The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary Latham (Latham), has served as a member of the Florida Parole Commission (Parole Commission) since July 24, 1992. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an Administrative Secretary to the General Counsel's Office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be so referred to for purposes of this Complaint. Effective May 27, 1994, Ms. Billingslea was promoted to the position of Executive Secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of Senior Executive Secretary to the Chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as the Executive Secretary to Latham. Latham had previously interviewed Ms. Billingslea for an Executive Secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made Chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed the possibility of transferring Ms. Billingslea to his office with Chairman Wolson and her administrative assistant, Gene Strickland. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a Commissioner's office because the work in the Chairman's office was more administrative than that in a Commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary to Latham. Because there is only one position of Senior Executive Secretary in the Parole Commission (the Chairman's Secretary) this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Executive Secretary to Latham, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billingslea understood that the Chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no, and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will almost be as if he's going to say something, but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At the time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. Whenever the Florida Parole Commission denies parole, a "947.18" report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance of the 947.18 report. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham had been assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told Ms. Billingslea she had done nothing to make him approach her in this way, but that he did not know what had come over him lately, he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she wouldn't be working for him that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later the same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair, preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited or encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billingslea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She had tried to call the office to advise that she would be late but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Although Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal, he began to voice his dissatisfaction with her work hours after she had spurned his advances. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could take which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billingslea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office and after Ms. Billingslea had left, he asked to speak with Chairman Wolson. Latham wanted to know what was going on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching up with it in a victory signal and saying "yes." He left Chairman's Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was reassigned to the position of Executive Secretary for the Clemency Section. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Gary Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed and public censure and reprimand. DONE AND ENTERED this 5th day of January, 1996, 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 5th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3717E 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: Advocate's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 2: Rejected as unnecessary. Paragraphs 3-5: Accepted. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted. Paragraph 10: The first two sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 11: Accepted. Paragraphs 12-19: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts found. Paragraph 21: Accepted in substance. Paragraphs 22-25: Accepted. Paragraphs 26-30: Accepted in substance. Paragraph 31: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 32-33: Accepted in substance. Paragraph 34: Accepted. Paragraph 35: Accepted in substance. Paragraph 36: Accepted. Paragraph 37: Accepted in substance. Paragraph 38: Rejected as unnecessary. Paragraphs 39-45: Accepted in substance. Paragraphs 46-59: Rejected as irrelevant. Paragraph 60: Rejected as not supported by the evidence. Paragraphs 61-64: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: The first two sentences are accepted. The last sentence is accepted in substance. Paragraphs 5-6: Accepted in substance. Paragraph 7: Accepted. Paragraph 8: The third and fourth sentences are rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 9: The last sentence is accepted. The remainder is accepted in substance. Latham voiced his concerns after the conversation that he had with Ms. Billingslea on September 27. Paragraphs 10-11: Accepted in substance. Paragraphs 12-13: Rejected as unnecessary. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraph 16: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Paragraph 19: The last sentence is accepted in substance except the portion about sexual innuendo. The evidence did establish that he did make sexual innuendos to Ms. Billingslea. The remainder is rejected as subordinate to the facts found. Paragraph 20: The first sentence is rejected as not supported by the record. The second sentence is accepted to the extent that he never directly asked Ms. Billingslea for sex, but he did imply that he wanted a romantic liaison when he asked her to stay after work and be with him. The third, fourth, and fifth sentences are rejected as subordinate to the facts found. The last sentence is rejected as not supported by the record. Latham did tell Ms. Billingslea that he had a lot of political influence. Paragraph 21: The first sentence is rejected as argument. The second sentence