The Issue What amount of legal fees and costs should be awarded to Petitioner pursuant to Section 120.569(2)(e) or 57.105(5), Florida Statutes, for Respondent’s erroneous classification of Petitioner’s position and subsequent failure to correct that error and reclassify Petitioner’s position back to career service as requested by her in Georgalis v. F.D.O.T., DOAH Case No. 03-4665SED.
Findings Of Fact On April 1, 2002, Petitioner was discharged from her position with the Department without stated cause or hearing. See Petitioner’s Ex. 1-2, Dep’t of Transportation v. FCHR, 842 So. 2d 253, 256 (Fla. 1st DCA 2003). On June 11, 2003, Petitioner was temporarily reinstated by order of the Circuit Court to her position with the Department pursuant to section 112.3187(9)(f). Petitioner’s Ex. 1-3. The administrative case underlying this request for fees and costs was initiated by Petitioner through the filing of a Petition for Formal Administrative Hearing on August 15, 2002. Petitioner’s Ex. 1-4. In that Petition, Petitioner demonstrated, through reference to the position description provided to her by the Department, that she did not fit within any of the categories of employees exempted from career service by Section 110.205(2)(x), Florida Statutes. Petitioner’s Ex. 1-4, paragraph 7. Petitioner also put the Department on notice that she believed the Department’s action in reclassifying her was “frivolous and was done for an improper purpose,” since it was contradicted by the Department’s own documents. Petitioner’s Ex. 1-4, paragraph 12. She also requested that she be awarded appropriate attorneys’ fees and costs. Id. After nearly four months, the Department forwarded the Petition to the Division of Administrative Hearings for a formal administrative hearing regarding whether its decision to reclassify Petitioner was proper. Petitioner’s Ex. 1-5. By this letter, which was filed with the Division of Administrative Hearings on December 10, 2003, the Department requested a formal administrative hearing and manifested its opposition to the relief requested by Petitioner in her Petition. A hearing was held in DOAH Case No. 03-4665SED on April 15, 2004. Following the preparation of a transcript, the parties submitted Proposed Recommended Orders. Petitioner filed a Motion to Strike portions of the Department’s Proposed Recommended Order because it improperly raised an argument that Petitioner could properly be exempted from career service because she was an “administrator.” Petitioner’s Ex. 1-6. That Motion was granted. Petitioner’s Ex. 1-7.1/ On July 2, 2004, the undersigned entered a Recommended Order concluding that Petitioner was improperly reclassified into Select Exempt Service. Petitioner’s Ex. 1-8, p. 12. On September 1, 2005, the Department entered a Final Order adopting the Recommended Order entered in DOAH Case No. 03-4665SED.2/ Petitioner’s Ex. 1-11. Paragraph 13 of the fully-adopted Recommended Order states that: based on the duties and responsibilities contained in Petitioner’s position description and the actual duties she performed, there is no basis for concluding that Petitioner was subject to exemption from career service as concluded by Respondent in July 2001. Petitioner’s Ex. 1-8, paragraph 13. In paragraph 19 of the fully-adopted Recommended Order, the undersigned concluded that: [t]he suggestion of the Respondent’s witness that the exemption should apply if a state employee is assigned to work with anyone retained or commissioned by Respondent to perform services for Respondent, however menial the task, simply misconstrues the statutory exemption: the relevant issue for the purposes of the exemption is whether such persons are department “employees,” not whether a department has contracted or engaged their services as independent technical consultants. Such contract administration is not relevant to the issue of whether Petitioner could properly be classified as a selected exempt employee. Petitioner’s Ex. 1-8, paragraph 19. Following entry of the Recommended Order, Petitioner filed her two (2) Motions for Attorneys’ Fees. Petitioner’s Ex. 1-12 and 1-13. These motions seek an award of attorney’s fees and costs based on the lack of factual or legal support for the Department’s opposition to Petitioner’s request that the Department correct its error in reclassifying her position to Select Exempt Service. Id. Petitioner submitted an affidavit and itemized statement of the requested hours, a summary of hours by the attorney, and a summary of costs incurred in this matter. Petitioner’s Ex. 1-14. Petitioner also submitted the testimony of J. Steven Menton, Esquire, who corroborated the reasonableness of the services and time expended by Petitioner’s counsel and also confirmed the reasonableness of the fees charged and costs incurred by Petitioner’s counsel for those services. The Department did not contest the number of hours sought by Petitioner’s counsel. Respondent did offer the testimony of Michael Mattimore, Esquire, who was also counsel of record for the Department in this case, suggesting that the rates charged by Petitioner’s counsel exceeded those which are normally