Findings Of Fact On or about January 16, 1981, the Petitioner began regular employment with the Probation and Parole Services, Region IV, office of the Department of Corrections. He was hired as a "Probation and Parole Officer (Trainee)." On or about June 15, 1981, the Department advised Petitioner that he had been dismissed from his position with the Department. The dismissal was effective June 18, 1981. At that time, Petitioner had not yet attained permanent status in the Florida Career Service System. He was serving a probationary period. In the notice of dismissal, it was provided, as follows: This action is taken after careful consideration and discussion with your immediate supervisor concerning the following: The falsification of your employment application when applying for employment in the Miami Circuit Office of Probation and Parole Services. Your actions were in violation of Chapter 22A-4.03(2) of the rules of the Department of Administration of the Career Service System. This action is in accordance with the State of Florida Rules and Regulations of the Career Service System Chapter 22A-7.10(7)(H). Since you have been terminated during your trainee status, Chapter 22A- 7.03(4), Florida Personnel Rules and Regulations would apply. Petitioner thereafter filed his "Petition for Section 120.57(1) Formal Administrative Hearing" with the Department of Corrections. In his employment application, Petitioner stated that he had never been convicted of a felony or first degree misdemeanor. On January 10, 1971, Petitioner was convicted of municipal ordinance violations in the city of Pueblo, Colorado. The violations were misdemeanors. Petitioner was fined $50 for "disturbance," and $75 for "assault and battery." He paid the fine and served one-half day in the city jail. The Department contends that on account of these convictions, Petitioner's statement in his employment application was false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by the Department of Corrections dismissing the petition for formal administrative hearing filed by Heriberto Roman Conti. RECOMMENDED this 10th day of March, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 March, 1983. COPIES FURNISHED: Sisinio Ortiz Valentin, Esquire Puerto Rico Legal Services Corp. Box 727 Guaynabo, Puerto Rico 00657 Louis A. Vargas, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Petitioner demonstrated that the Ahmed Temple No. 37 Grenadier & Shrine Club, Incorporated (the “Grenadier Club”), employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, thus making it her “employer” for purposes of the Florida Civil Rights Act of 1992 (“the Act”). If Petitioner proves that the Grenadier Club is an employer under the Act, then a second hearing will be scheduled on the issue of whether she was subject to an unlawful employment practice as a result of the Grenadier Club maintaining a sexually-hostile work environment.
Findings Of Fact Based on the stipulated facts, the testimony and documentary evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Prince Hall is the first African-American Masonry, established in Boston, Massachusetts. The Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and its Jurisdictions, Inc. (the “Imperial”), is the international Prince Hall of Shriners, a Masonic society, established in 1893. The Imperial Potentate, elected by its members, serves as the head member of the Imperial. 1 Petitioner’s Proposed Recommended Order was filed after 5:00 p.m., and docketed at 8:00 a.m. on March 9, 2021. It is, nonetheless, deemed to have been timely filed and considered as such. 2 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. Likewise, section 760.02 has been unchanged since 1992, save for the addition of a definition for the term “public accommodations” in 2003. Ch. 2003-396, § 4, Laws of Fla. Desert of Florida Temples and Courts (the “Desert”) operates at the state level, and is composed of approximately 25 local temples in the state of Florida, including Ahmed Temple No. 37. Ahmed Temple No. 37 (hereinafter referred to as the “Temple”) is the local temple for members in Tallahassee, Florida. The Illustrious Potentate serves as the head member of the Temple. The Imperial, the Desert, and the Temple are membership-based organizations. The Grenadier Club is a social-club-and-bar business for persons 25 years of age and older. The Grenadier Club is managed and controlled by a Board of Governors (the “BOG”). The BOG is composed of the Chairman, Vice Chairman, Treasurer, Secretary, and five additional members of the Temple. Members of the Temple vote to elect members of the BOG. Members of the BOG vote to elect the BOG Chairman. The Illustrious Potentate of the Temple is the Ex- Officio Chairman of the BOG. Five voting members of the BOG constitute a quorum for the transaction of business. At all times relevant, the BOG employed a manager who oversaw the operational management of the Grenadier Club. At all times relevant, the Grenadier Club paid all of its employees’ salaries. At all times relevant, the Grenadier Club paid all of the Grenadier Club’s expenses. At all times relevant, the Grenadier Club kept and maintained its own books and records separate and apart from the Imperial, the Desert, and the Temple. At all times relevant, the Grenadier Club filed its own tax returns separate and apart from the Imperial, the Desert, and the Temple. At all times relevant, 25 percent of the Grenadier Club’s monthly net revenue was submitted to the Temple to be used for charity. At all times relevant, the Grenadier Club paid the Imperial a $250.00 annual operational fee. In December of 2018, Henry Parker was the Deputy of Oasis for the Desert, which served as a conduit between the Temple and the Imperial. Mr. Parker was also a member of the Temple. In December of 2018, Mr. Parker was designated by the then-Imperial Potentate to remove the then-Illustrious Potentate of the Temple and the Chairman of the BOG and to take over operations of Grenadier Club. Thereafter, Mr. Parker unilaterally, without approval, input, or vote by members of the Temple, appointed members to serve on the BOG. From December of 2018 to August of 2020, Mr. Parker, as a member of the Temple, had total oversight over Grenadier Club operations. From December of 2018 to August of 2020, the Grenadier Club’s operations did not change. From December of 2018 to August of 2020, there were no additional restrictions on the Grenadier Club at the direction of the Imperial. From December of 2018 to August of 2020, when Mr. Parker was acting as the overseer of Grenadier Club, Mr. Parker did not exert any more control over the Grenadier Club employees than the Temple would have. From December of 2018 to August of 2020, when Mr. Parker was acting as the overseer of Grenadier Club, Mr. Parker did not impose any additional financial requirements on the Grenadier Club. Facts Adduced at Hearing The Temple meets at a building located in Frenchtown, a locally well- recognized area near downtown Tallahassee. The Grenadier Club operates under the auspices of the Temple from a location separate from the Temple. The current operating hours for the Grenadier Club are Saturdays from 9:00 p.m. until 2:00 a.m., and Mondays from 7:00 p.m. to 12:00 a.m. However, Dr. Hudson indicated that the