is accepted in substance. The third sentence is accepted to the extent that that is what she thought at the time the incident occurred but later she realized that it was not a joke. The third sentence is accepted to the extent that Latham denied the incidents but rejected to the extent that it implies that the incidents did not happen. Having judged the credibility of the witnesses, I find that the incidents did happen. The last sentence is rejected as not supported by the evidence. Paragraph 22: The first four sentences are accepted in substance. The fifth sentence is rejected as subordinate to the facts found. The last sentence is rejected as not supported by the evidence. Paragraph 23: Accepted in substance. Paragraph 24: The first sentence is accepted in substance as that is what Latham testified but rejected to the extent that it implies that the conversation did not take place. Accepted in substance that Latham got lost while going to a fund raiser but rejected that he did not go by her house and that he did not comment that she had a nice house and that her blinds were shut. Paragraph 25: The first two sentences are rejected as not supported by the evidence. The third sentence is rejected as unnecessary. The last two sentences are rejected as not supported by the evidence. Paragraph 26: The first four sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts found. Paragraphs 27-28: Accepted in substance. Paragraph 29: The first sentence is accepted in substance. The second sentence is accepted in substance as that was Latham's testimony but rejected to the extent that it implies that he did not describe the graphic sexual details of the case. The third sentence is rejected as not supported by the evidence based on the credibility of the witnesses. The fourth sentence is accepted to the extent that Latham made a comment to Ms. Henry that Ms. Billingslea was interested in the case. The last sentence is accepted in substance. Paragraph 30: Rejected as irrelevant. Paragraph 31: Having judged the credibility of the witnesses, the paragraph is rejected. Paragraph 32: Accepted that Latham disputes Ms. Billingslea's allegations but rejected that Latham's version is credible. Paragraph 33: Accepted in substance. Paragraphs 34-37: Having judged the credibility of the witnesses, the paragraphs are rejected. Paragraph 38: The first and second sentences are accepted in substance. The last sentence is accepted to the extent that Latham did not intentionally restrain Ms. Billingslea but rejected to the extent that it implies that Latham was not asking Ms. Billingslea to stay after work for the purpose of seeking sexual gratification or favors. The remainder is rejected as subordinate to the facts found. Paragraph 39: The first sentence is rejected as constituting argument. The last sentence is rejected as not supported by the evidence. Paragraphs 40-41: Accepted in substance. Paragraph 42: Rejected as constituting argument. Paragraph 43: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 44: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 45: Accepted in substance. Paragraph 46: Rejected as irrelevant. Paragraph 47: Rejected as constituting argument. Paragraphs 48-49: Rejected as irrelevant. Paragraph 50: Rejected as constituting argument. Paragraphs 51-53: Rejected as irrelevant. Paragraph 54: Rejected as constituting argument. Paragraph 55: Rejected as irrelevant. Paragraph 56: Rejected as constituting argument. Paragraph 57: The first two sentences are accepted in substance. The third sentence is accepted as that is what Latham said but rejected as being true. Given other witnesses accounts of Ms. Billingslea's appearance on that date, it is inconceivable that Latham could not have known that she was not sick. The last two sentences are subordinate to the facts found. Paragraph 58: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Mark Herron, Esquire Post Office Box 10555 Tallahassee, Florida 32302-2555 Virlindia Doss Advocate For the Florida Commission on Ethics Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2017),1/ Petitioner forfeited his Florida Retirement System Investment Plan account after he was found guilty by a jury of conspiracy to commit first degree murder.
Findings Of Fact The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. See § 121.021(3), Fla. Stat. Petitioner was a state employee and a special risk class member of the FRS. Work History Petitioner was a 20-year DOC employee. Since 2004, he served as a sergeant at the Reception and Medical Center at Lake Butler, Florida (Center). A sergeant is a supervisory position whose duties include the “care, custody and control of inmates.” Retaliating against an inmate is a violation of DOC policy and the oath administered to correction officers.2/ Witnessing or having knowledge of a DOC officer’s conspiracy to murder a former inmate, and failing to report that conspiracy would also be a violation of a DOC sergeant’s duties. As explained by Petitioner, such conduct would be, “outside the guidelines. That’s not the rules. That’s not what [a DOC sergeant is] supposed to do.” Underlying Crime On August 4, 2013, Thomas Driver, a DOC corrections officer who worked at the Center at the same time as Petitioner, was involved in an altercation with an inmate (referred to as Mr. Williams). During that altercation Mr. Williams bit Mr. Driver. Charles Newcomb was a former DOC employee who knew Petitioner from the Center and also about Mr. Driver’s incident with Mr. Williams. All of the DOC employees at the Center knew about the incident between Mr. Williams and Mr. Driver. Based on information they gathered from working at the Center, Mr. Driver, Mr. Newcomb and Petitioner (collectively referred to as the conspirators) believed Mr. Williams had a contagious medical condition and intentionally bit Mr. Driver to infect him. After the incident Mr. Driver was subject to treatment for a possible infection. Mr. Williams was African-American. Although their race is not apparent from the record, in December 2014, the conspirators were members of a local chapter KKK. Joe Moore, served as a Knighthawk