The Issue The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.
Findings Of Fact Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th of October, 2006. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Luis J. Morrina 6211 Southwest 161 Avenue Southwest Ranches, Florida 33331 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
Findings Of Fact The Respondent, Department of Health and Rehabilitative Services is the state agency charged with the responsibility of monitoring the Aid For Families with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and the Intervenors, are recipients of services under that program and subject to the terms of the existing and proposed rules. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083, on July 21, 1989. The rules in question deal with the issue of entitlement to payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended to change the definition of the date of entitlement to the date of authorization or the 30th day from the date of application, whichever is earlier. Rule 10C- 1.080(11) has been amended to provide that the first payment to an eligible applicant must be made for the date of authorization or the 30th day from the date of application, whichever is earlier, and provides for a prorated payment based on the date of entitlement. Rule 10C-1.082 has been amended to provide that grants of applicants will be prorated for the initial month of entitlement. The increase in grant for the needs of persons added to the grant will be prorated for the initial month of grant increase. Rule 10C-1.107 has been amended to provide that the initial month's grant will be prorated from the date of entitlement. The initial month of grant increase for adding the needs of individuals to the grants will be prorated from the add date. Thereafter, on August 10, 1989, Petitioner Little filed a petition to determine the invalidity of the proposed rules alleging that: They violate Section 409.235, Florida Statutes, which requires the Department to furnish monthly financial assistance, and They provide an inadequate statement of economic impact. At the time she filed her Petition, Nola Little was a pregnant AFDC applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her son were found to be eligible for AFDC. Mr. Perez and his natural children have not been approved due to pending consideration of Mr. Perez' determination of incapacity as a result of a back injury. He is, otherwise, eligible for AFDC. All Petitioners will receive prorated benefits under the proposed rule. Prior to the 1988 legislative session, the Department had been requested by the President of the Florida Senate to identify programs for a possible 5% reduction. The date of entitlement for new applicants for AFDC, the subject matter of one rule in question, was identified as one of those programs. Though the Governor agreed with the Department's proposal and recommended it, the Legislature did not adopt that program for cuts in the 1988 session. Again, prior to the 1989 legislative session, the Governor directed each department to identify programs for possible cuts up to 10% for a total of $23.9 million. As a part of his directive, he hypothetically identified cuts in programs to reach that figure. One item so identified was a change in the date of entitlement to AFDC. After considering various ways to implement the cuts, (4 different program alternatives), all of which had an unpleasant effect, Mr. Don Winstead, Assistant Secretary of DHRS for Economic Services, chose the current method of reduction and recommended it to the Department's Deputy Secretary for Administration who incorporated it as a part of the entire Department submittal to the Governor. A 5% cut list was ultimately forwarded to the Governor in December 1988, which included two of those alternatives on the 10% list. The instant program cuts were not recommended by the Governor. Mr. Winstead and his staff generated substantial input to the Legislature, its committees, and its staffers about the subject. Ultimately, the Legislature, in conference, agreed to certain cuts. Economic Services was reduced by some $17,476,531.00, including the programs covered by the proposed rules in question. It was clear to Mr. Winstead that the Legislature mandated the reduction as proposed. In July 1988, the Department's District Directors were told to implement the change. In Mr. Winstead's opinion, if the Department had "its druthers," it would not have made the change. The Department's policies are driven by the Governor's direction. Since the Governor did not recommend the cut, the official position of the Department is, and was, against it. In fact, Mr. Winstead felt it was not a good idea and testified against cuts in committee hearing. He indicated there that neither he nor the Department supported this cut or recommended it. Though he did not agree, the lawmakers possessed the authority to make the change and the cuts were passed by the Legislature and signed by the Governor. He is, therefore, obliged to implement them. Since the passage of the act which mandates the cuts, Mr. Winstead has not considered alternatives to direct budget deficit reduction, nor has the Department