The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Amended Charge of Discrimination filed by Petitioner on April 8, 1997.
Findings Of Fact 1. At all times material hereto, Petitioner was employed by Respondent, Clerk of Court, Duval County. She was a Clerical Support Aide II until her promotion to Court Records Aide in 1996. Her duties in both positions involved administrative support clerical work, which included cashier functions. 2. The quality of Petitioner's work is not at issue, as Petitioner received satisfactory and above satisfactory evaluations while employed by Respondent. 3. In 1996, Petitioner was under the supervision of Janice Sain in the Traffic Department. Ms. Sain held the position of Assistant to the Clerk. Her responsibilities included overseeing the traffic violations bureau, purchasing department, and the tax deeds department. At the time, Petitioner was assigned to Courtroom 51 which handles first appearances for traffic-related cases, accidents, and misdemeanors. Break Room Incident 4. Employees such as Petitioner would report to work by faxing a daily sign-in sheet each morning showing that the employee was on duty. It was in this manner that Ms. Sain would keep track of whether employees had reported to work from the various branch locations around the city. If an employee was unable to communicate by facsimile, the employee would call in to report that they were at work. 5. On or about November 22, 1996, Petitioner's immediate supervisor, Wanda Myers,’ advised Petitioner that she had not received Petitioner's daily sign-in time sheet. She repeatedly questioned Petitioner regarding the time sheet. Petitioner became nervous and returned to her desk in the cashiering area. Petitioner began shaking and gasping for breath. Petitioner was instructed by Ms. Myers to go into the employees' break room.’ 6. Petitioner believes that a sign which read, "Out of Order" was placed on the outside door of the break room while she was in there. However, there was no evidence presented at hearing to support that belief. The witnesses who were at work that day did not recall seeing a sign on the door. 7. Petitioner filled out a leave request form for sick leave from 3:00 p.m. until 4:30 p.m. Ms. Myers denied that request writing in the comments section, "Denied-told her Janice Sain on way to office to speak with her and told her she could not leave." 8. Ms. Sain was called by Wanda Myers who requested that Sain come to the Traffic Department ("Traffic") as soon as possible to counsel Petitioner. Ms. Sain went to Traffic and spoke to Petitioner. Petitioner filled out another leave slip that afternoon for sick leave from 4:00 p.m. until 4:30 p.m. which was approved by Janice Sain. Ms. Sain wrote in the comment section, "Jarrilyn used her break and went home upset at 3:40." 9. Petitioner called her fiancé, Edward Davis, who met her at her job. Petitioner drove herself home and Mr. Davis followed her. 10. Petitioner later submitted an amended leave request form for the same date and time period but requesting that the leave be designated as worker's compensation. This leave was disapproved as Petitioner's worker's compensation claim was denied and she, therefore, was not entitled to worker's compensation leave. Respondent does not have the authority to approve worker's compensation leave without notification from the worker's compensation office that the claim had been approved. 11. Petitioner sought medical attention on November 25, 1996, three days after the break room incident. The doctor who saw Petitioner wrote a note excusing her from one day's work: "Jarrelyn [sic] is to be excused from work for a period of 1 day and may resume work as of Wed Nov 27, 1996." Petitioner returned to the doctor again on November 27, and December 4, 1996. No documentation was presented as to Petitioner's ability or inability to work as a result of those doctors' appointments. 12. There was no evidence presented that Petitioner was denied sick leave when requested, with the exception of waiting 40 minutes on November 22, 1996. Transfer to University Boulevard Branch Office 13. Petitioner's promotion to Court Records Aide was effective December 9, 1996. On approximately the same date, another employee, Mary Carter, had an accident and broke her back. Ms. Carter had previously been assigned to the Beaches Branch satellite office. Ms. Carter's medical absence led toa rotation of the cashier staff to provide adequate staffing in the various branch offices. Petitioner was transferred to the University Boulevard branch office as a result of this rotation of staff following Ms. Carter's accident and subsequent medical absence. 14. It is common for cashiers employed by Respondent to have varying work locations over a period of time. Assignments for cashiers were subject to change. Respondent tries to provide three to seven days notice to employees on permanent location changes. 15. Respondent's branch offices are physically located within the county Tax Collector's branch offices. Branch offices are also known as satellite offices. The University Center branch office has only one employee (cashier) of Respondent. 16. Petitioner did not provide Respondent with any documentation suggesting that she had medical restrictions relating to her employment duties prior to her transfer to the University Boulevard branch. Lunch Hour at Branch Offices 17. The branch or satellite offices were operated in 1996 from 8:00 a.m. to 5:00 p.m. Employees of Respondent assigned to these branch offices, at that time, did not have a designated lunch period. The times that employees were able to take breaks were determined by the public. That is, sometimes lines of people waiting for assistance would be long. At other times which were less busy, employees took their breaks. Employees at branch offices frequently worked through lunch (as lunchtime was a typical time when the public would come in) and the employees would be paid overtime.* Employees would be given signs to place in their cashier windows for temporary breaks. 18. If an employee had an appointment or needed a designated time period away from the satellite office, Respondent requested that the employee provide advance notice in an effort to facilitate securing a staffing relief. Lorraine Thomas, who is currently a Court Records Aide Senior, would provide lunch relief on occasion to the satellite offices. Ms. Thomas would also provide relief when a clerk was out sick, if the employee's children were sick, or if an employee had doctor's appointments or other personal business. In the case of an emergency, cashiers at the branch office would need to call Traffic for relief. Ms. Sain would often transport employees in an effort to ensure coverage at the branch offices. Despite these efforts, there were times that a branch office would be closed due to being understaffed. 19. At the time of Petitioner's transfer to the University Boulevard office, none of the medical documentation provided by Petitioner to Respondent indicated that Petitioner had medical restrictions regarding her employment. 20. After being advised of the transfer to University Boulevard, Petitioner put in a transfer request dated December 11, 1996. The transfer request was submitted to Gwendolyn Loadholtz, Director of Human Resources. The transfer request states her reason for a transfer was to learn something new. Petitioner also put a check mark next to the word "other" but did not add any further explanation in the space provided. Petitioner did not state any medical reason for the transfer request. 21. Petitioner's doctor signed an Excused Absence from Work form dated December 12, 1996, stating that Petitioner should be excused from work from December 16, 1996, through December 20, 1996. 22. Petitioner's doctor completed a Medically Excused Absence form which stated that Petitioner was under the doctor's care for anxiety and depression, and "it is recommended that she be allowed a daily lunch break." The date of this form is not entirely clear but appears to be January 2, 1997. According to Petitioner, her doctor's office faxed this form to Respondent. Respondent, however, has no record of receiving it. Ms. Loadholtz, Director of Human Resources, testified that she did not receive it and that it was not in Petitioner's personnel file. Ms. Wanda Myers’ last day of employment was January 3, 1997, and there is nothing in the record to indicate whether or not Myers received the doctor's note. In any event, Petitioner wrote a hand-written letter dated January 3, 1997, to "Traffic Management" complaining that she was not getting a lunch hour. 23. Petitioner was treated in the same manner as other employees at the branch offices of Respondent regarding lunch breaks. Petitioner was not the only branch employee without a designated lunch break. 24. On or about January 6, 1997, Petitioner filed a grievance, through her union steward, regarding the lunch break issue. The grievance was resolved in Petitioner's favor. Thereafter, branch employees were afforded a lunch break if they wanted one. 25. Petitioner worked at the University Boulevard branch from December 16, 1996, until January 21, 1997, when her transfer request was granted and she was moved to Misdemeanor "A". Transfer to Misdemeanor "A" 26. Petitioner's doctor wrote a letter dated January 20, 1997, which stated in pertinent part: This is to state that the above named patient has been under my care. She has been diagnosed to have an anxiety disorder that at the present time is exacerbated by the stimulation of having to deal with the public in her place of work. It would be to this individual's advantage, as far as recovering from her present condition, to be placed temporarily in a position in which she would not have to be dealing directly with the public. 27. Petitioner's request for transfer was granted after Respondent received this January 20, 1997, letter from Petitioner's doctor. She was transferred to the Misdemeanor "A" Department effective January 21, 1997. That Department consisted of cashiering, as well as processing violation of probation cases, worthless checks, and processing the Salvation Army payments. Maxine Russell, Senior court Records Clerk, was her supervisor at Misdemeanor "A". Ms. Russell had no knowledge of 10 Petitioner's having a serious medical condition and did not regard her as having a disability. When Ms. Russell became aware of the January 20, 1997, doctor's letter regarding Petitioner, she assigned Petitioner to work at a desk processing payments with minimal contact with the public. 28. Ms. Russell held an initial conference with Petitioner on January 30, 1997, to go over her duties. In a written chronology that Russell maintained during that time period,’ a notation was made on January 21, 1997, that Petitioner volunteered her assistance in helping on the counter and cashiering when necessary. Petitioner's testimony denied that she volunteered but acknowledged that she did on occasion work at the counter when requested. 29. Petitioner received a mid-probation evaluation on or about March 5, 1997, and received a satisfactory rating in every category on the evaluation sheet. 30. Since the January 20, 1997, doctor's letter referenced the desirability for Petitioner to be placed in a non-public job setting, Russell requested an updated doctor's statement regarding her need for continued accommodation. This request was made on or around March 18, 1997. Russell needed the statement to keep Petitioner in a non-public setting since most of the employees' duties involved contact with the public. Russell did not receive an updated doctor's statement regarding Petitioner's need for further accommodation. 11 31. Petitioner complained about her new assignment and felt it was not adequately addressing her medical needs. On or about April 7, 1997, Russell moved Petitioner to yet another desk. Her new duties included processing probation violations which did not involve working with the public, and answering phones during breaks and lunch times. Periodically, Petitioner would have to deal with probation officers, but not members of the public. 32. Petitioner had a doctor's appointment on April 2, 1997. She returned with a Medically Excused Absence form which stated that Petitioner was under the doctor's care for counseling "from 4/2/97 to se" + with nothing written in the blank. As April 2, 1997, was the only date referenced on this form, the form was simply an excuse from work for that date only. Petitioner's leave record shows she took one and one-half hours of sick leave that day. The form was silent as to any continuing work conditions that were necessary or even recommended for Petitioner. 33. Petitioner received a satisfactory performance evaluation on August 5, 1997. 34. Petitioner's leave record reveals that she frequently was granted sick leave and was also granted leave without pay when her leave was exhausted. She was not disciplined for excessive leave nor is there any suggestion in the record that Respondent accused Petitioner of abusing her leave. 12 35. Other than the January 20, 1997, letter stating that it would be to Petitioner's individual advantage to be placed temporarily in a position in which she would not have to be dealing with the public, there is nothing in the record to support anything more than a temporary placement of Petitioner in a position not dealing with the public.
