The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of conduct which violates certain provisions of the Emerald Coast Utilities Authority (ECUA) policy manual, amounting to "conduct unbecoming a ECUA employee" and "sexual harassment."
Findings Of Fact The Petitioner, ECUA, is an agency of local government, established pursuant to an enabling act of the Florida Legislature at Chapter 81-376, Laws of Florida, as amended. It is a "regional water supply authority" for purposes of Sections 163.01 and 373.1962, Florida Statutes (2008). It is thereby given authority to supply utility services to persons and businesses residing in a defined area in Escambia County, Florida, including the provision of water and wastewater utility service. It is authorized in that act to employ personnel to secure the provision of such utility services and to regulate the conditions and terms of their employment, their retention, their hiring, and their termination, as well as other forms of employee discipline. It has provided for such regulation of its personnel through the adoption of a "Human Resources Policy Manual" (Manual). That manual was adopted in accordance with Part III, Chapter 112, Florida Statutes. The Petitioner also has promulgated an "Employee Handbook," in evidence as ECUA Exhibit Two. Page 32 of that Handbook addresses "rules of conduct" and Rule 4 of those rules of conduct precludes an employee from engaging in "conduct unbecoming a ECUA employee." Sexual harassment is also prohibited, by Employee Handbook Rule 24, at page 32. Sexual harassment is then defined at Section A- 4, page 4 of the Human Resources Policy Manual, in evidence as ECUA Exhibit 1. Ms. Deni Deron was hired as a "Utility Worker I" beginning on June 1, 2008. Nathan Thomas, a witness in this case, was hired as a Utility Worker I on a permanent basis on June 16, 2008. He had been a temporary worker before that time. The Respondent, Emmett R. Woods, Jr. (Woods or Respondent), was the supervisor of Ms. Deron and Mr. Thomas. Both were probationary employees for six months after their hiring date. The Respondent's job title was "Lead Worker," which is a sort of foreman. He was assigned responsibility for a "camera truck," a work truck carrying a television camera projection apparatus, designed to use a television camera to observe inside waste water mains, accessible at manholes, in order to determine sources of leakage, breakage or other issues related to wastewater main repair and maintenance. Sometime in early October 2008, Ms. Deron, the complainant, was assigned to the Respondent's camera truck, to be supervised by him in the duties performed through the use of that truck. Early in her period of assignment to the truck and the company of the Respondent, probably on the first day, while they were alone in the truck, the Respondent began kissing her without her permission. This made her uncomfortable, although she did not take any particular overt action about it at the time. Later in that day, however, she told the Respondent that it had made her feel uncomfortable and that he should leave her alone and "be just friends." The Respondent behaved in a normal fashion for the next couple of days and engaged in no harassment of her. Thereafter, however, he began inappropriately touching her on one occasion or another, principally while they were riding in the work truck, on almost a daily basis. He engaged in vulgar, sexually related conversation with her. This was without her invitation, although she admittedly engaged in some of such conversation with him as well. Such talk on her part, however, was in a joking vein and was usually in a situation where several employees were together at lunch, or on occasions of that nature, when such joking conversation would begin, in which she admittedly participated. This was not the situation when the Respondent and Ms. Deron were alone in the work truck and elsewhere on the job. The Respondent engaged in inappropriate touching of Ms. Deron on a frequent basis. He touched her by unclasping her bra through her shirt, by unexpectedly running his hand beneath her shirt and grabbing her breast, and at various times grabbing her breast and crotch. All this activity was uninvited and uninitiated by Ms. Deron. She was upset by it and did not enjoy it, as her testimony shows, as corroborated by that of her co- worker, Nathan Thomas, who observed much of the conduct. Nathan Thomas, in fact, observed such conduct make her cry on a number of occasions. The Respondent alluded to his close relationship with the director of their department and intimated to both Ms. Deron and Mr. Thomas that he and the director fished together, were good friends, and that he could get them fired if he chose. Ms. Deron told Nathan Thomas about the Respondent's conduct about two weeks after they had been assigned to his truck (and he observed much of it as well). She told him that she was going to try to video his conduct when it happened again. Mr. Thomas described her demeanor as being upset and crying at the time. In fact, Ms. Deron did use her video cell phone to video some of the Respondent's inappropriate touching and conduct, both physical and verbal. This was stored on an ECUA computer and displayed to the undersigned, and all parties, at the hearing. This tends to corroborate the testimony of Ms. Deron and Nathan Thomas. Nathan Thomas, in fact, testified that he observed the Respondent touch Ms. Deron inappropriately, in one way or another, approximately every other day. Ms. Deron admitted that she did some flirting when she first came to work at ECUA. She described it as being a function of being single and was flirting mostly as a mechanism to "fit in, in an all male staff." That fact, however, does not obviate the clear import of her testimony, that of Nathan Thomas, and that of Sharon Griffin. Ms. Griffin is a Human Relations Generalist II, working in employee relations for ECUA. She does recruiting, knows Ms. Deron and helped her get hired and "processed-in" to her job. Just before Thanksgiving in November 2008, she observed Ms. Deron outside her office and had a conversation with her. She noticed Ms. Deron appeared somewhat nervous and asked her how she was getting along with an all male crew. At that point they agreed to have a private talk within Ms. Griffin's office. Ms. Deron at that point tearfully told her of the conduct of the Respondent. Ms. Deron also gave Ms. Griffin access to the video made on Ms. Deron's cell phone. The gravamen of Ms. Griffin's testimony is that Ms. Deron clearly appeared sincere and genuinely upset about the matter and this helped to convince Ms. Griffin that it was a truthful account of what had happened. Nathan Thomas, in his testimony, stated that the Respondent made him afraid for his job so he did not report what he had observed. He testified that he felt, at first, that it was not his place to report the Respondent's conduct. When he saw how upset Ms. Deron was he apologized to her for not reporting it, and realizes that he should have. The Respondent's testimony, and that of his witnesses, was to the general effect that Ms. Deron was not a "quiet person" and freely engaged in sexually suggestive joking conversation with them, and other workers, regarding sexual matters such as "penis size" and how long it had been since one had sex. The Respondent and his witnesses described Ms. Deron as being flirtatious. The Respondent, for his part, testified that "me and Deni did fool around" but the Respondent contends that it was just flirting, was not forced and was consensual. In considering the testimony of Ms. Griffin, Ms. Deron and Mr. Thomas, versus that of the Respondent and the Respondent's witnesses, it is observed that the Respondent's witnesses are his co-workers, in a relationship that pre-dates Ms. Deron's employment. Their testimony may cast Ms. Deron in a less favorable light by inferring that the activity may have been consensual. It does not establish that fact, however, and does not refute the Respondent's perpetration of the above- described conduct. They did not observe the conduct. Ms. Deron and Mr. Thomas did observe it and the manner of its occurrence is corroborated by Ms. Griffin's testimony. The testimony of Ms. Deron, Mr. Thomas, and Ms. Griffin is more germane, credible and worthy of belief and is accepted. It is thus established that the inappropriate touching and other sexually-related behavior, inflicted by the Respondent on Ms. Deron occurred in the manner described above. It was not consensual. Even if Ms. Deron attracted such behavior, or seemed to invite it, based upon being somewhat flirtatious, the behavior of the Respondent was still not appropriate and, by any measure, constitutes sexual misconduct and harassment, occurring in the course of employment. This is particularly so since the Respondent occupied a position of superior power, as the supervisor of Ms. Deron and Mr. Thomas, and in fact threatened their employment, at least implicitly, if they revealed the subject conduct. Moreover, even if the Respondent's version were somewhat true (which is not accepted), and Ms. Deron invited this conduct, and was a willing participant in it, it is still a violation of the above-referenced rules applying to ECUA employees. Engaging in such conduct, even if consensual, on the employer's truck, when attention should be paid to duties, and with all the negative circumstances that such sexually-related conduct can cause, displays extremely bad judgment on the part of the Respondent. Such a lavish display of poor judgment, even if the conduct did not amount to sexual harassment, clearly is conduct unbecoming a ECUA employee within the meaning of the Petitioner's above-referenced rule.