Grenadier Club has been operating “on and off” since the Covid-19 pandemic. There was no evidence of the operating hours in 2018.3 At all times material to this proceeding, Petitioner was directly employed by the Grenadier Club. She worked at the Grenadier Club as a server/bartender from April 2018 until August 2018. The members of the Temple, including the BOG, are unpaid members/volunteers. The alleged actions of the then-Chairman of the BOG towards Petitioner form the basis for her Charge of Discrimination and Petition for Relief. The threshold issue in this proceeding is whether the Grenadier Club had the requisite number of employees to bring it under the jurisdiction of the Act as Petitioner’s “employer.” If Petitioner fails in her proof of that issue, any discussion of acts that may have constituted sexual harassment or resulted in the creation of a sexually-hostile work environment become superfluous and unnecessary. The Book of Laws The Book of Laws consists of the Constitution, Bylaws, and General Laws governing the Ancient Egyptian Arabic Order Nobles of the Mystic Shrine of North and South America and its Jurisdictions, Inc. The Book of Laws establishes the hierarchy of the organizational entities that comprise the Imperial, the Desert, and the Temples. Although there is a hierarchy, and a general means established to ensure cohesiveness, uniformity, and compliance with the goals, customs, and governance of the organization, day- to-day management and administration is performed at the Temple level. 3 The allegations in the Petition for Relief suggest that the operating “shifts” were greater in 2018 than they are now. However, the evidence adduced at the hearing was not sufficient to establish the 2018 operating hours. The Book of Laws provides that the Imperial has a committee “to encourage, develop, and promote the establishment of Grenadier Clubs among the several Temples,” and that “[t]he committee shall help improve club operations and accountability through established guidelines approved by the Imperial Potentate and the Imperial Divan.” A group of Nobles in a Temple is allowed to operate a Grenadier Club only by “first obtaining permission and a special dispensation from the Imperial Potentate.” Once such has been received, membership in the Grenadier Club is limited to Nobles in good standing in their respective Temples, and all operations related to a Grenadier Club are within the exclusive control of the Temple, through the elected BOG. See, Book of Laws, Appendix II - Uniform Bylaws for Temples, Article XII, Grenadier Clubs. Facts Regarding the Grenadier Club as an “Employer” The Grenadier Club is incorporated as a legal entity unto itself. The evidence adduced at the hearing demonstrates that the Grenadier Club has paid employees, but the number of employees was not proven. The Grenadier Club occasionally hires DJs and private security. The evidence established that they are not employees, but rather are independent contractors. The number of independent contractors and their schedules was not proven. As set forth in the stipulated facts above, The Grenadier Club is managed and controlled by the nine-member BOG, which consists exclusively of members of the Temple. The BOG employed a manager who oversaw the operational management of the Grenadier Club. There was no competent substantial evidence offered or received that the Grenadier Club employed 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year during Petitioner’s employment at the Grenadier Club or the year preceding her employment at the Grenadier Club. Thus, based on the evidence adduced at hearing, the Grenadier Club is not an “employer” as defined by section 760.10. In order to prove the threshold element of her claim for relief, Petitioner must thus establish that employees of other entities should be imputed to the Grenadier Club due to integrated activities or common control of the Grenadier Club’s operations or employees. The Temple The evidence adduced at the hearing demonstrates that the Temple has no employees. It is an organization operated entirely by its unpaid, volunteer members. The members of the BOG are members of the Temple. The evidence adduced at the hearing demonstrates that the members of the BOG are not employees of either the Temple or the Grenadier Club. The Book of Laws provides that, subject to the mandates of the Temple, the BOG has “sole control and management of the [Grenadier] Club, its property and employees.” The Temple, through the BOG, makes all employment decisions for the Grenadier Club, and has exclusive control over the pay and the terms and conditions of Grenadier Club employees. The Book of Laws provides that, subject to the mandates of the Temple, the BOG may employ a manager and other employees, determine their duties, and fix their compensation. The BOG, consisting of and elected by members of the Temple, hired the manager of the Grenadier Club. Decisions regarding employee hiring, supervision, terms and conditions of employment, discipline, and firing of Grenadier Club employees were the exclusive responsibility of the BOG and the Grenadier Club manager. The Desert The evidence adduced at the hearing demonstrates that the Desert of Florida has no paid employees. It is an organization operated entirely by its unpaid, volunteer members. The Desert has its own organizational and management structure separate from that of the Imperial, the Temple, and the Grenadier Club. The current Deputy of the Desert, who was the individual filling that position during the period of Petitioner’s employment at the Grenadier Club, is not a member of the Temple. The Imperial The Imperial is an organization international in its scope. It maintains its headquarters in Memphis, Tennessee. Mr. Parker understood -- though not based on averred personal knowledge -- that the organization as a whole has approximately 350,000 members from 196 temples in the U.S.A., Canada, Brazil, Bolivia, Mexico, Panama, the Philippines, Europe, and Australia. That estimate is accepted not for the truth of the specific matters asserted, but as providing a general sense of the size and scope of the organization. The evidence adduced at the hearing demonstrates that the Imperial has employees that work for the Imperial Council. The number of employees was not proven, and there was no competent substantial evidence offered or received that the Imperial employed 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year during Petitioner’s employment at the Grenadier Club or the year preceding her employment at the Grenadier Club. Relationship of the Imperial and the Desert to the Grenadier Club The Book of Laws vests no authority for the management or operation of the Grenadier Club in either the Desert or the Imperial. Petitioner introduced no evidence that either the Grenadier Club or the Temple, through the BOG, delegated any control of traditional rights over its employees to any other entity. The evidence adduced at the hearing demonstrates that neither the Desert nor the Imperial have operational control over the Grenadier Club. The Desert and the Imperial have no shared management of the Grenadier Club, and have no role in the hiring or firing of employees of the Grenadier Club. Neither the Desert nor the Imperial had supervisory control over Petitioner or her work schedule. No member of the Desert or the Imperial evaluated Petitioner’s performance or disciplined Petitioner. Employees of the Grenadier Club are paid by the Grenadier Club, and not by the Desert or the Imperial. The Desert neither gives nor receives funds from the Grenadier Club. Other than the payment of the $250.00 annual operational fee from the Grenadier Club to the Imperial, the Imperial neither gives nor receives funds from the Grenadier Club. There was no evidence offered or received that the Grenadier Club has common officers, directors, or employees with either the Desert or the Imperial. There was no evidence offered or received that the Grenadier Club shares or comingles bank accounts with either the Desert or the Imperial.