The Issue The issue to be resolved in this proceeding concern whether the Petitioner has been retaliated against by the Respondent in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Leigh A. Bain, filed a Complaint with the Commission on May 16, 1997, alleging retaliation under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. The matter was investigated by the Commission and on November 24, 1999, the Commission issued a Notice of Determination of "no-cause." On January 3, 2000, the Petitioner mailed and faxed a Petition for Relief from an unlawful employment practice to the Commission. The Petition was served by mail on ECUA on January 3, 2000. ECUA filed an Answer and a Motion to Dismiss on January 24, 2000. Thereafter, on January 31, 2000, the Commission issued a Notice of Dismissal stating that the Petitioner had failed to file a timely petition, pursuant to Rule 60Y-5.008, Florida Administrative Code, and that the Petitioner had taken more than thirty-five days from the date of service of the Notice of Determination to file a petition. The Notice of Dismissal was filed with the Clerk of the Commission on January 31, 2000. On February 28, 2000, the Petitioner filed a Notice of Appeal with the Commission. The Notice stated that it was being filed in accordance with Rule 9.110(d) and Rule 9.130(c), Florida Rules of Appellate Procedure, to appeal the Notice of Dismissal of the Petition. On June 28, 2000, the Commission rescinded its previous dismissal, re-opened the Complaint and transmitted the Petition to the Division of Administrative Hearings. In the rescission order the Commission stated that it had previously dismissed the Complaint because the Petition had not been filed within thirty-five days of service of the Notice of Determination. The Commission then found that the Petition had been timely filed on January 3, 2000, using the date of the post-mark of the Petition and adding three days to the thirty- five day time limit for mailing. The Notice of Appeal had been filed with the Commission but not with the Appellate Court. Moreover, the Commission failed to transmit the record to the Appellate Court. In the Petition for Relief Ms. Bain alleges that she was a victim of sexual discrimination or harassment by her supervisor, Steve Burgess. She reported the alleged discrimination to her personnel director on October 4, 1996. She contends that her supervisor retaliated against her on November 11, 1996, by giving her a poor performance rating. Petitioner began employment with ECUA in January 1987, as Executive Secretary to Chuck Wigley, then Executive Director of ECUA. She worked in that position until 1989 and then began working for Steve Burgess who was then the Manager of Customer Relations. She worked for Mr. Burgess until she was transferred to the Engineering Department in June 1997. She was currently employed as an Office Assistant IV in the ECUA Engineering Department. Steve Burgess is the current ECUA Field Services Administrator. He is in charge of the ECUA division that deals with the public. That division has two departments, the Regional Services Department and the Customer Service department. It has approximately 225 employees. Mr. Burgess reports to Van Van Dever, the current ECUA Executive Director. Mr. Burgess has worked for the Respondent for fourteen years. On October 1, 1992, the Petitioner's job title was changed from "Executive Secretary" to "Administrative Secretary." Her salary remained the same and the grade was changed from X10-6 to C18. This was part of a re-classification effort for ECUA positions and pay grades when the ECUA became part of Escambia County's Civil Service System. The re- classifications of ECUA positions, within the county Civil Service System, was approved by the county's Civil Service Board and the ECUA Board. On October 1, 1996, the Petitioner's job title was changed to "Office Assistant IV." Her salary remained the same as it had been when she was an Administrative Secretary and her grade was changed from C18 to C20. This change was made in accordance with a wage and re-classification study and was approved by the county Civil Service Board. The Petitioner describes her re-classification to Administrative Secretary as bringing her and all department secretaries to the same level so there was no longer a distinction between what she had been and the other secretaries. She viewed this action as a demotion for her or a promotion for the other secretaries, with the result that they were all at the same level after the re-classification. These re- classifications, however, were not demotions for any disciplinary or performance reasons. The re-classifications of Ms. Bain's position in 1992 and 1996 occurred prior to the October 4, 1996, allegation of sexual harassment. The last re-classification to Office Assistant IV was effective on October 1, 1996, three days before the Petitioner decided to submit the October 4, 1996, memorandum concerning the harassment allegation. The Petitioner was upset over the re-classification decisions made as to her. In a May 2, 1996, memorandum to Mr. Burgess, the Petitioner stated in reference to the re-classification of her position to Administrative Secretary: . . . However, all positions previously classified as Secretary, Range 8, were also upgraded to Administrative Secretary, Pay Grade 18, which provided a substantial salary increase for those applicable employees. I was not pleased with the inequity of this situation. Through no fault or control of my own, my position was now considered to be equivalent with one that, for the previous five years, had been two pay grades lower. My qualifications had not changed; neither had those of the other employees, and yet somehow we were all considered to be equally qualified for the same position. When I raised this issue, I was told I had no reason to be upset as I had been placed in the highest level secretarial position that existed in the Civil Service System. . . . Ms. Bain continued to be concerned about the re- classification of her position and requested that it be upgraded to an Administrative Assistant position. She also filed an appeal of her Civil Service position allocation and formally requested that the Civil Service Board upgrade her position to Administrative Assistant. The Petitioner wanted Mr. Burgess, her supervisor, to support the upgrade of her position but he would not do so. She was dissatisfied with Mr. Burgess because he did not support a higher classification for her. She felt that if Mr. Burgess supported the upgrade she would have received it. Mr. Burgess and Ms. Bain discussed her concerns and her request for a position upgrade on April 22, 1996. Mr. Burgess explained to the Petitioner at that time why he could not support the upgrade. On one of her visits to see Mr. Van Dever, the Petitioner advised him that the relationship between her and Mr. Burgess had been tense over the re-classification issue. That matter was an issue all during 1996, between the Petitioner and Mr. Burgess. The Petitioner wrote in her comments on her 1996 evaluation that she believed that she was marked-down in attitude because of her classification appeal. She did not go to the committee that was conducting position audits, however, to speak with the committee about the re-classification of her position, even though this committee was to make