The Issue Whether Respondent violated Section 112.3143(3), Florida Statutes, by voting on September 7, 2000, September 21, 2000, October 19, 2000, November 30, 2000, and December 21, 2000, as a member of the Palm Beach Gardens City Council on certain matters affecting the Mirasol development project when Respondent's homebuilding company was engaged in discussions with the master developer of the project concerning the company's participation in the project, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Joint Prehearing Stipulation5: Each of the "Sabatello companies" referred to in the parties' Stipulation of Fact 3 was wholly owned by Respondent and his brothers Paul, Theodore, and Michael Sabatello, with each of the four brothers owning an equal (25%) share of the company. Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project. SD IV has been in continuous existence since its formation in or around the 1980's. It is a Subchapter S corporation. As such, its profits are passed through to its four shareholders, Respondent and his three business associate- brothers, in equal amounts. As president of SD IV, Respondent "oversees all [of its] functions." Craig Perna, the Taylor Woodrow "representative" mentioned in the parties' Stipulation of Fact 5, had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders." The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Respondent was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000. At that time, he advised Mr. Perna he was "very interested" in having his company considered for selection as a builder in Mirasol. As a member of the Palm Beach Gardens City Council, Respondent had reviewed documents submitted by Taylor Woodrow to obtain PCD approval for the Mirasol Project. As a result, he was familiar with the project and recognized its potential. At the time, residential "golf developments," like the Mirasol Project, sold out quickly and were "very profitable." Builders competed vigorously for the relatively limited opportunities that were available to build in these developments. Having the upper hand over builders because of this competitive landscape, Taylor Woodrow, as the master developer of the Mirasol Project, did not have to engage in "give [and] take with any builder" concerning contractual matters. As Mr. Perna put it in his deposition testimony, "You either wanted to participate or you didn't under my terms, period, the end." Respondent's company, SD IV, was one of at least ten or builders vying to be selected to participate in the Mirasol Project. Over a period of approximately eight months (from mid- May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection. The requests directed to SD IV were extensive and concerned such matters as the company's financials, products, pricing, form contracts, sales operations, customer service department, past accomplishments, current capacity, and "appetite for future work." Taylor Woodrow also wanted to see floor plans and architectural drawings. These requests were made both in writing and verbally. Wanting to maximize its chances of being selected, SD IV provided Taylor Woodrow with "whatever [was] ask[ed] for." Initially, Respondent was SD IV's "sole contact person" in its dealings with Taylor Woodrow. In this capacity, he engaged in "numerous discussions" with Taylor Woodrow representatives regarding SD IV's possible participation in the Mirasol Project. On or about May 17, 2000, Taylor Woodrow sent to Respondent and the Other Builders copies of "artist's drawings of potential elevations of homes that would be built in Mirasol," accompanied by a cover letter requesting feedback from the would-be project participants in the form of "more specific" drawings, consistent with the renderings, showing what they would build if selected. These "more specific" drawings were to be reviewed by the Mirasol Architectural Review Committee to determine whether or not they were acceptable. In a conversation that Respondent had with Mr. Perna following his receipt of this May 17, 2000, correspondence, Respondent stated, in reference to the elevations depicted in the "artist's drawings" Taylor Woodrow had provided, that "they were within the basic parameters" of what SD IV intended to build if selected. SD IV subsequently prepared and submitted to Taylor Woodrow the "more specific" drawings that had been requested. "[M]ost of the drawings" were "very similar" to drawings that SD IV had used in other developments. The first vote that Respondent allegedly unlawfully cast was on Resolution 71, 2000 at the Palm Beach Gardens City Council September 7, 2000, meeting. As the summary statement on its first page reflects, Resolution 71, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels 1 through 5 with a total of 114 zero lot line single-family home lots and 85 single-family custom home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date. The minutes of the September 7, 2000, Palm Beach Gardens City Council meeting reflect that Respondent and City Attorney Rubin, among others, were present and that, with respect to Resolution 71, 2000, in pertinent part, the following occurred: Resolution 71, 2000- Principal Planner Jim Norquest presented the project. The City Council was assured by the petitioner [Taylor Woodrow] that an architectural committee with proper requirements had been established. Ann Booth, Urban Design Studio, agent for the petitioner, described the project. Landscaping themes for different parcels were described by the landscape architect. Councilman Clark made a motion to approve Resolution 71, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. The next allegedly unlawful votes that Respondent cast were on Resolutions 72, 2000 and 73, 2000 at the Palm Beach Gardens City Council September 21, 2000, meeting. As the summary statement on its first page reflects, Resolution 72, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels E, F and G with 35, 39, and 67 zero lot line single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date. As the summary statement on its first page reflects, Resolution 73, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels H and I with 56 single-family custom home lots and 79 zero lot line single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for six waivers to allow for reductions in the side interior setback, street side setback, an increase in lot coverage, a reduction of lot width, and the placement of pools, screen enclosures, and accessory structures within the side interior and rear setbacks; providing for conditions of approval; and providing for an effective date. The minutes of the September 21, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among others, was present and that, with respect to Resolution 72, 2000 and Resolution 73, 2000, in pertinent part, the following occurred: Resolution 72, 2000- Principal Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described recreational open space proposed by the petitioner. Petitioner was requested to include in the design a tot lot, pool, two tennis courts, and a building, for which staff was directed to draft language for a condition of approval. The language was read into the record during consideration of Resolution 73, 2000: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 72, 2000 with the additional condition as read into the record by petitioner. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. Resolution 73, 2000- Principal Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described the proposed homes and landscaping. Petitioner agreed to provide a gazebo or tot lot on Parcel H, and to allow continued access to the open space at the entrances by residents on both sides of the road. Petitioner and staff agreed to the following condition of approval, which was read into the record by petitioner: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 73, 2000 with the additional condition as read into the record by petitioner and with the understanding placed on the record by petitioner regarding the open space at the entrances to parcels H and I. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. The "waivers" that were granted by Resolutions 71, 2000, 72, 2000, and 73, 2000 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet. The next vote of Respondent's that has been called into question is his vote at the October 19, 2000, Palm Beach Gardens City Council meeting on Resolution 92, 2000. As the summary statement on its first page reflects, Resolution 92, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan for a[n] 8,046 square foot fire rescue and police substation within the Golf Digest (Mirasol) PCD, located 1/4 mile north of PGA Boulevard on the east side of Jog Road and as more particularly described herein; providing for waivers; providing for conditions of approval; and providing for an effective date. This "site [had to] be completed and dedicated prior to the issuance of [any] certificate of occupancy for any dwelling units in the Golf Digest [Mirasol] PCD" or the "opening of a golf course" in the PCD. The minutes of the October 19, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among others, was present and that, with respect to Resolution 92, 2000, in pertinent part, the following occurred: Resolution 92, 2000- . . . . Senior Planner Ed Tombari reviewed the petition. A representative of Gee & Jenson answered questions regarding the project and Ann Booth, Urban Design Studio, spoke on behalf of the petitioner [Taylor Woodrow]. Councilman Clark made a motion to approve Resolution 92, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 3-0 vote. On November 3, 2000, Elaine Appleyard, a legal assistant with Taylor Woodrow, sent the following e-mail to Taylor Woodrow's Aaron Chorost, who was the chief financial officer for the Mirasol Project: Good morning Aaron - we're finalizing a redline on the Builder Agreement and need two items clarified: Is the intention to have just one closing on all of the lots? Will this particular builder be building anywhere else on the property other than Parcel 4? Mr. Chorost responded within the half hour by sending Ms. Appleyard the following e-mail: I cannot guarantee that Sabatello will purchase beyond parcel 4. It is likely that he will look to do all the 60' wide lots which means he could also purchase parcels 7 and 16 in the future. Likewise for Kenco, buying parcel 5 plus in the future could be doing parcel 12 also. Kenco may also be a builder in the custom builder program but not Sabatello. Yes, there will be only one closing for each parcel containing all the lots in the parcel. These were "completely internal" e-mail communications to which no one outside of Taylor Woodrow, including Respondent and the Other Builders, were privy. No decision had yet been made as to who would be building on Mirasol Parcel 4.6 Taylor Woodrow was even seriously considering keeping the parcel so that it could build on the property itself. At the November 30, 2000, Palm Beach Gardens City Council meeting, Respondent and the other four members of the City Council present voted in favor of Resolution 115, 2000, a consent agenda item which "approv[ed] the Golf Digest-Jog Road (AKA Mirasol Plat One) Plat." The land that was the subject of this resolution had to be platted and dedicated to Palm Beach County before any building permits could be issued for residential construction in Mirasol. On December 4, 2000, Mr. Perna sent Respondent a memorandum requesting certain information that would be needed in the event SD IV was selected to build on Mirasol Parcel 4. The memorandum read as follows: Please forward the list of your Officers and Directors for your parcel immediately. Sabatello - Parcel 4 ("Paradisio") We will be preparing the documents this week for your review. Respondent subsequently provided the requested information. The December 5, 2000, memorandum authored by City Attorney Rubin, which is referenced in the parties' Stipulation of Fact 10, was provided to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows: You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community.