The Issue The issues for determination are: (1) whether Respondent, Carolyn Ford, as a member of the Quincy City Commission, violated Section 112.3135(2)(a), Florida Statutes, by advocating the appointment of her son for a position with the Quincy Police Department; (2) whether Respondent violated Section 112.313(6), Florida Statutes, by using her official position as a member of the Quincy City Commission to attempt to obtain a job for her son with the Quincy Police Department; and (3) if so, what penalty is appropriate.
Findings Of Fact Respondent, Carolyn Ford (Respondent), currently serves as a city commissioner for the City of Quincy, Florida, having first been elected to that office on March 31, 1998. As a city commissioner, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Sections 2.08, 3.01, 3.02, and 9.01 of the Quincy City Charter (Quincy City Charter or Charter) give the Quincy City Commission (City Commission or Commission) the authority to appoint and remove the city manager, the city attorney, and the city clerk. Under Section 3.04 of the Quincy City Charter, the city manager is given the exclusive authority to employ or appoint certain employees and administrative officers for the City of Quincy, including the police chief. Moreover, such employees or administrative officers serve at the pleasure of the city manager, who may, "when he deems necessary for the good of the services . . . suspend in writing, with or without pay, or remove any employee under his jurisdiction " Section 204(b) of the Quincy City Charter expressly prohibits the Commission or its members from dictating the appointment or removal of any city employee or administrative officer whom the city manager or any of his subordinates are empowered to appoint. Nonetheless, that provision of the Charter permits city commissioners, while in open or executive session, to "express their views and fully and freely discuss with the city manager anything pertaining to the appointment and removal of such officers and employees." By expressing their views to the city manager regarding the appointment or removal of city officials and employees, city commissioners may influence the hiring and firing of such officials or employees. Shortly before or after the March 1998 election, Roger Griswald, police chief for the City of Quincy, submitted his letter of resignation to City Manager Kenneth Cowen. Thereafter, City Manager Cowen appointed Robert Barkley (Barkley), who had served as Griswald's assistant for four years, as interim police chief. Barkley served in this position for about a month. Sometime during the week of May 17, 1998, City Manager Cowen called Barkley and asked whether he would accept the appointment as permanent police chief. On May 20, 1998, after City Manager Cowen talked to Barkley about being appointed permanent police chief, Barkley telephoned then Quincy City Commissioner Glenn Russ (Commissioner Russ or Russ). At Barkley's request, Commissioner Russ went to the Quincy Police Department (police department) to meet with Barkley. During the course of the meeting, it became apparent that Barkley had called the meeting in order to seek and gain Commissioner Russ' support of Barkley's appointment as permanent police chief for the police department. Prior to Barkley's calling Commissioner Russ, he was well aware that Commissioner Russ was dissatisfied with the police department because Russ had publicly expressed his views. Since 1995, Russ had been an outspoken critic of the police department, including Barkley. Russ' criticism stemmed from the police department's refusal to launch an independent investigation of a 1995 fatal car accident that involved a Quincy police officer and resulted in the death of two or three people, one of whom was Russ' cousin. During the May 20, 1998, meeting, Barkley disclosed to Commissioner Russ that City Manager Cowen wanted to appoint Barkley as permanent police chief. Barkley then told Commissioner Russ that he wanted to "bury the hatchet" and have Russ work with him. However, Commissioner Russ rejected both offers and was adamant that under no circumstances was he willing to "bury the hatchet." At some point during the May 20, 1998, meeting between Barkley and Russ, Auburn Ford, Jr. (Ford), the adult son of Respondent, stopped by the police department after he saw his friend Russ' car parked there. Barkley invited Ford to come into his office. Once Ford was in the office, Barkley asked him what it would take for "us to get along," to which Ford replied, "Nothing." Barkley then told Ford that City Manager Cowen was going to name Barkley police chief, and that there could be a "second-in-command" job for Ford. This idea was nixed by Ford who stated emphatically that he wanted to be police chief. Barkley then suggested that he should be police chief because he had more experience in law enforcement than Ford. However, Ford's position remained unchanged and he insisted that he wanted to be police chief, not second-in-command to Barkley. Barkley later called Anthony Powell to the May 20, 1998, meeting with Commissioner Russ and Ford. Barkley hoped to persuade Powell to support his appointment as the permanent police chief. Powell's support was important because he was considered by many in the community to be the frontrunner for the Quincy city manager position after City Manager Cowen was removed from office. Once Powell arrived at the May 20, 1998, meeting, in an effort to put their past disputes behind them, Barkley expressed his desire to "bury the hatchet." In response, Powell stated only that Russ was his friend and that he did not want to get in the middle of any conflict between Russ and Barkley. Further, Powell stated that he only wanted to be a good employee. Some time ago, when both Barkley and Powell were city employees, Barkley was Powell's supervisor. The relationship between Barkley and Powell became strained after, based on Barkley's recommendation, Powell was reprimanded and suspended for a week without pay. The May 20, 1998, meeting initiated by Barkley and held in his office, failed to gain for him the support he wanted. Neither Russ, Powell, nor Ford responded positively to Barkley's overtures. Russ told Barkley, "it was war" between them and he would not "bury the hatchet." Powell, though not as outspoken as Russ, never agreed to support Barkley as police chief. Finally, Ford never agreed to serve as second-in-command but rather insisted that he wanted to be police chief for the City of Quincy. Russ, Ford, and Powell were friends who sometimes socialized together. It was at a social attended by Russ, Ford, and Powell in January 1998 that the idea of Ford's becoming police chief was first discussed. Respondent was not present at this event. On or about May 28, 1998, Cowen advised Barkley that he was going to appoint him police chief and that the appointment would be announced at an official ceremony at City Hall the following day, Friday, May 29, 1998, at 11:00 a.m. Both Cowen and Barkley knew that such an appointment might be short-lived because the City Commission had recently directed the attorney for the city to prepare a resolution for then City Manager Cowen's removal. Nonetheless, Cowen and Barkley were optimistic that Barkley's appointment would not be immediately jeopardized because of their belief that Barkley had community support. On the evening of May 28, 1998, around 9:00 p.m., Barkley was paged by his wife and given Ford's telephone number to call. Ford had called Barkley after learning that Barkley would be appointed police chief the next day. Later that evening, Barkley returned Ford's call. Ford asked Barkley if he was going to accept the position of police chief. In response Barkley indicated that he was going to accept the position. Ford then told Barkley that he should not accept the position because "You know what's going to happen next Tuesday night," referring to the resolution which would be presented at the City Commission meeting Tuesday night to replace Cowen as city manager. Barkley was not sure what Ford meant by his reference that "something would happen" by next Tuesday. Barkley was unsure whether Ford was threatening to harm Barkley and/or his family or whether Ford was referring to the upcoming City Commission meeting. As a result of his conversation with Ford, Barkley became concerned for his safety and that of his family. After the telephone conversation with Ford, Barkley called his friend, then Quincy Police Officer James Corder and expressed his concern about Ford's call. Officer Corder then contacted Captain Jim Godwin of the Gadsden County Sheriff's Office and reported the incident. Later that night, Barkley told his wife and Dr. Harold Henderson, Superintendent of Gadsden County Public Schools and Barkley's best friend, about the telephone conversation with Ford. At about 8:00 a.m. the next morning, Friday, May 29, 1998, Ford was told that Barkley had made a report to the Gadsden County Sheriff's Office, alleging that Ford had threatened him. In an effort to clear up Barkley's misperception of Ford's comments, Ford immediately called Dr. Henderson and explained that he had not threatened Barkley. Ford then asked Dr. Henderson to talk to Barkley about the situation and convey that the comments were not a threat. Dr. Henderson called Barkley that same morning but was unable to convince him that Ford was not a threat. Later that morning, at about 11:00 a.m., the scheduled ceremony was held at Quincy City Hall for Barkley's swearing in as police chief. This event, attended by a number of community leaders as well as Barkley's family and friends, was planned to gather support for Barkley to remain in the police chief position after the new city manager was appointed. It was anticipated that the new city manager would be appointed within two weeks. At the conclusion of the ceremony, Ford went to Barkley in a non-threatening manner, congratulated Barkley and indicated that he wanted to work with him. Ford also told Barkley that they needed to talk and settle the matter. Thereafter, a brief verbal confrontation ensued between Ford and Officer Corder, who was near Barkley. At that time, there were a number of officers around Barkley who knew about the alleged threat and, consequently, were on heightened alert. As Ford approached Barkley, some of the officers moved toward Ford in a threatening manner. Thereafter, in an effort to prevent the situation from escalating, a police officer escorted Ford from the building. After Ford was escorted from City Hall, he called his mother, Respondent, and told her about the alleged threat and the confrontation with the police officers after the swearing-in ceremony. In describing the incident to Respondent, Ford stated that the police officers had "encircled him and . . . had their hands on their guns." After the conversation with Ford, Respondent became concerned for her son's safety. She believed that the situation involving her son's alleged threat was simply a misunderstanding and one that needed to be resolved immediately to prevent the matter from becoming a more serious problem. In an effort to quell any criminal repercussions against her son which could have resulted from Barkley's allegation and out of concern for his safety, Respondent requested the assistance of Dr. Henderson to help to resolve the misunderstanding between Barkley and her son. On May 29, 1998, after learning about Ford's alleged threat and the encounter with the police officers, Respondent called Dr. Henderson. Respondent explained the situation regarding the alleged threat and requested that Dr. Henderson meet with her and