Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 10th day of April, 1987.
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing him to work in a position of special trust or responsibility with the Department of Juvenile Justice (Department).
Findings Of Fact On September 23, 1994, the Petitioner was arrested by the Broward County Sheriff's Office and was charged with the crimes of aggravated assault with a firearm and carrying a concealed weapon. On November 8, 1994, on the advice of counsel, the Petitioner entered a plea of nolo contendere to the charge of aggravated assault with a firearm. On August 22, 1995, the Petitioner was sentenced to a five-year period of probation, and as a special condition of his probation was ordered to pay $250.00. The charge of carrying a concealed weapon was not processed. In April of 1999, the Petitioner applied for the position of coordinator with Atlantic Coast Marine Institute (ACMI). This position would have brought the Petitioner into direct contact with juveniles. On April 28, 1999, ACMI submitted to the Office of the Inspector General (OIG) a Request for Preliminary FCIC/NCIC and DHSMV Screening on the Petitioner. As a result of his criminal history, on May 2, 1999, the Petitioner was rated "Unfavorable/Disqualifying" on his preliminary screening. By letter dated July 22, 1999, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption with supporting documents. By letter dated August 26, 1999, the Petitioner was advised that his request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner filed a timely request for a hearing to challenge the denial of his request for exemption. The disqualification of the Petitioner is based solely on his entry of a plea of nolo contendere to the charge of aggravated assault with a firearm, and the court sentence based on that plea. The Petitioner's plea of nolo contendere, which was based on the advice of legal counsel, was a plea of convenience to bring about a prompt resolution of the criminal charges and to avoid the possibility of a prison sentence. The Petitioner did not enter that plea because he believed he was guilty of the offense of aggravated assault with a firearm. To the contrary, the Petitioner has at all times believed, and continues to believe, that he is innocent of the criminal offense to which he pled nolo contendere. The Petitioner's belief in this regard is well-founded, because at the time of the incident which led to the filing of criminal charges against the Petitioner, he did not have a firearm in his possession and, therefore, could not have assaulted anyone with a firearm. 2/ Following his sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of his probation. He had occasional difficulties making the financial payments required by his sentence due to difficulties in obtaining steady employment. Ultimately, the Petitioner fulfilled all conditions of his probation and, as of September 13, 1999, the Petitioner's probation was terminated early by court order. Both before and after the incident that led to the Petitioner's arrest, he has worked in positions involving the care and supervision of young people. The Petitioner enjoys working with young people and appears to be quite good at such work. 3/ The Petitioner was raised in a military family. He also served for four years in the military. He is a self- disciplined person who takes his personal and professional responsibilities seriously. He is active in his community and does his best to be an upstanding citizen. In sum, the Petitioner is a decent and honorable person who enjoys working with youth, is good at working with youth, and should not be disqualified from employment positions working with youth.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 25th day of April, 2000.
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue The issue in this case is whether the Respondent is guilty of using or attempting to use his position as mayor of the City of South Pasadena for his benefit or the benefit of candidates that he supported in the 2014 city commission election, in violation of section 112.313(6), Florida Statutes (2013).
Findings Of Fact In March 2014, the Respondent was the mayor of the City of South Pasadena, having been elected the year before. City commission elections were scheduled for Tuesday, March 11. There were two contested slots. The incumbents were Max Elson and Arthur Penny. The challengers were Harris Blair and Robert Small. The Respondent supported the challengers and donated to their campaigns to unseat the incumbents, who had been voting against the Respondent's positions since his election as mayor. Of the two elections, the Respondent was more interested in unseating Penny, who regularly opposed the mayor. Pasadena Liquors is a retail business operating in the City of South Pasadena. It was operated by Jimmy Valenty, whose family trust owned the business. Although not a resident and not eligible to vote in the city commission elections, Valenty supported Elson, who was a personal friend. A few weeks before the election, Elson mentioned to Valenty that the campaign signs Valenty allowed him to place outside Pasadena Liquors kept disappearing. Elson asked if Valenty would let him use the marquee inside the front window. Valenty agreed. Elson then asked if Valenty also would let Penny use it. Valenty had no personal interest in Penny's campaign but agreed to his friend's request. Valenty arranged the letters on the marquee to read: "VOTE ELSON AND PENNY CITY COMMISSIONER." During the week before the election, the Respondent received telephone calls regarding the marquee from several constituents who were supporting Blair and Small. They did not recall the marquee being used to solicit votes for city commission elections in the past and questioned whether it was legal. The Respondent was not aware