charged by similar attorneys in the community. Mattimore’s testimony related to fees charged in “employment” law cases in which he has been involved during his career and did not focus on administrative litigation challenging the actions of a governmental agency, such as the present case which involved more than merely examining the factual circumstances surrounding a discharge or other adverse employment action. Confirming the complexity of the underlying case was Mattimore’s testimony regarding the outcome in other reclassification cases. The great majority of reclassification challenges (more than 95 percent of them) have been resolved in favor of the governmental agency or have not been pursued by the impacted employee. Id. The outcome obtained by attorneys for Petitioner in the underlying case is suggestive of fees toward the high end of the range. Petitioner reported the following hours and rates (Petitioner’s Ex. 1-14): LAWYERS: Hours Rate Amount M. Stephen Turner, P.A. 44.40 $400 $17,760.00 David K. Miller, P. A. 1.00 $300 $ 300.00 Martin A. Fitzpatrick 228.50 $250 $57,125.00 Brooke Lewis .90 $200 $ 80.00 TOTAL ATTORNEY HOURS 274.80 $75,365.00 Paralegals: Theresa J. Everhart Hours 1.90 Rate $80 Amount $152.00 Trishia Finkey 1.00 $80 80.00 TOTAL PARALEGAL HOURS 2.90 $ 232.00 TOTAL LEGAL FEES: $75.597.00 The hours and rates requested are found to be reasonable in view of the novelty and complexity of the issues, level of legal skills required, and the result obtained for the Petitioner. The rates sought are in line with fees charged by similarly-situated attorneys for similar work in the community. The amount requested is reasonable and justified under the circumstances. Moreover, the costs and expenses for which reimbursement is sought ($1,523.25) and the expert witness fees of $1400 ($280 /hour for 5 hours) are also reasonable and are of a kind typically billed to clients in addition to the hourly rate charged.
The Issue Whether statements issued by the GEO Group, Inc. (GEO), a private company under contract with the Respondent, Department of Children and Family Services (Respondent or Department) to operate the FCCC constitute unpromulgated "rules" within the definition of Section 120.52, Florida Statutes (2007).
Findings Of Fact According to Part V of Chapter 394, Florida Statutes (2007), the Legislature determined that sexually violent predators generally have antisocial personality features that are not amenable to mental illness treatment. In response to a finding that such persons are likely to engage in repeated acts of criminal behavior, the Legislature created a civil commitment procedure for the long-term care and treatment of sexually violent predators. The FCCC was created as the appropriate facility to house and treat these individuals. See §§ 394.910 et seq., Fla. Stat. (2007). When a "sexually violent predator" is to be released from the incarceration portion of a criminal sentence, the person is committed to the custody of the Department for "control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." See § 394.917, Fla. Stat. (2007). The GEO Group, Inc. (GEO) is a private company that operates the FCCC under a contract with the Respondent. The contract ends on June 30, 2009. The contract dictates that GEO will: . . . fully implement all programs for FCCC residents which shall include a comprehensive sexual offender treatment program and all services necessary, including internal security, to support the full-time residential care of persons living in a secure facility, as described in the Program Description (attached as Exhibit H). The contract also directs GEO to: . . . be responsible for implementing a resident behavior management system that encourages good conduct, corrects misconduct, and generally promotes safety and security (as described in Exhibit H, Program Description). The contract specifies that resident behavior management would allow residents to earn or lose privileges in accordance with their conduct at FCCC; would list specific acts and types of misconduct, with a specific range of consequences associated with each act or type of misconduct; would secure confinement for residents whose conduct endangers the safe and secure operation of the facility; and would have an adequate due process mechanism for residents impacted by a behavior decision. The Respondent did not and does not dictate the specifics of how FCCC internal policies and guidelines are to be worded or developed. Timothy J. Budz, MSW, LCSW, is the FCCC facility administrator. Mr. Budz is responsible for the day-to-day operations at the FCCC and supervises employees and activities at the facility. He is also responsible for the development and implementation of internal policies and guidelines that GEO uses to comply with its contractual obligations with the Department. The Petitioner, Larry Phillips, is involuntarily committed to the FCCC. The record is not clear as to how long Mr. Phillips has resided at the FCCC. The Petitioner has challenged internal operating policies employed at the FCCC. Generally speaking, the operating procedures that are the subject of this