recommendations on subjects such as the upgrade of Ms. Bain's position. There was an analogous Office Assistant IV position in the STR Division. Like Mr. Burgess, however, Bernie Dahl, the STR Director, did not support a position upgrade for his own Office Assistant IV either. Ms. Bain went to Mr. Van Dever to complain about three incidents involving Mr. Burgess. The first incident occurred in February 1993. She met with Mr. Van Dever and he seemed supportive. He said that he would speak with Mr. Burgess about the matter. He met with Mr. Burgess and Ms. Bain felt that things seemed to improve. The next incident with Mr. Burgess occurred a year later on January 20, 1994, when Mr. Burgess allegedly became upset when he discovered that a letter had gone out with a handwritten invoice attached to it. When Ms. Bain called Mr. Burgess' attention to the fact that he had signed the letter with the handwritten invoice attached he allegedly became agitated and angry. She went to see Mr. Van Dever about this incident. She felt that things improved once again after Mr. Van Dever met with Mr. Burgess about this incident. In September 1996, a third incident occurred about which Ms. Bain complained to Mr. Van Dever. This incident arose when Mr. Burgess asked Ms. Bain to forward his and her phone lines when they had to be away from their desks to someone other than Quanita Stallworth, who handled the ECUA switchboard. He did this because he was concerned that Ms. Stallworth had too many calls to handle when all the phone lines were transferred to her at lunch and when employees were away from their desks. Ms. Bain was initially told to forward the phones to Linda Sutherland. When she objected to forwarding her phone to Ms. Sutherland, Mr. Burgess told her that she could forward it to Linda Iverson or to someone other than Linda Sutherland " . . . as long as its not going to Quanita " After the Petitioner had been directed not to forward the phones to Quanita Stallworth, Mr. Burgess discovered that she had disregarded his instructions and forwarded her phone to Ms. Stallworth. When he reiterated to the Petitioner that they were not going to forward the phones to Ms. Stallworth, the Petitioner told Mr. Burgess that " . . . then I'm going to go see Van." Mr. Burgess told her to go ahead and see Mr. Van Dever. The result of this incident was that Mr. Van Dever allowed Ms. Bain to continue to forward her phone to Quanita Stallworth. Mr. Burgess and Ms. Bain had a meeting with Mr. Van Dever after the phone forwarding incident. They were both told that they needed to try to work together in a professional way and they agreed that they would do so. There was discussion during that meeting about attempting to locate another position for Ms. Bain but there were no openings at the time. When the Petitioner went to Mr. Van Dever about the incident concerning the phone on September 25, 1996, her Complaint involved that particular incident, the switching of the phones. She did not claim gender-bias discrimination in her conversation with Mr. Van Dever. The Petitioner does not recall mentioning, in any conversation that she had with Mr. Van Dever, that she had filed a sexual harassment complaint against Mr. Burgess. In her conversations with either Mr. Van Dever or Mr. Burgess, the Petitioner did not tell either Mr. Burgess or Mr. Van Dever of filing any sexual harassment complaint against Mr. Burgess. She did not give Mr. Burgess or Mr. Van Dever a copy of her October 4, 1996, memorandum which contained her allegations of sexual harassment against Mr. Burgess. The issue she had taken to Mr. Van Dever in September 1996, was to the effect that she felt Mr. Burgess was a tyrant and that he mistreated employees. When she went to Mr. Van Dever to complain about him she raised a morale problem or a problem among several employees whom Mr. Burgess supervised. The morale issue due to Mr. Burgess was her whole reason for complaining at that time. The morale issue is what the Petitioner wanted Mr. Van Dever to look into and she identified male and female employees for him to talk to in order to confirm her complaint that Mr. Burgess mistreated employees. The Petitioner has at various time, identified several employees she believes have had significant problems with Mr. Burgess, including males, such as Bob Kintz, Gabe Brown, and Glenn Johansen. Mr. Van Dever told the Petitioner that he had talked to everyone of the employees that she had identified and that none of them agreed with her. Nettie Williams, the ECUA customer Service and Collections Manager, has worked for Mr. Burgess, her immediate supervisor, since 1989. Mr. Van Dever questioned Ms. Williams about an alleged morale problem in the customer service area in the fall of 1996. He asked her whether she had had any problems with Mr. Burgess and she told him that she did not and that any issue she and Mr. Burgess had they would be able to sit down and work out. Kathy Gaut, the ECUA Internal Programs Coordinator, directs training and other employee-related programs, internal communications, the newsletter and any kind of employee activities. She has been employed with ECUA for about seven years. It is the nature of her job to be in touch with and interact with a lot of employees. Mr. Van Dever often asked Ms. Gaut about general employee issues because of her contact with ECUA employees. In October 1996 Mr. Van Dever asked Ms. Gaut whether she was aware of any problems that employees might be having with Mr. Burgess. She told Mr. Van Dever that she did not know any problems employees were having with Mr. Burgess and that she was not having any problems with him. Mr. Van Dever asked her how she felt employees regarded Mr. Burgess and if he intimidated people. She responded that some people believed that he was abrupt or even rude at times. She advised that his personality was such that he could be very pleasant and convivial but when he had a problem or a particular situation to address, he could come across as being abrupt because he wanted to get right to the point and get the job done and go on to the next subject. She told Mr. Van Dever that she felt that some people may have a problem with Mr. Burgess being abrupt with them because he was so focused on getting his job done. Ms. Gaut is aware of Mr. Burgess' management style and his manner of dealing with people because she has been around him in numerous director and staff meetings. She has observed his interaction with employees at all levels of the company. Mr. Burgess' management style is to get to the point and not string out conversations about an issue when he is ready to get a problem resolved. Ms. Gaut has observed Mr. Burgess and Ms. Bain interacting approximately 10 to 15 times over a five-year period. Ms. Gaut never witnessed Mr. Burgess treating females unfairly as opposed to males and has never herself experienced gender bias from Mr. Burgess. Ms. Nettie Williams was present when Mr. Burgess directed the Petitioner not to forward her phone to Quanita Stallworth. Ms. Williams has never witnessed what she felt was gender bias on the part of Mr. Burgess and has never been treated differently by Mr. Burgess because she was female. On October 4, 1996, the Petitioner met with ECUA Human Resources Director Grant Holmes and submitted a memorandum dated that day in which she complained about