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Employment Complaint of Discrimination, based upon Petitioner's failure to meet her burden of proof to establish that Respondent, Ahmed Temple No. 37 Grenadier & Shrine Club, Incorporated, is an “employer” as defined in section 760.02(7), either through its own employees or through attribution. DONE AND ENTERED this 12th day of March, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Kayla Elizabeth Platt Rady, Esquire Rumberger, Kirk & Caldwell, P.A. 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Louis J. Baptiste, Esquire Webster + Baptiste, PLLC 1615 Village Square Boulevard., #5 Tallahassee, Florida 32309 Dorian R. Glover, Esquire Ancient Egyptian Arabic Order Noble Mystic Shrine 600 Franklin Avenue Post Office Box 8089 Garden City, New York 11530 Linda Bond Edwards, Esquire Rumberger, Kirk & Caldwell P.A. 101 North Monroe Street, Suite 120 Tallahassee, Florida 32301 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue At issue is whether petitioner's four-year service as the Executive Director of the Broward County Convention Center may be upgraded to the Senior Management Service Class of the Florida Retirement System.
Findings Of Fact Petitioner's employment history with Broward County Petitioner, C. Dean Hofmeister, was employed by Broward County from April 1, 1988, through April 28, 1995. During his tenure, he served as Executive Director of the Broward County Convention Center (BCCC), from April 1, 1988, until April 30, 1992, and as President of the Greater Fort Lauderdale Convention and Visitors Bureau (GFLCVB), from April 30, 1992, through April 28, 1995. As the Executive Director of the BCCC, petitioner was its chief executive officer (CEO) and supervised a staff of two employees: a project engineer (Carlos Puentez) and a secretary. As its CEO, petitioner had numerous responsibilities, including contract administration, policy formation and recommendation, fiscal operations, and management of the BCCC's small administrative staff. On April 30, 1992, petitioner was selected to be the next president of the GFLCVB. Significant to his selection was petitioner's proposal to consolidate the GFLCVB and the BCCC operations. Such consolidation was proposed to more closely coordinate the related activities of both organizations, and would save the County certain salary costs by eliminating the need for an Executive Director of the BCCC. The consolidation was approved by Broward County and, following consolidation, the BCCC became an operating division of the GFLCVB. The amendments to Chapter 121, Florida Statutes In 1993, the Florida Legislature passed Chapter 93-285, Laws of Florida, which amended Section 121.055, Florida Statutes, effective January 1, 1994, to authorize the designation of additional positions for participation in the Senior Management Service Class (SMSC) of the Florida Retirement System (FRS) by local agencies. Under the act, a local agency, such as Broward County, could designate one position to the SMSC for every 200 employees. To qualify for SMSC designation, a position had to be a non-elective, managerial or policy-making position, which was filled by an employee who was not subject to a continuing contract. Moreover, an employee serving in a designated position could not have career service protection; rather, the employee had to serve at the pleasure of the employer. Finally, the employee serving in a designated position had to be the head of an organizational unit or hold a position of responsibility that recommended personnel actions, budgetary approval, expenditures and policy decisions. Once the position was designated or added to the SMSC, the member could purchase additional credit for credible service "within the purview of the Senior Management Service Class," retroactive to February 1, 1987. Section 121.055(1)(g), Florida Statutes. This upgrade benefit allowed a member to increase his credible service in the class up to the level allowed by law. "Within the purview of the Senior Management Class" is not defined by the act. The Division has, however, construed such phrase to refer to service in the position preceding the time the position was designated for membership in the class. Under such interpretation, the holder of a position designated for membership in the class could purchase credit for the time he served preceding its designation, limited only by the restriction that credit could not extend further back than February 1, 1987. Where the title of the position changed prior to designation, but the duties and responsibilities remained essentially the same, such prior service is still considered "within the purview of" the SMSC and eligible for upgrade. Moreover, pertinent to this case, where two positions are merged or consolidated prior to designation, and the duties and responsibilities of the eliminated position are subsumed in the new position, prior service in the eliminated position, provided it qualified for SMSC designation, is considered "within the purview of" the SMSC and eligible for upgrade. Consistent with the provisions of subsection 121.055(1), regarding a member's entitlement to upgrade prior service through the purchase of additional retirement credit, the Division has promulgated Rule 60S-2.013, Florida Administrative Code. Pertinent to this case, that rule provides: A member of the Senior Management Service Class as provided in 60S-1.0057(1) who has earned creditable service within the purview of the Senior Management Service Class may purchase additional retirement credit in the Senior Management Service Class for such service retroaction to February 1, 1987, provided that: He notifies the Division in writing of his desire to receive credit for such service, and The required contributions are made in accordance with section 60S-3.013. Petitioner's SMSC designation and upgrade request In February 1994, Broward County, pursuant to the amendments to section 121.055, designated thirty new positions, including petitioner's position as President of the GFLCVB, for inclusion in the SMSC, effective January 1, 1994. Thereafter, on or about March 17, 1994, Broward County submitted a FR-9 (the Division's information request form), completed by petitioner, which sought to purchase additional credible service in the SMSC for his prior service as President of the GFLCVB (April 30, 1992, to December 31, 1993) and his prior service as Executive Director of the BCCC (April 1, 1988, to April 30, 1992). Accompanying such form were various