Conclusions For Petitioner: Jarrilyn D. Black, pro se 8030 Old Kings Road, South Number 49 Jacksonville, Florida 32217 For Respondent: LaShanda R. Dawkins, Esquire 117 West Duval Street Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED : That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 13" aay of July, 2001, in Tallahassee, Leon County, Florida. Ait Bidsex \, dis oe f pos Adhinistrat 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 /3%> day of July, 2001. 17
Findings Of Fact Mr. Myers is, and has been at all times relevant to this proceeding, an employee of the Department with permanent status in the Career Service System. Mr. Myers is a member of the Florida Public Employees Council 79, an affiliate of the American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter referred to as "AFSCME"). AFSCME is the bargaining unit for those State employees who are members. AFSCME has entered into a Master Contract with the State of Florida. The Master Contract, which is effective from July 1, 1987 through June 30, 1990, established certain requirements for the treatment of AFSCME members by State employers. The Master Contract applied to Mr. Myers. Since March 2, 1987, Mr. Myers has been employed as an Insurance Specialist III (or similar title) within the Department's Bureau of State Liability Claims (hereinafter referred to as the "Bureau"). The Bureau is part of the Department's Division of Risk Management. Mr. Myers has received satisfactory evaluations while employed by the Department. Mr. Myers has not been subjected to any formal disciplinary action, i.e. oral or written reprimand, suspension, while employed by the Department. The Bureau is responsible for processing and disposing of claims against various agencies of the State of Florida. During 1987 or 1988 the Bureau was organized into two components, a "North" and a "South" group. Each group was supervised by an Administrator C. The two Administrator C's were supervised by Ms. Trilly Lester, the Chief of the Bureau. Ms. Lester has been the Chief of the Bureau since May, 1988. Ms. Lester received a B.A. degree in history with a minor in government from Florida State University. Ms. Lester has been a supervisor for more than eleven years. Each group within the Bureau consisted of an Administrator C, five insurance specialist III's, a secretary specialist, a claims processor and clerk typist specialists. Mr. Myers was assigned to the North group. Lewis "Ray" Williams was the Administrator C of this group. Mr. Williams was Mr. Myers' immediate supervisor at all times relevant to this proceeding. At times Mr. Williams has been critical of Mr. Myers' work and has attempted to inform Mr. Myers how he expects Mr. Myers to perform his duties. Mr. Williams' criticism of Mr. Myers has not been well received by Mr. Myers. A great deal of friction has arisen between Mr. Williams and Mr. Myers. Mr. Myers has, and still does, harbor a great deal of resentment and anger over the way Mr. Williams has supervised his work. During the late summer or early fall of 1988 Mr. Williams reviewed a written document prepared by Mr. Myers. As a result of criticisms of the document by Mr. Williams, the document had to be retyped on more than one occasion. Mr. Myers did not believe the criticisms were justified and filed a grievance concerning Mr. Williams because he believed that Mr. Williams was harassing him and his typist about the document. An "oral step grievance" was held at Mr. Myers' request on September 23, 1988. An "oral step grievance" is the first step required by the AFSCME Master Contract for processing grievances filed by State employees who are members of AFSCME. The September 23, 1988, conference was held in a vacant office in the building where the Department was then located. The conference was attended by Mr. Myers, Helen Burgess, a staff representative of AFSCME, Ms. Lester and Mr. Williams. During the September 23, 1988, conference Mr. Myers was angry about what he believed was Mr. Williams' mistreatment. Mr. Myers' face became ashen and his mouth was dry during the conference. Mr. Myers was visibly upset and angry. During the September 23, 1988, conference, Mr. Myers was "emotionally upset". At least four times during his testimony in this case Mr. Myers stated that he had been "emotionally upset" during the September 23, 1988. During the September 23, 1988, conference Mr. Myers stated that it was hard for him to concentrate on his work because he sat at his desk "boiling." Mr. Myers also stated that if Mr. Williams did not "back off" and stop criticizing his work, he did not know what he might do; after all, he was only human. (These statements will hereinafter be referred to as the "Comments"). The evidence concerning whether Mr. Myers made the Comments was not consistent. The weight of the evidence, however, supports a finding that Mr. Myers made the Comments. Both Ms. Lester and Mr. Williams remembered the Comments being made. Mr. Williams took notes during the oral step grievance meeting and, at the end of the meeting, wrote the following summary concerning his notes about the Comments: After rec'g criticism from Mr. W he became so upset he could not conc on his work as he sat at his desk "boiling" If Mr. W does not "back off" and stop criticizing his work, he did not know what he might do - after all he was only human See the last page of Respondent's exhibit 8. Mr. Williams' summary of the Comments was made immediately after the oral step grievance meeting and was based upon notes made by Mr. Williams at the same time that Mr. Myers made the Comments. Mr. Myers testified that he did not use the term "boiling" or say that he did not know what would happen. Mr. Myers' testimony concerning whether he made the Comments is not, however, credible because his testimony is inconsistent with the following: (1) Ms. Lester's and Mr. Williams' recollection of what was said; (2) the notes taken during the meeting by Mr. Williams; (3) the fact that Ms. Lester repeated the Comments on several occasions immediately after the Comments were made; (4) the fact that Mr. Myers did not deny making the Comments at a meeting with Ms. Lester and Mr. Williams on October 10, 1988; (5) the fact that Mr. Myers did not deny making the Comments in a memorandum from Mr. Myers of October 11, 1988, and a message Mr. Myers wrote to Ms. Lester on October 12, 1988; and (6) the fact that Mr. Myers stated during a meeting held after October 10, 1988, that he simply did not remember whether he had used the term "boiling" and stated that his comment about not knowing what he might do was simply not complete because he had ended it by saying "if Mr. Williams comes and has a confrontation with me." The Comments were not shouted by Mr. Myers. They were made in a normal tone. Mr. Myers was, however, emotionally upset and he admitted at the formal hearing that the tone or volume of his voice during the September 23, 1988, conference was "a little bit above average." Line 9, Page 95 of the Transcript. Mr. Myers also admitted the following during the formal hearing: A I felt that I was being provoked, and I am a human person. And sometimes when some people want to press on something again and again, you get worked up, and I was worked up. Lines 19-22, Page 93 of the Transcript. Based upon Mr. Myers' Comments, Ms. Lester and Mr. Williams believed that Mr. Myers was bitter toward his work environment and that his bitterness was affecting his ability to be an effective employee. They also believed that Mr. Myers' comment about not knowing what he might do was a threat. Ms. Lester's and Mr. Williams' concern about Mr. Myers' attitude during September, 1988, and their interpretation of the Comments was reasonable. The nature of the Comments and the manner in which they were made support this conclusion. Additionally, Mr. Myers made the following statements in a letter dated September 23, 1988, which support Ms. Lester's and Mr. Williams' concern: As a condition to resolve this grievance I will accept a transfer over to Southern region under Charles Paintor. I will not accept any direction or supervision from Ray Williams after this transfer is made. In the interim I request that Ray Williams and I have no personal or oral contact. Material should pass through our secretaries or through you the Bureau [sic] Chief. Respondent's exhibit 4. Mr. Myers was no longer willing to even deal directly with his immediate supervisor in a strictly professional capacity. Mr. Myers' difficulty with Mr. Williams was also evidenced by the fact that he filed four grievances with the Department, all of which were either filed specifically against Mr. Williams or involved Mr. Williams' supervision of Mr. Myers. Three of the grievances were decided in favor of the Department and the fourth was withdrawn by Mr. Myers. Ms. Lester was concerned about the Comments and believed that steps needed to be taken to diffuse Mr. Myers' bitterness. Therefore, Ms. Lester spoke to Lynn Dickinson, the Division Director, about the Comments. Ms. Dickinson suggested that Ms. Lester speak to Rene Ash, a senior personnel manager in the Department's personnel office. Ms. Lester spoke with Ms. Ash a few days after the September 23, 1988, conference. Ms. Lester told Ms. Ash that Mr. Myers had made the Comments and expressed her concern that Mr. Myers' bitterness needed to be diffused. Ms. Ash agreed and suggested that Ms. Lester suggest to Mr. Myers that he consider using the Department's Employee Assistance Program (hereinafter referred to as the "EAP"). Ms. Ash is the coordinator of the Department's EAP. The purpose of the Department's EAP was described by Ms. Ash as follows: A The purpose of the program is to assist employees who may be experiencing work-related problems, which may be caused by emotional problems, financial, drug, alcoholism. . . . Lines 13-17, Page 122 of the Transcript. The EAP is not a disciplinary program. Participation in the EAP is strictly voluntary. All records concerning an employee's participation in the EAP are treated by the Department as confidential. Documentation concerning participation in the EAP is maintained in a confidential file, separate from an employee's official personnel file. The Department does not keep offers of the availability of the EAP to employees confidential. If participation in the EAP is suggested to an employee during a counseling session, the Department's policy is to document the EAP offer. On October 10, 1988, Ms. Lester met with Mr. Myers to discuss the Comments, to inform Mr. Myers of the availability of the EAP and to discuss the role of the Bureau's clerk typist and insurance specialists. Mr. Williams also attended the October 10, 1988, meeting. The October 10, 1988, meeting was considered a "counseling session" by Ms. Lester and the Department. It was not, however, a formal disciplinary meeting. During the October 10, 1988, meeting, Ms. Lester indicated her concern over the fact that Mr. Myers had made the Comments during the September 23, 1988, conference, repeated the Comments and offered to assist Mr. Myers to coordinate with the EAP in an effort to diffuse his