[7] Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on matters relating to Mirasol that come before the City Council. Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue. The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer. Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting. You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote: "While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations." Should you have any questions or be in need of additional information, please do not hesitate to contact this office. In a December 8, 2000, letter to Respondent's brother and business associate, Paul Sabatello, Taylor Woodrow's James Harvey, the Mirasol Architectural Review Committee project development manager, wrote: Please accept this letter as our approval of the following items that will require administrative modification of the City of Palm Beach Gardens Parcel Four site plan: We have no objection to modifying the side yard setbacks to 3'1" and 6'11" with a minimum of 10' separation between buildings. All other approved setbacks must be met. We have no objection to moving the zero side of the lot (now 3'1" per your request) on lots 10 thru 38 to the opposite lot line. We have no objection to building the models on lots #40, #39, #7, #8, and #9. We have no objection to modifying the roof tile, body and trim, and paver colors to those submitted with your A.R.C. submission dated November 22, 2000. In addition, the Rafael, Michelangelo, Dante and Be[rn]in[i] models have been reviewed and meet the Design Guidelines established for this parcel.[8] If you should need any further information feel free to give me a call. Those of the Other Builders "being considered for [Mirasol] Parcel 4" were sent similar letters advising them of the Mirasol Architectural Review Committee's action on the plans and drawings that they had submitted. On December 11, 2000, Ms. Appleyard sent the following e-mail to Mr. Perna: Attached are redlined and clean copies of the most recent versions of the Parcel Builder Agr. and Brokerage Agr. Marc asks that you stamp these draft before sending to Carl. [T]hanks. Although it was Mr. Perna's intention that copies of these "draft" agreements be sent to all those "in the mix to become a builder" in Mirasol, including Respondent's company, for their review and comments, Respondent never received any agreement marked "draft" from Taylor Woodrow. Respondent, however, did receive the following letter, dated December 18, 2000, from Mr. Perna: Please find attached the matrix regarding your price lot in Paradisio[9] with corresponding square footage. You can see that it will be necessary to reduce your 2 story to 4,000 square feet in order to fit into the overall structure. You can split up your premiums but standard options and upgrades must stay within the box. Please do not hesitate to give me a call if you have any questions. The "Mirasol Housing Price Matrix," a copy of which was enclosed with the letter, provided that the "base lot price charged to [the selected] builder" for the 46 lots in Mirasol Parcel 4 would be $139,000 per lot. "That would be the deal" for whoever was selected to build on that parcel. There was no room for negotiation. Copies of the "Mirasol Housing Price Matrix" were also sent to the Other Builders. Taylor Woodrow advised SD IV, as well as the Other Builders, that, if selected, they would be expected to start construction of their model homes as soon as possible so that the homes could be completed before the last day of March when the "season" ended. It therefore encouraged them to take such preliminary steps as might be necessary for them to "be ready to pull a building permit" upon the conclusion of the builder selection process.10 This included filing paperwork to obtain City of Palm Beach Gardens administrative (staff) approval of site plan modifications endorsed by the Mirasol Architectural Review Committee.11 Any builder wanting to file such pre- selection paperwork had the permission of Taylor Woodrow (the property owner) to do so (as Taylor Woodrow's agent). SD IV, through Paul Sabatello, filed such paperwork, along with a $150.00 check (for the filing fee),12 with the Palm Beach Gardens Planning and Zoning Division on December 18, 2000. In doing so, SD IV was seeking approval of the modifications to the Mirasol Parcel 4 site plan referenced in Mr. Harvey's December 8, 2000, letter to Paul Sabatello. SD IV's submission was accompanied by a cover letter, dated December 18, 2000, from Paul Sabatello to Steve Cramer, the Palm Beach Gardens' Interim Growth Management Director, which read as follows: Please find enclosed architectural drawings, exterior colors and site plans for your review and approval for Parcel 4 (Paradisio) Mirasol. The floor plan and building colors vary slightly from the prototypical plans previously submitted. We are requesting at this time an approval for the ability to use 3'-1" + 6'11" side yard set backs instead of the usual 0 + 10'. These set back conditions provide the required 10' building separation while according to Table 600 of the Standard Building Code allowing us to include some glass on what would be the zero side. The enclosed site plans show this clearly for the proposed models on specific lots. This set-back condition would apply to all lots in Parcel 4. One additional request for approval. The original site plan indicated zero side of lots with the "zero flip" occurring on lots 9, 10 and 38, 39. [T]his is not possible with the new set back[] conditions. Therefore, we are requesting that the zero side 3'-1" set back side be as follows: Lots 1-23 "Zero" on Right Lots 24-46 "Zero" on Left The enclosed site plan indicates the change that we are requesting. Also enclosed please find the letter of approval from the Mirasol Architectural Review Committee for the above-mentioned request.[13] Should you have any questions do not hesitate to call. Thank you. The "architectural drawings" that were submitted showed the Da Vinci model (on lot 9), the Raphael model (on lot 10), the Bernini model (on lot 11), the Dante model (on lot 39), and the Michelangelo model (on lot 40). On the forms that were part of the filing, the representation was made that SD IV owned Mirasol Parcel 4. In fact, Taylor Woodrow was the owner of the property, and it had merely given SD IV permission to make the filing on its behalf. It had not, at the time of the submission, entered into any agreement with SD IV regarding ownership of the property. Among the other things that SD IV did around this time to be "ready to go" if and when selected by Taylor Woodrow to build on Mirasol Parcel 4 was to assemble materials it would need to submit to the Palm Beach Gardens Building Department to obtain building permits to construct model homes on the parcel. As part of this process, Respondent signed and dated building permit application forms. He did so as early as December 20, 2000, the same date that a list of subcontractors (to accompany the permit applications) was prepared.14 Respondent recognized that it was a "gamble" to do the things that SD IV was doing to ready itself to begin building in Mirasol because there was the chance that the company would not be chosen to participate in the project and that all its preparation would be for naught. Nonetheless, he considered it to be a "gamble" worth taking and made good business sense. Such pre-selection risk-taking was not uncommon among builders doing business in Palm Beach Gardens.15 The most recent of Respondent's allegedly unlawful votes were cast at the Palm Beach Gardens City Council December 21, 2000, meeting. These votes were in favor of approving six items on the consent agenda (Resolutions 127, 2000; 128, 2000; 129, 2000; 130, 2000; 131, 2000; and 132, 2000) involving the platting of parcels that were part of the Mirasol Project, including Mirasol Parcel 4, as more particularly described in the parties' Stipulation of Fact 11. These plats had to be approved before any building permits could issue. By the time of the December 21, 2000, votes, Respondent was aware that Mirasol Parcel 4 was where SD IV would be building (at least at the outset) if selected to participate in the Mirasol Project. He was hopeful that his company would get the opportunity to build there, but it was a matter over which he had no control. It was in the hands of Taylor Woodrow. As of December 21, 2000, Taylor Woodrow had not extended SD IV an offer to participate in the Mirasol Project, nor had it given SD IV any assurances that such an offer would be forthcoming. There was uncertainty as to whether SD IV would be selected. It was not until the following month that this uncertainty was eliminated when Taylor Woodrow finally made its decision to allow SD IV to become a builder in Mirasol, specifically on Mirasol Parcel 4. In voting on these and prior resolutions affecting the Mirasol Project, Respondent was acting in a manner consistent with the verbal advice he had solicited from the City Attorney before each vote, as well as the advice contained in City Attorney Rubin's December 5, 2000, memorandum (which is set forth above). At the time of each of these votes, Respondent's company did not have "an interest by virtue of a contractual relationship with the master developer" in any property in Mirasol. Therefore, according to what he had been advised by City Attorney Rubin, he was not required to abstain from voting. On December 28, 2000, the City of Palm Beach Gardens Planning and Zoning Division granted its approval of the modifications SD IV had sought (through its December 18, 2000, filing) to the Mirasol Parcel 4 site plan. Respondent first learned that his company had been selected to build on Mirasol Parcel 4 when he received from Taylor Woodrow a letter dated January 22, 2001, so advising him, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4. These agreements were fully executed in February of 2001. SD IV paid $139,000 per lot for the lots that it purchased in Mirasol Parcel 4 (consistent with the pre-selection pronouncement that had been made in the 'Mirasol Housing Price Matrix" that Taylor Woodrow had distributed). SD IV was one of first builders to start construction in Mirasol. SD IV successfully built out Mirasol Parcel 4. It sold all of the 46 homes it built.16 A total of 12 builders, including SD IV, participated "in the whole [Mirasol] [P]roject." Not all of the Other Builders were selected to participate in the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the September 7, 2000, September 21, 2000, October 19, 2000, November 30, 2000, and December 21, 2000, Palm Beach Gardens City Council meetings on matters affecting the Mirasol Project and dismissing the complaint filed against Respondent. DONE AND ENTERED this 4th of March, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.