personnel documents, as well as an employment certification from Phillip Rosenberg, Director of Human Resources for Broward County, which stated: C. Dean Hofmeister [Petitioner] was appointed as Executive Director of the Broward County Convention Center on April 1, 1988. On April 30, 1992 he was appointed President of the Greater Fort Lauderdale Convention [and] Visitors Bureau and has maintained responsibility for the Convention Center in what became, through reorganization, a combined responsibility. Petitioner's application, as well as numerous other applications filed by new SMSC members of Broward County, were reviewed by David Ragsdale, a retirement administrator with the Division, and during March and April 1994, he and Mr. Rosenberg had a number of discussions to clarify certain matters regarding the pending upgrade requests, including petitioner's application. The particulars of the conversation regarding petitioner's application are not apparent from the record, except that during the course of the conversation Mr. Ragsdale was apparently informed that the positions of Executive Director of the BCCC and President of the GFLCVB were separate positions. On April 18, 1994, the Division approved petitioner's request to upgrade and purchase his prior service as President of the GFLCVB (April 30, 1992, through December 31, 1993), but took no action to address his prior service with the BCCC. The reason for such failure was Mr. Ragsdale's apparent understanding that, notwithstanding the employment certification that the responsibilities of the two positions had been combined, the two positions were separate. With such understanding, petitioner's service with the BCCC did not qualify for upgrade because that position had not been designated for inclusion in the SMSC. By letter of June 27, 1994, the Division informed Broward County of the upgrade approvals, including petitioner's; however, that notice merely reflected the dollar amounts necessary for each employee to purchase their upgrade credits, and did not reflect the service or time for which credit was approved. 1/ In or about April 1995, petitioner, under the belief he had seven years of credible service under the SMSC, including his four-year service as Executive Director of the BCCC, filed an application with the Division for retirement benefits. Thereafter, it was learned that the Division had not addressed whether, if consolidated, petitioner's service with the BCCC was eligible for upgrade. Consequently, the Division reviewed the matter and in June 1995, formally advised petitioner that such prior service was not eligible for upgrade because "the positions of Executive Director of the Broward County Convention Center and President of the Greater Fort Lauderdale Convention Center (sic) coexisted before the Board of County Commissioners' reorganization [and] [t]he function of Director still exists but appears to have been reclassified to Deputy Director," as opposed to having been merged with the position of President of the GFLCVB, as urged by petitioner and Broward County. Such notice further advised petitioner of his right to request a formal hearing to contest the Division's determination. Petitioner timely requested a hearing, and this proceeding ensued. Petitioner's request for upgrade of his services as Executive Director of the BCCC As heretofore noted, petitioner was employed by Broward County as the Executive Director of the BCCC from April 1, 1988, to April 30, 1992. During that time there were three employees of the BCCC: petitioner, a project engineer (Carlos Puentez), and a secretary. During the course of construction of the convention center, which was completed in September 1991, petitioner, with the assistance of his project engineer, coordinated with the project developer, general contractor and project architectural firm in reviewing plans for value engineering and change orders, and reviewed and approved purchase orders submitted by the general contractor. As the facility neared completion, petitioner began to function more as the contract administrator for the management firm selected by the County to operate the convention center, as well as continuing to fulfill his responsibilities for policy formation and recommendation, and fiscal or operating budgetary matters for the center and the management firm. Moreover, as construction was completed, Mr. Puentez, the project engineer, began to assist petitioner more fully in administrative matters unassociated with construction. On April 30, 1992, petitioner was selected by Broward County to be the next president of the GFLCVB. Significant to his selection was petitioner's proposal to consolidate the operations of the GFLCVB and the BCCC. Such consolidation would more closely coordinate the related activities of both organizations, and would save the County certain salary costs by eliminating the need for an Executive Director of the BCCC, since petitioner would continue to fulfill those responsibilities in his new position. Following his appointment as President of the GFLCVB, the operations of the GFLCVB and the BCCC were consolidated, and the BCCC became an operating division of the GFLCVB. In August 1992, in recognition of the consolidation, the Broward County Board of County Commissioners approved a proposal to eliminate the position of Executive Director of the BCCC, which had remained vacant since petitioner's appointment to the GFLCVB, and to create a new classification, Deputy Director of Convention Center, to "manage the Convention Center section of the Convention and Visitors Bureau." Responsibilities were noted to include "finance, operations/maintenance, human resources, minority participation, risk management, legal matters and general administration." Deleting a vacant position, such as the Executive Director position, to create a new position, such as Deputy Director, is a customary practice for Broward County, given its personnel cap that is established annually by the County Commission. As created, the Deputy Director position had a salary range that was designated as "open range 3," with a pay range of $41,745 to $66,792 (minimum to maximum), as compared to the Executive Director position which had a salary range designated as "open range 6," with a pay range of $55,557 to $88,899 (minimum to maximum). At the time of his promotion, petitioner's salary was at the maximum of the pay range, and upon appointment as President of the GFLCVB his salary range designation was "open range 7," with his initial salary at $93,345. The position description for the Deputy Director, which was created with petitioner's input, is almost identical to the position description that had existed for the Executive Director, except that the Deputy Director was to work "independently with direct responsibility to [petitioner] the President of the County's Convention and Visitors Bureau," whereas the Executive Director had worked "independently with direct responsibility to the County Administrator." That the nature of the work and illustrative tasks of the Deputy Director's position description would track, except for the chain of authority, the previous Executive Director's work description is not unusual or dispositive of this case. Clearly, in the absence of a director, a deputy functions in