applied to the Governor to transfer social and economic program funds to address budgeting problems with the AFDC budget. Mr. Winstead's position is that the Appropriations Act mandates him to modify the AFDC grant date and the specific basis therefor is Appropriation Number 864 which gives general revenue and trust fund amounts which, when considered with the Legislature's statement of intent, indicates what has to be done. Admittedly, there is no specific mandate from the Legislature or the Governor to cut this specific program. However, when the list of possible program reductions was prepared in an in-house memorandum, the cut in AFDC funds was identified as #3. Mr. Winstead's position with regard to this cut is supported by Jennifer Lange, a program administrator with the Department whose unit wrote the proposed rule. She felt the Department had no option but to promulgate the rule due to the Legislative mandate. Considering the evidence as a whole, it is found that a logical conclusion to be drawn from the pronouncements, documents, and directives coming from the Legislature through the entire appropriations process, is that drawn by the Department here, to wit: cuts were mandated by the Legislature in this and other programs and action must be taken to implement them. The drafting and promulgation of the rule in question is but an appropriate extension of that conclusion. Assuming the rule is ultimately promulgated and funds are saved thereby, it is the intention of the Department to continue with the mandate of the Legislature until that body affirmatively changes its direction, even if more money is found somewhere else. Under the proposed rule, an applicant would be issued a check for the first period 30 days after application or after approval of the application, whichever came first. Since the Department routinely runs three payrolls a month, it would probably be one third of a month after the cutoff date that an applicant would receive his or her first check. Ms. Lange also was instrumental in drafting the Economic Impact Statement (EIS) to accompany the rules, utilizing in doing so, information garnered from a number of sources. Some figures utilized therein are a generalized estimate only. The majority of applications are accomplished within the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS, all pertinent information required to be considered was considered and nothing that would materially effect the probity of the EIS was eliminated. The actual EIS was drafted by Mr. Greenwood and his team in late May or early June 1989. In doing so, Mr. Greenwood did not consider population additives. While the drafters of the EIS considered the entire subject matter, including legislative policy, no impacts, other than those ultimately addressed therein, were considered. The 6,000 case per month figure was used because it was the information provided by the Department's data unit and as a figure that was being used elsewhere in the Department. This was not the latest figure available, however. Current figures available reflected a potential for slightly in excess of 8,000 cases per month. The difference of over 2,000 cases per month is substantial. Mr. Greenwood concludes that the maximum which can be lost to any applicant is 30 days benefit, and the Department presumed, for the EIS, that all would lose that amount. In reality, that is unlikely. There is no doubt that the implementation of the proposed rule will have an impact on the economic welfare of those currently receiving AFDC and those who may receive it in the future. Rosemary Gallagher, an associate with the Florida Catholic Conference and a lobbyist in the area of social services, is very familiar with the social service agencies available to the poor in this state. In her opinion, having studied the proposed rules, almost all agencies will be adversely affected by their implementation. Clients will require more agency help as a result of the rule implementation and homeless shelters will be hit the hardest. The homeless population in Florida is composed of approximately 1/3 single women with children who need financial assistance to be self-sufficient. Reduction in AFDC benefits will require the client to stay in the shelter longer to accumulate rent money and funds for other required expenditures. By the same token, other organizations will similarly be affected. In addition, less money will have a devastating effect on the agencies , and the delay in receipt of payments, occasioned by the proposed change, will, in her opinion, hurt hundreds of thousands who are affected. This cutback is, she believes, the worst thing to happen in a long time, and she lobbied against the basic legislation calling for cutbacks. Ms. Gallagher has never been a case worker and has no degree or course work in either economics or social work. It is her opinion, however, that the legislative statement relied on by the Department calls for modification to AFDC, not necessarily a cut. As a matter of history, she relates, the Department has been asked for the last several years to list items for cut and historically has always identified those items it felt certain the Legislature would never