proceeding are policies that held over from when the FCCC was operated by another company, Liberty Behavioral Health Corporation (Liberty). GEO took over this facility from Liberty in July 2006 and although it has attempted to revisit some of the policies (to include consideration of input from residents at FCCC, staff at FCCC, and the Respondent), the policies have not been completely reviewed or revised. Implicit in the testimony of Mr. Budz was a recognition that this Petitioner has been at the facility since (at least) July of 2006. The policies left by Liberty are not all enforced by GEO. The Petitioner challenges FCCC policy D-4. The policy (Respondent's Exhibit 9) states: It is the policy of the Florida Civil Commitment Center (FCCC) to ensure that residents will be able to send and receive mail and authorized packages. The "purpose" for policy D-4 states: To ensure that FCCC residents can receive and send mail and receive authorized packages in a timely manner while protecting against the introduction of contraband and other prohibited materials into the facility. FCCC policy D-4 was effective July 29, 2005. Attached to the three page policy were forms to be used in connection with mail that is received and sent. The Petitioner did not testify. There is no evidence that the Petitioner has been denied the ability to receive or send mail through the United States Postal Services (all mail and packages must be sent to residents via this method per the policy procedure). The Petitioner also challenged FCCC policy D-13. This policy provides: The Florida Civil Commitment Center will utilize restrictions on, or suspensions of, resident privileges in response to behavior that poses a danger to self, others, or property, or which is disruptive or otherwise interferes with the treatment milieu. The stated purpose of FCCC policy D-13 was: To limit or suspend privileges for residents who exhibit inappropriate or threatening behavior, until it is determined that the resident is able to exercise the privileges in a safe and proper manner. FCCC policy D-13 was effective March 3, 2003. Listed among its procedures are the restrictions and suspensions that are individualized to the resident and circumstance of the behavior reported. The Petitioner did not establish that any restrictions or suspensions of privileges had been enforced against him for any reason. At all times during the hearing of this cause the Petitioner and his qualified representative exhibited appropriate behavior and did not appear to be limited by any of the restrictions noted in policy D-13. The Petitioner challenged FCCC policy D-14. This policy states: The Florida Civil Commitment Center will impose restrictions on a resident's movement in response to inappropriate behavior, which is disruptive to the normal, efficient operation of the facility. The purpose of FCCC policy D-14 is: To limit exposure to external stimulation for residents who are disruptive and/or demonstrate a need to reduce their level of agitation. FCCC policy D-14 was effective March 3, 2003. Among the procedures noted for this policy is a provision of daily visits by a clinical therapist for a resident with movement restrictions. The Petitioner did not establish that he was ever subjected to movement restrictions. The Petitioner did not establish that he was ever denied a visit by a clinical therapist. The Petitioner did establish, however, that certain rooms used for residents whose movements are limited are the equivalent of a locked "cell" as that term is generally understood. The Petitioner challenged FCCC policy D-15. This policy was effective October 27, 2003, and has been identified as "under revision" by GEO. This policy, entitled "Behavior Intervention and Management," is one of the policies GEO is redrafting. In this regard GEO has sought input from the Respondent but is not governed by or dictated to follow any suggestions offered by the Department. Nevertheless, as adopted at the time of hearing, the policy provided: The Florida Civil Commitment Center will intervene when residents behave in a manner that jeopardizes their own safety or the safety of the facility, its staff, and/or residents; disrupts the orderly operation of the facility; and/or is inconsistent with the treatment goals established for the resident. Interventions will be based on the therapeutic and clinical needs of the resident, with due consideration given to the rights, consistent fair treatment, and well being of all residents and facility staff. The purpose of FCCC policy D-15 is: To establish a set of procedures whereby inappropriate behavior can be corrected or controlled in a reasonable and timely fashion, and the resident has a meaningful opportunity to participate in the behavior management process and seek review of the final disposition. The procedure for FCCC policy D-15 recognizes "minor misbehavior" that does not pose a significant threat and denotes its differences from resident behavior that does jeopardize security or safety. The Petitioner did not establish that he committed or was subject to either designation (minor misbehavior or otherwise). It is