his stead; however, the ultimate responsibility reposes in the director, as recognized by the position description. Mr. Puentez, who had served as petitioner's project engineer/assistant at the convention center, was appointed to fill the Deputy Director position. Following appointment, Mr. Puentez' role in the day-to-day operations of the center expanded, as they had previously expanded under petitioner; however, notwithstanding Mr. Puentez's expanded role, no new personnel were employed (the convention staff, if it may be so described, continued to consist of petitioner, albeit now as the CEO of the consolidated operations, Mr. Puentez, and a secretary), and petitioner's ultimate authority and responsibility for the operation of the BCCC remained the same. In so concluding, it is observed that petitioner maintained an office at the BCCC, where he addressed convention center matters two to three times a week, continued to develop, implement and maintain strategic plans for the BCCC, and was involved and responsible for the development, implementation and maintenance of the joint operating budget, as well as the physical and capital improvement plans for both operations. Moreover, petitioner continued to attend conferences and public meetings on behalf of the BCCC, including professional conferences and appearances before the Broward County Commission, with respect to agency related agenda items. Given the circumstances, the proof is compelling that the operations of the GFLCVB and the BCCC were consolidated, and that with the consolidation the duties and responsibilities of the Executive Director of the BCCC were merged into the position of President of the GFLCVB. The proof is further compelling that the position of Deputy Director of the convention center is not a clone of the previous position of Executive Director, as advocated by the Division. In reaching the foregoing conclusion, the similarities of the position description of Executive Director and Deputy Director have been noted, but, for reasons heretofore noted, such similarity is not dispositive. What is more telling is that the deputy position, as the name would imply, is subordinate to the CEO of the BCCC (the President of the GFLCVB), who is responsible for its operations. That the prior Executive Director position and the Deputy Director position are not clones is further supported by the fact that, upon petitioner's appointment as President of the GFLCVB, the position of Executive Director remained vacant while he continued to fulfill those responsibilities; the positions of Executive Director and Deputy Directory have significantly different pay grades; the BCCC, organizationally, is now part of the GFLCVB; and, the staff of the BCCC has not been increased following petitioner's new appointment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which approves petitioner's request to upgrade his service as Executive Director of the Broward County Convention Center to the Senior Management Service Class of the Florida Retirement System and that the Division reconsider petitioner's application for retirement benefits consistent with such recommendation. DONE AND ENTERED this 25th day of September, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 25th day of September, 1996.
The Issue Whether the Florida Department of Health’s (“Respondent” or “Department”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”) submitted a nonresponsive reply to the Department’s Invitation to Negotiate (“ITN”) No. 640:0040 is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The ITN The Department is a state agency that seeks space for administrative offices, a call-center facility, and claimant hearings. The Department currently leases office space from TCC, which lease expires on October 31, 2019. On July 19, 2017, the Department issued the ITN seeking vendors that could provide 135,815 square feet of office space for lease. The Department issued one addendum to the ITN on September 1, 2017, deleting a requirement that the space be contiguous within a single building. There were no challenges to the terms, conditions, or specifications contained in either the ITN or the amendment thereto.4/ Both TCC and TRV are potential lessors which submitted replies to the ITN. The ITN includes a provision expressly reserving the Department’s “right to negotiate with all responsive and responsible Proposers, serially or concurrently, to determine the best-suited solution.” (emphasis added). The term “Proposer” is defined in the ITN to mean “the individual submitting a Reply to this [ITN], such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive proposers could be invited to negotiations. The Department seeks to lease space in either an existing building or a building to be constructed in the future. In the Introduction, the ITN describes the proposals requested as follows: The [Department] is seeking detailed and competitive replies to provide built-out office facilities and related infrastructure for occupancy by the [Department]. As relates to any space that is required to be built-out pursuant to this [ITN], see Attachment “A” which includes the [Department] Specifications detailing the build-out requirements. The proposed facility may be within an existing building or a non-existing building designed as a Build-to-Suit to meet the [Department] Specifications. The specifications in Attachment A provide the basic requirements for the potential leased space, including the required type, number, and square feet of each space (i.e., office, workstation, conference room, storage), as well as the voice and data requirements for each space. The ITN provides that Attachment A “is an integral part of this ITN.” Section III.A. of the ITN details the requirements for responsive replies, including documentation demonstrating control of the property, a floor plan to scale, and return of each ITN page with the proposer’s initials. In addition, for Build-to- Suit proposals, responsive replies must include the proposed site plan, and may include building renderings.5/ Section IV. provides the Lease Terms and Conditions, and requires replies to indicate whether the proposer will meet each term and condition by marking either a “Yes” or “No” option with an “X.” Section IV.B. provides that the space must be made available for occupancy on September 1, 2019. This section emphasizes the importance of timely occupancy, requiring submission from the Lessor to the Tenant Broker of items to assure same, such as the sample construction project schedule, documentation of construction inspections, a performance bond, and proposed and final floor plans. Section IV.B. is not limited in applicability to Build-to-Suit leases. In fact, Section IV.B. provides that, for build-to-suit leases, the lessor must also provide architectural design and construction plans to the Department of Management Services for prior approval. Section IV.G. is titled “Space Availability – Turn-Key Build Out,” and requires as follows: The State requires a “turn-key” build-out by the Lessor. Therefore, Proposer shall assume all cost risks associated with delivery in accordance with the required space program specifications detailed in Attachment A. Proposer agrees to provide a “turn-key” build-out in accordance with the space