Barkley in order to resolve the misunderstanding. Because Dr. Henderson considered both Respondent and Barkley friends, he agreed to arrange and facilitate such a meeting. When Respondent arrived at Dr. Henderson's office the afternoon of May 29, 1998, she asked that Dr. Henderson "show some leadership" and help resolve the situation between her son, Ford, and Barkley. During the first part of the meeting, when only Respondent and Dr. Henderson were present, the focus of the meeting was the alleged threat. Respondent and Dr. Henderson discussed the alleged threat and agreed that the matter was getting "out-of-hand" and had escalated to the point where something had to be done. Further, Respondent indicated that she did not believe her son would make such a threat and that the whole incident was a misunderstanding. Dr. Henderson knew Ford and concurred with Respondent's opinion that Ford would not make such a threat. However, Dr. Henderson had been unable to convince Barkley of this in their previous two telephone conversations regarding the matter. At some point during the May 29, 1998, meeting, Dr. Henderson called Barkley and Respondent called Ford to join the meeting. Barkley arrived at the meeting before Ford. When Barkley arrived, Respondent discussed her concerns relative to the alleged threat. Respondent's comments to Barkley focused on the alleged threat. In fact, she said the same things to Barkley that she had said earlier to Dr. Henderson. That is, she did not believe Auburn Ford would make such a threat, the incident was simply a misunderstanding, and the matter needed to be resolved. This part of the conversation lasted about 15 or 20 minutes and concluded after Barkley explained that it was just a misunderstanding and that the matter had been "taken care of." Following the exchange regarding the alleged threat, with only Respondent, Barkley, and Dr. Henderson present, there was a discussion of problems with the police department. Respondent indicated her general dissatisfaction with the police department and her belief that the police department was "out of control." Respondent stated that she thought her son could be a "liaison" between the police and the Commission to help bridge the gap and solve some the department's "perception problems." However, in making these very general comments, Respondent never mentioned Ford's getting a job with the police department. After the aforementioned discussion, Ford arrived at the meeting in Dr. Henderson's office. Once Ford arrived, Respondent wanted Barkley and Ford to discuss and resolve the issue relative to the alleged threat. With Dr. Henderson serving as facilitator, Barkley and Ford discussed the alleged threat. Ford explained that Barkley had simply misinterpreted his comment. Once the issue of the alleged threat was resolved, the discussion between Barkley and Ford shifted to the possibility of Ford's working for Barkley within the police department. Prior to the May 29, 1998, meeting, Dr. Henderson was aware that Ford wanted to be police chief and, as facilitator, thought this matter was one that could be worked out amicably between Barkley and Ford. To this end, as part of this meeting, Barkley and Ford, with Dr. Henderson as facilitator, discussed Ford's working in the police department under Barkley. At some point during the discussion concerning the possibility of Ford's working for the police department, Ford stated that he had the support of the city commissioners. Because the City Commission had five members, Ford's statement implied that he had the support of three of the commissioners. Respondent was not involved in this part of this discussion and there is no indication that Respondent heard the comment. Respondent was in Dr. Henderson's office during the meeting between Barkley, Ford, and Henderson but was on the other side of the very large office looking at a television program. Respondent believed that the misunderstanding could be resolved if Dr. Henderson facilitated a discussion between Barkley and Ford. Therefore, Respondent did not participate nor was she involved in the discussions between Barkley and Ford, including the discussion about Barkley's bringing Ford on board to work with the police department. The meeting at Dr. Henderson's office ended after Agent Brinson of the Florida Department of Law Enforcement came by Dr. Henderson's office to interview Barkley and Ford about the alleged threat. When the meeting concluded, both Ford and Dr. Henderson had the impression that Barkley was going to hire or appoint Ford to a position with the police department, and the details would be worked out at a meeting the following Monday at 8:00 a.m. After the May 29, 1998, meeting, Barkley decided not to hire or appoint Ford. On Monday, May 31, 1998, Barkley called Dr. Henderson and indicated that he was not going to hire Ford. Dr. Henderson then told Barkley that he should call Respondent and tell her. Barkley complied with Dr. Henderson's request and called Respondent. When Barkley reached Respondent, he told her that he could not do "it" and hung up the phone. Four days after Barkley was appointed as permanent police chief of the Police department, City Manager Cowen was replaced by Anthony Powell. As city manager, Powell exercised his independent judgment to hire and retain those employees he felt best reflected his management style and who could best serve the interests of the City of Quincy. On June 9, 1998, a week after Powell was appointed city manager, he decided to replace Barkley. Two days later, Barkley was relieved from his responsibilities as police chief. The reason City Manager Powell decided to remove Barkley as police chief was that he disagreed with Barkley's management style and doubted his credibility. Prior to Barkley's separation from the police department, Respondent urged City Manager Powell to continue Barkley's employment with the city. However, notwithstanding Respondent's support of Barkley, Powell made it clear to Respondent that Barkley could not continue as police chief. On June 11, 1998, City Manager Powell appointed Rodney Moore to replace Barkley as Quincy's police chief. Ford applied for a position with the police department on June 19, 1998, three weeks after the May 29, 1998, meeting in Dr. Henderson's office. More than a month after it was filed, Ford's application had not been processed. On July 20, 1998, at approximately 1:40 p.m., Commissioner Russ telephoned Chief Moore's office. Commissioner Russ was agitated because his car had been vandalized on July 16, 1998, while it was parked in front of City Hall. The police officer called to the scene promised to have a written report prepared by the next day but had not done so. Commissioner Russ complained to Chief Moore that he had not received the incident report regarding the vandalism of his car. He also told Chief Moore that he (Moore) "had problems" because Ford should have been hired. After voicing his complaints, as if to explain his mood, Commissioner Russ told Chief Moore that he (Russ) had lost his job that day and had enough problems. Commissioner Russ ended the conversation by telling Chief Moore that he needed to "straighten it up" and "work it out." Later, on the afternoon of July 20, 1998, Commissioner Russ went to Respondent's office in Gretna as a volunteer to work on her office computers. While at Respondent's office, Commissioner Russ telephoned Chief Moore. Commissioner Russ still sounded very upset and during this conversation, again, complained about the police department's failure to timely process Ford's application for a reserved officer position with the police department. Commissioner Russ also told Chief Moore that he had problems because Ford had not been hired. Respondent was not in her office when Commissioner Russ was speaking on the telephone, and was unaware of the identity of the person to whom Russ was speaking. During his telephone conversation with Chief Moore, Russ was speaking very loudly and could be heard overheard by those in the area outside Respondent's office. Because Commissioner Russ' conduct was disruptive, Respondent went into her office and told Russ to leave. After Respondent told Russ to leave her office, he told Chief Moore to explain it to "her." Russ then either handed the telephone receiver to Respondent or put it on the desk. Once Respondent had the telephone receiver, Chief Moore continued giving the explanation regarding the reasons for the delay in processing Ford's application. The reason Chief Moore continued the explanation he was giving Russ was that he assumed Respondent was interested in the processing of her son's application. After listening to Chief Moore's explanation, Respondent expressed a concern about the manner in which the application was being processed. Respondent's specific concern appeared to be the length of time it took to process an application. However, Respondent made no attempt during this telephone conversation or any other time to influence Chief Moore's decision to hire her son. In fact, the credible testimony of Chief Moore was that Respondent "never mentioned anything about hiring him" and that Russ was the only person pushing Ford's employment. At no time during the May 29, 1998, meeting or anytime thereafter did Respondent participate in any discussion about Ford's working with the police department. In fact, although Ford had worked extensively in law enforcement, Respondent was never supportive of her son's desire to work in this area. At no time did Respondent threaten, coerce, or intimidate Barkley or anyone else about hiring her son, Ford, to work for the police department. Ford was never a paid employee of the police department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order and public report be entered finding that Respondent Carolyn Ford, did not violate Sections 112.3135(2)(a) and 112.313(6), Florida Statutes. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. 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 17th day of April, 2000. COPIES FURNISHED: James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack L. McLean, Jr., Esquire McGuire, Woods, Battle & Booth, LLP 285 Peachtree Center Avenue, Northeast Marquis Two Tower, Suite 2200 Atlanta, Georgia 30303-1234 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Conclusions THIS CAUSE came on for consideration of and final agency action on the Written Report and Recommended Order entered on November 17, 2010, attached hereto as Exhibit A. Pursuant to Section 120.57(2), Florida Statutes an informal hearing was conducted on September 14, 2010, heard before Hearing Officer Alan J. Leifer via telephone conference call. After review of the record, including testimony and admitted exhibits, and being otherwise fully apprised in all material premises: {T 1S HEREBY ORDERED that the Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact, and the Conclusions of Law reached by the Hearing Officer are adopted as the Department’s Conclusions of Law. IT IS HEREBY FURTHER ORDERED that the Fourth Amended Order of Penalty Assessment (Penalty Only) is affirmed and that Cronin Porch & Patio, Inc. shall pay to the Department the assessed penaity of $10,084.00, within 30 days from the date hereof or enter into a Payment Agreement schedule. IT IS HEREBY FURTHER ORDERED that as long as Cronin Porch & Patio, Inc. is not in default of its payments, it may continue all business operations provided it demonstrates to the satisfaction of the Division of Workers’ Compensation of having now complied with the workers’ compensation law by securing the necessary workers’ compensation insurance coverage for covered employees. Ca DONE and ORDERED this day of Dg ¢ ew ben, 2010. bain Dion Ben Diamond, General Counsel Office of Chief of Staff