for the KKK. A Knighthawk is the person responsible for security at KKK events and traditionally is responsible for the security and protection of the KKK Grand Dragon (the leader of the local KKK chapter). Petitioner and his fellow KKK members (also referred to as “klansmen”) knew that Mr. Moore was a veteran and had training as a sniper. Unbeknownst to the conspirators, however, Mr. Moore was a undercover informant for the Federal Bureau of Investigations (FBI). Although Mr. Newcomb and Mr. Driver referred to each other and Mr. Moore as “Brother,” they referred to and addressed Petitioner as “Sarge” based on his position as a DOC sergeant at the Center. On December 6, 2014, Mr. Driver and Petitioner approached Mr. Moore at a KKK event. As they spoke, Mr. Newcomb stood nearby to ensure that the other klansmen would not interrupt or overhear the conversation. Mr. Driver and Petitioner showed Mr. Moore a picture of an African-American male. The picture was on an 8” x 10” piece of paper that looked as if it had been printed from a database. It was apparent to Mr. Moore at the time that it was a picture of an inmate. After speaking with Petitioner and Mr. Driver, Mr. Moore believed they wanted his help to harm or kill Mr. Williams. Mr. Moore immediately notified the FBI of his conversation with Petitioner and Mr. Driver. At the FBI’s request, Mr. Moore began wearing a microphone and secretly, but legally, taping and transmitting his conversations with the conspirators. Eventually, it was confirmed that the conspirators wanted Mr. Williams put “six-feet under.” Mr. Driver explained to Mr. Moore the graphic nature of the altercation, his subsequent blood treatment as a result of Mr. Williams’ attack, and the fact Mr. Williams served very little time for the attack before he was released on probation. Mr. Driver clearly wanted revenge. Mr. Driver: Yeah, it pissed me off. If I could I’d kick his fricking throat out. Mr. Moore: That’s not necessary I’m all over it we’re all over . . . how do you want [it] done? Mr. Driver: Well. I’m going to tell you like this: If it was me personally and I had another chance at him I’d stomp his larynx. On January 30, 2015, Petitioner, Mr. Newcomb, and Mr. Moore met at a prearranged location and time to drive to the area of Mr. Williams’ home. Mr. Williams had been released and was no longer in custody at the Center. Mr. Driver was intentionally absent from this drive so that he would not come under suspicion for the actions Petitioner and Mr. Newcomb were planning to take that night. In fact, based on his knowledge from working at the Center, Petitioner assured the group that Mr. Driver was working the night shift at the Center and, therefore, had an alibi. Petitioner clearly knew the purpose of the drive was to attempt to kill Mr. Williams. Prior to the drive, Petitioner asked when they were going to “grab him” and discussed with the others whether he should bring his gun on the ride. He told the others that he had obtained the gun, a nine-millimeter, from “the guy that I work with.” Petitioner also wanted to wear protective clothing because he knew, presumably from his work as a DOC sergeant at the Center, that Mr. Williams had a contagious infection or disease. During the car ride, Petitioner discussed the best way to terminate Mr. Williams without raising suspicion. Mr. Newcomb suggested abducting Mr. Williams, injecting him with insulin, and leaving him near the water with a fishing pole. Petitioner said this would look suspicious unless Mr. Williams was known to go fishing. The men also discussed how to dispose of Mr. Williams’ body. Petitioner suggested a “complete disposal” by chopping up the body. At some point that night Mr. Newcomb indicated a recent picture of Mr. Williams would be helpful; Petitioner agreed to “go to work and pull up [Mr. Williams’] picture.” When they arrived in Mr. Williams’ neighborhood, Petitioner made numerous offensive and stereotypical remarks about African-Americans. Neither Petitioner nor the others took any action against Mr. Williams the night of the January 30 drive; and Mr. Williams was never harmed.3/ On March 19, 2015, Mr. Moore met with Petitioner and showed him a staged picture of Mr. Williams’ body lying on the ground in a pool of blood. Upon seeing the photo of what he believed was Mr. Williams’ dead body, Petitioner laughed and stated, “I love it. F—king p-d on himself . . . good f-king job.” During that same meeting, Mr. Moore asked Petitioner if he was happy with the results. Petitioner seemed elated: Mr. Moore: And, we need to make sure that everybody was happy with it. Petitioner: Hell yeah . . . uh Brother I love you, man. . . . I will call [Mr. Driver] as soon as I get – dude you don’t know how happy . . . I love you, brother. I love you, brother. I love you brother. At the final hearing, Petitioner claimed he did not intend to hurt Mr. Williams, but only went along with the others because he believed it was part of the KKK initiation process; and that he was entrapped by the FBI. He also argued he did not know the victim was Mr. Williams or that he was a former inmate. Petitioner’s assertions are not credible and his testimony is unbelievable for a number of reasons. First, the evidence at the underlying criminal trial established the conspirators did not want KKK leaders to know about the plan to attack Mr. Williams. Petitioner admitted the KKK oath includes a promise not to commit acts of violence. These facts contradict the assertion that Petitioner was pretending to plan the death of an African-American (who coincidentally happened to be a former inmate) just to prove his loyalty to the KKK. Second, although he claimed he was unaware of the purpose of the January 30 car ride or that Mr. Williams was a former inmate, the transcripts of the taped recordings clearly establish this is not true. In fact, Petitioner not only knew who the intended victim was, but knew he had attacked Mr. Driver and that he allegedly had an infectious disease. Third, Petitioner’s testimony that he was a passive participant induced by the FBI informant into planning the death of Mr. Williams is