program specifications detailed in Attachment “A” following the [Department]’s approval of an architectural layout provided by the Proposer: YES or NO “Turn-key” is a term of art in the commercial leasing industry meaning to deliver a space to the lessee which can be occupied immediately. The turn-key requirement is applicable to both build-out of an existing facility and build-to-suit new construction. By the terms of the ITN, the requirement for a turn- key build-out applies to all proposers, and is not restricted to proposers offering a build-to-suit option. TCC’s Reply TCC submitted a proposal for an existing building, the very building in which the Department currently leases space for the functions described in the ITN. Item IV.G In its reply, TCC responded “NO” to the statement “Proposer agrees to provide a ‘turn-key’ build-out in accordance with the space program specifications detailed in this Attachment A following the [Department]’s approval of an architectural layout provided by the Proposer.” In the space between Items IV.G. and IV.H., TCC added the following typewritten language: 10 Year Term – TI Allowance capped at $7 psf ($3.50 psf beginning year 1/$3.50 psf after year 5) 15 Year Term – TI Allowance capped at $10 psf ($5 psf beginning year 1/ $5 psf after yr. 5). In an apparent effort to explain the interlineated text in its reply, TCC also submitted an “Additional Response” sheet with its ITN reply, which reads as follows: ITN:640:0400 Additional Response Attachment A/[Department] Specification As the current Landlord for the [Department], our response proposes a “Stay In Place” option. Under this option, we propose a Tenant Improvement Allowance in order for the [Department] to address any Tenant Improvements necessary. With [Department] currently occupying the space, it would be impossible to ask them to move out of its existing office space in order to meet the requested [Department] Specifications in Attachment A. A “stay-in-place” offer is also a term of art in the commercial leasing industry which references negotiations between an existing lessee and lessor for a new lease of the space currently occupied by the lessee. The terms of the ITN are clear: the Department is seeking to negotiate with all proposers which agree to meet its space program specifications. TCC’s representative, Todd Hakimi, testified (both in his deposition and at final hearing), that TCC’s reply offered a stay-in-place option, rather than a turn-key or build-to-suit lease. Mr. Hakimi further testified that he formulated the response to the ITN on his understanding that the space currently leased to the Department by TCC was satisfactory to the Department, thus no buildout of the space was necessary to comply with the ITN. Mr. Hakimi’s testimony is belied by TCC’s supplemental response explaining that it would be impossible to ask the Department to “move out of its existing office space to meet the requested Agency Specifications in Attachment A.” In the supplemental response, TCC admits that the Department is seeking space which meets specifications not met by the existing office space. TCC’s reply was nonresponsive. By responding “No” to Item IV.G., TCC indicated it would not comply with the Department’s space program specifications in Attachment A, which is an integral and material component of the ITN. Tenant Improvement Allowance Instead, TCC’s reply offered a Tenant Improvement Allowance (“TIA”), shifting the burden to the Department to meet its space program requirements, rather than providing a “turn- key” space on September 1, 2019. Moreover, TCC’s reply “capped” the TIA at a per- square-foot amount, essentially limiting the amount TCC would pay toward the space program requirements set forth in Attachment A. In doing so, TCC refused to “assume all cost risk associated with delivery in accordance with the space program specifications” as required by Item IV.G.6/ If accepted, Petitioner’s response would give TCC a competitive advantage over other responders who agreed to “assume all cost risk associated with delivery in accordance with the space program requirements.” Broker Commission Item IV.J., another mandatory lease condition, requires lessors to agree to execute a Commission Agreement, which was attached to the ITN as Attachment G, another integral and material component of the ITN: Proposer acknowledges review of the Commission Agreement (Attachment G). Proposer agrees to execute and be bound by the Agreement should the Proposed Space be selected by the [Department]. YES or NO The Commission Agreement includes a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 3.50 percent on the first $500,000 of base rent to 2.50 percent on the base amount of $8.5 million and over. TCC checked “YES” in response to Item IV.J., but contradicted that reply by adding “Agree to 2% commission.” Mr. Hakimi testified that he offered a two-percent commission because he viewed his reply to the ITN as a renewal of the current lease, and it is customary to give a lower broker commission for renewal than for a new lease. The Department was not seeking a renewal lease. The ITN sought proposals to meet the agency space program specifications either within an existing building or at a build- to-suit location. TCC refused to be bound by this material term of the ITN, thus TCC’s reply was nonresponsive. If accepted by Respondent, TCC’s lower broker commission rate would have given TCC a competitive advantage over other proposers. Control of Property The ITN also provided that to be responsive, each lessor was required to submit documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non-Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. * * * The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. * * * The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment H, another integral part of the ITN. Section K of the ITN clearly states, “Attachment H . . . is required if submitting on behalf of owners.” Attachment D to the ITN was a Disclosure Statement which solicited from proposers information about the ownership of the property, including the name of the titleholder, as well as the titleholder’s social security number or federal employer identification number, as applicable. TCC’s reply contained a blank Attachment D. TCC’s reply included a deed identifying DRA CRT Tallahassee Center, LLC (“DRA CRT”), as the owner of the property offered for lease. TCC’s reply was executed by TCC President, Lyda Hakimi. TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property on behalf of DRA CRT. TCC owns DRA CRT, but the two are different legal entities. In order to demonstrate control of the property owned by DRA CRT, TCC was required to execute Attachment K or otherwise provide a power of attorney to demonstrate authority to bind the owner to TCC’s proposal. TCC’s reply did not demonstrate control of the property as required by the ITN. TCC’s reply was not responsive on this issue. Waivable Minor Irregularity TCC contends that its failure to include an executed power of attorney was a minor irregularity which should have been waived by the Department. TCC’s argument is twofold. First, TCC maintains that the Department had actual knowledge that TCC was DRA CRT’s agent because the Department was currently leasing the property from