cut. When, in this current year, it listed the currently considered program, in her opinion, this was done with the belief the Legislature would not approve any cuts, a position consistent with that indicated by Mr. Winstead, but cuts were nonetheless made by that body without, she believes, a proper public hearing. Dr. Frederick Bell, an economist on the faculty of Florida State University and an expert in economics, micro-economics, and the techniques of economic impact statement preparation, reviewed the instant EIS along with depositions and the transcript of public hearing on the matter. He has done some rudimentary research into the effect of the proposed rules and considered therewith the spending patterns of low income people in the areas of housing, clothing, and transportation. He has also looked at small businesses in Florida and feels that the EIS as drafted does not accurately reflect the situation and its method of preparation is poor. In his opinion, it is inadequate to show the effect on the economy since it failed to consider all factors pertinent thereto. He objects to the use of the term "negative cost" as used in the document, which he does not considers to be a proper economic concept. He assumes it is another term for savings. He assumes the EIS reference to 6,000 applications which are those approved per month. Other pertinent documentation, however, refers to a substantially larger number of applications (8,042) yet neither figure is sourced, and Dr. Bell is unable to verify their accuracy. The parties stipulated that in formulating the EIS, the Department utilized figures provided by the Legislature, but Dr. Bell's complaint regarding his inability to check their accuracy is still valid. Dr. Bell also questions the average grant amounts and notes that the Department assumes that the determination of eligibility is always going to be accomplished within 30 days. In his opinion, this is neither reasonable nor substantiated. He believes it is a "monumental" error to put into the EIS entirely different numbers than are actually expected. In the instant case, this resulted in a difference of $6.4 million which is substantial. With regard to that section of the EIS that starts, "Changing the effective date of grant increases," on the one hand, it indicates a cost of increased benefits as a result of adding individuals to the household, and on the other hand claims a reduced cost resulting from the loss of benefits to newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in the EIS that the additional costs to the agency will be balanced out by the benefits saved. In his opinion, there is absolutely no justification for that conclusion. He also disputes agency figure of $17.5 million in resultant cuts, concluding it would actually be more in the area of $23.9 million. As a result, he believes the impact will be substantially greater to individuals than that indicated. He also contends the state should have considered the cumulative effect on the economy of governmental program cuts, otherwise known as the "multiplier effect." A reduction in amounts spent will have a resultant double effect on the businesses where this money would normally be spent. There is nothing shown in the EIS to indicate this factor was considered. Dr. Bell also believes the agency should have considered the effects of its cutback on the counties and their support agencies as well as the nongovernmental charities involved in providing assistance to the underprivileged who will have to pick up the slack resulting from the cut in public money. He feels the EIS estimate of the cut's minimal effect on small minority businesses is not supported. It appears to him that the agency failed to utilize the services of the small and minority business advocate attached to the Florida Department of Commerce who could have provided input on whether a cutback in spending would have had a major effect on minority business enterprises. Dr. Bell is convinced that it will and his opinion is diametrically opposed to that of the Department. In substance, Dr. Bell was convinced that the EIS was "completely inadequate." In his cross examination of Dr. Bell, Respondent's counsel indicated there would be no impact on small and minority business and urges that Dr. Bell was stretching when he claims there would be. Such argument is ingenuous however. Regardless of which of the two impact figures cited is used, such a sum cannot help but have some impact on an economy which includes small businesses. The degree thereof and whether or not that impact constitutes grounds to invalidate the rule is another question altogether. Nothing in the statute or the rules relating to the sufficiency of an EIS requires that there be unanimity of opinion as to the conclusions drawn therein. Taken as a whole, the evidence appears to show, and it is so found, that while the EIS may well be subject to some disagreement as to a number of the provisions therein, and while some provisions may well be contra to the weight of the best evidence available, it is, nonetheless, basically adequate in content and form to constitute an acceptable economic impact statement in support of the proposed rules here.