bitterness. Ms. Lester offered her assistance to Mr. Myers to coordinate his participation in the EAP in order to assist Mr. Myers with his bitterness toward Mr. Williams and the apparent affect his bitterness was having on his work. Ms. Lester did not take the actions she took because she bore Mr. Myers any personal animosity. At the October 10, 1988, meeting, Mr. Myers did not deny making the Comments. Mr. Myers merely informed Ms. Lester that he was in control of his emotions and did not believe that his participation in the EAP was necessary. On October 11, 1988, Ms. Lester prepared a memorandum (hereinafter referred to as the "Memorandum") memorializing the October 10, 1988, meeting. The contents of the Memorandum are correct and trustworthy. Ms. Lester accurately reflected the events described in the Memorandum. A copy of the Memorandum was sent to the Department's personnel office before it was provided to Mr. Myers. Ms. Ash reviewed and approved the Memorandum. A copy of the Memorandum was provided to Mr. Myers. It is the Department's policy to document counseling sessions and to file a copy of such documentation in the employee's personnel file. It was reasonable for the Department to document reasonable actions it takes in the management of Department employees. Consistent with the Department's policy of documenting offers to employees concerning the availability of the EAP, a copy of the Memorandum was filed in Mr. Myers' personnel file. The Memorandum includes the following statement: I also discussed with you my concern over some remarks you made concerning your feelings during your recent Oral Step conference. Specifically you had stated that you were emotionally upset and sat in your office "boiling". Also that you were only human and did not know what might happen. I expressed my concern to you over what I perceive as a bitter attitude toward your work and work environment. I offered my assistance to you in coordinating with the Employee Assistance Program to perhaps diffuse your feelings. You advised this was not necessary. Marlin, should you change your mind, please let me know. Joint exhibit 1. Ms. Lester's actions in this matter were consistent with Department policies and procedures concerning participation in the EAP. The Department failed to adequately explicate why documentation concerning participation in the EAP by an employee should be confidential but a direct suggestion to an individual employee that he or she should consider participating in the EAP should be documented and not kept confidential. The weight of the evidence failed to prove that a direct suggestion to an individual employee that he or she should participate in the EAP should be treated differently than actual participation in the program. Prospective employers with whom Mr. Myers may seek employment may review Mr. Myers' personnel file, and may, therefore, read the Memorandum. The weight of the evidence failed to prove, however, that the Memorandum will have any adverse affect on Mr. Myers. No competent substantial evidence proved how prospective employers would view a suggestion that Mr. Myers participate in the EAP. Additionally, the weight of the evidence failed to prove that the information in the Memorandum is so inflammatory or untrue that prospective employees should not be informed of the actions described in the Memorandum. Article 12 of the AFSCME Master Contract provides the following: There shall be only one official personnel file for each employee, which shall be maintained in the central personnel office of the employing agency unless a different location is approved by the Secretary of the Department of Administration or his designee. Duplicate personnel files may be established and maintained within an agency. Such duplicate personnel files may contain part or all of the items filed in the official personnel file, but may not contain any items which are not filed in the official personnel file. Information in an employee's official personnel file shall only refer to matters concerning (affecting) the employee's job or related to his State employment. If any derogatory material is placed in an employee's official personnel file, a copy will be sent to the employee. The employee will have the right to answer any such material filed, and his answer will be attached to the file copy. An employee will have the right to review his own official personnel file and any duplicate personnel files at reasonable times under the supervision of the designated records custodian. Where the Agency Head or his designee, the State Labor Relations Director, the Public Employees Relations Commission, the courts, an arbitrator, or other statutory authority determines that a document has been placed in an employee's personnel file in error, or is otherwise invalid, such document will be placed in an envelope together with a letter of explanation. The envelope shall be sealed, stamped "NOT VALID" and returned to the employee's personnel file. Provided, however, that nothing in this provision shall grant any official, officer, or other person the authority to take any action not otherwise authorized.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Mr. Myers' request that the October 11, 1988, memorandum be removed from his State of Florida personnel file and dismissing Mr. Myers' Petition with prejudice. DONE and ENTERED this 4th day of November, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of November, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Myers' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 3. Hereby accepted. 3 4-5. 4 30, 35 and 38. 5 13, 32, 35 and 39. 6 14-18, 32, 35 and 39. The third sentence is not supported by the weight of the evidence. Although the last five sentences of the first paragraph, all of the second paragraph and all of the fourth paragraph of proposed finding of fact 6 are correct, they are not relevant to this proceeding. The last two paragraphs of proposed finding of fact 6 are not supported by the weight of the evidence. 7 See 42. 8-10 Although generally true, these proposed findings of fact are not relevant. 11-12 28. See 41. Conclusion of law. Not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3. 2 10. 3 7-8. 13-18. The next to the last sentence of the first sentence of these proposed findings of fact is not supported by the weight of the evidence. The first paragraph is hereby accepted. The second paragraph is not relevant to this proceeding. Not supported by the weight of the evidence or not relevant to this proceeding. 7 22. Although generally true, this paragraph is argument. 20-21. The last two sentences are not supported by the weight of the evidence. 10 33. 11 40. 12 23-24. 13 35 and 38. Hereby accepted. Not relevant to this proceeding. 16 26-27. 17 29 and 38. But see 41. 18 36. 19-20 43. 21-22 See 42. 23 28. Copies Furnished To: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Dennis Silverman, Esquire Division of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issues presented are whether Respondent provided prohibited assistance to examinees in a Florida Comprehensive Assessment Test in violation of Subsections 1008.24(1)(c) and 1012.795(1)(c), (f), and (i), Florida Statutes (2002), and Florida Administrative Code Rules 6A-10.042(1)(c), (d), and 6B- 1.006(3)(a), (4)(b), and (5)(a), and, if so, what penalty should be imposed against the teaching certificate of Respondent.
Findings Of Fact Respondent holds Florida Educator's Certificate Number 685117 that is effective through June 30, 2007 (teaching certificate). Respondent is certified to teach elementary education, including math, science, and social studies. The Brevard County School District (District) has employed Respondent as a teacher for 14 years. In March 2003, the District employed Respondent as a fifth-grade teacher at Gemini Elementary School (Gemini). At Gemini, Respondent proctored the math and science portions of the Florida Comprehensive Assessment Test (FCAT) for some fifth graders. A student identified in the record as L.H. was upset after the first day of the FCAT exam. She told her mother that night that she felt like she had cheated because of assistance she received from Respondent during the FCAT. The next day, the mother of L.H. reported the allegation to administrators at Gemini. The administrators immediately replaced Respondent as a proctor, conducted an investigation, invalidated the test scores of 26 students, and subsequently transferred Respondent to Endeavor Elementary School (Endeavor). While the results of the investigation were pending, District employees conducted a public meeting to allow parents to voice their concerns over the invalidation of FCAT results. District employees did not address the specific facts surrounding the invalidation of the test results due to the pending investigation. However, the matter gained public attention as a result of the actions of District employees. District employees rely, in part, on FCAT scores to determine whether fifth-grade students progress to the sixth grade. In March 2003, Gemini fifth graders generally needed a passing score on the FCAT to progress to the next level. The District also needed to test at least 95 percent of its fifth- grade students or face applicable sanctions. The invalidation of the FCAT scores did not prevent any of the 26 students from progressing to the sixth grade. Nor did the invalidation of the FCAT scores prevent the District from testing 95 percent of the students in the District. On May 17, 2005, Petitioner issued an Amended Administrative Complaint (Complaint). The Complaint alleges, inter alia, that Respondent violated Subsection 1008.24(1)(c), Florida Statutes (2002). The statute makes it a violation for Respondent to knowingly or willfully coach an examinee during the FCAT or alter or interfere with the response of an examinee. Respondent signed an FCAT Test Administration Security Agreement (security agreement) indicating that she had read and understood the statutes and rules related to the administration of the FCAT. A test manual and training that proctors received before the FCAT directed Respondent to read test directions to examinees and provide no additional help. No finding is made that Respondent failed to follow test manual and training directions. The Complaint does not allege that Respondent failed to "follow test administration directions specified in . . . test . . . manuals. . . " within the meaning of Subsection 100824(1)(f), Florida Statutes (2002). Evidence of what transpired in Respondent's examination room in March 2003 consists of the testimony of five students and the written statement of another student, all of whom Respondent proctored. Incriminatory evidence consists primarily of the testimony of four students. Two students testified at the formal hearing, and two testified by deposition. The rest of the incriminatory evidence enters the record as a written statement from a fifth student completed in April 2003.1 Exculpatory evidence consists of the testimony of a sixth student who testified during the formal hearing. The six students are identified in the