TCC. Second, TCC maintains that proposals by other responders failed to establish control of the property, but were nevertheless deemed responsive by the Department.7/ TCC’s first argument is not persuasive. As discussed in the Conclusions of Law, the undersigned’s role is not to make independent findings based on the evidence of record, but to determine whether the Department’s failure to waive the minor irregularity was arbitrary, capricious, or clearly erroneous. In support of its argument that the Department acted arbitrarily in its determination that TCC was nonresponsive on the issue of control of the property, TCC introduced, over strenuous objection, the ITN response from TRV and two separate responses from OAG Investment 3, LLC (“OAG”). TRV’s reply reveals TRV is the owner of the property. TRV’s proposal is executed by John McNeill as “Advisor” to TRV, and includes an executed Attachment H, Special Power of Attorney, from John Abernathy granting power of attorney to Mr. McNeill to act on his behalf regarding the ITN. TCC complains that TRV’s proposal does not demonstrate the relationship between TRV and Mr. Abernathy or establish Mr. Abernathy’s authority to grant a power of attorney on behalf of TRV. Thus, TCC argues, TRV’s reply suffers from the same defect as its own--failure to demonstrate control of the property--so the Department acted arbitrarily in failing to waive that nonconformity for TCC. Petitioner’s argument is not well-taken because the facts are distinguishable. First, as to TRV’s response, TRV is both the owner of the property and the proposer for the ITN. In contrast, TCC is the proposer, but not the owner of the property. Second, TRV’s reply documents, on Attachment D, establishes Mr. Abernathy’s authority “to conduct business as a representative of” TRV. TRV’s reply included the required deed evidencing ownership, as well as a completed Attachment D Disclosure, and Attachment H Special Power of Attorney. By contrast, in TCC’s reply, it neglected to complete either Attachment D or Attachment H. TCC made no effort to document the proposer’s authority to bind the property owner to the terms of the ITN. The facts relating to TRV’s reply are not sufficiently similar to TCC’s for the undersigned to conclude that the Department acted arbitrarily in failing to waive TCC’s nonconformity relating to control of the property. The same applies to the proposals from OAG. OAG’s reply for property on Barcelona Lane shows ownership of the property by the Townsend Mary D. Trust (“Trust”) and a purchase and sale agreement between the Trust and OAG executed by Mary Townsend on behalf of the Trust. TCC first complains that the Trust holds the property by a Quit Claim Deed, which “does not prove title or control.” Second TCC alleges that the reply does not establish Mary Townsend’s authority to execute the purchase and sale agreement on behalf of the Trust. As to OAG’s reply for the Mahan Drive property, TCC complains that the warranty deed identifies ownership of only a 30-percent interest in the property, and the purchase and sale agreement to OAG is from six named individuals, one of whom is noted as a trustee of an unidentified trust, and only three of whom have an ownership interest in the property based on the deed submitted. It is beyond the undersigned’s authority to determine whether OAG’s replies establish control of the property per the ITN specifications. The only purpose for which the TRV and OAG replies were admitted was to rebut the Department’s assertion that TCC’s reply was nonresponsive on the issue of control of the property. The factual differences between TCC’s documentation of ownership and control and those of the OAG proposals, do not support a finding that the Department acted arbitrarily in failing to waive the nonconformity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 31st day of May, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2018.
The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of March, 1989.
The Issue Whether Respondent, Peter E. Wicher's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on January 22, 1990. He holds law enforcement Certificate No. 29622. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a deputy sheriff with the Osceola County Sheriff's Office. In August 2002, Respondent and Joseph Esposito entered into a business relationship wherein Respondent worked part-time as a supervisor for Turn Maintenance Services, Inc., a business owned by Joseph Esposito. It is unclear, and subject to conflicting testimony, as to whether or not Respondent had an ownership interest in the company. Respondent had signature authority on the company checkbook and had two trucks placed in his name to provide security for loans for business expenses. The evidence suggests that Respondent had supervisory and management responsibility in this business until his relationship with Joseph Esposito deteriorated. In October and November 2005, Respondent was sued as a defendant in two civil lawsuits: Turn Maintenance Services, Inc., et. al. vs. Peter Wicher, Osceola Circuit Court Case No. 2005-RC 002211, and MWA Construction, LLC v. Peter Wicher, Osceola Circuit Court Case No. 2005-CL 003106. Respondent maintains that these lawsuits are a result of fraudulent allegations made by Joseph Esposito and has filed counterclaims in both cases. Much of the testimony in the instant case is denominated by personal animosity, previous bad business relationships, personal bias, and self-interest. The credibility of several witnesses is in question. Much of the controversial testimony is subjective and uncorroborated. Testimony regarding intimidation and threats of arrest attributed to Respondent are discounted by the undersigned. On April 26, 2006, Joseph Esposito filed an internal affairs complaint against Respondent with the Osceola County Sheriff's Office. In May 2006, Respondent undertook an investigation of Joseph Esposito and his business practices. Respondent took written statements from several witnesses, three of whom, Wayne Liebnizky; Wallace McCommon, Jr.; and George Garrido, Jr., testified in the instant case regarding their personal and business involvement with Mr. Esposito. A fourth statement was made by John Lina, who was on active duty in Kuwait. Shannon Lina, his wife, testified. These statements are on Osceola County Sheriff's Office statement forms and state that each is "Sworn To and Subscribed Before Me [Respondent]" in his capacity as a deputy sheriff. The use of Osceola County Sheriff's Office witness statement forms demonstrates poor judgment, but does not rise to the level of clear and convincing evidence of an abuse of authority. The Osceola County Sheriff's Office has a delineated protocol to be followed by a deputy sheriff in a criminal investigation. There is a division of responsibility between patrol officers and detectives. Patrol officers, which Respondent was, do initial on-the–scene investigations and, then, turn the incidents of criminal activities over to the Criminal Investigations Division and its detectives for more detailed investigations. Each investigation is assigned a case number. A deputy sheriff would not be authorized to conduct an investigation where he was a victim. Respondent was not authorized by the Osceola County Sheriff's