Findings Of Fact In March 1988 Ilene Lieberman (Lieberman) was elected Mayor of the City of Lauderhill (City). She defeated the incumbent mayor, David Kaminsky (Kaminsky), in a very hard fought election. At all times relevant to this proceeding, Lieberman served as the City's mayor. On or about December 31, 1991, Kaminsky filed an ethics complaint ("Complaint") with the Commission on Ethics (Commission) against Lieberman, alleging that she violated Section 112.313(6), Florida Statutes. The Complaint consisted of the following four parts: Kaminsky claimed that Lieberman had expended over $40,000 for "personal legal fees to defend herself" in an action brought before the Commission by Michael Arciola. Kaminsky alleged that the expenditure of these funds was in violation of Sections 19-51(b)(2) and (h) and 2-141(b) of the City Code of Ordinances ("City Code"). Kaminsky claimed that Lieberman violated Article III, Section 3.05, of the City Charter by sponsoring and passing Ordinance Nos. 89-197 and 91-90 which granted ten percent increases in compensation for the City Council. Kaminsky claimed Lieberman violated Article V, Section 5.02(d), of the City Charter by passing Ordinance No. 91-109, which provides sick leave and vacation pay for the mayor. Kaminsky claimed that Lieberman used City stationery and City personnel for correspondence that did not deal with City business. On or about February 27, 1992, Kaminsky filed an amendment to the Complaint which restated and clarified the portion of the Complaint which dealt with the issue of use of City stationery for letters unrelated to City business. Kaminsky stated that the letters were dictated, typed and reproduced on City time and using City equipment. He also indicated that the letters were typed by a City employee, Rusty Roberts. On or about April 14, 1992, Kaminsky filed a second amendment to the Complaint concerning the ordinance increasing the pay for the City Council and the ordinance providing sick and vacation pay for the mayor. With regard to the two ten percent pay increases for the City Council, Kaminsky stated, "whereas the Charter . . . specifically limited a compensation increase to the 'U.S. Consumer Price Index for the month prior to the preparation of the annual budget' . . . at the time Ordinance No. 89-197 and Ordinance No. 91-90 were passed, the controlling C.P.I.'s were below 10 percent, being 4.7 in 1989 and 3.7 in 1991." With regard to the mayor's vacation and sick pay, Kaminsky stated that the City Charter provided that no ordinance increasing the salary of the mayor shall take effect unless it has been one year since the last salary increase and that no ordinance shall increase the mayor's salary more than ten percent. Kaminsky further stated that on March 4, 1991, the mayor had received a ten percent salary increase and that on April 8, 1991, the mayor was authorized to receive sick pay and vacation pay "which effectively surpasses the 10 percent maximum salary increase in any one year." Along with the second amendment, Kaminsky provided the Commission with the two letters purportedly typed by City personnel on City time. On June 30, 1992, Kaminsky filed two additional amendments to the Complaint. In the third amendment, Kaminsky advised the Commission that on January 27, 1992, the City had enacted Ordinance No. 92-106, which revised Section 19-51(b) of the City Code. Kaminsky claimed that this section was previously used as authority to hire a private attorney to represent Lieberman in the Arciola ethics complaint. In the fourth amendment, Kaminsky advised that on May 26, 1992, the City passed on second reading Ordinance No. 92-143, revising Section 19-51(h) of the City Code to state that the employment of outside counsel pursuant to that section would not be subject to City Council approval as required in Section 2-141(b) of the City Code. Kaminsky alleged that this amendment clearly indicated that Lieberman knew that she was violating the City Code when outside counsel was hired in the Arciola matter. Furthermore, Kaminsky alleged that Lieberman further violated that City Code when outside counsel was hired to represent her in an elections complaint on May 11, 1992. LEGAL FEES IN THE ARCIOLA CASE In 1990 Lieberman was notified that Michael Arciola had filed an ethics complaint against her. When Lieberman presented the Arciola complaint to the City Attorney, he advised her that he could not represent her in the matter because he would likely be a material witness in the case due to his role in the City's investigation of Arciola. Lieberman advised the City Attorney that she wished to maintain confidentiality relating to the ethics complaint. Her desire to maintain confidentiality was based on legal advice. She was not "anxious to keep the expenditure from the City Council" as alleged by Kaminsky. At the time Kaminsky filed the Complaint, Section 19-51 of the City Code provided as follows: There is hereby created a fund of the city which shall be known as the insurance services fund. The purpose of this fund is to provide a source of funds to pay all costs of insurance coverage, insurance-related services required by the city and the settle- ment of claims against the city which are not otherwise covered by policies of insurance which shall be purchased by the city from time to time. The city may purchase insurance which shall provide coverage for those services enumerated in subsection (b) herein, which shall be in excess of coverage provided by the city. The insurance services to be provided by this fund shall be as follows: Damage to personal property or real estate owned by the city. Liability for property damage, personal injury and other tort claims against the city or any elected official, department head, official, member of an advisory board or employee thereof when acting in the scope of his or her employment or official duties and subject to the conditions of section 2-20, Indemnification of city officers and employees. Worker's compensation. Monies in this fund may be expended for all costs of insurance coverage, all insurance-related services required by the city and all settlements of claims against the city, as well as for the purchase of any policies of insurance and the payment of any insurance premiums. * * * * (h) All claims against the city which are insured by the city and which result in litigation shall be referred to the city attorney immediately upon service of the summons and complaint. The city attorney shall represent the city in all litigation unless the decision is made to employ outside counsel upon consultation with the mayor. For claims covered by Section 19-51 of the City Code, the City is self-insured for the first $50,000 and maintains excess insurance for coverage for all expenses over $50,000. The City Attorney advised Lieberman that he interpreted Section 19-51 of the City Code to mean that outside counsel could be retained pursuant to that section to provide legal defense of an ethics claim against the mayor without requiring approval from the City Council. It was also the City Attorney's opinion that this interpretation maintained the confidentiality of the Complaint. The City Attorney hired Samuel Goren to represent Lieberman in the Arciola matter. The City spent less than $35,000 in defending Lieberman in her official capacity against the ethics complaint filed by Michael Arciola. At the August 26, 1991 City Council meeting, there was a discussion of the legal fees which had been incurred in the Arciola ethics complaint. In a memorandum dated August 29, 1991, the City Council president, Jim O'Brian, questioned the City Attorney's interpretation of the City Code as it related to the retaining of Samuel Goren to represent Lieberman in the Arciola ethics complaint. Kaminsky read the memorandum from O'Brien to the City Attorney. Kaminsky never spoke to the City Attorney concerning the City Attorney's interpretation of the City Code as it related to the Arciola matter. If Kaminsky had inquired, the City Attorney would have explained the basis for his interpretation. On May 12, 1992, the Commission on Ethics entered its Determination of Investigative Jurisdiction and Order to Investigate, finding that Kaminsky's complaint as to the retention of the law firm of Josias & Goren to represent Lieberman in the Arciola ethics complaint was legally insufficient. AMENDMENTS TO SECTION 19 OF CITY CODE On January 27, 1992, the City Council passed Ordinance No. 92-106, which amended Section 19-51(b) of the City Code to read: (b) The insurance services to be provided by this fund shall include any lawsuit, complaint, or claim of any kind, whether through the courts or any administrative procedure, wherein, the City, any employee thereof, or any official thereof, whether elected or appointed, shall be a subject of the complaint or claim. Notice of the complaint or claim shall be sufficient to authorize the utilization of this section. On May 11, 1992, and May 26, 1992, the City Council passed Ordinance 92-143, on first and second reading, respectively. This ordinance amended Section 19-51(h) of the City Code to read: All claims against the city which are insured by the city and which result in litigation shall be referred to the city attorney immediately upon service of the summons and complaint. The city attorney shall represent the city in all litigation unless the decision is made to employ outside counsel upon consultation with the mayor. The employment of outside counsel pursuant to this section shall not be subject to approval of the City Commission as might otherwise be required in Section 2-141(b) of the Code or any other section thereof. If the Mayor or any commissioner is the subject of a criminal complaint or a complaint by an administrative agency, the elected official who is the subject of the complaint may designate outside counsel to represent that elected official in that matter. On May 11, 1992, Lieberman authorized the retention of outside counsel to represent her in an elections Complaint filed against her by Kaminsky. Kaminsky had alleged in an amendment to the Complaint that Lieberman was guilty of an ethics violation by retaining such outside counsel. On August 4, 1992, the Commission on Ethics issued Amendment to Determination of Investigative Jurisdiction and Order to Investigate, finding that the allegations in Kaminsky's Amendments to the Complaint concerning the passage of Ordinance Nos. 92-106 and 92-143 were legally insufficient to indicate a possible ethics violation by Lieberman. Additionally, Kaminsky's allegations concerning Lieberman's retention of outside counsel on May 11, 1992, were deemed legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes. CITY COUNCIL SALARY INCREASE On November 13, 1989, pursuant to Section 3.05 of the City Charter, the City Council passed Ordinance No 89-197 which increased the City Council members' salaries from $330 per month to $363 per month. On November 12, 1991, the City Council passed Ordinance 91-90 which increased the City Council members' salaries from $363 per month to $399 per month. Both ordinances passed unanimously. Lieberman did not vote on the ordinances. The City Charter authorizes the mayor to vote only when there is a tie. The City Charter provides that the mayor may veto any ordinance passed by the City Council within three working days of the effective date of the passage of the ordinance. An ordinance which has been vetoed may be overridden by a four-fifths vote of the City Council. An ordinance