unknown if the policy has ever been enforced against this Petitioner. At hearing the Petitioner and his qualified representative conducted themselves in an appropriate, respectful manner and did nothing by word or act to suggest either has exhibited conduct within the governance of this policy. FCCC policy D-16 provides: The Florida Civil Commitment Center will utilize Secure Management in response to aggravated misbehavior, which jeopardizes the safety and security of the facility, its staff, and/or residents or seriously and maliciously disrupts the normal operations of the facility. The purpose for FCCC policy D-16 is: To restrict the mobility of a resident whose aggravated misbehavior demonstrates the need for a more secure environment until such time as the resident's mental status has returned to a manageable level and the resident no longer poses a risk to the safety or efficient operation of the facility. Under the procedures of this policy, the resident's liberty (mobility) and privileges may be limited. Again, as previously stated, the rooms wherein a resident who is subject to this policy may be confined are similar to "cells." Additionally, a resident subject to this confinement may be placed in hand and leg restraints. There is no evidence that the Petitioner has ever been subjected to this policy or is likely to be subjected to the terms of this policy. Further, there is no evidence that the policy would be applied to any resident not governed by the specific terms of the policy, ie. someone who must be placed in a locked room to prevent injury to others, damage to property, or threats to the security or normal operation of the facility. FCCC policy D-16 is currently under revision, but the version applicable to this case became effective March 3, 2003. The Petitioner challenged FCCC policy D-21 but it was not received in evidence. Petitioner's Exhibit H (not in evidence) purported to be this policy but is, on its face, outdated and has been superseded by another policy: FCCC policy D-4. As previously discussed, the receipt of packages by residents is governed by the "Packages and Mail" provision found in FCCC policy D-4. FCCC policy G-10 was also not admitted into evidence. It is entitled "Pornography, Prohibited and Inappropriate Materials." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit L. The Petitioner did not present any evidence regarding this policy. FCCC policy G-24 was also not admitted into evidence. It is entitled "Resident Computer Lab." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit N. The Petitioner did not present any evidence regarding how he has been adversely or positively affected by this policy. The Petitioner may have sought to challenge FCCC policy D-5. This policy (admitted into evidence as Respondent's Ex. 12) is entitled "Resident Communications, Complaints and Grievances." FCCC policy D-5 was effective June 23, 2003. The reason it is unclear whether this is the policy Petitioner sought to challenge is due to the numbering of policies. The FCCC policy included with Petitioner's pre-filed exhibits, Petitioner's Exhibit P, was numbered "G-5" however that provision purportedly dealt with "Supervision of Resident Movement." As to either policy, the Petitioner did not present any evidence to establish he had been adversely affected or would likely be affected by the policies. As previously indicated, the Petitioner abandoned his challenge to FCCC policy E-6, Use of Medical Seclusion and Restraints (Petitioner's Pre-filed but not offered Exhibit I). The Petitioner's pre-filed Exhibit K [FCCC policy G-6 entitled "Facility Searches"] was not admitted into evidence. The Petitioner offered no evidence to support a challenge to this provision. The Petitioner also challenged the FCCC Resident Handbook. The handbook was revised August 1, 2005, and portions of it are being revisited by GEO. A copy of the Handbook is provided to the FCCC resident upon arrival. It is also available to FCCC residents within the dormitories. The handbook gives an overview of the various FCCC operational policies and affords the resident a concise, quick reference for topics also addressed during the resident's orientation. One of the problems in this case stems from a general confusion as to what policy will govern a particular situation. In this regard GEO has not provided current editions of policies to the Petitioner or his qualified representative. In some instances it may be that the policy is still under consideration. The Respondent does not have control over the terms of the policies that have been or will become effective. The FCCC internal operating policies are ultimately determined by GEO and its staff. Presumably, GEO will provide updated versions of all policies to the Petitioner (and others at FCCC) when the handbook and policies are completed. The ability of a resident to review internal policies would undoubtedly prove instructive as to the types of behaviors and consequences likely to result from them. Additionally, as a grievance procedure will be provided it should afford residents with an outlet to vent their disagreements with any policy.