Mr. Burgess' conduct toward her. In that memorandum she recites three incidents which allegedly involved inappropriate behavior by Mr. Burgess: the February 1993 incident, when Mr. Burgess had interrupted an attorney in an interview of the Petitioner to tell her to take care of the mail; the January 1994 incident over the handwritten invoice and the September 24, 1996 incident over the forwarding of the phones. In the October 4, 1996 memorandum, Ms. Bain states that she believed Mr. Burgess' conduct towards her was a form of sexual harassment in that Mr. Burgess allegedly engaged in intimidation of her and tended to view a certain type of behavior by males as acceptable, while the same type of conduct by a female he viewed as unacceptable. The basis for her belief that Mr. Burgess treated males differently from her was an incident involving Gabe Brown. Mr. Burgess had an incident with Gabe Brown when an ECUA board member reported that a male customer service representative had been rude to a customer. The board member told Mr. Burgess that he needed to investigate it right away. Mr. Burgess went to the customer service department and called the only two male customer service representatives out of the office and talked with them in the hallway to find out which one had talked with a customer who had complained to the ECUA board member. Mr. Brown was not the one who had the conversation with the complaining customer. Upset, Mr. Brown later came to Mr. Burgess and complained to him that he was embarrassed because Mr. Burgess had singled him out in front of all the other employees as if he had done something wrong. Mr. Burgess thought about the incident and felt that Mr. Brown was right about his handling of the situation. Mr. Burgess therefore apologized to Mr. Brown. Mr. Burgess has apologized to the Petitioner as well. Once when he called a meeting with the Petitioner and the meeting deteriorated, he apologized to her because he felt he was responsible for the conduct of the meeting as the supervisor. He also apologized after the February 1993 incident when he interrupted the Petitioner and called her out of a meeting with an attorney. On that occasion, Mr. Van Dever instructed him to apologize. However, Mr. Burgess accepted the responsibility for his conduct and was sincere in his apology. Mr. Holmes asked the Petitioner, during the meeting with her on October 4, 1996, whether she was claiming that Mr. Burgess had engaged in unprofessional and sexual conduct toward her and she told Mr. Holmes that Mr. Burgess had not done so. The substance of the claim that the Petitioner made was gender bias, although she called it sexual harassment. In the October 4, 1996 memorandum the Petitioner stated that she could only assume that her Civil Service appeal in May of 1996 had something to do with the way Mr. Burgess treated her. In an October 8, 1996, meeting with Mr. Holmes and Mr. Van Dever, the Petitioner requested that she be removed from Mr. Burgess' supervision. This was also discussed at a later meeting on that same day with Mr. Burgess and Mr. Van Dever. Shortly after the October 8, 1996, meeting, Mr. Holmes discussed with Ms. Bain his efforts in attempting to relocate her in another Office Assistant IV position. Mr. Holmes had asked the other employees in the same classification if they would agree to be moved from their current positions and exchange work assignments and locations with Ms. Bain. All elected not to do so. Mr. Holmes also sent Ms. Bain information on other open positions county- wide. Ms. Bain met with Mr. Holmes and Linda Walen. Mr. Holmes met with Ms. Bain again in January 1997 to discuss the job search for the Petitioner and to tell her that he had been unable to find anything for her. After she filed her retaliation complaint with the Commission, Ms. Bain was transferred to the Engineering Department in the same position. She has the option to apply for position openings throughout the ECUA organization and is not restricted only to promotions within the Engineering Department. ECUA employees, including those in the same position as Ms. Bain, can be promoted to positions anywhere within the ECUA organization. Employees in the Petitioner's position, Office Assistant IV, have gone from the ECUA STR Department to the Purchasing Department and from an Office Assistant IV position to a Purchasing Agent position. Ms. Bain's assignment to the Engineering Department does not preclude her from promotional opportunities that may open up anywhere in the ECUA organization. The Petitioner has had no problems with perceived bias or other difficulties in her employment in the Engineering Department. Mr. Burgess, as Ms. Bain's supervisor, did her performance evaluation in 1996. He gave what he thought was an overall good evaluation. In the ECUA ratings scale a "good" rating is not an "average" rating but is a rating that can be from 70% to 95% out of a possible 100%. For those areas where Mr. Burgess marked her evaluation "good," he felt that Ms. Bain was in that range and that she had indeed done a good job in those areas. Her performance rating in 1996, which she signed on November 12, 1996, was a total weighted score of 3.4 with a "good" rating in the following five categories: "Attitude," "Communication," "Human Relation Skills," "Initiative/ Creativity" and "Safety." The Petitioner received an "Excellent" rating in the areas of "Quality," "Productivity" and "Care of Facilities & Equipment." There were no negative ratings in any category. The 3.4 score was almost half-way between a "good" and an "excellent" overall rating. As shown by Mr. Burgess' rating comments on the 1996 evaluation, depicted in Petitioner's Exhibit 2, he felt that, due to the problems Ms. Bain had with the Civil Service re-classification of her position, she did not go the "extra mile" during 1996. She did her job and did what was asked of her but did not take the initiative to do anything other than what was asked of her. Mr. Burgess felt that the re-classification issue affected her output at work and her overall attitude on the job so that he could not give her a higher evaluation like he had done in 1995 when he rated her as "Excellent." Ms. Bain submitted a memorandum dated November 12, 1996, in response to the 1996 evaluation. Ms. Bain states, in that memorandum, that she and Mr. Burgess were "beyond the point of talking about this (see my memorandum to Grant Holmes dated October 4, 1996) . . .." While the Petitioner references her October 4, 1996 memorandum in the November 12, 1996 memorandum in response to her evaluation, she does not reference sexual harassment or the fact that she had filed a discrimination complaint against Mr. Burgess. Mr. Burgess did not counsel Ms. Bain during 1996 about a deterioration in her attitude because overall he rated her as having a good attitude. He did not feel that her attitude warranted counseling. He felt that Ms. Bain was doing her job and did not feel that she was doing bad things. Further, Ms. Bain was not happy with the re-classification situation and Mr. Burgess did not want to "stir anything up." The 1996 rating did not indicate a significant deterioration in the Petitioner's attitude. Her attitude was not excellent in terms of the rating scale, so Mr. Burgess did not feel that he could give her a 4 rating as he had done in 1995. In the previous year, 