finance and Administration/Chief Financial Officer (“vice president of Finance/CFO”). He assumed the position at a starting annual salary of $195,000. In August 2015, he assumed additional duties and his salary was increased to $220,000 in recognition of the additional responsibilities. Petitioner served as vice president of Finance/CFO until March 14, 2017. Respondent is the Board of Trustees for FAMU, a university within the State University System. FAMU is a nationally known, historically black college located in Tallahassee, Florida. On Friday, March 11, 2016, Petitioner was visited in his office at FAMU by two individuals: Jimmy Miller and Santoras Gamble. The two came into his office as emissaries of the then-President of FAMU, Elmira Mangum. Miller was President Mangum’s chief of staff; Gamble was a “special assistant” to the President. The purpose of Miller and Gamble’s visit was to hand-deliver to Petitioner a letter signed by the President notifying Petitioner of a “change-in-assignment.” Specifically, Petitioner was being removed from his position as vice president of Finance/CFO and reassigned to the newly created position of Chief External Compliance and Ethics Officer (referred to herein as the “Ethics Officer”). His annual salary in that position would be reduced to $176,000 and he would receive normal (as opposed to enhanced) fringe benefits.1/ He would no longer be eligible to participate in the Executive Service pay plan which existed for certain high-level administrative and professional (“A&P”) staff. Petitioner’s change in assignment was to take effect the following Monday, March 14, 2016. Petitioner read the letter from President Mangum and dropped it on his desk. The two emissaries asked if he had any questions about the letter. He either told them he did not have any questions or he told them, “[no questions] that you can answer.” Either way, that was the end of the discussion between Petitioner and the two representatives of President Mangum. Miller, Gamble, and Petitioner then left Petitioner’s office and toured Lee Hall, purportedly looking for a new office for Petitioner once he assumed his new role. President Mangum’s office is also located in Lee Hall. Petitioner was ultimately moved to an office in the Foote-Hilyer building. On the day after the reassignment took effect, Jimmy Miller, as President Mangum’s chief of staff, issued a memorandum to the Board of Trustees. The memorandum outlined the changes in senior leadership assignments, including Petitioner’s reassignment to the position of Ethics Officer.2/ Over the next couple of weeks, Petitioner made his displeasure with the reassignment made known to a number of people. He was, however, especially unhappy that news of his reassignment (and presumptive demotion) was reported in the Tallahassee Democrat, the local newspaper. Petitioner moved into his new office on the fourth floor of the Foote-Hilyer building, in a suite of offices occupied by the vice president of Research, within two weeks of receiving the job change notice. On the day before he moved into his new office, Petitioner drafted a memorandum to his personnel file concerning his reassignment. The memo included the statement, “I accept this new role and pledge to perform the related duties . . . to the best of my ability.” On the day he assumed the new position, Petitioner wrote another memo that he asked to be placed in his personnel file. In the memo, Petitioner essentially complained that he had not been given any specific reason for the reassignment from the position of vice president of Finance/CFO. The memo did not mention that President Mangum’s emissaries had asked him if he had questions about the letter or that he had no questions for them. Petitioner did not point to any requirement in University regulations (or otherwise) that the President was required to give him a specific reason for the transfer. In fact, all A&P employees serve at the pleasure of the President and could have their employment terminated at any time, with or without cause. Petitioner received a request from President Mangum for him to meet with her concerning the change in assignment. The meeting was held (albeit on a day other than proposed by the President, pursuant to Petitioner’s request). At the meeting, ultimately held on March 21, 2016, Petitioner was presented with his new employment contract for the Ethics Officer position. He refused to sign the contract, citing his reasons, to wit: 1) He had not been told specific reasons why he could no longer serve as vice president of Finance/CFO; and 2) the President had not shared with him her vision of how she expected him to perform his duties in the new role. By not signing the employment contract, he knew that President Mangum would be within her rights to terminate his employment altogether. Petitioner seems to acknowledged that President Mangum “consulted” him about the new job classification at the meeting. He maintains, however, that it was too late to hold the consultation at that time. He provided no support or rationale for his stance. Petitioner then attempted to negotiate a different job description for the position to which he had been assigned. He asked for more salary, that the position be “interim” in nature, and that he retain his Executive Service benefits. President Mangum informed him that the University’s human relations department had “market priced” the salary and that it would not be changed. There is no evidence the other issues he raised were discussed at that time (or later, for that matter). As noted, Petitioner moved into his new office space on March 14, 2016, and by all appearances, assumed his duties as the Ethics Officer. He nevertheless maintains he did not believe he had ever formally served in that capacity. This testimony contravenes a memo he