also implausible. Again, Petitioner offered to bring a gun along on the ride, offered advice on how to possibly set up the attack so that it looked like an accident, and suggested how to dispose of Mr. Williams’ body. Petitioner’s reaction to seeing Mr. Williams’ body in the photo also contradicts any contention that he did not intend harm to Mr. Williams or that he did not derive any pleasure from his death. Finally, Petitioner testified he was not racist. This was clearly contradicted by the statements he made about African- Americans during the January 30 car ride. Similarly, his testimony that he was a passive KKK member who only participated in its social aspects (i.e., picnics and “fellowship”) was belied by his own acknowledgment that his wife did not want him to be a member of the KKK, and that he participated in cross-burnings.4/ On August 11, 2017, a jury found Mr. Moran guilty of Conspiracy to Commit Murder in the First Degree.5/ Findings of Ultimate Fact The evidence clearly establishes there is a nexus between Petitioner’s employment as a DOC correctional sergeant at the Center and the commission of the felony of conspiracy to commit murder. Petitioner’s actions were intentional and he knew his participation in the conspiracy was illegal. Petitioner knowingly violated his obligation as a sworn correctional officer by participating in the conspiracy and not reporting the criminal activity committed by the other conspirators. Petitioner defrauded the public from receiving the faithful performance of his duties as a DOC sergeant. The public had a right to expect that one entrusted with guarding inmates would not act as a violent vigilante to exact revenge for a fellow correctional officer. Petitioner realized a profit, gain, or advantage from the commission of the crime in the form of self-gratification and comradery with and respect from Mr. Driver. Petitioner used his power, rights, privileges, and the knowledge accessible to him through his work as a correctional officer to facilitate his crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement; and that pursuant to section 112.3173, he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 15th day of May, 2018.
Findings Of Fact Based upon the pleadings and documents received into evidence at the hearing, the following relevant facts are found: Respondent Edward T. Goldstein holds Florida Teaching Certificate No. 174841, Post Graduate, Rank II, valid through June 30, 1992, covering the areas of science, junior college, administration and supervision. Based upon an investigation conducted by Police Detective Darron Peter Castiglione with the Hollywood Police Department, respondent Goldstein was arrested in September of 1977 and charged with two counts of first degree murder for the shooting and killing of his wife and son. (Petitioner's Exhibit 1). Respondent was found to be incompetent to stand trial and spent several years at the South Florida State Hospital. By "Order to Transport" dated March 30, 1981, Arthur J. Franza, Circuit Judge of the Seventeenth Judicial Circuit, found respondent competent to stand trial and ordered him to be transferred from the Hospital and placed in the custody of the Broward County Jail. (Petitioner's Exhibit 6). On June 1, 1981, respondent was indicted for two counts of murder in the first degree. (Petitioner's Exhibit 3). After a trial, respondent was adjudged guilty of two counts of murder in the first degree by Circuit Judge Franza. (Petitioner's Exhibit 4). On February 18, 1982, Judge Franza entered his Order sentencing the respondent to life imprisonment with a mandatory minimum twenty-five (25) year sentence on each of the two counts, the sentences to run concurrently. (Petitioner's Exhibit 5).
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violations of Section 231.28(1), Florida Statutes, and that respondent's Teaching Certificate Number 174841 be permanently revoked. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 28th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson The Law Building 315 Third Street West Palm Beach, Florida 33401 Edward T. Goldstein Inmate No. 08163 Avon Park Correctional Institute Avon Park, Florida Joseph Varon, Esquire 2432 Hollywood Boulevard Hollywood, Florida Donald Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent has failed to maintain the qualifications of a law enforcement officer to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on March 21, 1988, as a law enforcement officer, Certification Number 50-87-002-01, and at all time relevant, certification was active. In March of 1988, the Respondent became employed as a police officer with the Winter Haven Police Department. On two separate occasions in 1990, Lois May engaged in sexual intercourse with Officer Edgar S. Searcy. On both occasions, Officer Searcy paid May $10.00 for her services. Officer Searcy was on duty and in uniform during both of these occurrences. Colleen McCoy performed oral sex on Officer Searcy in exchange for $5.00 on one occasion in 1990. While on duty, Respondent picked up McCoy at her residence, and took her to a secluded location where she performed oral sex on him. He paid her $5.00, and drove her to a location where she could walk to nearby "crack house" and obtain drugs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1989), and that Respondent's certification be REVOKED. DONE AND ENTERED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 6th day of January, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,9 Rejected as hearsay: paragraphs 6,7,8 Respondent's proposed findings of fact. Accepted in substance: none Rejected as argument or comments on the evidence: paragraphs 1, 2, 3,4 COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Steve Brady Regional Legal Advisor Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Doris Hundley Qualified Representative Edgar S. Searcy 490 East Plum Avenue Chipley, Florida 32428
The Issue The issue in this case is whether the Petitioner, Mr. Robert P. Hatcher, is eligible to retire under the Florida Retirement System rather than under the Teachers' Retirement System.