record, respectively, as T.M., L.M., S.O., J.C., L.H., and W.D. They were approximately 11 years old in March 2003. The five students who testified were approximately 13 years old at the time of the formal hearing, and approximately two years had passed since they took the FCAT. None of the students were enrolled in Gemini at the time of the hearing. For reasons discussed in the Conclusions of Law, it is legally insufficient for incriminatory evidence to merely show that Respondent provided assistance "by any means" or "in any way." The testimony and written statement must be clear and convincing that Respondent committed a specific act that is statutorily prohibited because it coaches an examinee or alters or interferes with the examinee's response (prohibited assistance).2 Incriminatory evidence must satisfy two standards to be clear and convincing. The two standards have been judicially differentiated as a qualitative standard and a quantitative standard.3 The qualitative standard requires incriminatory evidence to satisfy several requirements. The five students who testified and provided a written statement for Petitioner must be credible. The memory of each student must be clear and lack confusion. The content of the testimony and written statement must describe what was said and done during the FCAT examination precisely and explicitly and must distinctly recall material facts. The testimony and written statement must be direct, unequivocal, and consistent.4 Incriminatory evidence opining that Respondent assisted an examinee is conclusory if it is not substantiated by precise and explicit details that are distinctly remembered by the student and are sufficient for the trier of fact to independently determine whether the conduct of Respondent provided prohibited assistance to an examinee. Conclusory testimony fails the qualitative standard, is not clear and convincing, and invades the province of the trier of fact by denying the trier of fact an evidential basis to independently determine whether the specific acts committed during the FCAT amounted to prohibited assistance.5 Incriminatory evidence must also satisfy a quantitative standard. The sum total of incriminatory evidence must be of sufficient weight that it produces in the mind of the trier of fact a firm conviction, without hesitation, as to the truth of the factual allegations in the Complaint.6 The trier of fact bases the remaining findings on a determination of whether it is clear and convincing from the testimony and written statement of the six students that Respondent provided prohibited assistance to an examinee. The trier of fact first weighs the incriminatory evidence to identify evidence that satisfies the qualitative standard (qualitative evidence) and then determines whether the qualitative evidence satisfies the quantitative standard. The testimony of S.O. was credible, but the trier of fact was unable to assess the credibility of T.M. and L.M. by observing their demeanor and candor. The content of the testimony and written statement is conclusory. The incriminatory evidence lacks the precise and explicit detail needed for the trier of fact to independently substantiate the conclusions of the students. S.O., T.M., and L.M., each stated in conclusory fashion that Respondent provided assistance to the respective examinee on one question in the science portion of the FCAT. However, none of the students distinctly remembered their respective question; the answer each provided; or the details of the conduct or statements of Respondent.7 It is less than clear and convincing that the answer each student provided was any different from the answer the student would have provided without the alleged assistance from Respondent. The conclusory statements by S.O., T.M., and L.M. are tantamount to opinions on an ultimate issue of fact without precise and explicit details required for the trier of fact to independently find that the statements and conduct of Respondent concerning a specific question and answer provided prohibited assistance. Such conclusory evidence effectively invades the province of the trier of fact. The testimony of J.C. is sufficiently specific to satisfy the qualitative standard for clear and convincing evidence. J.C. testified that he asked Respondent what a waxing crescent moon is, and Respondent stated it is a one-fifth moon to the left. However, J.C. testified by deposition, and the trier of fact is unable to determine the credibility of J.C. by assessing the demeanor and candor of the witness. Moreover, it is less than clear and convincing that Respondent provided J.C. with the answer to the question, coached J.C., or altered or interfered with the response of J.C.8 There is no evidence that the response J.C. provided to the question was any different from the response he would have provided in the absence of the alleged assistance from Respondent. The testimony of L.H. is credible and sufficiently detailed to satisfy the qualitative standard for clear and convincing evidence. L.H. testified that Respondent answered an inquiry from L.H. by stating that the test question has nothing to do with the sun and the moon and to take away all the answers about the sun and the moon. L.H. testified that only one answer remained. The testimony of L.H. also provided sufficient detail to enable the trier of fact to make an independent finding as to whether the effect of the alleged assistance was to coach L.H. or to alter or interfere with the response given by L.H. The testimony of L.H. is the only evidence from Petitioner that satisfies the qualitative standard for clear and convincing evidence. However, the testimony of L.H. is not quantitatively sufficient to be clear and convincing evidence. For reasons stated in the Conclusions of Law, the testimony of one fact witness that is not corroborated by other clear and convincing evidence is not legally sufficient to be clear and convincing. Even if uncorroborated testimony were legally sufficient, the testimony of L.H. does not satisfy the quantitative standard for clear and convincing evidence because it is in apparent conflict with exculpatory testimony from W.D. W.D. testified that Respondent refused to assist him during the FCAT and did not assist anyone else.9 The testimony of W.D. conflicts with that of L.H. if they took the FCAT together. Respondent was the proctor for L.H. and W.D. on the first day of the FCAT. Petitioner did not place W.D. in a different room from L.H. by clear and convincing evidence.10 Evidence that supports a reasonable inference that L.H. and W.D. were in the same room, although not a preponderance of the evidence, is sufficient to create hesitancy in the mind of the trier of fact and preclude a firm conviction that Respondent committed specific acts prohibited by Subsection 1008.24(1)(c), Florida Statutes (2002), and Florida Administrative Code Rule 6A-10.042(1)(c) and (d). If it were determined that Respondent violated the preceding statute and rule, it is less than clear and convincing that the violation was an act of "moral turpitude" or "gross immorality" within the meaning of Subsection 1012.795(1)(c), Florida Statutes (2002). No applicable rule defines the quoted terms. However, rules applicable to teacher dismissal proceedings provide definitions that are instructive. The evidence is less than clear and convincing that the alleged prohibited assistance was a base, vile, or depraved act within the meaning of moral turpitude in Florida Administrative Code Rule 6B-4.009(6). Nor did the alleged prohibited assistance satisfy the definition of immorality in Florida Administrative Code Rule 6B-4.009(2). In relevant part, the alleged violation did not impair Respondent's service in the community. It is clear and convincing that Respondent continues to be an effective employee of the District within the meaning of Subsection 1012.795(1)(f), Florida Statutes (2002). After District employees investigated the incident and invalidated the test scores of 26 students, the District did not terminate the employment of Respondent. Rather, the District transferred Respondent to Endeavor. It is clear and convincing from the testimony of District personnel, administrators at Gemini, fellow teachers, parents, and students, and from previous job evaluations, that Respondent has been and continues to be an excellent teacher. Respondent brings out the best in students. Respondent has a wonderful rapport with students, instills in students the desire to learn, and inspires the imagination of students. Respondent emanates genuine enthusiasm in the classroom as well as a fun loving attitude. Respondent goes out of her way to make sure that children with learning problems achieve their goals and gain satisfaction. Respondent is very good at explaining difficult subjects to students. Respondent tutors students after school. Respondent is able to identify and focus on unique qualities in each student. Respondent does not display bias or prejudice toward any student. Respondent uses a reward system for classroom discipline that is effective and ensures an attentive class. Respondent is very calm in the classroom. Respondent never loses her temper or yells at students. Respondent is professional, consistent, structured, fair, compassionate, nurturing, and punctual. Respondent is intelligent, reliable, and dedicated. Respondent spends a great deal of time preparing her lessons and for her work with students. Respondent teaches math, science, and social studies and is a valuable asset to the District. Any notoriety surrounding the events in March 2003 arose from the action of District employees. For reasons stated in the Conclusions of Law, Petitioner cannot penalize the teaching certificate of Respondent on the ground that the alleged prohibited assistance became notorious through the actions of District employees. The alleged prohibited assistance did not violate relevant standards of professional conduct within the meaning of Subsection 1012.795(1)(i), Florida Statutes (2002). The evidence is less than clear and convincing that Respondent possessed the culpable intent required in Florida Administrative Code Rule 6B-1.006(3)(e), (4)(b), or (5)(a). L.H. was very upset over the events in March 2003 and over the criticism she received from other students for complaining about Respondent to school officials. However, the evidence is less than clear and convincing that the alleged prohibited assistance failed to protect L.H. from conditions harmful to the learning or mental or physical health or safety of L.H. within the meaning of Florida Administrative Code Rule 6B-1.006(3)(a). There is no evidence that public scorn threatened the safety of L.H. or interfered with what L.H. learned at Gemini. L.H. achieved her educational goals and progressed to the sixth grade. Nor is there any evidence that L.H. suffered any identifiable mental or physical impairment as a result of the alleged assistance from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Complaint and imposing no penalty against the teaching certificate of Respondent. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2005.