Findings Of Fact In February, 1984, Respondent herein, Lorenzo Thomas, sought and received official permission to seek the office of Manatee County Commissioner pursuant to Section 110.233(4)(a), Florida Statutes. He thereafter filed for election and was defeated. At the time, Respondent was serving as a volunteer coordinator with District VIII, a full-time Career Service position, and the office sought was a partisan office. The office held by Respondent at the time, that of volunteer coordinator, was at least partly funded by federal funds and under the provisions of the Federal Hatch Act, he was precluded from seeking partisan public office. This determination, however, was not communicated to the Respondent even though it was contained in a memorandum dated August 22, 1984 from C. T. Clagett, District Personnel Officer, and addressed to the Respondent at his office symbol. Respondent, therefore, believed that his application had been approved without qualification. In January, 1988, Respondent decided to again run for election to the office of Manatee County Commissioner, a position which remained a partisan political office. At the same time, he continued to occupy his position as a volunteer coordinator with the Department. His position was funded at least 25%, from federal funds. Respondent did not submit a request to his District Administrator, Ms. Dry, but discussed the matter with his immediate supervisor, Mr. Ward, and with several other coworkers and individuals. No one to whom, he spoke, indicated to him or raised the possibility that he would be ineligible to run because of the partial federal funding of his position or that if he ran for partisan political office, he would, by operation of law, be deemed to have resigned. Department regulation 60-30, dated November 15, 1982, which deals with political activities at subparagraph 4c(6), identifies as prohibited political activity, candidacies for partisan elective office by employees of the Department whose principal employment is in connection with an activity which is funded wholly or in part by federal funds or grants and subject to the Federal Hatch Act. Relying on the mistaken belief that his prior application had been properly approved, and believing that none of the circumstances which pertained at the time of the 1984 application had changed, Respondent failed to submit a new application relating to his new campaign for office in 1988. On July 20, 1988, Delores Dry, the District VIII Administrator, while in Tallahassee, received information that Respondent had initiated a campaign for local partisan office and on her return to her office on July 21, 1988, met with Respondent concerning it. When Respondent indicated he contemplated filing for office she informed him that he occupied an office covered by the Hatch Act and since the office sought was a partisan political office, he might be precluded from lawfully running. She also advised him that if she had the authority to do so, she would grant him a waiver, but that she did not have that authority. She advised State Senator Woodson of the same thing. Woodson, in turn, passed this information on to Thomas. July 22, 1988, was the last day for filing for election and on that date, prior to receipt of approval from his supervisor, Mr. Thomas filed for election to the Manatee County Commission and submitted his request to Ms. Dry through his immediate supervisor, Mr. Ward. Mr. Ward, in turn, forwarded the application with a recommendation for approval. The application was received by Ms. Dry on July 26, 1988 and Ms. Dry, who had done her research in the interim, denied the application and returned it to Respondent by mail that same day. She is satisfied he did not intend to violate the rules and that his mistake was an honest one. At no time was Mr. Thomas advised by anyone in authority that his application had been or would be approved. He believed, that his prior application approval, which he had not been advised was erroneously approved, would pertain again. However, the 1988 election was a separate election entirely from that for which he had received prior approval. He did not apply until the day of filing and his filing was accomplished prior to receipt of approval from Ms. Dry. He was not misled by anyone in authority with the Department, nor could he reasonably believe, based on his conversations with Ms. Dry or Senator Woodson, that approval was forthcoming
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, LORENZO THOMAS, be deemed to have resigned his position with the Department of Health and Rehabilitative Services effective upon receipt of the District VIII Administrator's memorandum to him of August 1, 1988. RECOMMENDED this 12th day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4585 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted herein. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein Accepted and incorporated herein Petitioner advised his agency in writing of his candidacy the day he filed for election. & 6. Accepted and incorporated herein 7. & 8. Accepted and incorporated herein FOR THE RESPONDENT 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein 5. - 7. Accepted and incorporated herein 8. & 9. Accepted in part but rejected as to the finding that Ms. Dry agreed to unequivocally grant Petitioner a waiver. Her agreement was conditioned upon her having the authority to waive, which she did not have. Accepted in part. Petitioner was not assured of any waiver. His interpretation of Ms. Dry's comments in that light was unjustified. Rejected in that Petitioner's reliance on the 1984 letter and the comments of Mrs. Dry and Mr. Ward was not reasonable. The rule clearly requires advance approval. He did not have it. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire District Legal Counsel HRS District VIII Post Office Box 06085 Ft. Myers, Florida 33906 Layon F. Robinson, II, Esquire 442 Old Main Street Bradenton, Florida 34205 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.