The Issue This is a case in which the Petitioner, an unsuccessful applicant for employment in a position with the Department of Education, filed a petition seeking a formal hearing to contest the Department's hiring of another applicant. The primary issues in this case are: Is an unsuccessful applicant for employment entitled to a hearing under Section 120.57, Florida Statutes, to challenge the agency's hiring decision? If so, does the Petitioner in this case have standing to bring such a challenge? If the Petitioner has standing, did the agency's hiring decision depart from the requirements of law? All parties presented evidence at the hearing and following the hearing all parties were afforded an opportunity to file proposed recommended orders. The Petitioner and the Intervenor filed post-hearing briefs and the Respondent filed proposed findings of fact and conclusions of law. All of the parties' post- hearing submissions have been carefully considered during the formulation of this recommended order. All findings of fact proposed by the parties are addressed in the attached Appendix.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: The Intervenor, Joann Carrin, was employed by the Commissioner of Education as her Executive Assistant from February 11, 1987, until she was moved temporarily to the position she currently holds as a Program Specialist III with the Division of Public Schools. Ms. Carrin was temporarily assigned to Position No. 01681 prior to the official advertisement of that position. Ms. Carrin has significant experience in the criminal justice system and has a bachelor's degree in criminal justice from Florida State University. The selection of Ms. Carrin was made on the basis of the agency's perceptions about her qualifications for the job and not on the basis of any influence or other improper motive. Ms. Carrin timely filed her application for Position No. 01681, was interviewed by Larry Hutcheson, and was selected to fill that position permanently. Position No. 01681, Program Specialist III with the Division of Public Schools, Bureau of Program Support Services, Office of Risk Assessment Information System, required significant experience in the criminal justice system because it involved the coordination of activities of the RAIS Coordinating Council (Risk Assessment Information System) which dealt with the interface between educational agencies and the criminal justice system. The "minimum qualifications" listed in the announcement for Position No. 01681 Program Specialist III, are minimum qualifications for all Program Specialist III positions in the Department of Education. Such "boiler plate" minimum qualifications are often substituted for by other experience and/or education of an applicant which are more specific to the position being advertised. Position No. 01681 was properly advertised in accordance with the normal administrative procedures for such an advertisement. All of the employment applications received for the subject position were first reviewed by Jeanne Messer to see whether the minimum qualifications listed on the Position Vacancy dated November 2, 1987, were met by the applicants. Upon initial review, Ms. Carrin's application indicated that she did not qualify for the position based on the "minimum qualifications." Therefore, Ms. Messer wrote "not qualified" on the job application of Ms. Carrin. All employment applications received for the subject position were then transferred to Larry Hutcheson for his review and selection of persons whom he wished to interview for the position. Applicants who did not meet the minimum qualifications as listed in the Position Vacancy can still be hired for the job in question if they have other experience and/or education which may be substituted for the experience and education listed in the minimum qualifications section of the employment announcement. The Department of Education has the authority to substitute other experience and education for the minimum qualifications indicated on a Program Specialist III job announcement. Ms. Carrin was selected to fill the subject position pursuant to that authority. When the applicant chosen to fill a position does not meet the published "minimum qualifications," the individual making the choice must justify the proposed choice. Such a justification was properly completed by Mr. Hutcheson to justify the selection of Ms. Carrin. The Department of Administration reviews substitutions of experience and education for compliance with established standards. Ms. Cynthia McDaniel is the individual in charge of the section of the Department of Administration that conducts such reviews. The substitution of Ms. Carrin's education and experience for the minimum qualifications listed in the job description for Position No. 01681 were reviewed by Cynthia McDaniel's staff and found to be in accordance with the substitution procedures established by the Department of Administration. The Petitioner, D. Paul Sondel, was one of numerous applicants for employment in Position No. 01681. He submitted a timely application which was preliminarily evaluated as meeting the minimum qualifications listed in the announcement for Position No. 01681. There is no evidence in the record as to how the qualifications of Mr. Sondel compare to the qualifications of Ms. Carrin or to the qualifications of any of the other many applicants. Specifically there is no evidence in the record which would support a finding that Mr. Sondel was the best qualified candidate for Position No. 01681.