Findings Of Fact Petitioner and the Florida Elections Commission are responsible for enforcing Chapter 106, Florida Statutes. In 1993, Respondent qualified as a candidate for re- election to Seat Five of the Tallahassee City Commission. She was defeated for this office in the general election on February 22, 1994. On December 27, 1993, Respondent signed a Statement of Candidate indicating that she had received, read and understood the requirements of Chapter 106, Florida Statutes, as required by Section 106.023, Florida Statutes. Respondent has run for public office on four different occasions. Respondent's 1994 campaign staff was made up of volunteers. Some of these volunteers were supporters who had worked in her prior campaigns. Others were supporters who were participating in a political campaign for the first time. In the early days of the campaign, Respondent met with her supporters at weekly campaign committee meetings. As time went on, Respondent's employment and campaign schedule prevented her from attending these meetings. She also found it increasingly difficult to spend much time at her campaign headquarters. In 1994, Respondent used the same system she had used in prior campaigns for registering the names, addresses and telephone numbers of supporters for purposes of organizing the campaign. These cards included a check-list of jobs for which a campaign worker could volunteer. The cards also had a signature line for volunteers who were willing to publicly support Respondent. The cards did not contain a place to indicate the date of the signature. Respondent's campaign headquarters was initially staffed entirely by part-time volunteers including, but not limited to, Vivian Pelham. As a result, the card filing system became disorganized. In many instances, there were duplicate cards for campaign supporters. Some of the cards were misplaced or lost as they were in constant use for campaign work in the neighborhood. In mid-January, Chuck Cyrus began working at Respondent's campaign headquarters on a full-time basis. He unsuccessfully attempted to organize the card filing system. At the conclusion of the campaign, all of the cards that could be located were stored along with other campaign records. On or before January 6, 1994, Respondent's staff decided to prepare a flyer for circulation at a Council of Neighborhood Associations (CONA) meeting. Respondent's husband, Jim Crews, instructed Vivian Pelham and other part-time workers to make telephone calls to people to verify approval of the use of their names on the flyer prior to its distribution. Ms. Pelham did not search for signature cards before she called people because she did not think about it. In retrospect, Ms. Pelham knew it was necessary to have signatures of people willing to publicly support Respondent. However, Ms. Pelham did not know that endorsers had to sign cards at any particular time. She was not aware of a difference between "written" and "verbal" approval before a candidate may use a person's name in a campaign advertisement. Rather, Ms. Pelham thought specific "verbal" approval was better than "written" approval as long as an endorser signed a card at some point in time. One of the people Respondent's staff contacted by phone was Dennis Murphy. Mr. Murphy refused to allow the use of his name on the flyer. Consequently, Respondent's staff did not include him as an endorser on the campaign advertisement. The flyer ultimately contained the names of twenty-two "neighborhood leaders" who endorsed Respondent's candidacy. The flyer listed the neighborhood of each person under their name. The following disclaimer was located at the bottom of the flyer: The above individuals are current or past officers in their neighborhood associations. This document does not represent an endorsement by the Council of Neighborhood Associations nor any individual neighborhood group. This is a paid political advertisement paid for by the campaign treasurer. There is no competent persuasive evidence that the flyer, read in its entirety, misrepresented the personal endorsement of the people named therein as an endorsement by a particular neighborhood group. The only names included on the flyer which are at issue here are Sterling and Rosemarie Bryant and Dorothy Rose. Mr. and Mrs. Bryant were long- time supporters of Respondent. They worked in Respondent's 1994 and previous campaigns. Ms. Rose supported Respondent in 1994 but was not actively involved in the campaign. At the time Respondent circulated the subject flyer, neither the Bryants nor Ms. Rose had signed a 1994 campaign card stating that they were willing to publicly endorse Respondent. Mr. Bryant did not remember receiving a call about the flyer prior to January 6, 1995. However, Ms. Rose did receive such a call. On the evening of January 6, 1994, Respondent arrived at the CONA meeting just before it convened where she reviewed the flyer for the first time. Respondent recognized the name of each person listed on the flyer as a past and/or current supporter. She had no reason to doubt whether the people listed had signed a 1994 campaign card prior to her staff's preparation of the flyer. The document was circulated at the meeting to about thirty-five (35) people, many of whom were listed on the campaign advertisement. Dennis Murphy was present at the January 6, 1994, CONA meeting. He did not see the flyer at that time. Days later Mr. Murphy became aware of the flyer. He went to Respondent's campaign headquarters and got a copy of it. On January 14, 1995, Mr. Murphy filed a sworn complaint with Petitioner alleging that Respondent had violated Section 106.143(3), Florida Statutes. He filed the complaint because he thought Respondent failed to get proper authorization to use the names of the people listed on the flyer. Soon thereafter, Respondent's staff learned about the complaint informally. Jim Crews instructed Vivian Pelham and other campaign workers to locate signature cards for each person listed on the flyer. If a card could not be located, the workers were to call the people and get a duplicate. No one on Respondent's staff advised her about the rumored complaint. Several campaign workers began looking for signature cards. Vivian Pelham could not find a card for Sterling Bryant and called him. Because the Bryants were elderly, Ms. Pelham went to their home where Mr. and Mrs. Bryant signed a card. Ms. Pelham's testimony that she specifically requested the Bryants' signature relative to the flyer and not a subsequent newspaper advertisement is more persuasive than Mr. Bryant's testimony to the contrary. The subsequent newspaper advertisement, published on January 27, 1994, included a picture of Respondent with several neighborhood leaders, including the Bryants. Petitioner sent a letter dated January 19, 1994, to Mr. Murphy informing him that it had initiated an investigation of his complaint. Petitioner's letter to Mr. Murphy also requested information concerning the issue of "willfulness." That same day, Petitioner sent Respondent a letter, by regular United States Mail, enclosing a copy of the complaint. This letter gave Respondent the opportunity to submit a response in the form of a sworn statement. Respondent's staff received the letter on her behalf but did not bring it to her attention or respond to it in any way because they thought cards were available for each of the people listed on the flyer. Petitioner sent Respondent a second letter dated February 21, 1994. This letter was sent certified mail, return receipt requested. Respondent was in her headquarters when the letter arrived on February 23, 1994. She learned about the complaint for the first time when she signed for the letter. Respondent immediately located Petitioner's first letter and initiated a search of her records for the cards in question. Respondent was able to locate a card for everyone listed on the flyer except Dorothy Rose. Consequently, Respondent called Ms. Rose and went to her home where she obtained Ms. Rose's signature on a card. Respondent thought she was obtaining a duplicate card for Ms. Rose. During her 1994 campaign, Respondent continued to work as Mayor and City Commissioner of Tallahassee, Florida. She also worked full-time for Florida State University School in various administrative positions. Because of the demands of her schedule, she relied on her family, friends and volunteers to run her campaign. On the day before the primary, Respondent became ill and was hospitalized due to the intense stress of the campaign and pressure associated with her employment. In a letter to Petitioner dated February 24, 1995, Respondent denied the allegations in the complaint and enclosed copies of signature cards for the people listed in the flyer. The cards did not have dates to indicate when Respondent's supporters signed them. By letter dated June 28, 1994, Petitioner requested Respondent to furnish dates for the signatures and the names of the campaign workers who solicited the signatures. Respondent was unable to furnish this information because it was unavailable. With the exception of Ms. Rose's signature card, Respondent did not know when the cards were signed or which of the cards in her possession might have been duplicates of lost or misplaced cards. She was still under the impression that Ms. Rose's card was a duplicate. C. L. Ivey investigated the complaint for Petitioner. He randomly selected approximately twelve (12) people from the list of names on the flyer and contacted as many of them as he could reach. Most of them could not remember when they signed the cards. No one expressed an objection to Respondent's use of their name. Mr. Ivey subsequently deposed several of Respondent's supporters including Sterling Bryant and Dorothy Rose. The only cards they remembered signing in 1994 were executed after January 6, 1994. Mr. Bryant had not seen the subject flyer before Petitioner deposed him. He would have preferred to see a stronger disclaimer than the one at the bottom of the flyer. In 1994, Mr. Bryant was president of his neighborhood association and did not want to give the impression that the association endorsed a particular candidate. However, he did not object to Respondent publicly representing that he personally endorsed her candidacy. Respondent did not willfully violate Section 106.143(3), Florida Statutes. Neither she nor her campaign staff were aware that the Bryants and Ms. Rose had not signed a card prior to distribution of the flyer. To the contrary, Respondent and her staff knew that each of the people listed on the flyer were Respondent's past and/or current supporters. Their failure to ensure that they had a signature card on file for each person was at most simple negligence. The actions of Respondent and her staff after they learned about the complaint were not motivated by a desire to circumvent the election code. At all times, Respondent and her staff attempted to conduct themselves within the letter of the law. After the election, it was not reasonable to expect Respondent to know when the endorsers signed the cards because they were not dated. There is no competent persuasive evidence that Respondent received an unfair advantage by publishing the flyer without the prior written approval of the Bryants and Ms. Rose. Moreover, there is no competent persuasive evidence that distribution of the flyer resulted in harm to any person. The Bryants and Ms. Rose continue to espouse their friendship and support for Respondent. It did not become clear that the Bryants and Ms. Rose had not timely signed a signature card until after Petitioner completed its investigation. By then, Respondent had no effective means to remedy the situation.