Findings Of Fact The Petitioner was employed by the Hillsborough County School Board on August 25, 1959, and was enrolled in the Teachers' Retirement System (TRS) at that time. The Petitioner worked for the Palm Beach County School Board for 27 years, from 1966 through May 15, 1992. The Petitioner worked with no breaks in service during all years in which the Legislature provided open enrollment periods for members of the TRS to transfer to the Florida Retirement System (FRS). The Petitioner was aware of the open enrollment periods, but declined all opportunities to transfer to the FRS. In this regard, the Petitioner specifically rejected membership in the FRS for the 1974 and 1978 open enrollment periods by signed ballots dated November 27, 1974, and November 2, 1978. Petitioner voluntarily terminated his employment with the Palm Beach County School Board on May 15, 1992. Following his termination with the Palm Beach County School Board, Petitioner began seeking employment with an agency that participated in the FRS in order to become eligible to transfer from the TRS to the FRS. The Petitioner's first contact with the Okeechobee County School Board (OCSB) was approximately two years ago when Dr. Mary Gray, Petitioner's acquaintance, introduced Petitioner to Mr. Owens. The Petitioner approached Mr. Owens in an attempt to obtain employment with the OCSB. The Petitioner sought employment with the OCSB for the sole purpose of obtaining entry into the FRS. Mr. Owens recruited and interviewed the Petitioner for the position of Custodian I at the OCSB. At the time the Petitioner was recruited and interviewed, Mr. Owens knew the Petitioner wanted to work for the OCSB for the sole purpose of establishing retirement eligibility. The Petitioner requested that he be hired to work only long enough to establish retirement eligibility by working for a state employer that was a member of the Florida Retirement System. Prior to the Petitioner's request, the OCSB had never had such a request before. The OCSB hired the Petitioner with the knowledge that he had health problems and believing that he would not be able to perform the duties of custodian for more than a short period of time. By letter dated June 23, 1993, the OCSB approved the Petitioner's employment as Custodian I for the OCSB effective June 30, 1993. The Custodian I position was classified as a regular position, not a short-term position. The Petitioner reported to work at the Okeechobee High School on June 30, 1993. He answered phones for several hours, performed some inventory work, then resigned that afternoon. The OCSB acknowledged receipt of the Petitioner's resignation letter, effective June 30, 1993, by letter dated August 2, 1993. The Petitioner submitted an application for membership in the FRS to the OCSB on June 30, 1993. Prior to his employment with the OCSB, the Petitioner investigated the possibility of transferring from the TRS to the FRS. The Petitioner was neither told nor did he receive any written communication by the DOR that he could transfer to the FRS based upon employment for one day. By letter dated August 16, 1993, the Respondent notified the Petitioner that he could not obtain entry into the FRS because his employment was not bona fide, but that he could retire under the TRS. If the Petitioner were to retire under the TRS, his Option 1 monthly benefit payment would be $2,571.64; his Option 3 monthly benefit payment would be $2,396.25. Under the FRS, Petitioner's Option 1 monthly benefit payment would be $3,054.91; his Option 3 monthly benefit payment would be $2,771.20.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Division of Retirement issue a final order concluding that the Petitioner is not eligible for participation in the Florida Retirement System and denying Petitioner's application for transfer from the Teachers' Retirement System to the Florida Retirement System. DONE AND ENTERED this 6th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of January 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs a and b: Accepted in substance. Paragraph c: Accepted in part and rejected in part; accepted that the Petitioner obtained the described employment, but rejected that the employment was bona fide. Paragraph d: Accepted in part and rejected in part. The conclusion that the one day was sufficient to qualify the Petitioner for transfer to FRS is rejected as incorrect and as not warranted by the evidence; the remainder of the facts in this paragraph are accepted. Paragraph e: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Paragraph f: Rejected as constituting a conclusion of law, rather than a proposed finding of fact; a conclusion which is, in any event, not warranted by the evidence in this case. Findings submitted by Respondent: All of the proposed findings of fact submitted by the Respondent have been accepted in whole or in substance in the Findings of Fact made in this Recommended Order. COPIES FURNISHED: Jodi B. Jennings, Esquire Division of Retirement Building C Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32399-1560 Allan L. Hoffman, Esquire 1610 Southern Boulevard West Palm Beach, Florida 3406 J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Sylvan Strickland, Acting General Counsel Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character as alleged in the Amended Administrative Complaint.