Office to conduct a criminal investigation of Joseph Esposito's business activities. While it is clear that Respondent obtained the statements from the various witnesses, supra, no definitive evidence was presented regarding Respondent's conduct of personal business in uniform and under color of authority. Even though each of the persons who gave written statements knew that Respondent was a deputy sheriff, which is not surprising since these individuals were friends or business acquaintances and Respondent's 19 years of service, this is not clear and convincing evidence of the particular allegations. During the internal investigation conducted by the Osceola County Sheriff's Office incidental to Joseph Esposito's complaint, Respondent stated, under oath, that the interviews of Wayne Liebnizky; Wallace McCommon, Jr.; George Garrido, Jr.; John Lina; and George Jairala were for a criminal investigation. To the contrary, the interviews and investigation were undertaken by Respondent as a result of the filing of the civil lawsuits and the complaint by Joseph Esposito that initiated the internal investigation. The NCIC/FCIC maintain databanks which are accessible to law enforcement personnel to assist them in their professional responsibilities. Access for personal reasons is prohibited. During the internal investigation conducted by the Osceola County Sheriff's Office, Respondent stated, under oath, that he accessed the FCIC databank to determine the ownership of certain motor vehicles incidental to one of the civil lawsuits noted above. Respondent acknowledged that the use of the FCIC databank was for personal reasons, even though there was no independent evidence to support that conclusion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Peter E. Wicher, be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes; and that Respondent's law enforcement certification be disciplined by a reprimand and suspension for two years, followed by two years' probation, subject to terms and conditions imposed by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of August, 2007.
The Issue The issue is whether Charles C. Burlingame's request to purchase and upgrade prior regular service with the City of Panama City under the Senior Management Service Class should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this retirement dispute, Petitioner, Charles C. Burlingame (Burlingame), seeks to have certain prior service with Petitioner, City of Panama City (City), upgraded under the Senior Management Service Class (SMSC) so that his retirement benefits will vest at an earlier date. Respondent, Department of Management Services, Division of Retirement (Division), has denied the request on the ground that "the duties of [Burlingame's former] position were different from the duties of [his] current position," and that under these circumstances, Section 121.055(1)(i), Florida Statutes (1997), required that the request be denied. Burlingame was first hired by the City on February 14, 1994, as Human Resources Director/Safety. As such, he was one of approximately 16 City department directors. At that time, Burlingame was enrolled in the "regular" class of the Florida Retirement System (FRS). In 1998, the Legislature authorized local governments (as well as state agencies) who employed at least 200 individuals to designate an additional employee under the SMSC. Because the City employed that number of individuals, it was allowed to designate another employee for SMSC. Burlingame was selected as the employee, and he was promoted to a new position with the title Assistant City Manager/Human Resources/Safety Director. At the same time, his old position was abolished. In conjunction with his promotion, Burlingame prepared a job description for his new position. The old and new duties are described in the documents attached to Respondent's Exhibit 2. They reflect, at least on paper, that the functions and illustrative duties of the two positions are not identical. For example, in his new position, Burlingame is now in charge when the City Manager is absent from the City. He also assists the City Manager "in directing the overall operations of the City," as well as performing his former duties. According to Burlingame, however, these new duties account for no more than five percent of his total duties. The remainder coincide with the duties performed under his old position. Under the terms of the City's retirement system, the retirement benefits for a SMSC employee vest after 7 years of service, while a regular employee does not vest until after 10 years of service. Therefore, Burlingame wished to upgrade his prior service between February 14, 1994, and September 29, 1998, when he was changed to SMSC, since this would allow him to vest in fewer years. It would also allow him to accumulate more retirement points (2 per year) under the FRS for each year of service than he would have earned as a regular employee (1.6 per year). When Burlingame was approved for membership in the SMSC in October 1998, the City began processing an application with the Division on his behalf for the purpose of determining the "cost to upgrade past service to [SMSC] to 2-14-94." Because of a large backlog of work caused by Deferred Retirement Option Program applications, the Division was unable to act on Burlingame's request until the early fall of 1999. After the City made several inquiries concerning its pending request, a Division Benefits Administrator, David W. Ragsdale, wrote the City on September 15, 1999, and advised that "[s]ince the position Mr. Burlingame filled as Human Resources/Safety Director had different duties than the Assistant Manager/Human Resources/Safety Director, he is ineligible to upgrade because the position of Human Resources/Safety Director no longer exists." This was followed by another letter on November 4, 1999, which reconfirmed the earlier finding and offered Petitioners a point of entry to contest the proposed action. Petitioners then initiated this proceeding. There is no rule or statute which provides that if the job duties of a position upgraded from regular to SMSC do not remain the same, prior regular service cannot be upgraded. However, since the inception of the SMSC in 1987, the Division has consistently ascribed that meaning to the words "within the purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes (1997), and Rule 60S-2.013(2), Florida Administrative Code. Thus, if the new duties are "not within the purview" of the past regular service class, that is, they are different in any respect, the employee cannot purchase and upgrade the prior service. This interpretation of the statute and rule was not shown to be clearly erroneous or outside the range of possible interpretations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioners' request for an upgrade of Charles C. Burlingame's service under the Senior Management Service Class. DONE AND ENTERED this 21st day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: DONALD R. ALEXANDER 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 21st day of March, 2000. A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Cecilia Redding Boyd Bryant & Higby, Chartered Post Office Box 860 Panama City, Florida 32402-0860 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