Recommendation Based on the above referenced findings of fact and conclusions of law, the undersigned recommends that the Florida Elections Commission enter a Final Order finding that the Respondent did not willfully violate Section 106.143(3), Florida Statutes and dismissing the charges against her. RECOMMENDED this 14th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 14th day of June, 1995. APPENDIX The following constitutes the undersigned's specific rulings on the parties' proposed findings of fact pursuant to Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings of Fact Accepted in Findings of Facts (FOF) number 1. Accepted in FOF number 2. Accepted in FOF number 13. Accepted in FOF numbers 12-13. Accepted in FOF numbers 10 and 14 as modified therein. Accepted in FOF numbers 17-18. Accepted in FOF numbers 5 and 21. Accepted in FOF number 22. Accepted in FOF numbers 23-24. Accepted as modified in FOF 6 & 15. Accepted in FOF numbers 12, 16, and 24-25. Rejected. See FOF numbers 16 and 25. Accepted as modified in FOF numbers 12 and 19. Accepted in FOF 3-4. Respondent's Proposed Findings of Fact Respondent did not number her proposed findings of facts. They are included in her proposed recommended order on page 1 through the first whole paragraph of page 6. The undersigned accepts all of Respondent's proposed findings of facts in substance as modified in FOF numbers 1-29 of this Recommended Order except: Mr. Murphy's political opposition to Respondent is not relevant; (2) Reference to any conversation between Mr. Murphy and a Mr. Fulford is uncorroborated hearsay; (3) Mr. Murphy's reason for not reporting the alleged violation to the Leon County Supervisor of Elections is not relevant; and (4) Reference to any newspaper articles that Petitioner's investigator relied upon is not relevant and uncorroborated hearsay. COPIES FURNISHED: David R. Westcott, Esq. The Capitol, Room 2002 Tallahassee, FL 32399-0250 Robert Augustus Harper, Esq. P. O. Box 10132 Tallahassee, FL 32302-2132 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. Dept. of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact Respondent, William "Bill" Harrison (Harrison) served as a member of the City of Laurel Hill City Council (Council) from July 1989 to April 1992. The population of Laurel Hill (City) is approximately 600 people. At the present time, Harrison is an Okaloosa County Commissioner. Harrison's take-home pay as a member of the Council was less than $25 monthly. At the July 6, 1989, meeting of the Council--Harrison's first Council meeting as an elected member of the Council--Harrison moved, and the Council voted, that the City reimburse Council members who used their personal vehicles for City business at the rate of 22.5 cents per mile. The Council had previously authorized the reimbursement for mileage for Council members using their personal vehicles. There was no requirement to receive advance permission from the Council before a member took a trip on official business. There was no written policy for handling mileage reimbursements. In practice, the party seeking reimbursement submitted a written request, which would be circulated at the next Council meeting for approval. In late 1989 or early 1990, Harrison became Chairman of the Council. He was also the City's representative to the Okaloosa County League of Cities (League of Cities) and was the President of the Laurel Hill Volunteer Fire Department which was under the supervision of the Council. As a result of his duties as a member of the Council, representative to the League of Cities, and president of the volunteer fire department, Harrison was required to travel. In September and October, 1989, the Council engaged in a series of discussions concerning reestablishing a police department. This was a controversial issue and was the source of considerable debate and confrontation in the community. Harrison submitted an expense reimbursement request for a trip on February 28, 1990, to the Florida Department of Law Enforcement office in Pensacola, Florida. His reimbursement request was for $35.32, which represented 157 miles at 22.5 cents per mile. The council approved the request for reimbursement, and Harrison received a check for $35.32. An ethics complaint was filed against Harrison, alleging violations of Section 112.313(6), Florida Statutes, in connection with his travel reimbursement from the City. The Florida Commission on Ethics sent Investigator Larry Hill to interview Harrison concerning the alleged violations. When Investigator Hill questioned Harrison about the trip to FDLE in Pensacola, Harrison indicated that he had gone to the FDLE office and talked to someone there. Hill: You just went down and talked to someone at FDLE, there at the office, the big office down there? Harrison: Yes. Yes, exactly right, we talked. When Investigator Hill asked Harrison why he went to the FDLE office, Harrison stated that he had received anonymous, threatening telephone calls relating to a complaint that he had filed against his predecessor on the Okaloosa County Commission, Ferrin Campbell. Investigator Hill made further investigations and learned that Harrison never went to the FDLE office and that Harrison filed his complaint against Mr. Ferrin almost a year after Harrison's alleged trip to the FDLE office. Investigator Hill issued his Report of Investigation on August 9, 1993, including these findings. Harrison was sent a copy of the Report of Investigation. By letter dated August 17, 1993, Harrison notified the Commission on Ethics that he had intended to go to the FDLE office but changed his mind and went to the University of West Florida Resource Library. However, he put on his expense report that the trip was to FDLE because he wanted people in the community to know that he had been in contact with the FDLE. Harrison did not clearly explain in his letter what he was doing at the library. At the final hearing, Harrison stated that he went to the library to research the reestablishing of the police department in Laurel Hill, and that he made a telephone call to FDLE while at the library. He stated that he had originally intended to go to FDLE because he had received threats concerning the police department issue. Having observed the demeanor of Harrison and having judged Harrison's credibility, I find that his testimony concerning doing research at the University of West Florida Resource Library not to be credible. On May 2, 1991, Harrison submitted an expense reimbursement request to the City, which included a request for mileage of 32 miles for a trip to the Supervisor of Elections office in Crestview on April 19, 1991, and for mileage of 31 miles for a trip to the Supervisor of Elections office in Crestview on April 25, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile. On June 6, 1991, Harrison submitted a voucher for reimbursement of traveling expenses to the City, which included a request for mileage reimbursement of 31 miles for a trip to the Supervisor of Elections office on May 3, 1991. The Council approved his request and reimbursed him for the mileage at 20 cents per mile. His total reimbursement for the three trips to the Supervisor of Elections office was $18.80. On April 19, 1991 Harrison went to the Supervisor of Elections office and filed a Statement of Financial Interests 1990, an acknowledgement that he received a notice of the preelection test of the voting equipment, a receipt for a copy of Chapter 106, and an Appointment of Campaign Treasurer. On April 25, 1991, Harrison went to the Supervisor of Elections office and filed a Statement of Candidate. On May 3, 1991, Harrison went to the Supervisor of Elections office and filed a Campaign Treasurer's Report. The documents which he filed on April 19, April 25, and May 3 related to his campaign for reelection to the Council. When Investigator Hill interviewed Harrison about the trips to the Supervisor of Elections Office, Harrison told him that he did not have any documentation of the purpose of the trips. When asked about the filing of the campaign documents, Harrison stated that the reason for the trips was not entirely related to the filing of the documents. He indicated that he may have discussed the Sunshine Law with someone at the Supervisor of Elections office. Harrison did acknowledge that he filed the campaign documents at the Supervisor of Elections office on the dates at issue but he can not specifically recall what else he did there. He speculates that he may have discussed the Data Vote machine and the uniform election day issue with someone at the Supervisor of Elections office on those dates but he is not sure. He also thinks that he may have visited the Director of the County Emergency Medical Service on May 3, in response to a request by the Council made at the Council meeting on May 2, but he had no documentation of such a visit. Having judged the credibility of Harrison, I find that his trips to Crestview on April 19, 25 and May 3, 1991 were for the sole purpose of filing his campaign documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that William "Bill" Harrison violated Section 112.313(6), Florida Statutes, imposing a civil penalty of $1,000 per allegation for a total of $2,000; requiring restitution of $52.12, and issuing a public censure and reprimand. DONE AND ENTERED this 7th day of December, 1994, 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 7th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1787EC 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. 1. Paragraphs 1-3: Accepted. Findings of Fact Based on Evidence At Hearing. Paragraphs 1-4: Accepted in substance. Paragraph 5: The last sentence is rejected as constituting argument. The remainder is accepted in substance. Paragraph 6: Accepted in substance that Harrison's explanation of his trip to Pensacola is not credible. The remainder of the paragraph is rejected as constituting argument. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted in substance to the extent that Harrison maintained that he could have been in Crestview on City business but he does not remember exactly what it was and speculates on what it may have been. The remainder of the paragraph is rejected as constituting argument. Paragraph 10: Rejected as constituting argument. Paragraph 11: Accepted in substance. Respondent's Proposed Findings of Fact Stipulated Facts 1. Paragraphs 1-3: Accepted. Facts Based on the Record Paragraph 1: Accepted in substance. Paragraphs 2-4: Rejected as subordinate to the facts actually found. Paragraphs 5-8: Accepted in substance. Paragraphs 9-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is accepted in substance as to 1989 but not as to early 1990 based on the minutes of the Council meetings. The second sentence is accepted in substance. Paragraph 16: Accepted in substance that Harrison received threats concerning the police department issue but rejected to the extent that these threats were received in early 1990. The minutes of the meetings show that the police issue was discussed in the fall of 1989. Paragraph 17: Having judged the credibility of Harrison, the paragraph is rejected . Paragraph 18: Accepted in substance to the extent that Harrison told Mr. Dunn that he had received threats and that he had done some research at the library on police issues, but rejected to the extent that it implies that Dunn's testimony confirms that Harrison went to Pensacola to the library on February 28, 1990, to do research and that Harrison was going to the FDLE office because he had recently received threats. Paragraph 19: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraph 20: Rejected as constituting argument. Paragraph 21: The portion of the first sentence that Harrison did not go to FDLE is accepted in substance. The portion of the first sentence that Harrison did research is rejected as not credible. The remainder of the paragraph is rejected as constituting a conclusion of law. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first and second sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Paragraphs 24-26: Rejected as subordinate to the facts actually found. Paragraphs 27-29: Rejected as constituting argument. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty E. Moore, Esquire Advocate for the Commission on Ethics The Capitol, PL-01 Tallahassee, Florida 32399-1050 John C. Cooper, Esquire COOPER, COPPINS & MONROE, P.A. Post Office Drawer 14447 Tallahassee, Florida 32317-4447 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 At all times relevant hereto, respondent, Elizabeth Harrison, was an instructional employee of petitioner, School Board of Broward County. She has held a continuing contract of employment since 1961. When the events herein occurred, she was assigned as a media specialist (librarian) at Nova Middle School in Davie, Florida. Respondent has also used the name Elizabeth Dunn, her maiden name, and E. Dunn Harrison, a variation of her married name. Prior to this occasion, she had never been disciplined for misconduct. Harrison has known Walter James Stanley, Jr. since 1957 when Stanley was a student at a junior high school in Dade County where Harrison was employed. Stanley has been a mathematics teacher at Nova High School since 1981. Nova High School, Nova Middle School and two elementary schools share the same campus in Davie, but are located in different buildings and are considered separate schools within the Broward County school system. In 1984, Stanley made application with Southeast Bank, N.A. for various personal loans. In connection with one of those loans, he purchased insurance policy number 29-235, certificate number 188693, with Bankers Life Insurance Company of Florida (Bankers Life). Under the terms of the policy, whenever Stanley was disabled and unable to work, Bankers Life was obligated to pay the creditor (Southeast Bank) for that portion of the installment loan payment then due. On the credit application filled out on October 17, 1984, Stanley used the name "Walter Stanly," and gave his employment as a teacher at Nova High School. 