Findings Of Fact Respondent was certified by the Petitioner on April 2, 1982, and was issued Law Enforcement and Instructor Certificate Number 124699. Respondent was employed by the Miami Dade Police Department from April 2, 1982, until his employment was terminated as a result of the incident at issue in this proceeding. Respondent had a good record while working for the Miami Dade Police Department. He earned several commendations and received performance evaluations of satisfactory or above. Respondent is the biological father of Shannon Delano, a female born March 10, 1973. Shannon's parents divorced when she was four, and her mother was awarded primary custody of Shannon and of Shannon's twin sister. In 1981, Respondent moved to Florida. As a consequence of the divorce and of Respondent's move to Florida, Shannon seldom saw her father while she was growing up. Shannon maintained periodic telephone contact with him over the years and visited him in Florida in 1992, while she was on Spring break. They had a pleasant visit on that occasion. After he moved to Florida, Respondent married for the second time to a woman named Patrice. Respondent and Patrice had a son named Sean. Shannon joined the United States Air Force on October 15, 1992. Her permanent assignment was as a member of the military police at Langley Air Force Base in Virginia. In 1993, she was temporarily assigned to duty in the United Arab Emirates (UAE) as a support person for Desert Storm. While in the UAE, Shannon talked to Respondent occasionally by telephone. While she was in the UAE, Shannon and Respondent agreed that she would visit Respondent and Sean when she returned to the United States from the UAE. Respondent and Patrice had divorced by that time and Respondent was living alone in a two-bedroom apartment in Broward County, Florida. Their visit began on January 8, 1994. Respondent paid for Shannon's roundtrip airline ticket from Virginia to Florida. The visit was uneventful until the evening of January 12, 1994. Respondent worked his usual hours on January 12, 1994, and thereafter returned to the two-bedroom apartment at approximately 6:00 p.m. Respondent and Shannon had made plans to go out to eat dinner and then go to a comedy club that night. Respondent and Shannon were alone in the apartment. Respondent and Shannon engaged in a conversation in the living room area of the apartment. Because Shannon thought Respondent was despondent about his child custody fight over his son and his relationship with Shannon's twin sister, she hugged him and began to rub his back. There is a conflict in the evidence as to what happened next. The record establishes clearly and convincingly that Respondent thereafter preformed oral sex on Shannon, that he placed his mouth and tongue in her vaginal area, that he penetrated her vagina with his finger, and that he penetrated her anus with his finger. The conflict is whether Shannon was a willing participant in this sexual encounter. According to her testimony, Respondent forced her to the floor using a police take-down technique; he forcibly removed her clothing, and he held her down with his body and with one arm while he performed the sexual acts on her. She testified that she asked him to stop, but that she was too stunned to physically fight him. Respondent testified that Shannon was a willing participant and that the sexual encounter was consensual. Shannon and her father went to the comedy club that night, she subsequently rode with him on patrol where she met several of his colleagues, and she stayed with him at his apartment until her scheduled return flight to Virginia. Shannon returned to active duty in Langley, Virginia, as scheduled without reporting the incident. Approximately two weeks after the incident, she reported the incident to her superiors. She thereafter contacted the Broward County Sheriff's office, who assigned Detective Deborah Cox to conduct an investigation. As part of her investigation, Detective Cox had Shannon engage in a telephone conversation with Respondent that Detective Cox monitored and taped. Detective Cox also had Patrice engage in a telephone conversation with Respondent that Detective Cox monitored and taped. In his telephone conversation with Patrice, Respondent categorically denied that he touched Shannon and lamented that he was being falsely accused. Although there are statements made by Respondent contained in his telephone conversation with Shannon that substantiate his position that the sexual encounter was consensual,2 the following excerpts establish that Respondent did what he thought Shannon wanted him to do, not what she consented for him to do: Shannon: I guess I just need to understand why you felt the need to touch me that way. Respondent: I find, to be perfectly honest, I thought you had the need for it, believe me it's nothing I wanted, it's nothing I ever thought about, it's not something I consider to be normal thing between a father and a daughter. Shannon: I mean if I had the need to have that touch, why did it have to come from you, I mean - Respondent: It's something I thought you asked for, or it's something you wanted, believe me it's not something I want to do, it's not something I thought about, something that I looked forward to or thought about afterwards as being something good. Do you think you've had sleepless night over it, I had from that day forward. It's bothered me, it's upset me, it's bothered me a lot since then. I never would have believed that I could have done that , all I've ever tried to be is what you needed at the time. Obviously what you needed or what I thought you needed wasn't what you think you need now. Whether it was or it wasn't then, I really can't tell you. I, from what you said, from what you did, from the way you acted, felt, truly believed that's what you wanted and what you felt you needed. . . . The conflict in the testimony is resolved by finding that while she did not physically resist the sexual encounter, she did not implicitly or explicitly consent to the sexual encounter. Detective Cox turned over the results of her investigation to the State Attorney's office, who prosecuted Respondent on felony charges of sexual battery and on misdemeanor charges of committing Unnatural or Lascivious Acts. Based on the sexual encounter of January 12, 1994, Respondent was convicted of five misdemeanor counts of committing Unnatural or Lascivious Acts. He was acquitted of the felony sexual battery charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein; finds Respondent guilty of failing to maintain good moral character; and revokes his certification as a Law Enforcement Officer and Instructor (Certificate Number 124699). DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of May, 1999
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.