1995, Mr. Burgess had given her Superior ratings in four categories because he felt that she had gone out of her way to do extra things and to take on extra tasks. In 1995, he evaluated Ms. Bain, giving her a total weighted score of 4.1 with a "Excellent" rating in all categories except for a "Superior" in a category of "Care of Facilities & Equipment." He made comments on her 1995 evaluation to the effect that Ms. Bain continued to do excellent high-quality work. In 1992, the Petitioner received a total weighted score of 3.6 with a "good" rating in "Attitude," "Communication," and "Human Relation Skills." She received an "Excellent" in "Quality," "Productivity," "Initiative/ Creativity," "Safety," and "Care of Facilities & Equipment." In 1993 she received a total weighted score of 3.7 with good or excellent ratings in all categories. In 1994, Mr. Burgess rated her with a total weighted score of 4.0 with an "Excellent" rating in all categories. In 1997, Bill Johnson, the Director of the Engineering Department, gave Ms. Bain a total weighted score of 3.2, a lower rating than Mr. Burgess had given Ms. Bain in 1996, the evaluation which she alleges is retaliatory. Mr. Johnson gave her a "good" in all categories. There is no evidence that she has had any friction since transferring to the Engineering Department. In 1998 Mr. Johnson gave her again a total weighted score of 3.2 and a "good" rating in all categories except for "Quality" for which she was given a "Superior" rating. In 1999, Mr. Johnson gave her a total weighted score of 3.5 and gave her a "good" in all categories except for "Communications," "Quality," and "Productivity" for which she was given "Superior" ratings. In the year 2000, Mr. Johnson gave her a total weighted score of 3.5 with a "good" in all categories except for "Communication," "Quality" and "Productivity" for which she was again given "Superior" ratings. Mr. Johnson's ratings of Ms. Bain were not adverse actions or discriminatory and such has not been claimed by her. Since 1992, the Petitioner has received a "good" rating in "Attitude" on all evaluations except for the 1994 and 1995 evaluations when she received "Excellent" ratings in that category by Mr. Burgess. Her current supervisor, Bill Johnson, has never rated her higher than "good" in the "Attitude" category. Thus, in the nine-year period, she has received a "good" rating in "Attitude" on seven out of nine ratings. Mr. Burgess was not aware that Ms. Bain had filed a sexual harassment complaint or any kind of discrimination complaint against him at the time he completed the 1996 evaluation. Although he knew that Ms. Bain had gone to Mr. Van Dever concerning his directive to her that she should not forward her phone to Quanita Stallworth at the switchboard, and although he was later told that Mr. Van Dever was investigating whether there was a morale problem in his division, he did not actually know that a sexual harassment complaint had been filed regarding him. He learned of it when the Petitioner filed her retaliation complaint with the Commission and referenced a previous "sexual harassment" complaint that she had filed on October 4, 1996, with the ECUA. Mr. Burgess found that she had submitted the October 4, 1996, memorandum when she made reference to it in a November 12, 1996, memorandum which she wrote in response to the November 11, 1996, performance evaluation. However, he did not learn that she claimed to have filed a sexual harassment complaint against him until the ECUA was notified of her retaliation charge by the Human Relations Commission. Mr. Holmes never told Mr. Burgess that the Petitioner had called her complaint a sexual harassment complaint or gender-based discrimination complaint. Neither Mr. Holmes or Mr. Van Dever told Mr. Burgess about the contents of the October 4, 1996, memorandum. Mr. Burgess did not know until early June 1997 that the Petitioner had alleged that he had sexually harassed her because when he found out about the sexual harassment complaint, he had just been nominated to be president of the local Chapter of the American Cancer Society, in late May 1997. When he received notification that Ms. Bain was claiming sexual harassment, he went to the leaders of the American Cancer Society and offered to resign or have them not name him as president so as not to cause the Society any embarrassment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations finding that the Petitioner failed to establish that she was the victim of discriminatory retaliation and dismissing the Petition in its entirety. DONE AND ENTERED this 8th day of March, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Rosa Carson, Esquire Carson & Adkins 2958 Wellington Circle, North, Suite 2000 Tallahassee, Florida 32308-6885 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Sea World violated section 760.10, Florida Statutes by imposing stricter dress codes on males than on females and by laying off John Graziano because of his sex, male.
Findings Of Fact Sea World of Florida, Inc. (Sea World), is a theme park in Orlando, Florida, which provides marine life exhibits and shows to the public and conducts marine life research. John Graziano was hired on March 11, 1986, as a gardener in the landscape department, which department is responsible for landscaping, planting and pest and rodent control in the park. Sea World's landscape department has grooming standards for its employees. A memorandum from the President of Sea World referencing the standards in the employee handbook and urging a positive image, was posted on the employee's bulletin board. John Graziano was one of many employees who signed a form stating that he had received and read a copy of the dress and grooming standards. In February 1987, Dan Trausch, the Vice-President in charge of the landscaping department noted that a lot of the landscape staff in the park were out of uniform. Bob Vidler, Director of Horticulture met with his supervisors and circulated a memo to all employees reminding them to wear hats and regulation belts. The company provided uniforms for the employees. On March 20, 1987, John Graziano was given a written counselling report and was suspended for refusing to wear his hat. He had been orally warned at least three times prior to the suspension. On March 27, 1987, John Graziano was written up again on a counselling report for his negative attitude and "resentment." He was placed on 30 days probation. In July 1987, Bob Vidler was still having problems with his staff's compliance with grooming standards and he issued a memo, dated July 31st to all landscape employees: This is the final warning in relation to maintaining grooming standards. This includes hair, name tags, caps and visors. I do not want to be told by Administration that we are not adhering to the rules. PLEASE SIGN BELOW TO INDICATE YOU HAVE SEEN THIS. (Respondent's Exhibit 5) John Graziano claims that he never saw this memo, but included among the other purported signatures of the employees is a notation, "Graziano refused to sign." On August 18, 1987, Graziano was given a written counseling report for failure to comply with grooming regulations, violation of company or department procedures, insubordination and failure to obey orders. The report was characterized as a "final warning" and Graziano was told if the behavior continued, he would be