wrote on the day of his meeting with President Mangum. The memo, written to his personnel file, said, “I currently plan to accept the role [of Ethics Officer].” On June 21, 2016, Petitioner attended a seminar in Orlando relating to ethics and compliance officer regulations. In his travel request form, Petitioner identifies himself as “Officer, Compliance” and affirmed that the seminar constituted official business. His travel was approved and he attended the seminar. At final hearing, Petitioner said he attended the seminar as “an employee of the university” but not as the Ethics Officer. There is no evidentiary support for that contention and it seems unlikely in light of his travel documents. From March 14, 2016, until his resignation from employment, effective December 29, 2016, Petitioner was considered by the University to be its Ethics Officer. He performed duties associated with that position, operated out of the office assigned to that position, and accepted compensation for serving in that position. The University human resources officer (who was called as a witness by Petitioner at final hearing) opined that Petitioner’s actions clearly confirmed that he had accepted the position. A further example: On August 19, 2016, Petitioner issued a report on matters relating to his position as Ethics Officer. He signed the report, noting his position as “Acting Chief Compliance & Ethics Officer.” Petitioner said he signed the report that way because FAMU did not have “acting” administrative employees; they were either permanent or interim. However, Regulation 10.106(1)(b) states, “A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment.” Granted that section is referring to non- reappointment and addresses established positions, neither of which is relevant to the instant matter, but it does show that “Acting” is a nomenclature used by FAMU for A&P employees. Petitioner is seeking the difference in pay and benefits he received as Ethics Officer versus what he had been making as vice president of Finance/CFO, for the time period March 14 through December 29, 2016. He asserts that since he never signed the contract to be Ethics Officer, he never officially served in that position. The Personnel Action Request (“PAR”) in Petitioner’s personnel file was signed by President Mangum, the appropriate vice president (Ronica Mathis), and the HR Officer; and it clearly reassigns Petitioner to the position of Ethics Officer, effective March 14, 2017. The PAR, which sets out the employee’s current position, proposed new position, salary and other information, need not be signed by the employee. He or she would only be provided a copy of the PAR if they requested to review their personnel file. When asked what services he performed during his tenure as Ethics Officer, Petitioner responded, “Whatever the President, as my supervisor, asked me to do, which was largely nothing.” Petitioner did not provide further elucidation as to how doing “largely nothing” warranted additional payment from the University. Petitioner maintains he was not properly advised of his proposed reassignment pursuant to relevant University regulations. He cites to Regulation 10.209, Change-In- Assignment of Faculty and Administrative and Professional Employees, which states in pertinent part: The President or President’s designee may for the best interest of the University, at any time, assign a Faculty or Administrative and Professional (A&P) employee to other institutional assignments only after consultation with the employee and the departments or other units affected. Regardless of the change-in-assignment, however, the University is committed to compensate the employee. Despite being asked by the President’s designees (Miller and Gamble) on March 11, 2016, whether he had any questions about the reassignment, Petitioner maintains he had no “consultation” as required by the regulation. Rather, he posits, all he received was “notice” of the reassignment. Petitioner points out that the dictionary definitions of consultation and notice are different and they do not share the same synonyms. From Petitioner’s perspective, consultation would involve some degree of give and take between the President and the employee. Or, as he stated in his PRO filed in this case, the synonym for consultation is “asked to discuss or exchange views” of a matter. Petitioner says that Miller and Gamble asking him if he had any questions was not sufficient “consultation” on the matter. Petitioner provided no other support for his position. Further, Petitioner points out that Richard Givens, vice president of Audit and Compliance, was not notified about Petitioner’s reassignment. Petitioner maintains that Givens’ office was affected by the reassignment and thus should have been consulted as well. Givens stated at final hearing that his office “could have been affected” by the reassignment, but ultimately it had not been affected. Timothy Moore, vice president of Research, maintains that consultation means nothing more than a letter, email, phone call or other means of transmitting the fact to an employee. Clearly, Petitioner was provided notice of the reassignment and had opportunity to consult with the President’s representatives, but he refused to do so. Givens received notice of the reassignment when he read about it in the local newspaper. He does not remember being advised by anyone at FAMU concerning the change before it occurred, but received written notice on the day Petitioner started his new position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida A & M University Board of Trustees, upholding the employment action as to Petitioner, Dale Cassidy, and denying Petitioner’s claim for damages or other relief. DONE AND ENTERED this 13th day of April, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2017.