Findings Of Fact Sally T. Sperling commenced teaching for the Leon County School Board in 1969 as an elementary teacher at Sabal Palm Elementary School. Following maternity leave and absences to continue her education, Mrs. Sperling returned to the Leon County School System in 1971 as a full-time teacher and subsequently gained continuing contract status before resigning in 1976. In 1978 Petitioner submitted an application (Exhibit 5) for part-time employment with the Leon County School System in which she indicated a desire to work "perhaps, three days per week. She was employed in the Adult Education Program at Lively Vocational-Technical School in Tallahassee teaching remedial reading. The form contract used by the Leon County School Board for Petitioner's employment is the same that is used for all instructional personnel. The contract purported to run for one year and Petitioner was paid on an hourly basis, with no minimum or maximum hours specified. Full-time teachers are hired on an annual basis. Some of the teachers in the Adult Education Program are full-time teachers and are on annual or continuing contracts. Most of the teachers in the Adult Education Programs are part-time teachers and are paid only for the hours they teach. Petitioner taught remedial reading classes and sufficient interest in this course has been maintained so the program has continued semester after semester for the four years Petitioner has taught adult education courses. Other Adult Education Programs in which sufficient interest has not developed have been dropped. Funding for Adult Education Programs depends upon the number of students attending the classes. If this number drops below the number required to keep the course self-sufficient, the course will be dropped. In such a case the teacher of the course will not remain on the Leon County payroll, as no hours will be devoted to teaching this course. Unless an actual course is taught, the part-time teacher is not paid. Teachers on annual contracts are paid for the full year regardless of the number of hours of classes taught. At the time Petitioner was hired she was given a packet of information (Exhibit 7) but was not specifically told that part-time teachers are not eligible for the Florida Retirement System. During the four years Petitioner has been employed as a part-time teacher she has had no social security deductions taken from her pay and has earned no annual or sick leave. Pursuant to an agreement between the state and federal governments all members of the Florida Retirement System are covered by social security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each pay check. State employees not under the Florida Retirement System and not specifically made parts of the Social Security System are not covered by social security. Full-time teachers are considered salaried employees holding a regularly established position. They are paid from funds provided in the "100" account. Part-time employees are designated as Other Personal Services (OPS) and are paid from funds in the "700" account. These accounting codes are established by the Department of Education to provide uniformity in accounting in the various school systems. The accounting code designation from which fund the employee is paid gives a quick reference to the status of the employee. When the pay records show Petitioner is paid from "751" funds, there will be no state retirement or FICA contributions from the code that disburses those funds. When the Florida Retirement System replaced older state retirement systems, some confusion developed regarding the status of personnel hired temporarily and retained on the payroll for an extended period. This confusion carried over to part-time teachers in the Adult Education Programs throughout the state. Some of the counties placed these part-time teachers in the Florida Retirement System where they have been covered for nearly ten years. The Division of Retirement is in the process of removing those people from the retirement system. At the time Petitioner wads hired she did not believe she was eligible for the Florida Retirement System and no FICA deductions were ever taken from her pay. After a visiting friend advised her she might be eligible for the Florida Retirement System Petitioner initiated the inquiries that led to these proceedings.