not vetoed within the three day period becomes effective without the signature or approval of the mayor. Lieberman did not veto Ordinance Nos. 89-197 and 91-190. At the time Ordinance Nos. 89-197 and 91-90 were passed, Article III, Section 3.05 of the City Charter provided: The council may, through the passage of an ordinance passed by the minimum of a four- fifths (4/5) of all council members, determine the annual salary of the council members at the time they adopt each fiscal budget. But in no event shall any such ordinance which increases the salary of council members currently serving in office become effective until said council has served at least one full year of the term of office for which they were elected. Any increase in the council members' salary shall be based upon the U.S. Consumer Price Index for the month prior to the preparation of the annual budget; but in no event shall any increase exceed ten (10) per cent of the current salary. And further, in no event shall there be more than one raise during one elective term of the council members. The City Attorney interpreted Article III, Section 3.05, to mean that the words "based upon" did not limit a salary increase to the amount of the U.S. Consumer Price Index not to exceed ten percent but rather provided that the Consumer Price Index was the starting point to calculate the salary increase which could not exceed ten percent. His interpretation was based on a definition of "based upon" found in Black's Law Dictionary which stated "an initial or starting point for calculation." Kaminsky did not speak to the City Attorney concerning the City Attorney's interpretation of the section. Kaminsky interpreted Article III, Section 3.05, to mean that a salary increase was limited to the U.S. Consumer Price Index or ten percent, whichever was lower. The City Charter did not state which Consumer Price Index was to be used. Kaminsky's complained that Lieberman should not have presented the ordinances to the City Council for passage and that she should have vetoed the ordinances once they were passed. The City's mayor is the "default sponsor" of any proposed legislation emanating from one of the departments of the City and not from a specific council member. Proposed ordinances coming from the finance department are automatically assigned sponsorship by the mayor. Based on the transcript of discussions by the City Council members during the budget workshop meetings which occurred prior to the ordinances being placed on the agenda for a vote, the City Council members had determined that they wanted a ten percent salary increase. Thus, the idea for ten percent salary increases came from the City Council and not from Lieberman. Kaminsky did not file an ethics complaint against any of the City Council members who voted on the salary increases. He felt that Lieberman was more culpable than the City Council members. Lieberman did not gain any personal benefit from the enactment of Ordinance Nos. 89-197 and 91-190. Kaminsky did not know of any personal benefit that Lieberman may have gained from the passage of the ordinances but merely speculated that she may have gained some political IOU's. Kaminsky never had any personal knowledge that Lieberman thought the ordinances were in violation of the Charter. He felt that because he interpreted the City Charter to mean that the raises were limited by the U.S. Consumer Price Index that she should have come to the same conclusion. His investigation of the issue consisted of reading the ordinances and the City Charter. On May 12, 1992, the Commission on Ethics issued a Determination of Investigative Jurisdiction and Order to Investigate, finding that allegations concerning the salary increases for the City Council members were legally sufficient to indicate a possible violation of Sections 112.313(6) and 112.3143(3), Florida Statutes. This finding was based on the Commission's belief that Lieberman had voted on the salary increases. On November 20, 1992, the Report of Investigation was issued finding that Lieberman did not vote on the salary increases. On December 15, 1992, the Advocate's Recommendation was filed with the Commission, recommending that no probable cause of a violation of Section 112.3143(3) be found because Lieberman did not vote on the increases and that no probable cause of a violation of Section 112.313(6) be found because the Report of Investigation did not reveal that Lieberman received any personal benefit from the ordinances. On February 2, 1993, the Commission issued a Public Report finding there was no probable cause to believe that Lieberman violated Sections 112.313(6) and 112.3143(3), Florida Statutes, concerning the pay increases for the City Council members. MAYOR'S SICK AND VACATION PAY On April 8, 1991, the City Council passed Ordinance 91-109 which created Sections 2-17(c) and (d) of the City Code to read: The Mayor shall receive all benefits relating to sick pay, vacation pay and health insurance as are received by department heads with maximum senority; and shall be defined as a general employee for purposes of Chapter 2, Article II, Division 3, Retirement, of the Code. The retirement benefits as provided for herein, to the extent that, after January 1, 1977, they have been funded and determined to be actuarially sound, are ratified and confirmed effective November 1, 1973. Because the ordinance dealt in part with retirement benefits, Lieberman instructed the City Attorney to contact former mayors, Cippoloni and Kaminsky, prior to the enactment of the ordinance and inform them that the ordinance would not diminish or affect in any way the pensions that the mayors were receiving from the City. The City Attorney explained the ordinance to Kaminsky; thus, Kaminsky had an opportunity to discuss the ordinance with the City Attorney and to ask any questions and make any objections that he might have prior to the enactment of the ordinance. Kaminsky never asked the City Attorney any questions concerning the ordinance prior to filing the Complaint. Kaminsky argues that the ordinance violated Article V, Section 5.02(d), of the City Charter which provided: The salary of the mayor shall be set by the city council through the passage of an ordinance. No ordinance shall be effective to reduce or increase the salary of the mayor by more than ten (10) percent of the then existing salary for the office of the mayor. Further, no salary increase and/or decrease for the office of the mayor shall be effective unless it has been at least one year since the last ordinance setting forth a salary adjustment. Kaminsky reasoned that because Lieberman could cash in her sick and vacation leave she was in effect getting an increase in her salary above the annual ten percent increase authorized in the City Charter. Lieberman did not vote on Ordinance 91-109 and she did not veto the ordinance. The ordinance was passed by a unanimous vote of the City Council. Prior to Lieberman becoming mayor, the practice of the City had been to pay the mayor's salary whether the mayor was sick or on vacation. The administrative policy was to have the mayor indicate on the time sheet that the mayor was present even if the mayor was sick or on vacation. Thus, the mayor would receive his salary whether he worked or not. Kaminsky participated in this practice when he was mayor. It had been the practice of the City Council to grant by ordinance a salary increase to the mayor and to City Council members and to grant a separate fixed amount for expenses. The mayor and City Council members were not required to account for expenses which they incurred. The mayor and the City Council members received the allocated amount for expenses regardless of whether the actual expenses incurred were greater or lesser than the allocated amount. This was a way that the mayor and City Council members could receive a salary increase in excess of the ten percent authorized by the City Charter. Kaminsky had participated in and approved of this practice when he was mayor. Kaminsky had received information from someone that Lieberman had drawn down salary and vacation pay in excess of a ten percent increase of her annual salary. He did not know who gave him the information and he did not verify the information. He could not tell when Lieberman was supposed to have cashed in her leave nor could he tell what amount had been received by Lieberman. He assumed it was in excess of ten percent of her annual salary. Kaminsky alleged in the Complaint that "no one keeps track of when the mayor arrives at her office, when she leaves or where she is when she is not in her office." Lieberman's secretary, Ms. Roberts, had the responsibility of keeping track of Lieberman's attendance at her City Hall office. Ms. Roberts maintained public records of Lieberman's attendance. On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that the allegations in Kaminsky's Complaint concerning sick leave and vacation benefits were legally insufficient to indicate a possible violation of Section 112.313(6), Florida Statutes. CITY STATIONERY Kaminsky alleged that Lieberman used City stationery for correspondence unrelated to City business, and that such correspondence was typed by Rusty Roberts on City time and using City equipment. Kaminsky attached two letters to an amendment to his Complaint, alleging that they were prepared in violation of the Code of Ethics. One letter was from Lieberman to Nova University, transmitting two draft letters dealing with a fund raiser. The other letter was from Lieberman to then Governor Bob Martinez, advising him of her views on additional legislation restricting abortion rights. She copied members of the City Council, members of the Broward Legislative Delegation, and the National Organization of Women with the letter to Governor Martinez. At the bottom of both letters were stamped the words, "Not Paid for With City Funds." On the letter to Nova University, below the signature of Lieberman appeared the notation, "IL/rr." Kaminsky surmised from this notation that the letter had been dictated by Lieberman and typed by Rusty Roberts on City time and using City equipment. Had he made an inquiry concerning the letter, he would have learned that the letter was typed by Lieberman at her home and on her personal time and that Ms. Roberts had given Lieberman permission to place her initials on the letter. The letter was not prepared by City employees on City time using City equipment. The letter to Governor Martinez was typed by Ms. Roberts on City time and using City equipment. Ms. Roberts inadvertently duplicated the letter on Lieberman's personal stationery rather than City stationery. The letter did serve a public purpose. Kaminsky never spoke with Lieberman or the City Attorney about the stationery issue prior to filing the Complaint. If he had he would have been advised that the use of this type of stationery by Lieberman had been previously raised and resolved by the Commission on Ethics in an ethics Complaint which had been filed against Lieberman. Prior to filing the Complaint, Kaminsky made no investigation or inquiry to learn the circumstances in which the letters were prepared. On May 12, 1992, the Commission on Ethics issued a Determination and Order finding that Kaminsky's allegations concerning the two letters were legally insufficient to indicate a violation of Section 112.313(6), Florida Statutes. ATTORNEYS' FEES AND COSTS After Kaminsky filed the Complaint against Lieberman, City Attorney Dick Michelson retained Samuel S. Goren of the law firm of Josias & Goren to represent Lieberman in the proceedings. Thereafter, the City hired Stuart Michelson