The Issue The question presented here concerns the entitlement of the Petitioner, Theodore D. Walker to be approved to serve as Chief of Security, Palm Beach Jai Alai, Palm Beach County, Florida, in the face of the Director, Division of Pari- Mutuel Wagering's disapproval of that request.
Findings Of Fact The Petitioner in this cause, Theodore D. Walker, has made application to serve as Chief of Security for the Fronton, Inc., in its fronton known as Palm Beach Jai Alai, Palm Beach County, Florida, for the seasons 1980-81. This request has been denied by the Respondent in the person of the Director of the Division of Pari-Mutuel Wagering. The justification for this denial is premised upon the alleged conflict of interest between the employment responsibilities of the Petitioner in his part- time employment as Chief of Security at the Palm Beach Fronton and his primary duty responsibilities as Lead Investigator in the State Attorney's office, Fifteenth Judicial Circuit, Palm Beach County, Florida, which is the State Attorney's office with jurisdiction over the County in which the Palm Beach Jai Alai is located. As authority for his denial, the Director has referred to Rule Subsections, 7E-3.03(11) and (12), Florida Administrative Code. 1/ The Petitioner has held seasonal employment as a security officer with the Fronton, Inc. in its West Palm Beach facility from 1965 until the Director's denial of approval which occurred on August 26, 1988. Beginning in 1972, Petitioner had been approved as Chief of Security at the aforementioned fronton. Walker has worked as an investigator in the State Attorney's office, Fifteenth Judicial Circuit, continuously beginning in 1973, and at the time he was hired in his primary employment as investigator, he held the secondary employment as Chief of Security with the Palm Beach Fronton. The Honorable David Bludworth, State Attorney, Fifteenth Judicial Circuit, knew of Mr. Walker's secondary employment as Chief of Security for the fronton when Walker was hired. Over the years, Walker has been promoted from the position of investigator to the position of Lead investigator. Presently his duties for the State Attorney's office involve assisting the attorneys in that office in the preparation of their cases for trial; original investigations that do not have their origins with other law enforcement agencies, in particular "white collar" crime, including public officials and law enforcement personnel and the primary responsibility to head up the "organized" crime unit of that State Attorney's office. In connection with his duties, the Petitioner is granted arrest powers and carries a weapon. As a full-time employee of the State, Walker is paid by the State of Florida. His salary is approximately $23,888 per year in contrast to his salary as a Chief of Security which has been in the amount of $14,888 for tax year, constituted of two meetings (seasons) at the fronton. (Pending the outcome of these matters, the Respondent's secondary employment with the Palm Beach Fronton, is that of floor supervisor at an undisclosed amount of compensation.) Walker's responsibilities as Chief of Security for the fronton include the hiring and supervising of security officers; the security of the physical plant at the fronton, to include the ejection of unruly patrons with the assistance of local law enforcement; initial contact with individuals over betting disputes which are ultimately referred to the Respondent; initial investigation of irregularities involving the computer system utilized by the fronton in running its facility; supervision of watchmen; initial investigation of matters involving betting on credit; investigation of shortages of money involving employees of the Fronton end prohibiting prostitutes and "book makers" from plying their trades on the fronton premises. In connection with his duties as Chief of Security, the Petitioner has no special expertise in the field of computers. When the Director of the Division of Pari-Mutuel Wagering disapproved the Respondent's request to serve as Chief of Security for the Fronton, Inc., he contended and continues to hold that belief, that the Petitioner's dual employment as Investigator for the State Attorney's office and as Chief of Security for the fronton, would serve to undermine public confidence in the integrity of the sport of jai alai and, therefore, was not in the best interest of the pari-mutuel industry. Consequently there was ample cause to reject Walker's request, according to the Director. In elaborating on his position, the Director expressed the opinion that law enforcement type officials should not be allowed to hold secondary employment in a fronton in a capacity as security official within the same geographical area in which the individual applicant has law enforcement responsibilities. To that end, six to eight other individuals, excluding the Petitioner, have also been disapproved as security officials at pari-mutuel wagering establishments, following the Walker disapproval. Gary Rutledge, Director of the Division of Pari- Mutuel Wagering in stating the reasons for denying Walker's request, goes on to say that the Chief of Security is a primary person responsible for detecting violations of law at the fronton and Rutledge has a concern that those matters might not be investigated by the Chief of Security or that the appearance might be created that the matters might not be investigated. Moreover, the Director worries about the potential flow of information from the State Attorney's office to the fronton, in particular, when there is, in his mind, the aura of "organized crime" which surrounds the pari- mutuel wagering industry. In response to concerns referred to above, neither the Petitioner nor the Respondent has shown any acts of impropriety on the part of Walker in serving in the capacity as Investigator for the State Attorney's office or in his part-time employment as Chief of Security for the Fronton, Inc., or do they have any reason to suspect that Walker is less than a man of utmost integrity in his profession and in his private life. There was, however, one instance in 1978, in which a fire occurred at the Palm Beach Fronton and State Attorney Bludworth made the judgment not to allow Walker to serve as State Attorney Investigator on that case, in which arson was suspected. This decision on Bludworth's part was made to protect against the appearance that might be created that as investigator to the prosecutor, some special knowledge and advantage could possibly be afforded to Walker in his role as Chief of Security for the fronton. Although Walker was above reproach in this matter, the State Attorney lost the advantage of his services as investigator in a circumstance wherein other law enforcement officials felt that it would have been extremely helpful to have Walker serving in his primary duty as State Attorney Investigator in attempting to solve the arson case. This instance points up the viability of the Director's argument on the issue of public confidence in the industry, in particular, in avoiding the appearance of fraud or dishonesty in that industry, and it is no less valid in the face of Walker's insistence that he would step down in future cases such as the 1978 incident and the State Attorney's indication that he would give serious consideration to the role that Walker would play in investigations involving incidences at the fronton in West Palm Beach. As stated before, criminal acts have occurred at the fronton and it is a reasonable expectation those events shall take place in the future. Alleged conflict of interest is the only ground upon which the Petitioner has been denied his request to act as Chief of Security at the Palm Beach Fronton. There has been some suggestion concerning a rumor that the Director had denied the application based upon a lack of good moral character on the part of the Petitioner and the ensuing effect that this has had on the community, and in particular, the black community in Palm Beach County of which the Petitioner is a member; however, Director Rutledge has never offered lack of good moral character as a reason for denying the permit application, and his decision to deny Walker's application was not racially motivated.