discharged. During this time, Sea World's owner, Harcourt, Brace, Jovanovich (HBJ) was the target of an "unfriendly" corporate takeover attempt. All departments were under pressure to find ways to reduce costs. Bob Vidler submitted a series of recommendations for the landscaping department, including the reduction of payroll. He determined that $177,943.00 per year could be saved by reducing the permanent full-time staff by eight people and substituting seasonal temporary employees. John Graziano was an obvious choice for layoff. In Vidler's view, he and several others were "deadwood," carried by the remaining employees. Vidler felt that Graziano was rebellious and did not like following the rules. He spent a lot of time standing around talking. Graziano was the only employee Vidler consistently observed without a hat and he was the only employee suspended for the infraction. Graziano claims that the dress code policies were only enforced against males and that he was singled out for discipline and layoff because he was a male. He presented no evidence to support that claim. The individuals who made the layoff decisions are male; thirty-one out of thirty-nine landscape department employees are male; and five of the six temporary employees hired were male. Sea World established that the action taken with regard to this employee was a legitimate business decision.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Petitioner's Petition for Relief be DENIED. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Office 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 9th day of February, 1989. COPIES FURNISHED: John Graziano Apartment 231 9100 Meadowcreek Drive Orlando, Florida 32821 Harvey D. Rumeld, Esquire Dow, Lohnes & Albertson 1255 - 23 Street N.W., Suite 500 Washington, D.C. 20037-1194 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue in this case is whether the termination of Respondent was in accordance with the personnel policy and procedures established by Emerald Coast Utility Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. On September 25, 2006, Respondent was employed by Petitioner as a lead service worker. At the time, Respondent was given a copy of the employee handbook and the Drug Free Work Place Program notice. Receipt of both documents was acknowledged by Respondent. Until the time of the incident described in this order, Respondent was considered an excellent employee with high potential for advancement. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resource Policy Manual. The Human Resource Policy Manual states, in relevant part, as follows: * * * Section F-4 Disciplinary Offenses (29) Use of or Being Under the Influence of any Controlled Substance as Defined in Section 893.03, Florida Statutes or Federal regulation, Not Pursuant to Lawful Prescription While on Duty; or Possession, Sale, ‘Illegal drug’ means any controlled substance as defined in Section 893.03, Florida Statutes or Federal regulation, which is not possessed, sold, distributed, or dispensed in accordance with law. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . Chapter G Drug and Alcohol Abuse Policy It is a condition of employment with the Escambia County Utilities Authority for an employee to refrain from reporting to work or working with the presence of drugs and alcohol in his or her body. If an employee tests positive for alcohol or drugs, his or her employment may be terminated . . . Section G-2 Definitions B. ‘Drug abuse’ means the use of any controlled substance as defined in Section 893.03, Florida Statutes, as amended from time to time, not pursuant to lawful prescription. The term ‘drug abuse’ also includes the commission of any act prohibited by Chapter 893.03, Florida Statutes, as amended from time to time. The use of illegal drugs, or being under the influence of illegal drugs on the job, by ECUA employees is strictly prohibited. Section G-5 Rehabilitative/Corrective Action B. Any employee found to have possessed, used or been under the influence of illegal drugs or alcohol while on duty shall be subject to disciplinary action, up to and including dismissal . . . . E. Any employee who tests positive for alcohol or who tests positive for illegal drugs on a confirmation test shall be subject to disciplinary action, up to and including dismissal . . . . On August 14, 2009, Respondent was driving an ECUA vehicle while performing his job duties for Petitioner. Respondent did not see a low-hanging tree branch and struck the branch with the vehicle, causing minor damage to the vehicle. Respondent contacted his supervisor to report the accident. Respondent’s supervisor met Respondent at the accident site. He did not observe any behavior by Respondent that would indicate he was under the influence of any substance. However, because a vehicle accident had occurred, Respondent was required by ECUA policy to undergo a urine test for drugs and alcohol. That day, Respondent reported to LabCorp, ECUA’s occupational testing services company. LabCorp is a licensed facility under state and federal law to obtain urine samples for drug-testing purposes. Respondent was seen by a LabCorp technician who was well-qualified to obtain and process urine samples. The technician checked Respondent’s identification and had him empty his pockets prior to the test. The technician gave Respondent a sample cup, with a temperature strip on it. The temperature strip helps ensure that the liquid in the cup is close to body temperature indicating the liquid is urine and has not been adulterated. Respondent took both cups in the bathroom and urinated in them. Respondent returned the sample to the technician. In the presence of Respondent, the technician checked the temperature of the sample, which was normal. The technician then split the sample into to two test tubes, sealed each tube, labeled them and had Respondent initial each tube. The technician recorded her activity in processing the sample on a custody and control form which Respondent then signed, acknowledging the sample-taking process. Again in the presence of Respondent, both the custody and control form and the two samples were placed in a sample bag which was sealed with an evidence sticker and placed in a locked specimen box for transport to a licensed testing facility in North Carolina. There was no evidence that appropriate procedures were not followed by LabCorp in processing Respondent’s urine sample. Respondent’s sample arrived at LabCorp’s testing facility at Triangle Park in North Carolina on August 17, 2009. Sample A was used for initial testing and Sample B was frozen to preserve it for later testing if required. The sample was tracked through the test process by number and the name of Respondent is not known to the technician performing the tests. The first test performed on Respondent’s sample A was an immunoassay test. The sample was initially tested with a cut-off level of 15 nanograms per milliliter. The cut-off level is used to limit the possibility of a positive result due to secondhand exposure. Respondent’s sample tested positive for Cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GCMS) confirmation testing. GCMS tests for the presence of THC, the exact metabolite of marijuana. Respondent’s sample produced a positive result for THC. The results were reported to ECUA’s medical review officer and to ECUA. Upon learning of the positive test results, Respondent requested that the second sample be tested by another lab. The sample was sent to another LabCorp testing facility in Houston, Texas. Unfortunately, the second sample tested positive for marijuana. Respondent had no explanation for the positive test results and testified that he had not used marijuana for some 15 years. However, no credible evidence was produced at hearing that demonstrated the samples were adulterated, mixed up or improperly tested. Given these facts, Petitioner has established that Respondent tested positive for marijuana and that such results violate its drug policy.