of the sign before receiving the telephone calls and told his constituents that he would look into it. On Friday, March 7, the Respondent went to Pasadena Liquors to talk to Valenty and tell him about the telephone calls he had received. Valenty asked if the Respondent was there as mayor, and the Respondent said, no, he was there as a concerned customer or concerned citizen. During the discussion about the propriety and legality of the sign, Valenty asked to see the city's sign ordinance. The Respondent offered to get a copy of it for Valenty. Normally, the mayor would not be involved in enforcement of the city's sign ordinance. The city's government is run by the mayor and five commissioners, all elected positions. The city has five departments. The mayor oversees the administration department. Each commissioner oversees one of the other four departments. Code enforcement, which includes enforcement of the sign ordinance, is part of the community improvement department (CID). Code violations usually would come to the attention of the city through either a code enforcement inspection or a citizen complaint, which would be referred to code enforcement for investigation. It was the CID director's job to interpret, as necessary, the ordinances being enforced. His interpretation would stand unless the city commission overruled him. In March 2014, Commissioner Elson was in charge of and oversaw the CID. The CID's director, Neal Schwartz, reported directly to Commissioner Elson. After talking to Valenty, the Respondent went to Schwartz's office, told him about his conversation with Valenty, and asked for a copy of the sign ordinance pertaining to the Pasadena Liquors marquee. Schwartz copied the sign ordinance, which was long and convoluted, and highlighted the pertinent provisions. It was the CID director's opinion that the sign was legal, in part because the marquee was a "reader board" with changeable letters. The CID director offered to check with the county election supervisor to verify his opinion and was told that the city clerk, who directed the administration department overseen by the Respondent, was in charge of city elections. It was not clear from the evidence whether the Respondent was still present in the office of the CID director when he telephoned the county elections supervisor. It was clear that the Respondent had left the CID director's office before the CID director talked to the city clerk. When the clerk was asked, she was of the opinion that the sign was legal because it was not paid political advertising. She was prepared to tell the Respondent her opinion if he contacted her. The Respondent did not contact the city clerk for her opinion. After meeting with the CID director, the Respondent returned to Pasadena Liquors to show Valenty the sign ordinance. Valenty saw nothing in the highlighted portions of the sign ordinance that made it clear to him that the sign was illegal, but there appeared to him to be a size limitation. Valenty got a tape measure and concluded that the sign exceeded the size requirements. Valenty asked if the Respondent was requiring him to remove the signage from the marquee. The Respondent said no, it was up to Valenty to decide what to do with the sign. Valenty was planning to remove the sign the next day anyway to replace it with advertising for St. Patrick's Day, so he decided to go ahead and switch the signage on the marquee that day. At the election on March 11, the incumbents won. After information was reported to him about the Respondent's actions regarding the Pasadena Liquors marquee, Commissioner Penny swore out an Ethics Commission complaint alleging that the Respondent went to Pasadena Liquors and demanded that the owner remove the "vote-for-the-incumbents" sign by falsely telling him that he was in violation of the political advertisement laws, after insisting that the CID director call the supervisor of elections and not waiting for the opinion of the city clerk as to the sign's legality. After receiving and reading the ethics complaint, the Respondent brought a copy to Valenty because his name was mentioned, and the Respondent thought he should know about it. Valenty read it and said there was nothing negative in it about him, so he was not concerned about it. The Respondent did not try to influence Valenty's reaction to the complaint, and there was no evidence that there was anything else to this encounter. A few months later, the Respondent asked the city clerk to begin the process of recognizing the lounge at Pasadena Liquors for being open for 25 years and to be sure to say that it was at his request. When the city clerk broached the subject with Valenty, he declined the honor because the timing suggested to him that the recognition was to "make up for" any hard feelings that arose from the issue regarding the business's election sign. In fact, the timing was a coincidence. The city had recognized Pasadena Liquors for the 10th anniversary of its lounge being open, and other businesses in the city were recognized similarly when they reached landmark anniversaries. It was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of influencing the election, and it is unlikely that they had any influence on the election. In part for these reasons, it was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of securing a special privilege, benefit, or exemption for himself or the unsuccessful candidates. It also was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken with corrupt intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this 12th day of May, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of May, 2015. COPIES FURNISHED: Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. Building B, Suite 431 2454 McMullen Booth Road Clearwater, Florida 33759-1339 (eServed)
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