to replace Samuel Goren as Lieberman's attorney because Kaminsky's attorney had indicated that Mr. Goren would be a material witness in the fee proceedings. Samuel Goren and Stuart Michelson charged $125 per hour for their services, and Stuart Michelson billed $50 per hour for paralegal time. The $125 rate was below the market rate for such services in the community. Dick Michelson billed the City at the rate of $100 per hours for 8.5 hours of service from July 20, 1992 through September 24, 1992. He billed the City at the rate of $125 per hour for 1.8 hours of service from December 2, 1992 through January 27, 1993. From March 5, 1993 through October 19, 1993, he billed the City for 21.5 hours at $125 per hour. The rate of $125 per hour for the services which were provided for services rendered from March 5, 1993 through October 19, 1993 was a reasonable rate and 21.5 hours was a reasonable amount of time spent for the services provided during this time period. The rate of $125 per hour is a reasonable rate for the services provided by Samuel Goren in his representation of Lieberman in relation to the Kaminsky Complaint and this fee proceeding and 61.5 hours is a reasonable number of hours spent by Mr. Goren in relation to the Kaminsky Complaint and this fee proceeding. The rate of $125 per hour is a reasonable rate for the services provided by Stuart Michelson in his representation during this fee proceeding. The rate of $50 per hour is a reasonable rate for paralegal services provided by Stuart Michelson's paralegal in this fee proceeding. It was reasonable for Stuart Michelson to spend 104.3 hours for services provided through March 7, 1994. It was reasonable for a paralegal to spend 106.8 hours for services provided through March 7, 1994. Stuart Michelson spent 37.5 hours at the final hearing in this proceeding which is a reasonable amount of time for the services provided at the final hearing. Mr. Jeffery Pheterson testified as an expert witness in this case on behalf of Lieberman. He billed the City at the rate of $125 per hour for 25.4 hours of service rendered as an expert witness. The costs billed to the City by Goren and Stuart Michelson relating to this case were $665.89 as of March 8, 1993. Those costs are reasonable. ILL WILL AND HOSTILITY After Lieberman defeated Kaminsky in 1988, Kaminsky in referring to Lieberman told Al Geraffi, the mayor of Lauderdale Lakes, that the "G D bitch, f ing beat me. She isn't worth a shit." Kaminsky made similar remarks about Lieberman to Mayor Geraffi on three different occasions. On the day of the 1988 mayoral election, Kaminsky had a heated discussion with the president of the firefighter's union concerning campaign literature that was derogatory to Lieberman. Kaminsky wanted to know why the union members were not being allowed to pass out the campaign literature. During the conversation, Kaminsky referred to Lieberman as a bitch. Shortly after the 1988 election, Lieberman contacted Kaminsky to set up a meeting to discuss projects that Kaminsky had initiated as mayor. Kaminsky told her that he harbored ill will toward her and had harsh feelings, thus, he did not want to meet with her. Senator Matthew J. Meadows, who was a former City Commissioner, heard Kaminsky refer to Lieberman as the "f g bitch and the f g broad" before, during and after the 1988 mayoral election. Senator Meadows did not understand the remarks to have been made jokingly. Kaminsky did not think that it would serve any purpose for him to know whether Lieberman relied on legal advice regarding the issues in the Complaint because he felt that she dictated the City Attorney's legal opinions. KAMINSKY'S RELIANCE ON LEGAL ADVISE Having judged the credibility of the witnesses, I find that Kaminsky informally discussed the Complaint with his brother-in-law, Joseph Pardo, prior to filing the Complaint. The discussions took place in Mr. Pardo's and Kaminsky's homes. When Kaminsky was asked at his deposition whether he formally retained Mr. Pardo or just consulted with him informally, Kaminsky replied: "Just very informally. We visit. We are family." Kaminsky knew that Mr. Pardo, an attorney, was not experienced in matters dealing with Chapter 112, Part III of the Florida Statutes, and had no experience practicing before the Florida Commission on Ethics. Mr. Pardo was not familiar with the City Code and Kaminsky knew it. Kaminsky told Mr. Pardo what the code was and let Pardo read portions of the code. Kaminsky told Pardo what he felt was occurring and told Pardo that he intended to file an ethics complaint. Mr. Pardo advised Kaminsky that he thought Kaminsky was following the proper procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Ilene Lieberman be awarded attorney's fees and costs of $37,280.89. It is further recommended that jurisdiction not be retained by the Division of Administrative Hearings to determine fees incurred after March 8, 1993. The recommended amount includes Stuart Michelson's actual time spent at hearing. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1181EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-6: Accepted in substance. Paragraph 7: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 8-10: Accepted in substance. Paragraph 11: The last sentence is rejected as constituting a conclusion of law. The remainder is accepted in substance. Paragraph 12: The second sentence is accepted in substance. The third sentence is rejected as constituting a conclusion of law. The remainder is rejected as constituting argument. Paragraph 13: The first sentence is rejected as constituting argument. The second sentence is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: Rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: The first two sentences are rejected as constituting argument. Paragraphs 19-20: Accepted in substance. Paragraph 21: Rejected as unnecessary. Paragraph 22: Rejected as constituting argument. Paragraph 23: Accepted in substance. Paragraphs 24-25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance. The remainder is rejected as constituting argument. Paragraphs 27-37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraph 39: Accepted in substance. Paragraph 40: Rejected as unnecessary. Paragraphs 41-45: Accepted in substance. Paragraph 46: Rejected as unnecessary. Paragraphs 47-58: Accepted in substance. Paragraphs 59-62: Accepted in substance. Paragraph 63: Rejected as constituting argument. Paragraphs 64-67: Accepted in substance. Paragraph 68: Accepted to the extent that that is what he testified but rejected to the extent that that is what is reflected in Lieberman's Exhibit No. 20. Paragraph 69: Rejected to the extent that he testified that the amount reflected costs and fees. Paragraph 70: Accepted in substance. Paragraph 71: Accepted in substance. Paragraph 72: Accepted that that was his testimony but rejected to the extent that that number of hours is not reflected in the invoices submitted in evidence. Paragraphs 73-77: Accepted in substance. Paragraph 78: Rejected as constituting argument. Paragraphs 79-83: Rejected as unnecessary. Paragraph 84: Accepted in substance. Paragraphs 85-87: Rejected as constituting argument. Paragraphs 88-91: Accepted in substance. Paragraphs 92-93: Rejected as constituting argument. Paragraphs 94-96: Accepted in substance. Paragraph 97: Rejected as unnecessary. Paragraphs 98-99: Accepted in substance. Paragraphs 100-103: Rejected as unnecessary. Paragraphs 104-110: Accepted in substance. Paragraph 111: Rejected as unnecessary. Paragraphs 112-113: Rejected as constituting argument. Paragraphs 114-118: Rejected as unnecessary. Paragraph 119: Rejected as constituting argument. Paragraphs 120-122: Rejected as unnecessary. Paragraph 123: Rejected as constituting argument. Paragraphs 124-125: Accepted in substance. Paragraphs 126-128: Rejected as unnecessary. Paragraphs 129-130: Accepted in substance. Paragraphs 131-139: Rejected as unnecessary. Paragraphs 140-141: Accepted in substance. Paragraph 142: Rejected as unnecessary. Paragraph 143: Rejected as constituting argument. Paragraph 144. Accepted in substance. Paragraph 145: Rejected as constituting argument. Paragraph 146: Rejected as unnecessary. Paragraph 147: Rejected as constituting argument. Paragraph 148: Rejected as unnecessary. Paragraphs 149-152: Rejected as constituting argument. Paragraphs 153-170 Accepted in substance. Paragraph 171: Rejected as constituting argument. Paragraph 172: Accepted in substance. Paragraphs 173-174: Rejected as constituting argument. Paragraph 175: Accepted in substance. 68: Paragraph 176: Rejected as unnecessary. 69 Paragraphs 177-178: Rejected as constituting argument. Paragraphs 179-184: Accepted in substance. Paragraphs 185-186: Rejected as constituting argument. Paragraphs 187-188: Rejected as subordinate to the facts actually found. Paragraphs 189-191: Accepted in substance. Paragraph 192-201: Rejected as subordinate to the facts actually found. Paragraphs 202-209: Rejected as irrelevant. Paragraphs 210-212: Rejected as subordinate to the facts actually found. Paragraphs 213-218: Rejected as constituting argument. Complainant's Proposed Findings of Fact. Paragraph 1: Accepted in substance to the extent that Kaminsky may have thought that Lieberman violated the City Code and Charter but rejected to the extent that such statement implies that Lieberman did violate the law. Paragraph 2: Accepted in substance. Paragraph 3: Accepted in substance to the extent that Kaminsky believed when he filed the Complaint that Lieberman violated the City Code and Charter for her own personal benefit with the exception of the allegations relating to the salary increases for the City Council members. Rejected to the extent that the statement implies that Lieberman did violate the law for her personal benefit. Paragraph 4: Accepted to the extent that Ms. Striker and Mr. O'Brien had voiced their objections to the payment of the legals fees related to the Aricola ethics complaint. Paragraph 5: Accepted in substance to the extent that Kaminsky talked informally with his brother-in-law who was an attorney pertaining to the Complaint. Having judged the credibility of the witnesses, rejected that Pardo reviewed all the materials pertaining to the Complaint. Paragraph 6: Accepted in substance with the exception of the allegations as to personal benefit relating to the City Council salary increase. However, rejected to the extent that such a statement implies that Kaminsky's belief was reasonably based on fact or law. Paragraph 7: Rejected to the extent that Mr. Stracher's opinion is based on competent substantial evidence. Paragraph 8: Accepted to the extent that there were ordinances passed but rejected to the extent that such ordinances allowed for the expenditure of legal fees and the salary increases which were previously prohibited prior to the passage of the amendments. The ordinances merely clarified City's existing policy and interpretation relating to the unamended ordinances. Paragraph 9: Having judged the credibility of Kaminsky, the paragraph is rejected. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as not supported by the greater weight of the evidence. Paragraphs 12-14: Rejected as not supported by competent, substantial and credible evidence. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Anthony J. Titone, Esquire 7471 West Oakland Park Blvd., Suite 110 Ft. Lauderdale, Florida 33319 Kerrie Stillman Clerk & Complaint Coordinator Ethics Commission Post Office Box 6 Tallahassee, Florida 32399-0006 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact 6. The factual allegations contained in the Amended Stop-Work Order, and the 24 Amended Order of Penalty Assessment served on July 17, 2009, which are attached as “Exhibit 1” and “Exhibit 2,” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Amended Stop-Work Order and the 2"! Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 08-278-1A, and being otherwise fully advised in the premises, hereby finds that: 1. On May 21, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department’”) issued an Amended Stop-Work Order in Division of Workers’ Compensation Case No. 08-278-1A to PARADISE BAY, LLC. The Amended Stop- Work Order included a Notice of Rights wherein PARADISE BAY, LLC. was advised that any request for an administrative proceeding to challenge or contest the Amended Stop-Work Order must be filed within twenty-one (21) days of receipt of the Amended Stop-Work Order in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 2. On August 12, 2009, the Amended Stop-Work Order was served via certified mail on PARADISE BAY, LLC. A copy of the Amended Stop-Work Order is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. The 2™ Amended Order of Penalty Assessment assessed a total penalty of $22,752.40 against PARADISE BAY, LLC. The 2™ Amended Order of Penalty Assessment included a Notice of Rights wherein PARADISE BAY, LLC. was advised that any request for an administrative proceeding to challenge or contest the 2°* Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2" Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. A copy of the 2°’ Amended Order of Penalty Assessment is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On August 6, 2009, PARADISE BAY, LLC. filed a petition requesting an administrative hearing with the Department. The petition was forwarded to the Division of Administrative Hearings on August 12, 2009, and the matter was assigned DOAH Case No. 09- 4281. 5. On November 2, 2009, PARADISE BAY, LLC. filed a Withdrawal of Petition, as a result of which an Order Closing File which was entered on November 3, 2009. A copy of the Order Closing File is attached hereto as “Exhibit 3” and incorporated herein by reference.
Findings Of Fact The Petitioner, Ralph L. Leighton, age 41, holds a Class A license issued by the Department of State, authorizing him to engage in the business of operating a private investigative agency. He has also been licensed in Tennessee, and has never been convicted of a crime. The bulk of the Petitioner's investigative work has been in the area of domestic disputes. During the course of this domestic investigative work, the Petitioner was hired to do surveillance of a wife in connection with the husband's suit for divorce. Some of the facts surrounding the Petitioner's work on this case were related by a Family Conciliation Counselor for the Palm Beach County Juvenile Court, and by the wife's attorney. These facts were corroborated by the findings of the circuit court judge as recited in the final judgment of dissolution, a certified copy of which was received in evidence in this proceeding. Specifically, the court found that the Petitioner's testimony at the divorce trial was totally discredited, and that the Petitioner gave "false and misleading information" to the juvenile counselor "in an attempt to discredit the wife" whom the Petitioner had under surveillance. Subsequently, the Petitioner placed an ad in a newspaper for full time and part time investigators. One of the persons who responded to this ad and was hired, testified in this proceeding. The Petitioner provided a uniform, a badge, and the work assigned was as a security guard at a local shopping mall. There were no investigative duties involved; instead, a routine patrol of the mall area was to be performed. The Petitioner himself paid the wages for the first four weeks, then another individual made the payments. Another former employee of the Petitioner testified. This individual performed security guard and patrol work for the Petitioner at a local residential area. Although not uniformed, a full 100 percent of the duties assigned was spent patrolling the area, and a badge was provided by the Petitioner, as well as an identification card. Both of these individuals were initially hired by the Petitioner, paid by the Petitioner, assigned security guard or patrol duties by the Petitioner, issued badges and in one case a uniform by the Petitioner. Since no investigative duties were assigned or performed, and the wearing of a uniform is inconsistent with the normal work of an investigator, but routine for a security guard or patrolman, there is sufficient evidence to support a finding that the Petitioner was engaged in the business of providing security guards. This is not authorized by a Class A license. The Petitioner presented numerous character witnesses who testified generally that he is of good moral character, and other witnesses who had hired him as a private investigator and were satisfied with his work. The Petitioner himself denies that he has engaged in any work not authorized by his Class A license. However, this evidence is not sufficient to overcome the specific testimony of the Petitioner's two former employees, and the findings of the circuit court judge as recited in the divorce judgment.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Ralph L. Leighton for a Class B Private Guard or Patrol Agency license, be denied. THIS RECOMMENDED ORDER entered on this 6 day of November, 1981, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 6 day of November, 1981. COPIES FURNISHED: Earl R. Boyce, Esquire 120 South Alive Avenue West Palm Beach, Florida 33401 James V. Antista, Esquire Room 106, R.A. Gray Building Tallahassee, Florida 32301
The Issue What relief should the Florida Commission on Human Relations provide Petitioner to remedy the unlawful employment practice that Respondent admits that it committed by refusing to further consider Petitioner's application for employment as a correctional officer once it learned that Petitioner is an insulin-dependent diabetic?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner's Employment at the South Florida Reception Center Petitioner previously worked full-time as a Correctional Officer I at the State of Florida Department of Corrections' (DOC's) South Florida Reception Center, a maximum security facility that houses convicted felons. Petitioner and his coworkers at times were asked to work double shifts. On several occasions, Petitioner was threatened with disciplinary action when he refused to work a second shift immediately following the completion of his regularly assigned shift. Prior to the expiration of his probationary period, Petitioner was advised that he was going to be fired. Petitioner requested, and was granted permission by the Superintendent of the facility, the opportunity to resign in lieu of termination. Petitioner resigned his position effective June 27, 1989. Petitioner's Application for Employment with Respondent In October of 1988, while still employed by DOC, Petitioner applied for a Correctional Officer I position with Respondent. Respondent's official job description for the position describes the nature of the work performed by Correctional Officer I's as follows: This is routine security work in maintaining order and discipline among prisoners held in County correctional facilities. Employees in this class are responsible for receiving and controlling prisoners, preventing escapes and enforcing departmental rules and regulations on an assigned shift at a County correctional facility. Duties include maintaining various records on prisoners, supervising work details, transporting prisoners to a variety of medical or correctional institutions, and ensuring the proper discharge of prisoners. Work occasionally involves an element of personal danger during emergencies and in controlling potentially violent prisoners. Duties are performed in accordance with established departmental regulations and security procedures. Supervision is received from a superior officer who reviews work for compliance with established rules and regulations. These duties are similar to those performed by correctional officers who work at the South Florida Reception Center. There was a delay in the processing of Petitioner's application for employment. On April 12, 1990, Iliana O. Garcia, a Personnel Specialist 2 with Respondent, sent Petitioner a letter, the body of which read as follows: We wish to take this opportunity to thank you for placing your application for the position of Correctional Officer 1 with our Department. The time and effort you devoted to your pursuit of this position is sincerely appreciated, however, at the present time, we regret that we are unable to consider your application further. Many exceptional candidates are seeking limited number of positions and this creates a very competitive situation. Please be assured that our decision in your case was based on very careful consideration of your application and qualifications in direct comparison with all others seeking the position and was not a judgment arrived at lightly. Thank you again for your demonstrated interest in our Department, and we wish you success in your endeavors. On May 9, 1990, Louvenia Lee, the Commander of Respondent's Human Resources Bureau, sent Respondent a follow-up letter explaining in greater detail why Respondent was no longer being considered for the position for which he had applied: On February 26, 1990 you were scheduled for a physical examination at Mt. Sinai Medical Center. This exam was another step in the hiring process for a Correctional Officer. However, on the basis of the physical exam, the results were disqualifying. Therefore, your application with the Corrections and Rehabilitation Department was discontinued. The disqualifying results are in accordance with the physical standards set forth in the California Commission on Peace Officer Standards and Training, Chapter IX-1. These standards are utilized by other law enforcement agencies in Metropolitan Dade County. Thank you again for your demonstrated interest in our Department and we wish you success in your endeavors. If I can be of further assistance, please contact me at 547-7052. The results of the physical examination that Petitioner had taken were "disqualifying" because they had revealed that Petitioner was an insulin- dependent diabetic. Lost Earnings Had Petitioner been selected to fill the position for which he had applied, he would have had to have first undergone four months of academy training, starting in late July or early August of 1990, before assuming the duties of a Correctional Officer I. He would have received a stipend of $400 for each month that he was in training. Had Petitioner successfully completed his academy training, he would have been placed on the payroll as a Correctional Officer I on December 3, 1990. Had Petitioner remained on the payroll as a Correctional Officer I from December 3, 1990, to January 3, 1993, 3/ he would have earned a total of $54,142.22 ($47,367.16 for the pay periods reflected on Petitioner's Exhibit 7; $804.83 for the two bonus payments reflected on Petitioner's Exhibit 7; $932.86 for the January 21, 1991, through February 3, 1993, pay period; $972.45 for the March 30, 1992, through April 12, 1992, pay period; and $4,064.92 for the four pay periods immediately following the October 26, 1992, through November 8, 1992, pay period). Mitigation At the time he learned that he was no longer being considered by Respondent as a candidate to fill the Correctional Officer I position for which he had applied, Petitioner had applications for employment pending with two other prospective