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (29) and (33) and impose such discipline on Respondent as determined appropriate. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Terrance D. Peace 5748 Juergen Way Milton, Florida 32570 Richard C. Anderson, SPHR Director of Human Resources & Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which the Petitioners and the Intervenor assert that they are substantially affected by an agency statement that violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns the method of determining the order of layoff of some of the Respondent's employees.
Findings Of Fact Stipulated facts In 1996, the federal government modified and/or reformed welfare to require eligible participants to obtain employment. The Florida Legislature enacted Chapter 414, Florida Statutes, also known as the WAGES law, which required the Respondent to provide certain services to applicants for and participants in the WAGES program, including work activities, training, and other job-related services, which the Respondent termed "front-end services." Those services were primarily provided by Career Service employees of the Respondent. In 1998, the Florida Legislature amended portions of the WAGES law to require that local WAGES coalitions, instead of the Respondent, provide those front-end services to WAGES participants, effective October 1, 1998. As a direct result therefor, the Respondent was required to lay off approximately 700 career service employees. As a part of the implementation of the announced layoff of employees, Respondent requested approval of a method of determining the order of layoff, pursuant to Rule 60K- 17.004(3)(g), Florida Administrative Code, which provides: (g) Agencies shall then choose and consistently apply one of two methods, or another method as approved by the Department of Management Services, in determining the order of layoff. These methods are commonly referred to as "bumping." Option 1: The employee at the top of the list shall have the option of selecting a position at the bottom of the list based on the number of positions to be abolished, e.g., 20 positions in the affected class, 5 positions to be abolished. The employee at the top of the list can select any of the positions occupied by the 5 employees at the bottom of the list. The next highest employee on the list then has the option of selecting any of the positions occupied by the 4 remaining employees at the bottom of the list with the process continuing in this manner until the 5 employees at the top of the list have exercised their option. Option 2: The employee at the top of the list has the option of selecting any position occupied by any employee on the list with fewer retention points in the class. The next highest employee and remaining employees shall be handled in a similar manner until the list is exhausted. Rather than selecting Option 1 or Option 2, set forth in the published rule, the Respondent requested approval of an alternative method of determining the order of layoff. By letter dated August 17, 1998, the Department of Management Services (DMS) approved the method of determining order of layoff set forth in its correspondence. The method of determining the order of layoff is described by DMS in its approval letter as: The option you have chosen will allow adversely affected employees to select any position in the affected class and series, in the competitive area approved in our August 5, 1998 letter. Neither the Respondent's request for approval of the alternate method of determining the order of layoff, nor DMS' approval of that method, have been adopted in substantial conformity with Section 120.54, Florida Statutes. The Respondent's request for approval of the alternate method of layoff was intended to apply solely to the layoff occasioned by changes in the WAGES law. Facts based on evidence at hearing Florida Public Employees Council 79, AFSCME, is the certified bargaining agent for approximately 67,000 career service employees of the State of Florida. As such, it represents the employees of the Department who were affected by the subject layoff. The individual Petitioners, Betty Hall, Diana Lomas, Mercedes Valdez, and Elizabeth Judd, are members of the AFSCME collective bargaining unit. The challenged bumping procedure was not reached by collective bargaining. Under the alternative layoff method approved for the Respondent by DMS, employees with the greater number of retention points received enhanced bumping rights, permitting them to "bump" employees with fewer retention points in the same class and in the class series. Conversely, by this alternative procedure, employees with fewer retention points were accorded diminished protection against bumping. These employees could be bumped not only by employees with greater retention points in the class, but also by employees with greater retention points in other classes in the class series. For example, Consuelo Casanovas, from Petitioners' Exhibit 8, who was adversely affected in her position of Employment Security Representative I, was accorded bumping rights to positions in her class and to positions in the other two classes in the class series, Customer Services Specialist and Interviewing Clerk. Had the Respondent elected Option 1 or Option 2 in the published rule, Rule 60K-17.004(3)(g), Florida Administrative Code, Ms. Casanovas would not have had the right to bump to positions in the other two classes, and persons in those other two classes would not have been subject to bumping by Ms. Casanovas.1
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
The Issue Whether Respondent committed the violations alleged in the agency action letter dated June 21, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Page as the utility service worker in the patch services division (“the patch crew”). Mr. Page acknowledged on October 10, 2016, that a copy of the Manual was made available to him. The patch crew normally works from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. The patch crew also receives two 15-minute breaks each day. Mr. Page would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. The patch crew would use one or more of those vehicles to complete the day’s assignments and return them to the Sturdevant Street location at the end of each day. ECUA’s management received information in May of 2018, that members of the patch crew were leaving work early without authorization. This information led ECUA’s management to initiate an investigation. Part of that investigation involved the installation of tamper-proof global positioning devices (“GPS”) in ECUA vehicles. Those devices transmit a vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA’s