2/ He also listed Elizabeth Harrison as his supervisor, and gave the telephone number 475-7760 as the number for the school. That telephone number was actually the telephone number in the media room at Nova Middle School where respondent worked. It should be noted that respondent had no personnel responsibilities in her position as a librarian, and had no connection whatever with Nova High School. Indeed, Stanley's personnel records were maintained by the office manager of Nova High School. On January 27, 1985, Stanley executed a claim form under policy number 29-235 with a general agent for Bankers Life. It was eventually forwarded to the claims department in St. Petersburg on February 20, 1985. The form has appropriate sections to be filled out by the creditor, insured, physician and employer. According to the section purportedly filled out by the employer on January 4, 1985, Stanley (referred to as "Stanly" in the form) had been disabled and absent from work at Nova High School since June 5, 1954. The employer section was not signed by an individual, but simply had the words "Personnel Records Secretary" in the signature block where the employer was to sign. However, in the line for the employer's address, the words "3600 College Avenue, Ft. Lauderdale, Fla., 33314 Attn: Elizabeth Harrison" were written. The employer's telephone number was listed as 305-475-7760. To verify Stanley's absences at work, Patricia Verbosch, a claims representative, telephoned 305-475-7760 on February 25, 1985. After Verbosch explained who she was and the purpose of her call, the person who answered the telephone identified herself as Harrison and said she was the personnel records secretary. Although Harrison denies that it was she who spoke with Verbosch that day, it is found that Harrison did indeed speak with Verbosch. Harrison confirmed to Verbosch that she had filled out the form and that the absences for Stanley were correct. Having been satisfied that Harrison filled out the form, the claims department later approved the claim for absences from work for the period August 14, 1984 through February 1, 1985 and paid the creditor $839.36 by check dated April 11, 1985. Without Harrison's representation, the claim would not have been paid. On May 21, 1985 the claims department of Bankers Life was contacted by petitioner's director of internal affairs, Howard Stearns, and told that three other insurance companies were investigating Stanley. Stearns also gave the department's supervisor, Nancy Berghammer, the actual dates of absences by Stanley during school year 1984-85 as well as Stanley's correct name, address and social security number. Shortly afterwards, Stanley made claim under his policy for continued disability after February 1, 1985. In view of Stearns' conversation, and conflicting dates of absences, Berghammer spoke with Stanley by telephone on June 19, 1985. She then telephoned 305-475-7760 the same day and spoke with a female who identified herself as Elizabeth Harrison. Although Harrison denies it was she who spoke with Berghammer, this is not deemed to be credible. Berghammer requested copies of the computer printout for Stanley's attendance record in 1984-85 and an affidavit verifying his dates of absence. She was told by Harrison that it would be supplied by mail. On July 5, 1985, Berghammer received a letter dated June 26, 1985 on Nova High School stationery which read as follows: TO: Banker's Life Insurance Company Claim's Department RE: Walter Stanly's absences from work March 9, 1945/ss#263-71-5128 Mr. Stanly was absent from work from March '84 to June '84; August '84 to June '85. The letter did not bear the author's signature. In connection with a credit application filed with Sentry Acceptance Corporation (Sentry) in Coral Springs, Florida, Stanley purchased policy number 95735 with American Financial Life Insurance Company (America) effective February 29, 1984. This policy provided that during any period Stanley was disabled and out of work, American was required to pay Sentry that portion of the installment loan then due during the disability period. On the application, Stanley used the name "Walter Stanly" and gave March 19, 1945 and 263-71-5128 as his date of birth and social security number, respectively. In January, 1985 Stanley filed a claim for payment under policy number 95735. In the form it was represented that Stanley was absent from work continuously from June, 1984 through December 19, 1984. The portion of the form where the employer was to give the dates of absence from work was blank. After checking with Stanley, an American claims clerk sent a letter to respondent on January 24, 1985 at Nova High School requesting that she document his absences from work. The letter was returned to the claims clerk with a notation on the envelope "Not at Nova H.S." However, on January 31, 1985 a completed claim form was received in the mail by American. The employer's section stated that "Stanly" had been absent from work continuously from June 19, 1984 through January 30, 1985, and that the employer "(didn't) know when Walter will return to work." It bore the purported signature of Elizabeth Harrison, Secretary Records, and gave the telephone number 305-475-7760. At about the same time American had directly contacted the principal's office at Nova High School requesting verification of Walter Stanley's absences. On January 30, 1985, the principal sent American a letter advising that Walter Stanley was absent from work on December 11 through 14, 17 through 20, 1984 and on January 22 through 25, 1985. When no payment on his claim had been made, Stanley telephoned American in February and was told the school had sent a verification letter with different attendance dates than those given on the claim form. After speaking with Stanley, American's office manager, Laurie Ragan, telephoned Nova High School and obtained a different spelling of Stanley's last name, as well as a different date of birth and social security number than those given on the credit application. In an effort to clarify the matter, Ragan telephoned 305-475-7760 on the morning of February 20, 1985 because Harrison's name and telephone number were given on the claim form. Without identifying herself, Ragan asked to speak to Elizabeth Harrison. A second female came to the telephone, and after Ragan identified herself, she gave the purpose of her call. Although Harrison denied it was she who spoke with Ragan, this assertion is not deemed to be credible. Harrison told Ragan she had just seen Stanley that morning, and would forward the requested information. On February 25, 1985 Ragan received a letter dated February 27, 1985 on Nova High School stationery which stated as follows: Stanly, Walter/bd-March 19, 1945 To whom it may concern: Mr. Walter Stanly (263-71-5128) has been absent since June 15, 1984 and as of now he is still out, because of illness. Sincerely, Elizabeth Harrison The letter was written on Nova stationery which was no longer being used. Such stationery was available to all teaching personnel. On March 7, 1985 American sent Stanley a letter advising him that in view of the "many discrepancies" in his name, social security number, date of birth and absences from work, it would no longer honor his claims until such discrepancies were "cleared up." Stanley also purchased disability policy number H1-839-092 from Northwestern National Life Insurance Company (Northwestern). This policy was not purchased in connection with a loan. The application was made on October 26, 1984 and the policy became effective January 1, 1985. Stanley used the correct spelling of his name and date of birth on the application. On March 27, 1985 he executed a claim for disability benefits ($1,000 per month) under the above policy indicating he became totally disabled on February 1, 1985 and did not expect to return to work until August, 1985 due to a leg injury received from tripping over a water hose. The form also reflected that Elizabeth Harrison was the appropriate employer representative to be contacted. The telephone number 305-475-7760 was given. After receiving the claim on April 2, Anita Holmes, a disability claims examiner for Northwestern, engaged the services of Equifax, a firm which specializes in insurance investigations. Holmes requested, among other things, that Stanley be interviewed and that his attendance records from Nova High School be obtained. The investigator, Walter Lohmann, interviewed Stanley at his residence on April 19, 1985. After interviewing Stanley, Lohmann went to Nova High School to secure his attendance records, but he could not find an Elizabeth Harrison in that school's personnel office. On April 23 he returned to Nova Middle School and went to the media room. He entered, introduced himself to Harrison and requested Stanley's attendance records. She told him the hard copies were at the school board central office but she could supply the information from a 3x5 file card she had in her file box. She then retrieved a 3x5 card and told Lohmann that Stanley had been absent continually from February 2 through April 14, 1985. Lohmann later received a copy of Stanley's attendance records from Nova High School and they reflected that Stanley was actually absent on February 6 and March 7, 8 and 11 (1/2 day) due to illness. As a result of this investigation, Holmes wrote Stanley on May 3, 1985 advising him that his claim had been denied. Respondent denied (a) that she was involved with Stanley, (b) that it was she who had spoken with Verbosch and Ragan on the telephone, (c) that she had authored and mailed the employer's statements and various letters sent to the insurance companies, and (d) that she had given Lohmann the false attendance records on April 23, 1985. However, she did concede that Stanley, an old friend, may have asked her to participate in the scheme on one occasion. To support her steadfast denial, Harrison produced an "alibi" witness who claimed she was with respondent on the morning of February 25, 1985. According to this witness, she specifically remembered taking Harrison to work that day around 12:30 p.m., or after Verbosch had telephoned the media office and spoken with a female who identified herself as respondent. However, this testimony is discredited since the official school attendance records reflect Harrison was present at work the entire day. Harrison also offered an expert documents examiner who opined, without credible contradiction, that the signature on Harrison's personal checks was not the same as the signature on the letter purportedly authored by Harrison on February 25 and the employer's certificate on the various claim forms. In fact, the expert found that the claims form certificates may have signed by two or three different persons. In view of this testimony, it is found that Harrison did not author the letter dated February 25 or sign any of the various claim forms. It is further found that Harrison did not receive any financial reward by virtue of her conduct. 4/ However, the remainder of her testimony is not deemed credible, and it is found she had knowledge of the letters and forms, and otherwise aided and assisted Stanley in his efforts to defraud the insurance companies. A former associate superintendent testified on Harrison's behalf and stated that if the facts in the amended petition were true, it would still not justify her dismissal. However, the witness acknowledged that if Harrison represented herself to various insurance companies as a responsible school official for the purpose of allowing a third party to collect unauthorized benefits, such conduct would be "serious" and would warrant the consideration of dismissal as a penalty. Harrison's principal could not say whether Harrison's effectiveness as a teacher at Nova Middle School was impaired by virtue of her conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and she be suspended for school year 1986-87 and thereafter reinstated on probationary status the following two years, with a return to annual contract status in school year 1989-90. All other charges should be dismissed. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. DONALLD R. ALEXANDER 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 12th day of August, 1986.