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
The Issue The issue to be resolved in this proceeding concern whether the Petitioner has been retaliated against by the Respondent in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Leigh A. Bain, filed a Complaint with the Commission on May 16, 1997, alleging retaliation under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. The matter was investigated by the Commission and on November 24, 1999, the Commission issued a Notice of Determination of "no-cause." On January 3, 2000, the Petitioner mailed and faxed a Petition for Relief from an unlawful employment practice to the Commission. The Petition was served by mail on ECUA on January 3, 2000. ECUA filed an Answer and a Motion to Dismiss on January 24, 2000. Thereafter, on January 31, 2000, the Commission issued a Notice of Dismissal stating that the Petitioner had failed to file a timely petition, pursuant to Rule 60Y-5.008, Florida Administrative Code, and that the Petitioner had taken more than thirty-five days from the date of service of the Notice of Determination to file a petition. The Notice of Dismissal was filed with the Clerk of the Commission on January 31, 2000. On February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. The Notice stated that it was being filed in accordance with Rule 9.110(d) and Rule 9.130(c), Florida Rules of Appellate Procedure, to appeal the Notice of Dismissal of the Petition. On June 28, 2000, the Commission rescinded its previous dismissal, re-opened the Complaint and transmitted the Petition to the Division of Administrative Hearings. In the rescission order the Commission stated that it had previously dismissed the Complaint because the Petition had not been filed within thirty-five days of service of the Notice of Determination. The Commission then found that the Petition had been timely filed on January 3, 2000, using the date of the post-mark of the Petition and adding three days to the thirty- five day time limit for mailing. The Notice of Appeal had been filed with the Commission but not with the Appellate Court. Moreover, the Commission failed to transmit the record to the Appellate Court. In the Petition for Relief Ms. Bain alleges that she was a victim of sexual discrimination or harassment by her supervisor, Steve Burgess. She reported the alleged discrimination to her personnel director on October 4, 1996. She contends that her supervisor retaliated against her on November 11, 1996, by giving her a poor performance rating. Petitioner began employment with ECUA in January 1987, as Executive Secretary to Chuck Wigley, then Executive Director of ECUA. She worked in that position until 1989 and then began working for Steve Burgess who was then the Manager of Customer Relations. She worked for Mr. Burgess until she was transferred to the Engineering Department in June 1997. She was currently employed as an Office Assistant IV in the ECUA Engineering Department. Steve Burgess is the current ECUA Field Services Administrator. He is in charge of the ECUA division that deals with the public. That division has two departments, the Regional Services Department and the Customer Service department. It has approximately 225 employees. Mr. Burgess reports to Van Van Dever, the current ECUA Executive Director. Mr. Burgess has worked for the Respondent for fourteen years. On October 1, 1992, the Petitioner's job title was changed from "Executive Secretary" to "Administrative Secretary." Her salary remained the same and the grade was changed from X10-6 to C18. This was part of a re-classification effort for ECUA positions and pay grades when the ECUA became part of Escambia County's Civil Service System. The re- classifications of ECUA positions, within the county Civil Service System, was approved by the county's Civil Service Board and the ECUA Board. On October 1, 1996, the Petitioner's job title was changed to "Office Assistant IV." Her salary remained the same as it had been when she was an Administrative Secretary and her grade was changed from C18 to C20. This change was made in accordance with a wage and re-classification study and was approved by the county Civil Service Board. The Petitioner describes her re-classification to Administrative Secretary as bringing her and all department secretaries to the same level so there was no longer a distinction between what she had been and the other secretaries. She viewed this action as a demotion for her or a promotion for the other secretaries, with the result that they were all at the same level after the re-classification. These re- classifications, however, were not demotions for any disciplinary or performance reasons. The re-classifications of Ms. Bain's position in 1992 and 1996 occurred prior to the October 4, 1996, allegation of sexual harassment. The last re-classification to Office Assistant IV was effective on October 1, 1996, three days before the Petitioner decided to submit the October 4, 1996, memorandum concerning the harassment allegation. The Petitioner was upset over the re-classification decisions made as to her. In a May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in reference to the re-classification of her position to Administrative Secretary: . . . However, all positions previously classified as Secretary, Range 8, were also upgraded to Administrative Secretary, Pay Grade 18, which provided a substantial salary increase for those applicable employees. I was not pleased with the inequity of this situation. Through no fault or control of my own, my position was now considered to be equivalent with one that, for the previous five years, had been two pay grades lower. My qualifications had not changed; neither had those of the other employees, and yet somehow we were all considered to be equally qualified for the same position. When I raised this issue, I was told I had no reason to be upset as I had been placed in the highest level secretarial position that existed in the Civil Service System. . . . Ms. Bain continued to be concerned about the re- classification of her position and requested that it be upgraded to an Administrative Assistant position. She also filed an appeal of her Civil Service position allocation and formally requested that the Civil Service Board upgrade her position to Administrative Assistant. The Petitioner wanted Mr. Burgess, her supervisor, to support the upgrade of her position but he would not do so. She was dissatisfied with Mr. Burgess because he did not support a higher classification for her. She felt that if Mr. Burgess supported the upgrade she would have received it. Mr. Burgess and Ms. Bain discussed her concerns and her request for a position upgrade on April 22, 1996. Mr. Burgess explained to the Petitioner at that time why he could not support the upgrade. On one of her visits to see Mr. Van Dever, the Petitioner advised him that the relationship between her and Mr. Burgess had been tense over the re-classification issue. That matter was an issue all during 1996, between the Petitioner and Mr. Burgess. The Petitioner wrote in her comments on her 1996 evaluation that she believed that she was marked-down in attitude because of her classification appeal. She did not go to the committee that was conducting position audits, however, to speak with the committee about the re-classification of her position, even though this committee was to make recommendations on subjects such as the upgrade of Ms. Bain's position. There was an analogous Office Assistant IV position in the STR Division. Like Mr. Burgess, however, Bernie Dahl, the STR Director, did not support a position upgrade for his own Office Assistant IV either. Ms. Bain went to Mr. Van Dever to complain about three incidents involving Mr. Burgess. The first incident occurred in February 1993. She met with Mr. Van Dever and he seemed supportive. He said that he would speak with Mr. Burgess about the matter. He met with Mr. Burgess and Ms. Bain felt that things seemed to improve. The next incident with Mr. Burgess occurred a year later on January 20, 1994, when Mr. Burgess allegedly became upset when he discovered that a letter had gone out with a handwritten invoice attached to it. When Ms. Bain called Mr. Burgess' attention to the fact that he had signed the letter with the handwritten invoice attached he allegedly became agitated and angry. She went to see Mr. Van Dever about this incident. She felt that things improved once again after Mr. Van Dever met with Mr. Burgess about this incident. In September 1996, a third incident occurred about which Ms. Bain complained to Mr. Van Dever. This incident arose when Mr. Burgess asked Ms. Bain to forward his and her phone lines when they had to be away from their desks to someone other than Quanita Stallworth, who handled the ECUA switchboard. He did this because he was concerned that Ms. Stallworth had too many calls to handle when all the phone lines were transferred to her at lunch and when employees were away from their desks. Ms. Bain was initially told to forward the phones to Linda Sutherland. When she objected to forwarding her phone to Ms. Sutherland, Mr. Burgess told her that she could forward it to Linda Iverson or to someone other than Linda Sutherland " . . . as long as its not going to Quanita " After the Petitioner had been directed not to forward the phones to Quanita Stallworth, Mr. Burgess discovered that she had disregarded his instructions and forwarded her phone to Ms. Stallworth. When he reiterated to the Petitioner that they were not going to forward the phones to Ms. Stallworth, the Petitioner told Mr. Burgess that " . . . then I'm going to go see Van." Mr. Burgess told her to go ahead and see Mr. Van Dever. The result of this incident was that Mr. Van Dever allowed Ms. Bain to continue to forward her phone to Quanita Stallworth. Mr. Burgess and Ms. Bain had a meeting with Mr. Van Dever after the phone forwarding incident. They were both told that they needed to try to work together in a professional way and they