management also hired a private investigator, Terry Willette, to observe and record the activities of the patch crew. Findings Regarding the Allegations from May 10, 2018 On May 10, 2018, Mr. Page received at least four assignments to fill holes at locations in Pensacola. Mr. Page recorded in ECUA’s work tracking system that he spent two hours completing two of those jobs and one hour completing the other two. Mr. Willette followed Mr. Page that day, and his observations contradict those time entries. Mr. Willette observed Mr. Page driving all over Pensacola, stopping on several occasions, and performing significant work at only one location. ECUA has proven by a preponderance of the evidence that Mr. Page wasted an excessive amount of time on May 10, 2018. Findings Regarding the Allegations from May 11, 2018 The May 11, 2018, GPS report for truck #1624 indicates that it stopped at or near Mr. Page’s residence from approximately 9:21 a.m. to 9:28 a.m. It is possible that Mr. Page used one of his 15-minute breaks to stop at his residence, and there is no evidence that ECUA expressly prohibits employees from stopping at their homes. The preponderance of the evidence does not demonstrate that Mr. Page violated any Manual provisions on May 11, 2018. Findings Regarding the Allegations from May 24, 2018 The patch crew employees use an electronic timekeeping system to record the amount of hours they work each day. The Manual specifies that every ECUA employee is responsible for verifying the accuracy of those time entries. Mr. Page’s entry for May 24, 2018, indicates he worked eight hours that day. Mr. Willette observed Mr. Page leaving work at 12:59 p.m. on May 24, 2018. Also, one of the ECUA trucks often utilized by Mr. Page was in use from 7:01 a.m. until 12:57 p.m. on May 24, 2018, and was not used again that day. The preponderance of the evidence demonstrates that Mr. Page failed to verify the accuracy of his time entry for May 24, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Tadarel S. Page violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; Section B-13 A (18), loafing; Section B-13 A (21), neglect of duty; Section B-13 A (26), substandard quality and/or quantity of work; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of September, 2018.
The Issue Whether petitioners Hampton, Busbee, Davis and Robertson, as elected board members of the Escambia County Utilities Authority, are eligible for membership in the Elected State Officers' Class of the Florida Retirement System as "county elected officers" within the meaning of Section 121.052(1)(g), Florida Statutes (1985)?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State; Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . receive a higher retirement benefit for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. ECUA CREATED. A few years back, "Escambia County and the City of Pensaco1a, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the .,. customers but not the facilities ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to built] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida, (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). The original Special Act transferred city and county utility employees to the ECUA "without loss of benefits, Ch. 81- 376, Section 9(c), Laws of Florida (1981j, and specifically provided, with respect to retirement benefits: (b) The authority may provide social security for its employees pursuant to the provisions of chapter 650, Florida Statutes, and may bring its employees under the Florida Retirement System, the State and County Officers and Employees Retirement System, or any other qualified retirement program. (c) . . . Employees who are transferred to the authority and who are members of the retirement systems available to employees of the City of Pensacola or Escambia County shall not lose those pension or retirement rights or any reserves accrued to their benefit during the period of their employment by the city or county. Such employees may elect to retain the pension and retirement rights accrued during the period of their employment by the city or the county. Any employee so electing shall give written notice of his election, within thirty (30) days or such longer period of time determined by the authority after the effective date of the transfer, to the City Manager of the City of Pensacola or to the County Administrator of Escambia Coutny, as appropriate, who shall then process the notice. In the event any employees elect to retain their pension and retirement rights accrued during the period of their employment with the city or the county, or prior to such election, the authority shall pay into the appropriate retirement system during the period that such employees remain as authority employees, such sums of money as are paid by the city or the county for the benefit of such employees in order to guarantee their continuing participation in such retirement program. The authority may make appropriate deductions from the employees' salaries to preserve their retirement benefits. Chapter 81-376 Section 9(d), Laws of Florida (1981) Escambia County joined the Florida Retirement System effective October 1, 1982. (T. 90) None of the individual petitioners were transferred to the ECUA by Chapter 81-376, Section 9(c), Laws of Florida (1981), although Terry D. Busbee, the Chairman, had worked for Escambia County for 18 years, as Supervisor of Taxes, (T. 58) and W. F. Hampton was employed with a governmental agency participating in the Florida Retirement System as early as 1977. Petitioners' Exhibit No. 3. ELECTED BOARD As required by Chapter 81-376, Section 4, Laws of Florida (1981), the Escambia County Commission selected three members of the ECUA Board, two of whom were county commissioners; and the Pensacola City Council selected three members of the ECUA Board, two of whom were city councilmen. These six then selected the seventh and final ECUA board member. Thereafter, a second Special Act, Chapter 83-403, Laws of Florida (1983) and then a third amended the original Special Act, to provide that the successor of the third County Commission appointee and the "successors of the members of the Board of County Commissioners] and [City] Council appointed to" Chapter 84-427, Section 1, Laws of Florida (1984), the ECUA Board, would be elected in 1984, while the terms of the other two ECUA board members would, "expire upon the commencement of the terms of the members," Chapter 84-427, Section 1, Laws of Florida (1984), elected to succeed the county commission appointees and the city council members. These five were "eligible for reelection." Chapter 81- 376 Section 4(c), Laws of Florida (1984). The four individual petitioners in the present case seek membership in the Elected State Officers' Class effective January 8, 1985, the date the successor terms began. By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECU board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The ECUA is on the same fiscal year as Escambia County, October 1 to September 30 (T. 63) and its territorial; jurisdiction is coextensive with Escambia County. The ECUA has all of the duties that Escambia County and the City of Pensacola had relative to water and sewer, before ECUA's creation. (T. 65) The ECUA's principal source of revenue is utility charges, at rates which it is empowered