The Issue Whether the Respondent, as Mayor of the Town of Eatonville (Town), violated Section 112.313(6), Florida Statutes, (1) by using the Town's postage machine to backdate envelopes containing voter registration forms in an attempt to register voters after the official deadline for registration had expired; (2) by preparing or having another person prepare a fraudulent affidavit concerning the postage machine matter and directing a Town employee to forge the signature of another Town employee and to falsely notarize the document; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Anthony Grant, was Mayor of the Town of Eatonville, Florida. He was elected to this office in or about November 1994, and has served in this capacity continuously since that time. As the Mayor of Eatonville, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees (the Code of Ethics). Pursuant to Section 97.055, Florida Statutes, February 3, 1995, was the deadline for the receipt of voter registration forms in the Office of the Supervisor of Elections for those registrants to be eligible to vote in the March 4, 1995, election of Eatonville Town Council members. Registration forms were deemed received by the deadline if the postmark affixed by the United States Postal Service was February 3, 1995, or a date prior thereto. At all times relevant to this proceeding, Louise Franklin was employed as a clerk by the Town of Eatonville. In that position, Ms Franklin was responsible for operating and setting the date on the Town's postage meter machine. The duties associated with the postage meter machine were also performed by one other clerk who worked with Ms. Franklin. Typically, the date on the machine was set either the morning of that particular day or at or near the close of business the preceding business day. On Monday morning, February 6, 1995, Respondent and his secretary, Ms. Tammy Stafford, went to the office where Ms. Franklin worked to stamp six voter registration forms that were to be mailed to the Supervisor of Elections Office. The Town of Eatonville had been involved in a voter registration campaign and these registration forms had been brought to Respondent's office that morning by a local citizen. According to Respondent, after he and his secretary stamped two or three of the envelopes containing the voter registration forms, his secretary noticed that the date imprinted the envelopes was February 3, 1995, rather than February 6, 1995. Respondent further testified that after the error was discovered, he asked Ms. Franklin to show them how to change the date on the machine. Ms. Franklin showed Respondent how to set the date on the postage meter machine. At the time of Respondent's request for assistance with the postage meter machine, the Town had only recently acquired the machine, and it had been used by Ms. Franklin and the other clerk for only a short period of time. Prior to February 1995, Respondent had not used the postage meter machine. Ms. Franklin complied with Respondent's request for instructions on how to use the postage meter machine. Ms. Franklin went into the room in which the machine was located and showed the Respondent and his secretary how to use it. Ms. Franklin's instruction to the Respondent and Ms. Stafford included an explanation and demonstration of how to change the date on the postage meter machine. During the course of her explanation to the Respondent and Ms. Stafford, Ms. Franklin inserted a blank envelope in the postage meter machine to show how the machine worked. Thereafter, Ms. Franklin left Respondent and his secretary in the room where the postage meter machine was located. Ms. Franklin was unsure if the Mayor and/or Ms. Stafford stamped any of the envelopes before the Respondent came and asked for her assistance in using the postage meter machine. Ms. Franklin did not see Respondent or Ms. Stafford use the postage meter machine. Nor did Ms. Franklin actually see the date that had been imprinted on the six envelopes by the postage meter machine. However, Ms. Franklin assumed that, after she left the immediate area where the postage meter machine was located, Respondent and Ms. Stafford used the machine to stamp the envelopes that were addressed to the Supervisor of Elections Office. Later on the morning of February 6, 1995, some time after Respondent and Ms. Stafford left the area where the postage meter machine was located, Ms. Franklin noticed that the date on the postage meter machine was set to February 3, 1995. Ms. Franklin believed that during the time that she was training Respondent and Ms. Stafford on how to use the postage meter machine, the machine was set for February 6, 1995. Although Ms. Franklin had no independent or clear recollection that the postage meter machine was set for February 6, 1994, she testified at hearing that she "probably would have noticed if the date was incorrect." Ms. Franklin never observed Respondent or Ms. Stafford backdate the postage meter machine. Neither did Ms. Franklin see anyone go into the room in which the postage meter machine was located after Respondent and his secretary left that room. On the afternoon of February 6, 1995, Ms. Franklin went to Betty Golson, Acting Town Clerk, and told her that Respondent and his secretary had used the postage meter machine to stamp voter registration forms and that she had given them instructions on how to use the machine. Ms. Golson was not in or near Ms. Franklin's office or the room where the postage meter was located on the morning of February 6, 1995, when Respondent and his secretary were there. However, based on Ms. Franklin's comments, Ms. Golson felt compelled to report her perception of the incident to Betty Carter, the Orange County Supervisor of Elections, in a February 7, 1995, memorandum. The memorandum stated: [Ms. Franklin] witnessed the Mayor's secretary sending a voter's registration form through the postage meter. She also said that she witnessed the Mayor sending through the postage meter at least three (3) voter's registration forms. [Ms. Franklin] further stated that both the Mayor and his secretary asked for directions on how to change the meter's date to which she did give them both instructions on the procedures. After Respondent learned about Ms. Golson's memorandum to the Supervision of Elections, he and Mr. Harley met with Ms. Franklin. During the meeting, Respondent asked Ms. Franklin to prepare a written statement describing what occurred on February 6, 1995, when he and his secretary were in her office. However, Respondent did not tell or suggest to Ms. Franklin what she should include in the statement. Pursuant to Respondent's request, on February 8, 1995, Ms. Franklin typed and signed a statement in which she recounted the events of February 6, 1995, relative to the postage meter machine. Ms. Franklin's statement read: This is to verify that I, Louise Franklin, gave instructions to staff how to change the postage meter machine after they had sent a few pieces of mail through which reflected the date February 3, 1995. After Respondent read Ms. Franklin's February 8, 1995, statement, it was his opinion that the statement was vague. Based on this opinion, Respondent asked Ms. Franklin to write a more precise, detailed statement describing the events of February 6, 1995. In making this second request, Respondent did not tell Ms. Franklin what the statement should say. Ms. Franklin complied with Respondent's request and, on February 9, 1995, she typed and signed a second statement. The second statement provided more details and was more precise than the first statement. For example, in this statement, rather than stating that she instructed "staff" on how to use the postage meter machine, Ms. Franklin specifically noted that she provided the instruction to "the Mayor and his secretary." Furthermore, in her second statement, Ms. Franklin included the date on which the instruction occurred, a detail that was absent from Ms. Franklin's first statement. Also, in the second written statement, Ms. Franklin wrote: I demonstrated for them step-by-step, which consisted of changing the dates, months, year, etc., I even carried a blank envelope through the machine as an example. They were able to send a few pieces of mail throuth [sic] themselves. The two statements prepared and signed by Ms. Franklin in February 1995, truthfully and accurately describe the postage meter incident that occurred on February 6, 1995, and do not conflict with Respondent's version of the incident. Ms. Franklin testified that she did not know whether Respondent or Ms. Stafford ever changed the date on the postage meter machine. Moreover, Ms. Franklin acknowledged that she did not know what date was on the postage meter machine when the Respondent and his secretary finished using the machine on February 6, 1995. Finally, notwithstanding Ms. Golson's memorandum and Ms. Franklin's second statement, both of which indicated that Respondent and his secretary used the postage meter machine to stamp mail or voter registration forms, Ms. Franklin testified that she did not know whether the Respondent and/or Ms. Stafford sent any mail through the postage mater machine. After Respondent received Ms. Franklin's second statement, Respondent told Mr. Harley that he was not pleased with the affidavit and wanted it redone. Respondent then met with Mr. Harley and discussed what should be included in the affidavit. Moreover, just before or during the meeting, Respondent directed Mr. Harley "to take care of it today." Respondent's intent was to accurately and completely memorialize the incident of February 6, 1995. Catherine Williams, a clerk with the Town of Eatonville, worked in the area immediately outside the office where Respondent and Mr. Harley met to discuss the affidavit. Prior to Respondent's and Mr. Harley's entering the office to begin their meeting, Ms. Williams overheard Respondent tell Mr. Harley that he was not pleased with Ms. Franklin's second statement and that he wanted it redone. After the meeting between Respondent and Mr. Harley was over, Respondent left the office and exited the building. After Respondent left the office, Mr. Harley approached Ms. Williams, gave her a handwritten copy of an affidavit, and told her to type it. The affidavit that Mr. Harley gave to Ms. Williams was in Mr. Harley's handwriting. Once Ms. Williams typed the affidavit, Mr. Harley immediately directed her to sign Ms. Franklin's name on the affidavit, and to notarize the affidavit. In compliance with Mr. Harley's directive, Ms. Williams signed Ms. Franklin's name on the affidavit and, also, notarized the affidavit. Notwithstanding Mr. Harley's testimony to the contrary. Respondent never instructed or told Mr. Harley to direct Ms. Williams to prepare, forge or notarize the affidavit. Respondent did, in fact, instruct Mr. Harley to have a more concise affidavit prepared. However, Respondent never instructed Mr. Harley to have the affidavit prepared in a fraudulent manner. Although Respondent merely told Mr. Harley that he wanted the affidavit redone and directed Mr. Harley "to take care of it today," Mr. Harley testified that he understood this to be an order that he direct Ms. Williams to forge Ms. Franklin's signature on the affidavit and then to falsely notarize that signature. Mr. Harley's interpretation of Respondent's directive was both unreasonable and inaccurate, and his testimony in that regard lacks credibility. Mr. Harley never presented the affidavit referred to in paragraph 24 above to Ms. Franklin for her review and signature. Although Ms. Franklin never read or signed the document, the affidavit purported to be that of Louise Franklin. Furthermore, it was undisputed that Mr. Harley never gave a copy of the forged affidavit to Respondent. The affidavit written by Mr. Harley and typed, signed, and notarized by Ms. Williams was not seen or read by Respondent until December 1996, during an investigation being conducted pursuant to a complaint filed by Mr. Harley. On February 9, 1995, when Respondent and Mr. Harley met regarding the affidavit, Mr. Harley was a disgruntled employee. By his own admission, Mr. Harley was discontent while working in Respondent's administration. This was due, at least in part, to Mr. Harley's philosophical differences with Respondent over Respondent's management style. As early as December 1994, Mr. Harley approached Respondent about Harley's desire to sever his employment relationship with the Town of Eatonville. In the context of the discussion, the issue of Mr. Harley's receiving severance pay was raised. Respondent told Mr. Harley that pursuant to Harley's employment contract, he would be entitled to severance pay if he were fired, but not if he resigned. The issue of Mr. Harley's entitlement to severance pay had not yet been resolved on February 9, 1995. Mr. Harley left his employment with the Town of Eatonville in March 1996, as part of a negotiated resignation agreement. As a result of his resignation, Mr. Harley suffered a financial loss in that he did not receive severance pay when he resigned. Mr. Harley eventually received $9,000.00 in severance pay as a settlement in a lawsuit he filed against the Town of Eatonville in March 1996, after he resigned. Also, shortly after resigning from the Town of Eatonville, Mr. Harley filed a complaint against the Town with the State Attorney's Office in which he alleged approximately fifty-four instances of wrongdoing.
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 the Respondent, Anthony Grant, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Gary R. Dorst, Esquire Post Office Box 947509 Maitland, Florida 32794-7509 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 27th day of August, 2015.