agreed that they would do so. There was discussion during that meeting about attempting to locate another position for Ms. Bain but there were no openings at the time. When the Petitioner went to Mr. Van Dever about the incident concerning the phone on September 25, 1996, her Complaint involved that particular incident, the switching of the phones. She did not claim gender-bias discrimination in her conversation with Mr. Van Dever. The Petitioner does not recall mentioning, in any conversation that she had with Mr. Van Dever, that she had filed a sexual harassment complaint against Mr. Burgess. In her conversations with either Mr. Van Dever or Mr. Burgess, the Petitioner did not tell either Mr. Burgess or Mr. Van Dever of filing any sexual harassment complaint against Mr. Burgess. She did not give Mr. Burgess or Mr. Van Dever a copy of her October 4, 1996, memorandum which contained her allegations of sexual harassment against Mr. Burgess. The issue she had taken to Mr. Van Dever in September 1996, was to the effect that she felt Mr. Burgess was a tyrant and that he mistreated employees. When she went to Mr. Van Dever to complain about him she raised a morale problem or a problem among several employees whom Mr. Burgess supervised. The morale issue due to Mr. Burgess was her whole reason for complaining at that time. The morale issue is what the Petitioner wanted Mr. Van Dever to look into and she identified male and female employees for him to talk to in order to confirm her complaint that Mr. Burgess mistreated employees. The Petitioner has at various time, identified several employees she believes have had significant problems with Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and Glenn Johansen. Mr. Van Dever told the Petitioner that he had talked to everyone of the employees that she had identified and that none of them agreed with her. Nettie Williams, the ECUA customer Service and Collections Manager, has worked for Mr. Burgess, her immediate supervisor, since 1989. Mr. Van Dever questioned Ms. Williams about an alleged morale problem in the customer service area in the fall of 1996. He asked her whether she had had any problems with Mr. Burgess and she told him that she did not and that any issue she and Mr. Burgess had they would be able to sit down and work out. Kathy Gaut, the ECUA Internal Programs Coordinator, directs training and other employee-related programs, internal communications, the newsletter and any kind of employee activities. She has been employed with ECUA for about seven years. It is the nature of her job to be in touch with and interact with a lot of employees. Mr. Van Dever often asked Ms. Gaut about general employee issues because of her contact with ECUA employees. In October 1996 Mr. Van Dever asked Ms. Gaut whether she was aware of any problems that employees might be having with Mr. Burgess. She told Mr. Van Dever that she did not know any problems employees were having with Mr. Burgess and that she was not having any problems with him. Mr. Van Dever asked her how she felt employees regarded Mr. Burgess and if he intimidated people. She responded that some people believed that he was abrupt or even rude at times. She advised that his personality was such that he could be very pleasant and convivial but when he had a problem or a particular situation to address, he could come across as being abrupt because he wanted to get right to the point and get the job done and go on to the next subject. She told Mr. Van Dever that she felt that some people may have a problem with Mr. Burgess being abrupt with them because he was so focused on getting his job done. Ms. Gaut is aware of Mr. Burgess' management style and his manner of dealing with people because she has been around him in numerous director and staff meetings. She has observed his interaction with employees at all levels of the company. Mr. Burgess' management style is to get to the point and not string out conversations about an issue when he is ready to get a problem resolved. Ms. Gaut has observed Mr. Burgess and Ms. Bain interacting approximately 10 to 15 times over a five-year period. Ms. Gaut never witnessed Mr. Burgess treating females unfairly as opposed to males and has never herself experienced gender bias from Mr. Burgess. Ms. Nettie Williams was present when Mr. Burgess directed the Petitioner not to forward her phone to Quanita Stallworth. Ms. Williams has never witnessed what she felt was gender bias on the part of Mr. Burgess and has never been treated differently by Mr. Burgess because she was female. On October 4, 1996, the Petitioner met with ECUA Human Resources Director Grant Holmes and submitted a memorandum dated that day in which she complained about Mr. Burgess' conduct toward her. In that memorandum she recites three incidents which allegedly involved inappropriate behavior by Mr. Burgess: the February 1993 incident, when Mr. Burgess had interrupted an attorney in an interview of the Petitioner to tell her to take care of the mail; the January 1994 incident over the handwritten invoice and the September 24, 1996 incident over the forwarding of the phones. In the October 4, 1996 memorandum, Ms. Bain states that she believed Mr. Burgess' conduct towards her was a form of sexual harassment in that Mr. Burgess allegedly engaged in intimidation of her and tended to view a certain type of behavior by males as acceptable, while the same type of conduct by a female he viewed as unacceptable. The basis for her belief that Mr. Burgess treated males differently from her was an incident involving Gabe Brown. Mr. Burgess had an incident with Gabe Brown when an ECUA board member reported that a male customer service representative had been rude to a customer. The board member told Mr. Burgess that he needed to investigate it right away. Mr. Burgess went to the customer service department and called the only two male customer service representatives out of the office and talked with them in the hallway to find out which one had talked with a customer who had complained to the ECUA board member. Mr. Brown was not the one who had the conversation with the complaining customer. Upset, Mr. Brown later came to Mr. Burgess and complained to him that he was embarrassed because Mr. Burgess had singled him out in front of all the other employees as if he had done something wrong. Mr. Burgess thought about the incident and felt that Mr. Brown was right about his handling of the situation. Mr. Burgess therefore apologized to Mr. Brown. Mr. Burgess has apologized to the Petitioner as well. Once when he called a meeting with the Petitioner and the meeting deteriorated, he apologized to her because he felt he was responsible for the conduct of the meeting as the supervisor. He also apologized after the February 1993 incident when he interrupted the Petitioner and called her out of a meeting with an attorney. On that occasion, Mr. Van Dever instructed him to apologize. However, Mr. Burgess accepted the responsibility for his conduct and was sincere in his apology. Mr. Holmes asked the Petitioner, during the meeting with her on October 4, 1996, whether she was claiming that Mr. Burgess had engaged in unprofessional and sexual conduct toward her and she told Mr. Holmes that Mr. Burgess had not done so. The substance of the claim that the Petitioner made was gender bias, although she called it sexual harassment. In the October 4, 1996 memorandum the Petitioner stated that she could only assume that her Civil Service appeal in May of 1996 had something to do with the way Mr. Burgess treated her. In an October 8, 1996, meeting with Mr. Holmes and Mr. Van Dever, the Petitioner requested that she be removed from Mr. Burgess' supervision. This was also discussed at a later meeting on that same day with Mr. Burgess and Mr. Van Dever. Shortly after the October 8, 1996, meeting, Mr. Holmes discussed with Ms. Bain his efforts in attempting to relocate her in another Office Assistant IV position. Mr. Holmes had asked the other employees in the same classification if they would agree to be moved from their current positions and exchange work assignments and locations with Ms. Bain. All elected not to do so. Mr. Holmes also sent Ms. Bain information on other open positions county- wide. Ms. Bain met with Mr. Holmes and Linda Walen. Mr. Holmes met with Ms. Bain again in January 1997 to discuss the job search for the Petitioner and to tell her that he had been unable to find anything for her. After she filed her retaliation complaint with the Commission, Ms. Bain was transferred to the Engineering Department in the same position. She has the option to apply for position openings throughout the ECUA organization and is not restricted only to promotions within the Engineering Department. ECUA employees, including those in the same position as Ms. Bain, can be promoted to positions anywhere within the ECUA organization. Employees in the Petitioner's position, Office Assistant IV, have gone from the ECUA STR Department to the Purchasing Department and from an Office Assistant IV position to a Purchasing Agent position. Ms. Bain's assignment to the Engineering Department does not preclude her from promotional opportunities that may open up anywhere in the ECUA organization. The Petitioner has had no problems with perceived bias or other difficulties in her employment in the Engineering Department. Mr. Burgess, as Ms. Bain's supervisor, did her performance evaluation in 1996. He gave what he thought was an overall good evaluation. In the ECUA ratings scale a "good" rating is not an "average" rating but is a rating that can be from 70% to 95% out of a possible 100%. For those areas where Mr. Burgess marked her evaluation "good," he felt that Ms. Bain was in that range and that she had indeed done a good job in those areas. Her performance rating in 1996, which she signed on November 12, 1996, was a total weighted score of 3.4 with a "good" rating in the following five categories: "Attitude," "Communication," "Human Relation Skills," "Initiative/ Creativity" and "Safety." The Petitioner received an "Excellent" rating in the areas of "Quality," "Productivity" and "Care of Facilities & Equipment." There were no negative ratings in any category. The 3.4 score was almost half-way between a "good" and an "excellent" overall rating. As shown by Mr. Burgess' rating comments on the 1996 evaluation, depicted in Petitioner's Exhibit 2, he felt that, due to the problems Ms. Bain had with the Civil Service re-classification of her position, she did not go the "extra mile" during 1996. She did her job and did what was asked of her but did not take the initiative to do anything other than what was asked of her. Mr. Burgess felt that the re-classification issue affected her output at work and her overall attitude on the job so that he could not give her a higher evaluation like he had done in 1995 when he rated her as "Excellent." Ms. Bain submitted a memorandum dated November 12, 1996, in response to the 1996 evaluation. Ms. Bain states, in that memorandum, that she and Mr. Burgess were "beyond the point of talking about this (see my memorandum to Grant Holmes dated October 4, 1996) . . .." While the Petitioner references her October 4, 1996 memorandum in the November 12, 1996 memorandum in response to her evaluation, she does not reference sexual harassment or the fact that she had filed a discrimination complaint against Mr. Burgess. Mr. Burgess did not counsel Ms. Bain during 1996 about a deterioration in her attitude because overall he rated her as having a good attitude. He did not feel that her attitude warranted counseling. He felt that Ms. Bain was doing her job and did not feel that she was doing bad things. Further, Ms. Bain was not happy with the re-classification situation and Mr. Burgess did not want to "stir anything up." The 1996 rating did not indicate a significant deterioration in the Petitioner's attitude. Her attitude was not excellent in terms of the rating scale, so Mr. Burgess did not feel that he could give her a 4 rating as he had done in 1995. In the previous year, 1995, Mr. Burgess had given her Superior ratings in four categories because he felt that she had gone out of her way to do extra things and to take on extra tasks. In 1995, he evaluated Ms. Bain, giving her a total weighted score of 4.1 with a "Excellent" rating in all categories except for a "Superior" in a category of "Care of Facilities & Equipment." He made comments on her 1995 evaluation to the effect that Ms. Bain continued to do excellent high-quality work. In 1992, the Petitioner received a total weighted score of 3.6 with a "good" rating in "Attitude," "Communication," and "Human Relation Skills." She received an "Excellent" in "Quality," "Productivity," "Initiative/ Creativity," "Safety," and "Care of Facilities & Equipment." In 1993 she received a total weighted score of 3.7 with good or excellent ratings in all categories. In 1994, Mr. Burgess rated her with a total weighted score of 4.0 with an "Excellent" rating in all categories. In 1997, Bill Johnson, the Director of the Engineering Department, gave Ms. Bain a total weighted score of 3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996, the evaluation which she alleges is retaliatory. Mr. Johnson gave her a "good" in all categories. There is no evidence that she has had any friction since transferring to the Engineering Department. In 1998 Mr. Johnson gave her again a total weighted score of 3.2 and a "good" rating in all categories except for "Quality" for which she was given a "Superior" rating. In 1999, Mr. Johnson gave her a total weighted score of 3.5 and gave her a "good" in all categories except for "Communications," "Quality," and "Productivity" for which she was given "Superior" ratings. In the year 2000, Mr. Johnson gave her a total weighted score of 3.5 with a "good" in all categories except for "Communication," "Quality" and "Productivity" for which she was again given "Superior" ratings. Mr. Johnson's ratings of Ms. Bain were not adverse actions or discriminatory and such has not been claimed by her. Since 1992, the Petitioner has received a "good" rating in "Attitude" on all evaluations except for the 1994 and 1995 evaluations when she received "Excellent" ratings in that category by Mr. Burgess. Her current supervisor, Bill Johnson, has never rated her higher than "good" in the "Attitude" category. Thus, in the nine-year period, she has received a "good" rating in "Attitude" on seven out of nine ratings. Mr. Burgess was not aware that Ms. Bain had filed a sexual harassment complaint or any kind of discrimination complaint against him at the time he completed the 1996 evaluation. Although he knew that Ms. Bain had gone to Mr. Van Dever concerning his directive to her that she should not forward her phone to Quanita Stallworth at the switchboard, and although he was later told that Mr. Van Dever was investigating whether there was a morale problem in his division, he did not actually know that a sexual harassment complaint had been filed regarding him. He learned of it when the Petitioner filed her retaliation complaint with the Commission and referenced a previous "sexual harassment" complaint that she had filed on October 4, 1996, with the ECUA. Mr. Burgess found that she had submitted the October 4, 1996, memorandum when she made reference to it in a November 12, 1996, memorandum which she wrote in response to the November 11, 1996, performance evaluation. However, he did not learn that she claimed to have filed a sexual harassment complaint against him until the ECUA was notified of her retaliation charge by the Human Relations Commission. Mr. Holmes never told Mr. Burgess that the Petitioner had called her complaint a sexual harassment complaint or gender-based discrimination complaint. Neither Mr. Holmes or Mr. Van Dever told Mr. Burgess about the contents of the October 4, 1996, memorandum. Mr. Burgess did not know until early June 1997 that the Petitioner had alleged that he had sexually harassed her because when he found out about the sexual harassment complaint, he had just been nominated to be president of the local Chapter of the American Cancer Society, in late May 1997. When he received notification that Ms. Bain was claiming sexual harassment, he went to the leaders of the American Cancer Society and offered to resign or have them not name him as president so as not to cause the Society any embarrassment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations finding that the Petitioner failed to establish that she was the victim of discriminatory retaliation and dismissing the Petition in its entirety. DONE AND ENTERED this 8th day of March, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of March, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Rosa Carson, Esquire Carson & Adkins 2958 Wellington Circle, North, Suite 2000 Tallahassee, Florida 32308-6885 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. ECUA CREATED. A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the .,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits: (b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program. (c) . . . Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program. The authority may make appropriate deductions from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981) Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3. ELECTED BOARD As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984, while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81- 376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began. By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5. POWERS AND DUTIES The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities . non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981). For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'." Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70) In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T. 101) Deposition of Charles W. Bates page 7. COUNTY OFFICERS The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
Recommendation RECOMMENDED: That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985. DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of February, 1986. COPIES FURNISHED: CARSON LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 Ray Kievit 15 West Main Street Pensacola, Florida 32501 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 APPENDIX Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance. Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical. Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms. Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities. Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven. Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule. Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began. Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance. Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective. After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985. The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division. HEARING OFFICER'S FINDINGS OF FACT Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems. Funds obtained from bond issues, loans, or the federal government, are not considered as revenue. Paragraph 8: Accepted. Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record. Paragraph 10. Accepted. Paragraph 11. Accepted. Paragraph 12. Accepted. Paragraph 13. Accepted. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT ESCAMBIA COUNTY UTILITIES AUTHORITY, W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON, Petitioners, vs. DOR Case No. DR85-5 DOAH Case No. 85-1718 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue The issue in this case is whether the Respondent has committed the violations as charged.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In July 2008, Respondent was hired by Petitioner as a sanitation equipment operator. At the time, Respondent was given a copy of the employee handbook. Receipt of this document was acknowledged by Respondent. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resources Policy Manual. The July 16, 2010 letter, which informed Petitioner of his termination, cited to the following provisions of the Human Resources Policy Manual, which state as follows: Section F-4 Disciplinary Offenses * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee's effectiveness as an ECUA employee, or that adversely affects the employee's ability to continue to perform their job, or which adversely affects the ECUA's ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a "conduct unbecoming an ECUA employee" offense determines the appropriate penalty. Further, the repetition of the same or similar conduct may lead to progressive discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The termination letter concluded that the facts and circumstances surrounding Respondent's conviction of a third- degree felony constitute a violation of the above-quoted provisions. On November 30, 2009, Respondent was arrested and charged with 1) "sexual assault/sexual battery, victim over 12 years of age, physical force"; and 2) "cruelty toward child abuse without great harm." On June 16, 2010, the State filed a nolle prosequi regarding the first charge of sexual assault/sexual battery, victim over 12 years of age, physical force. Thus, this charge was dropped, resulting in no conviction of this charge. Also on June 16, 2010, Respondent pled nolo contendere/no contest to the second charge of cruelty toward child abuse without great harm. This plea resulted in a conviction of this charge, which is a third-degree felony. The court placed Respondent on probation for three years. Ronald Ross is a deputy with the Escambia County Sheriff's Office. In October 2009, Deputy Ross worked in the special victims unit concerning crimes of a sexual nature against children and the elderly. Deputy Ross interviewed Respondent on October 30, 2009, regarding the incident that led to criminal charges being filed. At the time of the interview, Respondent was not under arrest. The interview took a little over an hour. During the interview, Deputy Ross described the allegations: that Respondent touched and fondled the breast and vaginal area of a 16-year old victim; that his finger penetrated the victim's vagina; and that Respondent exposed his penis to the victim. According to Deputy Ross, Respondent initially denied all of the allegations, but, as the interview went on, he admitted to some of the allegations. That is, Respondent admitted to touching the girl, denied exposing himself, and asserted that the girl was a willing participant in the encounter. Despite Respondent's initial reluctance to admit to the offense, Deputy Ross described Respondent as very cooperative during the interview. At hearing, Respondent did not wish to discuss the specific facts and circumstances of the incident in detail, which is his right. He insists, however, that he was not looking for trouble, that the "young lady" approached him, and that he pled out only because he did not have the financial resources to pay his attorney to go to trial. Despite the above, Respondent is remorseful for his actions. Respondent is concerned that the investigation of this incident conducted by ECUA was not complete. In particular, he is concerned that ECUA relied only on the Deputy's investigative interview of him, and did not review depositions in the court file that led to the prosecutor dropping the more serious charge. He also questions whether he is the only ECUA employee with a third-degree felony who was fired. There is no evidence in the record to establish whether Respondent was treated any differently than other employees who were convicted of offenses of the same category, i.e., third degree felonies. Respondent had a felony conviction prior to becoming employed by ECUA. In 2000, Respondent was convicted of a drug conspiracy charge and served a prison sentence for that crime. He disclosed his criminal background to ECUA when he was hired. Randall Rudd is the Sanitation Director for ECUA. He was aware of Respondent's prior conviction, but despite this, made the decision to hire Respondent in 2008. When Mr. Rudd learned of Respondent's 2010 conviction, he became concerned that this conviction could have an impact on Respondent's job. Specifically, Respondent was assigned yard trash collection. This involved regular interaction with the public, in that customers regularly ask questions of the sanitation operator, and the driver is often the only employee on the truck. In addition to the conviction itself, Mr. Rudd was concerned about the nature of the offense, Respondent's contact with the public, how the public might view ECUA, and potential liability to ECUA. Mr. Rudd acknowledged that Respondent was a good employee who never had any problems dealing with the public, and that his decision to terminate Respondent was not an issue of job performance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (4) and (33) and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resource Policy Manual. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 4th day of November, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Ron E. Williams 7041 Andros Drive Pensacola, Florida 32506 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the subject premises by the undersigned, the following relevant facts are found: By an application submitted to the Department of Environmental Regulation in January of 1976, Florida Power Corporation seeks a permit to construct and maintain three electrical power poles, two on Banana Island and one on Parker Island in the King's Bay area of Crystal River. Two spans of wire are to exist between the three poles. The minimum clearance of the bottom wire of the lines spanning between Parker and Banana Islands will be forty-four (44) feet. The wires crossing Banana Island will be some 29 feet in height. The wires will be stretched in a vertical fashion with three wires spaced one above the other, and will carry 12,470 volts of power. Because a mean high water survey was not performed, it is not known whether the three poles will be located on privately or sovereignty-owned land. Inasmuch as Florida Power Corporation has applied for the applicable permits from both the Department of Environmental Regulation and the Department of Natural Resources (See Case No. 77-960), a finding on this issue is not necessary. Darrell F. Howton, a field inspector with the Department of Environmental Regulation, conducted two on-site visits and an appraisal of the permit application. He recommended approval of the project. Finding that the "short-term or immediate impact of the project will deal almost strictly with the transportation of equipment to and from the site," the only recommendation he made was that, in order to minimize the crushing of vegetation, a direct route to the sites be taken with little moving around in the area with vehicles or equipment. Mr. Howton considered potential impediments to navigation resulting from the overhead wires, but found none due to their proposed heights. The dredge and fill section of the Department of Environmental Regulation gave notice of its intent to issue the permit applied for by the Florida Power Corporation. Thereafter, the petitioners herein filed a request for a hearing on the permit application, the Department of Environmental Regulation transferred the petitions to the Division of Administrative Hearings for hearing, Central Development Company as the owners of Parker and Banana Islands intervened as a party-respondent, and the undersigned Hearing Officer was duly designated to conduct the hearing. This matter was consolidated for hearing purposes with Case Nos. 76-1102, 77-849, 77-850 and 77-960, for which separate recommended orders are being entered. The majority of testimony presented by the petitioners related to the issue of whether or not the proposed power lines would create a hazard or a serious impediment to navigation in the area between Parker and Banana Islands. As noted above, the minimum clearance of the wires extending between these islands is 44 feet. The depth of this area at high tide is between four and five feet. The greater weight of the evidence was to the effect that sailboats with masts higher than 35 to 40 feet were too large to use this particular channel because their draft would be too great for the depth of the channel. Deeper navigable waters exist on the west side of Banana Island, and it would not be prudent for a large sailboat owner to risk the expenses and dangers of becoming grounded in the more shallow waters. It was the testimony of the distribution engineering supervisor for Florida Power Corporation that if the power lines created any problems after their installation with respect to sailboat masts, Florida Power would correct the situation by raising the lines to accommodate local traffic. Seaplanes (five or six per year) occasionally utilize the air space between Banana and Parker Islands, depending upon the prevailing wind direction. There would be no harmful or adverse effect upon the manatee by the existence of the power poles or lines. Several waterfront property owners testified that they felt their view of the waters would be obstructed by the existence of the proposed power lines.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Department of Environmental Regulation issue to the Florida Power Corporation a permit authorizing and allowing the installation and maintenance of the power poles and lines contained in its application. This permit should not be issued unless and until the applicant receives and exhibits the necessary form of consent from the Trustees of the Internal Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CRYSTAL RIVER PROTECTION ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 76-1103 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, FLORIDA POWER CORPORATION and CENTRAL DEVELOPMENT COMPANY, Respondent. /
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