Findings Of Fact Stipulated Facts The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to: Jean B. Long Richard P. Daniel Building 111 Coastline Drive East Suite 508 Jacksonville, Florida 32202 The proposals were opened on May 12, 1995. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas. Additional Facts Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation). The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract." In the "Statement of Need" section of each Solicitation, DOR advised prospective providers: Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while insuring free and open competition among prospective proposers. To that end, the Department has departed from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one of these caps will result in automatic rejection of the entire proposal. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format: Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10) Consideration as to Geographic Area (0-4) Firm Resources (0-15) Computer/Software to Manage High Volume Caseload (0-7) Forms (0-4) Telephone System/Fax/Courier (0-4) Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Customer Services and Accessibility to CSE Staff (5) Minority Ownership (0-5) References (0-5) Evaluation of Cost (0-21) Formula X * A = Z _ N A = 21 (Total Possible Points) X = Lowest Proposal N = This Proposal Z = Points awarded * = multiplication The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet. TOTAL POINTS Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview." Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. " There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows: Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of 10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive. Under the heading "Copyright and Right to Data," the Solicitations provided as follows: Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . . Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data." Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal." Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that: After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals, the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that: [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . . DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 103.67 Schulman, Howard 99.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 105 99 Rick Humphries 104 98 Joan Zimmerman 102 100 Averages 103.67 99 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 97.67 Schulman, Howard 93 John Galletta, Jr. 59 Upchurch & Parsons, P.A. 84 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG SCHULMAN JOHN UPCHURCH HEMPHILL HOWARD GALLETTA & PARSON Clara Cross 99 93 61 83 Rick Humphries 98 92 57 82 Joan Zimmerman 96 94 59 87 Averages 97.67 93 59 84 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 99.67 Schulman, Howard 95.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 101 95 Rick Humphries 100 94 Joan Zimmerman 98 96 Averages 99.67 95 By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts." In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary." There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that: Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 11th day of September, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-10. Accepted. 11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance. Accepted as to first two sentences, remainder rejected as not relevant and speculative. Rejected, not supported by weight of the evidence, relevance and hearsay. Rejected, subordinate to HO findings. Rejected, relevance. Rejected, subordinate. Rejected, argument, relevance. Rejected, legal conclusion. Rejected, argumentative, legal conclusion. Respondent's Proposed Findings: 1.-11. Adopted, not verbatim. Rejected, subordinate to HO findings. Rejected, relevance. 14.-25. Accepted. Intervenor's Proposed Findings: 1.-46. Accepted, though not necessarily verbatim. COPIES FURNISHED: William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500 Jacksonville, FL 32216 Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire Office of the General Counsel Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32301 William E. Williams Huey, Guilday, & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, FL 32301 H. Michael Madsen, Esquire Messer, Vickers, et al. 215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302 Kenneth C. Pollock, Esquire 1401 Peachtree Street, Suite 500 Atlanta, GA 30309 Linda Lettera, Esquire Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100 Larry Fuchs, Exec. Dir. Department of Revenue 104 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 18th day of November, 2008.
Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