The Issue The issue posed for decision herein is whether or not the Respondent's (Division of Retirement) denial of Petitioner's claim to buy for retirement credit purposes, service while she was a student nurse during the period August, 1941 through December, 1944 was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, the following relevant facts are found. The facts herein are virtually undisputed. From August, 1941, through December, 1944, Petitioner was a student nurse at Florida State Hospital (Hospital) at Chattahoochee, Florida. As a student nurse, Petitioner worked twelve (12) hours a day, six and one-half (6-1/2) days per week with one full day off each month. During the weekdays, Petitioner spent time in class, with the remainder of time spent in the wards at the Hospital. Petitioner averaged between thirty-nine (39) and forty-seven (47) hours of work per week at the Hospital. As a student nurse, Petitioner received a salary of $15.00 per month in addition to her room, board, uniform and various fringe benefits such as medical care and leave, much like other Hospital employees. Personnel problems were resolved through the personnel office as with other employees. Petitioner returned to work at the Hospital as a Registered Nurse in October, 1954, and has worked almost continually to the present time. During the period 1970 through early 1972, employees of Florida State Hospital were given the opportunity to participate in the State and County Officers and Employees Retirement System (SCOERS). Petitioner participated in that retirement system. During the period 1970 through 1972, various state retirement systems, including SCOERS, merged and formed the present Florida Retirement System (FRS). Petitioner was given the option to transfer to FRS and in fact exercised that option by designating that election on a ballot provided by the personnel office at Florida State Hospital (Petitioner's Exhibit 1). The effective date of that transfer to FRS is December 1, 1970. During the period 1970 through early 1972, Respondent permitted transferees of the SCOERS retirement system to transfer student nurse credits as part of the retirement credits in the same manner as "full-time work" for retirement credit purposes. In early 1972, Respondent changed its policy of allowing work as a student nurse to be credited toward retirement benefits. C. J. Brock has been the personnel manager at Florida State Hospital in Chattahoochee since approximately 1968. He was initially hired at the Hospital in 1955. As personnel manager, Mr. Brock is in charge of submitting employee claims for retirement credits for various types of employment service to FRS for retirement benefits.' Mr. Brock recalled Petitioner visiting his office pan various occasions between the periods 1963 through 1972 inquiring as to the manner for purchasing student time for retirement credit purposes. Mr. Brock advised Petitioner that he would research the wage statements to determine the exact amount of student time she had earned and would refer the matter to FRS for a decision, Mr. Brock is not authorized to act for or on behalf of Respondent. The interaction between the Hospital's personnel officer and Respondent is limited to the referral of claims and certification of wage and employment statements. As such, there is no agency relationship between the Hospital and Respondent. This referral was made by Mr. Brock on Petitioner's behalf on December 20, 1972, and the request was denied. Former student nurses who were members of SCOERS and transferred to FRS during the periods 1970 through early 1972 had been allowed to purchase retirement credit for their student nurse service. This practice ended in early 1972. In this regard, Mr. Brock has certified the payroll records for student nurses who purchased retirement credit for their student nurse time, Ruth Sampson, Assistant Bureau Chief for the Division of Retireent, has primarily been involved in reviewing retirement benefit calculations since approximately 1969. Mrs. Sampson is familiar with the merger of SCOERS and FRS. Mrs. Sampson affirmed that Respondent had a policy which allowed members of SCOERS who transferred to FRS to purchase retirement credit for student employment time and that such policy was followed from December 1, 1970 (the inception of FRS) to early 1972. This policy was also followed by the SCOERS administrator prior to December 1, 1970. This unwritten policy was changed, according to Mrs. Sampson for two primary reasons. First, Chapter 122, Florida Statutes, did not permit the purchase of student time. Secondly, with the combination of SCOERS and the Teacher Retirement System (TRS) into the combined FRS system, an inequity existed since TRS members, unlike student nurses, were not allowed to purchase student time. As stated, the letter from Mr. Brock certifying Petitioner's employment and wage statements for the period in question was dated December 20, 1972. Mrs. Sampson, by letter dated March 30, 1973, requested additional information respecting the salary paid Petitioner and the amount of time she actually spent working at the Hospital during the period in question. Mr. Brock replied by letter dated April 4, 1973, advising that during the period in question, Petitioner was a student nurse at the Hospital which paid a full-time salary of $15.00 per month. By letter dated May 14, 1973, Mrs. Sampson denied Petitioner's claim since Petitioner was primarily a student during the period that the prior service claim was submitted (Joint Exhibit No. 1). Mr. Robert L. Kennedy, Jr. , the former Director of FRS, appeared and related that the policy decision was made to discontinue the practice of allowing student time to be credited for retirement purposes since that practice was not contemplated by pertinent statutes. Former Director Kennedy disagreed with the Comptroller's policy decision which had previously allowed this practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's appeal of the State Retirement Director's decision denying her request to purchase prior service credit for her service as a student nurse be DENIED. Accordingly, it is RECOMMENDED that the decision of the State Retirement Director be SUSTAINED. RECOMMENDED this 13th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward S. Stafman, Esquire Diane K. Kiesling, Esquire PATTERSON and TRAYNHAN Division of Retirement 1215 Thomasville Road Cedars Executive Center Tallahassee, Florida 32302 2639 North Monroe Street Suite 207C - Box .81 Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