to establish, Chapter 81-376, Section 8, Laws of Florida (1981), although it receives state and federal grants (T. 93); and has authority to borrow money, and has in fact issued bonds. (T. 80) For the fiscal year ending September 30, 1984, Escambia County paid $2,230,040 to the Social Security system while ECUA paid $342,402.00 Petitioners' Exhibits 4 and 5. POWERS AND DUTIES The Special Act confers on the ECUA "all privileges, immunities and exemptions accorded political subdivisions of this state," Chapter 81-376, Section 5(j), Laws of Florida (1981) and makes ECUA's "property, facilities, services and activities . non-taxable." Chapter 81-376, Section 6, Laws of Florida (1981). For purposes of the Public Records Act, but not for the purposes of the Administrative Procedure Act, Chapter 81-376, Section 4(g), Laws of Florida (1981) provides that the ECUA "shall be deemed to be an 'agency'." The same provision specifies that the ECUA "shall be deemed an agency or authority of the county for purposes of S.286.011, Florida Statutes, the "'Government in the Sunshine Law'." Although it once contracted for accounting services from the county, (T. 101), the ECUA budget is .separate and distinct from the county budget. The State Comptroller's Office has determined that ECUA "is an independent authority for purposes of Chapter 218," Deposition of Billy J. Givens, page 8, and the ECUA has not disputed this determination, possibly because it was never advised of the determination as such. The ECUA uses the same financial reporting form that counties and independent districts use in filings required by law to be made with the State Comptroller. The ECUA treats at least some "county buildings-as customers for water and sewer purposes." (T. 70) In the spring of 1985, ECUA switched the tags on its vehicles from county tags to state tags. (T. 98) The ECUA must apply to Escambia County for permits in order to cross county rights of way (T. 101), just as the City of Pensacola did when it operated its water and sewer system. (T. 102) The ECUA also has to apply for a permit in order to cross city rights of way. (T. 101) Deposition of Charles W. Bates page 7. COUNTY OFFICERS The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts . . . ." Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it was about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)?" In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers' Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B- 1.05, Florida Administrative Code, which did not make participation in the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers' Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In these proceedings, respondent takes the position that this rule provision, and the statutory language it implements preclude petitioners' participation in the Elected State Officers' Class of the Florida Retirement System.
Recommendation RECOMMENDED: That respondent grant the individual petitioners' requests to be included in the Elected State Officers' Class of the Florida Retirement System effective January 8, 1985. DONE and ENTERED this 27th day of February, 1986, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1986. COPIES FURNISHED: CARSON LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 Ray Kievit 15 West Main Street Pensacola, Florida 32501 Andrew J. McMullian, III, Director Division of Retirement Building C Cedars Executive Center Tallahassee, Florida 32303 Stanley M. Danek, Esquire Cedars Executive Center 2539 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303 APPENDIX Petitioners' proposed findings of fact one through five, seven through fourteen, sixteen, nineteen, twenty, twenty-three through twenty-seven, twenty nine, thirty-one, thirty-three, thirty-four and thirty-five have been adopted, in substance. Petitioners' proposed finding of fact six is supported by the weight of the evidence, except for the final sentence which states that ECUA board members are required to take the same oath of office as that sworn to by county commissioners." Although they are similar, the oaths are not identical. Petitioners' proposed finding of fact fifteen incorporates petitioners' exhibit 6 which is accurate except that it overlooks the initial two years (1985-1987) during which some of the ECUA board members have two-year terms. Petitioners' proposed findings of fact seventeen and eighteen fail to mention that ECUA also exercises powers and duties pertaining to what were city utilities. Petitioner's proposed finding of fact twenty-one is supported by the weight of the evidence except for the second sentence, which was not proven. Petitioners' proposed finding of fact twenty-two is accurate insofar as the date of the adoption of Rule 22B-1.055, Florida Administrative Code, but there was no competent evidence of the intent of the Division of Retirement, which, on this record, must be inferred from the language of the rule. Petitioners' proposed findings of feet twenty-eight, thirty and thirty-two pertain to the course of free-form proceedings, which became immaterial once formal proceedings began. Respondents' proposed findings of fact one through five, seven, eight, and nine have been adopted, in substance. Respondents' proposed finding of fact six is supported by the weight of the evidence, except that it was Ch. 83-403, Laws of Florida (l984) that made the ECOA board elective. After the Division informed Petitioners by letter dated April 17, 85 that they were ineligible "for membership in the Elected State Officers' Class", Petitioners filed their petition for formal administrative proceedings with the Division of Retirement on Hay 14, 1985. The petition was assigned to the Division of Administrative Hearings. The instant case was later consolidated with a rule challenge by Petitioners in DOAH Case No. 185-2518R. A Final Order in the rule challenge was entered by the Hearing Officer on February 27; 1986, holding that Rule 22B-1.055(2)(d), Florida Administrative Code, was an invalid exercise of delegated legislative authority. That Final Order was not appealed by the Division. HEARING OFFICER'S FINDINGS OF FACT Because the Division is accepting certain of the Hearing Officer's Findings of Fact and rejecting others in part, each finding of fact in the Recommended Order will be considered individually. Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7. Accepted in part, rejected in part. The jurisdiction of the Authority is greater than the prior jurisdiction of Escambia County since it may provide utility service to areas outside Escambia County. See Paragraph 2 of Recommended Order. The only source of revenue possessed by the Authority is utility rates paid by customers of its systems. Funds obtained from bond issues, loans, or the federal government, are not considered as revenue. Paragraph 8: Accepted. Paragraph 9: Accepted in part. The phrase ".possibly because it was never advised of the determination as such" is rejected as having no support in the record. Paragraph 10. Accepted. Paragraph 11. Accepted. Paragraph 12. Accepted. Paragraph 13. Accepted. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT ESCAMBIA COUNTY UTILITIES AUTHORITY, W. F. HAMPTON, TERRY BUSBEE, GEORGE DAVIS, and WILSON B. ROBERTSON, Petitioners, vs. DOR Case No. DR85-5 DOAH Case No. 85-1718 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