employers, the City of Hollywood and the Metro Dade Police Department. Both applications were for law enforcement officer positions. In August or September of 1990, Petitioner was informed that neither the City of Hollywood nor the Metro Dade Police Department would be offering him a position. The City of Hollywood advised him that the position for hich he had applied had been filled by another of the over 100 applicants for the position. The Metro Dade Police Department told Petitioner that it could not hire him because he was an insulin-dependent diabetic. Some time shortly after receiving his rejection notice from Respondent, Petitioner applied for a correctional officer position with the Broward Sheriff's Office. He did not get the position. The explanation that he was given was that he had failed the polygraph test he had taken. At the outset of the 1990-1991 school year Petitioner began working as a substitute teacher for the Dade County School Board. He continued working as a substitute teacher during the remainder of the 1990-1991 school year, as well as the following school year. The work was sporadic. Frequently, he would not know until the morning of his teaching assignment that he had the opportunity to substitute teach that day. 25. In 1990, 1991 and 1992, Petitioner earned $694.00, $2,212.50 and $2,360.00, respectively, working as a substitute teacher for the Dade County School Board. In 1992, Petitioner also worked for Publix Super Markets, Inc. (hereinafter referred to as "Publix). His last day of work for Publix was August 14, 1992. Petitioner earned $2,063.78 working for Publix in 1992. From the date he was informed that Respondent had rejected him for employment until January 3, 1990 (hereinafter referred to as the "back pay period"), Petitioner was not otherwise gainfully employed, nor did he, with the exception noted above, seek other gainful employment. During the back pay period, there were various advertised openings for correctional officers at the South Florida Reception Center (hereinafter referred to as the "Center"). These positions offered considerably less pay than Petitioner would have received had be been hired by Respondent. Furthermore, the working conditions at the Center were far inferior to those he would have experienced working for Respondent as Correctional Officer I. Petitioner did not apply for any of these advertised positions because he reasonably believed that to do so would be an exercise in futility given that he had been constructively discharged in June of 1989, from a similar position at the Center. Attorney's Fees and Costs On March 25, 1992, after the Executive Director of the Commission had issued a Notice of Determination: Cause and conciliation efforts had failed, Petitioner executed the following written agreement to retain the law firm of Simon, Schindler and Sandberg, P.A., to represent him in the instant matter: I, the undersigned, do hereby retain and employ the law firm of: SIMON, SCHINDLER & SANDBERG, P.A. 1492 South Miami Avenue Miami, Florida 33130 as my attorneys to represent me, DONALD C. FERRARO, in the petition now pending before the Florida Commission on Human Relations. I fully understand that the fee is based upon an hourly rate of $250.00, which I am obligating myself to pay. I also agree to pay my said attorneys the sum of $100.00 for out-of-pocket expenses. You are authorized to pay or incur liability for all expenses . . . If bills are not paid when due, or a mutually agreeable payment schedule is not made and adhered to, I agree that my attorneys may withdraw as my counsel in any proceeding in which they represent me. Also I agree to bear the cost of collection, including a reasonable attorney's fees, and all other costs. I understand that I will be billed periodically both as to expenses and attorney's fees, and fully agree to pay said bill promptly upon receipt of same. In addition to any other lien contemplated hereunder, we are given a lien on the claim or cause of action, on the sum recovered by way of settlement, and on any judgment that may be recovered, for fees as well as any fund we may have advanced on your behalf for costs in connection with the cause of action. You agree that we have all general, possessory, or retaining liens, and all special or charging liens, known to the common law. If we use the services of an attorney to enforce the terms of this agreement, you agree to pay, in addition to all other sums due us, a reasonable attorney's fee for said enforcement. I further agree that you shall have the right to withdraw from my case: (a) If I do not make the required payments pursuant to this agreement; (b) if I have misrepresented or failed to disclose material facts to you; or (c) if I fail to follow your advice. In any of the foregoing events, I agree to execute any such documents permitting you to withdraw. The Attorney is an officer of the court and is bound by the rules regulating the Florida Bar. The client acknowledges and understands that while an attorney accepts this employment and promises to render professional legal services to the best of his ability during the continuation of this employment, that the attorney makes no warranties, representations or guarantees regarding the favorable outcome, result or successful termination of the representation and that this Retainer Agreement is not "contingent" thereon. The client agrees to fully cooperate with the attorney; to do nothing which would compromise the attorney's professional ethics; and not to request or require the attorney to do anything in violation of the Rules of Professional Conduct. If the client has misrepresented or failed to disclose any material facts, refuses to follow the attorney's advice, or fails to be available as necessary for preparation, conferences, depositions, hearings or other court proceedings, the attorney may withdraw from representation with leave of court. I acknowledge that you have made no representations or guarantees concerning the outcome of this case. I agree to the above terms and conditions of this Retainer Agreement and further acknowledge that I have received a copy thereof. Pursuant to this retainer agreement, the law firm of Simon, Schindler and Sandberg, P.A., (hereinafter referred to as the "Firm") provided Petitioner with legal representation in this matter. Roger J. Schindler, Esquire, a name partner in the Firm, was the most senior of the Firm's attorneys who worked on Petitioner's case. Schindler is a Florida-licensed attorney who has been practicing law in this state since the spring of 1970. He has litigated numerous civil rights actions. Schindler's hourly fee is $250.00. Through November 11, 1992, Schindler had reasonably spent 49.00 hours performing various tasks in connection with the instant case for which Petitioner has been billed $12,200.00 based upon a reasonable hourly fee of $250.00. Through November 11, 1992, Joe Constant, a Florida-licensed attorney and one of the Firm's associates, had reasonably spent 16.20 hours performing various tasks in connection with the instant case for which Petitioner has been billed $2,673.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, another of the Firm's associate attorneys had reasonably spent one hour working on legal research done in connection with the instant case for which Petitioner has been billed $165.00 based upon a reasonable hourly fee of $165.00. Through November 11, 1992, a law clerk working for the Firm had reasonably spent 11.80 hours performing research-related tasks in connection with the instant case for which Petitioner has been billed $885.00 based upon a reasonable hourly fee of $75.00. The Firm has also billed Petitioner a total of $368.22 for costs reasonably incurred through November 11, 1992, in connection with the instant case. Through November 11, 1992, the Firm had billed Petitioner a total of $16,391.22 ($15,923.00 for attorney's fees and $368.22 for costs), but had not received any payments from Petitioner, notwithstanding that, under the retainer agreement, he was responsible to pay the Firm this entire amount regardless of the outcome of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order (1) finding that Respondent committed the unlawful employment practice alleged in Petitioner's Petition for Relief, (2) prohibiting the practice, (3) awarding Petitioner back pay in the amount of $55,742.22, together with prejudgment interest thereon at the statutory rate of 12% per annum, (4) awarding Petitioner reasonable prehearing attorney's fees and litigation costs in the amount of $16,391.22 ($15,923.00 for fees and $368.22 for costs), and (5) awarding Petitioner reasonable attorney's fees and litigation costs for work performed, and costs incurred, by the Firm in connection with this case after November 11, 1992, in an amount to be determined by agreement of the parties or, in the absence of such agreement, by subsequent Commission order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1993. STUART M. LERNER 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 26th day of February, 1993.
The Issue Whether Respondent, Department of Juvenile Justice (“Respondent” or “Department”), is liable to Petitioner, Tequilla Lockwood (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact The Department is a criminal justice agency of the State of Florida, whose mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services, designated to strengthen families and turn around the lives of troubled youth. See § 20.316, Fla. Stat. Petitioner is a Black female, age 61,2 who has been employed by the Department as a secretary specialist, in career service, in the Office of 2 Respondent’s age is as stated in her Petition filed on September 10, 2020. Probation and Community Intervention (“Probation”), Northwest Region, Circuit 2, since February 9, 2007. Petitioner was hired as a secretary specialist, in Position No. 80019949, at an initial salary of $20,734.74, or $797.49 biweekly. State Personnel System The Department is a state agency in the State Personnel System (“SPS”), which is the employment system for the Executive Branch of state government and its applicable pay plans. Section 110.2035, Florida Statutes, authorizes the SPS classification and compensation program for positions in the career service, selected exempt service, and senior management service. In addition, Florida Administrative Code Rule 60L-31, Classification Plan, addresses management of the classification system, and rule 60L-32, Compensation and Benefits, addresses management of salary and other benefits. “Compensation” within the SPS is governed by section 110.2035, as is the classification system. In addition, rule 60L-32 establishes the policies and procedures applicable to all occupations in the SPS. In the broadband system of the SPS, pay is determined through a salary range or pay band. Pay bands establish the lowest base pay and the highest base pay for a particular class code. The pay band for a Department secretary specialist is $797.49 to $1,379.66 biweekly, or an annual salary from $20,734.74 to $35,871.09. Upon appointment, a state agency sets an employee’s base rate of pay within the pay band for the broadband level to which appointed. See Fla. Admin. Code R. 60L-32.001. An agency may increase an employee’s base rate of pay within the established pay band at any time, based upon documented justification, provided funds are available for the increase, and the increase is not specifically prohibited by law. See Fla. Admin. Code R. 60L-32.0011. Pursuant to the “DJJ Delegation of Pay Authority,” effective July 1, 2016, and the “DJJ Spending Guidelines for FY 2019-2020,” effective July 1, 2019, Respondent authorizes increases to an employee’s rate of pay for a variety of reasons, including added duties and responsibility, receipt of a competitive job offer, and merit. A position with a Competitive Area Differential (“CAD”) designation is one that has been approved by the Department of Management Services (DMS) and the Legislature to receive a pay additive which is designed to attract and retain workers in geographical areas where other employers pay comparatively more for similar jobs. See Fla. Admin. Code R. 60L-32.0012(1)(h). Allegation of Paycut Prior to her employment with the Department, Petitioner was employed by the Department of Children and Families (“DCF”) as a data entry operator, at a salary of $20,478.38, or $787.63 biweekly. When Petitioner was hired by the Department, although she was hired at the lowest base pay for a secretary specialist, she received a slight increase in salary ($256.36) from her prior position with DCF. Allegation of Failure to Increase Compensation During her employment, the Department has increased Petitioner’s annual salary. On October 1, 2013, her salary was increased to $22,134.84. On October 1, 2017, her salary was increased to $23,534.94. As of January 10, 2020, Petitioner’s base rate of pay was $905.19 biweekly. As of October 1, 2020, Petitioner’s base rate of pay is $943.66 biweekly. Based upon a biweekly base pay of $943.66, paid 26 times in a year, Petitioner’s current annual salary is $24,535.16. Allegation of Discrimination in Starting Salary At the time Petitioner filed her Complaint alleging that younger, White secretary specialists were being hired at a greater rate of compensation, Petitioner offered no comparators. As a result, the EEO Officer, Aldrin Sanders, conducted a statewide data comparison for Department secretary specialists. As of January 9, 2020, the Department had 84 employees in secretary specialist positions. Of those employees, one was Asian, 41 were Black, nine were Hispanic, and 33 were White. Mr. Sanders determined that Petitioner’s salary was higher than all secretary specialists hired after her, with the exception of four—one Black and three White—whose salaries were equal to that of Petitioner. Mr. Sanders further determined that all 34 secretary specialists whose salaries were higher than Petitioner’s—18 of whom were Black, five Hispanic, and 11 White—were hired before Petitioner. Furthermore, five of those with higher salaries were part of the 2010-2011 Statewide Workforce Reduction efforts and were demoted from other positions to the secretary specialist position, and one was a voluntary demotion with a five percent decrease in salary pursuant to spending guidelines. Additionally, the data obtained by Mr. Sanders indicated that, on average, secretary specialists who are 40 years of age or older made $63.45 more than their counterparts who are 39 and under; and Black secretary specialists, on average, made $8.09 more than their non-Black counterparts. At the final hearing, Petitioner identified particular Department secretary specialists as comparators for her claims of unlawful discrimination. She highlighted specific positions from the spreadsheet listing the Department’s secretary specialists statewide, which was included as a part of Mr. Sanders’ report. Petitioner also submitted into evidence screenshots about employee salaries from the website, “Florida has a Right to Know,” https://www.floridahasarighttoknow.myflorida.com/search_state_payroll. The secretary specialist in Position No. 80004540 is a Black female, 26 years old, who was hired by the Department on November 9, 2018, at a starting base pay rate of $877.24 biweekly. That rate is higher than Petitioner’s starting base pay rate of $797.49 biweekly in 2007. That position is in Probation Circuit 11, Dade County, as of November 7, 2020. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist in that position has an annual salary of $25,077.26, higher than Petitioner’s current salary of $24,535.16. The secretary specialist in Position No. 80048017 is a Black female, 37 years old, who was hired by the Department on August 16, 2019, at a base pay rate of $877.24 biweekly. The secretary specialist in that position was initially hired by the State of Florida on December 7, 2007, but the evidence is insufficient to determine which agency previously employed her, her position title, or her salary. That position is in Probation Circuit 17, Broward County, as of September 5, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having a current annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. The secretary specialist in Position No. 80002854 is a Black female, 37 years old, who was hired by the Department on November 9, 2018, at a base pay rate of $877.24 biweekly. That position is in Probation Circuit 15, Palm Beach County, as of November 6, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having an annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. According to a screenshot from “Florida Has a Right to Know,” a secretary specialist in Position No. ***002456, by the name of Kenneth David Devilling, assigned to Department Community Interventions & Service, purportedly earns $29,050.84. That position is not in Probation. Petitioner introduced no competent evidence on which to base a finding of either the race or age of that particular secretary specialist. When an employee is hired, they negotiate their salary with the hiring manager. Determining an employee’s salary is a subjective process. Managers can adjust starting salaries within the pay bands based on consideration of many factors, including the type of appointment; the knowledge, skills, and abilities (“KSAs”) required of the position; the KSAs possessed by the employee; difficulty in recruitment for the position; geographic location of the position; years of service and experience of employees; licensure; certification and registration requirements; collective bargaining agreements; layoff, etc. These factors are not to be considered all- inclusive, and each appointment or employment decision may vary because of the different factors from one situation to another. Regional Structure of Probation Probation is divided into North, Central, and South regions. Probation North region is further divided into Northeast and Northwest regions. The Northwest region encompasses judicial circuits 1, 2, 3, and 14. Gwen Steverson has served as Northwest Regional Director for Probation since March 2019. Ms. Steverson reports directly to Assistant Secretary Paul Hatcher, who supervises and manages Probation statewide. Ms. Steverson’s duties and responsibilities include assisting the assistant secretary in directing and operating all activities within the Probation Northwest region; ensuring that Probation’s programs are administered in accordance with applicable laws, rules, and regulations; managing her assigned circuits; and managing all human resource decisions. Ms. Steverson has three counterparts: Jill Wells, regional director for Probation Northeast; Cathy Lake, regional director for Probation Central; and Wydee’a Wilson, regional director for Probation South. Each regional director has ultimate responsibility for the Probation regions, and the judicial circuits therein, to which they are assigned. Secretary specialist positions in the South Region are subject to a CAD to account for cost-of-living differences in that region, compared with Central and North. The record does not contain competent evidence to determine the amount of the differential. Ms. Steverson has ultimate management authority only in Probation Northwest for recruitment, selection, hiring, and salary offers to job candidates and pay raises to employees. She has no management authority in the other Probation regions or in any other Department program areas with respect to job candidates and employees. Likewise, other Department managers have no authority concerning job candidates and employees in Probation Northwest. Petitioner is employed as the sole secretary specialist in Probation Northwest, Circuit 2, Gadsden County Office, in Quincy, Florida. There are other secretary specialist positions in Circuit 2, and the Northwest Region more broadly, but the evidence was insufficient to determine how many positions and to which circuits they are assigned. Petitioner’s duties and responsibilities as secretary specialist include the following: managing the office; serving as a receptionist for Probation Circuit 2 by receiving and routing all incoming calls; receiving and directing visitors; ensuring that office supplies are maintained and stocked; performing background juvenile records checks for law enforcement and/or other agencies; running monthly caseloads and distributing daily court dockets to supervisors; performing data entry tasks, including maintaining required tracking logs, such as Pre-Disposition Reports (PDS) and Rep-Release Notification (PRN) logs, and entering “at larges” in the Juvenile Justice Information System (JJIS); and performing other duties as assigned. Ms. Steverson has management authority over Juvenile Probation Officers (“JPOs”) in the Probation Northwest Region. The duties and responsibilities of a JPO differ greatly from those of a secretary specialist. Key JPO duties are case management of a youth and their family, including understanding the court process; attending court for a youth that has been arrested; arranging for all assessments, whether mental health or substance abuse, to determine the needs of the youth and the family; making referrals to Department contract providers, based upon the results of the assessments; ensuring that all court-ordered sanctions are completed by the youth; filing violations of probation; conducting face-to-face visits; working with the schools; and carrying the youth through the process. The qualifications for JPOs differ from those for a secretary specialist. A JPO must have a bachelor’s degree; successfully complete the JPO Academy Certification process within the first 180 days of employment; obtain certifications in Protective Action Response (PAR), Cardiopulmonary Resuscitation (CPR), and First Aid; and be trained in the Detention Risk Assessment Instrument (DRAI). A secretary specialist in Probation is required to have a high school diploma and is not required to successfully complete the trainings or obtain the certifications required for a JPO. Petitioner complained that she was performing the functions of a JPO, for which additional compensation was due her, such as interpreting arrest affidavits, “at larges,” entering charges in the Department system for four counties, documenting status of prior cases in the case notebook, etc. However, Petitioner did not prove that these tasks were outside of her assigned job duties. Ms. Steverson testified, credibly, that Petitioner has not been working “out of class,” that is, Petitioner has not been performing job duties above and beyond those in her position description.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that the Department of Juvenile Justice did not discriminate against Petitioner, Tequilla Lockwood, based upon either age or race, and dismiss Petition for Relief No. 2020-21773. DONE AND ENTERED this 13th day of January, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Tequilla Y. Lockwood 351 Carter Road Quincy, Florida 32351 Debora E. Fridie, Esquire Department of Juvenile Justice Suite 3200 2737 Centerview Drive Tallahassee, Florida 32399-3100 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 December, 1991.
The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