Recommendation Based on all of the foregoing, it is recommended that the Department of Education issue a final order in this case dismissing the petition and denying all relief sought by the Petitioner. DONE AND ENTERED this 6th day of March, 1989, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3033 The following are my specific rulings on all proposed findings of fact submitted by all of the parties. Findings proposed by Petitioner: The Petitioner's Brief does not contain any portion designated as proposed findings of fact, but at pages thirteen through twenty-one, under the caption "Hearing testimony and evidentiary revelations," the Petitioner does purport to address some of the factual issues in this case. Accordingly, those pages of the Petitioner's Brief have been treated as the Petitioner's proposed findings of fact, and, to the extent possible, are specifically addressed below. (Specific attention to some of the factual material in the above-described portion of the Petitioner's Brief is virtually impossible as a result of factual material being inextricably intertwined with argument.) Page 13: The quoted material in the top paragraph is rejected as subordinate and unnecessary details. The first sentence in the second paragraph is rejected as constituting a conclusion not warranted by the evidence. The remainder of this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 14: The material on this page is rejected as constituting primarily argument, rather than proposed findings of fact. Page 15: All of the material on this page is rejected as subordinate and unnecessary details or as irrelevant to the disposition of this case. Page 16: All of the material on this page is rejected as an inextricably intertwined combination of argument and subordinate and unnecessary details. Further, most of the factual assertions on this page constitute inferences not warranted by the evidence. Page 17: All of the material on this page is rejected as constituting unnecessary details. Page 18: All of the material on this page is rejected as constituting argument or a combination of argument and subordinate and unnecessary details. Further, some of the assertions on this page constitute inferences not warranted by the evidence. Page 19: First three paragraphs are rejected as constituting subordinate and unnecessary details. The last paragraph is accepted in substance, with the omission of some subordinate and unnecessary details. Page 20: All of the material on this page is rejected as constituting either argument or proposed findings that are not supported by the evidence. Page 21: All of the material on this page is rejected as constituting primarily argument and inferences which are not warranted by the evidence. Findings proposed by Respondent: The findings of fact in this recommended order incorporate the substance of all of the findings proposed by the Respondent with the exception of Paragraph 17 of the Respondent's proposed findings. Paragraph 17 is rejected because the first sentence is repetitious or cumulative and the second sentence constitutes argument rather than proposed findings of fact. Findings proposed by Intervenor: The brief submitted on behalf of the Intervenor consists primarily of legal arguments. The Intervenor's brief does not contain any proposed findings of fact. (Although there are some references to the facts in the context of the legal arguments, there is nothing in the Intervenor's brief which purports to be or which appears to be proposed findings of fact.) COPIES FURNISHED: Mr. D. Paul Sondel, pro se 1625 Centerville Road, TH22 Tallahassee, Florida 32303-4721 Charles S. Ruberg, Esquire Assistant General Counsel Florida Department of Education Knott Building Tallahassee, Florida 32399-0400 Ronald G. Meyer, Esquire Post Office Box 1547 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Sydney H. McKenzie, III, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondents are guilty of committing a discriminatory practice against Petitioner, in violation of the Florida Civil Rights Act of 1992, by denying her a promotion and/or by constructively discharging her from her employment.
Findings Of Fact Petitioner Dianna Decker, a white female, began her employment with Respondent Gadsden County School Board on July 14, 1998. Her first job position was as the Training Coordinator/Specialist. In July 2002, Petitioner absorbed the additional duties of Staff Development Coordinator. Respondent Reginald James, a black male, was elected Superintendent of Gadsden County Schools in November 2004 and has continuously served in that capacity due to his re-election in 2008. In July 2005, Superintendent James promoted Petitioner to Director of Staff Development and Personnel. Petitioner applied for this promotion on July 7, 2005, after James told her he would like her to take the job. This promotion included a $13,000 annual increase in her salary. On July 13, James directed the School Board's finance department to begin paying Petitioner at the increased pay rate retroactive to July 1. On July 26, the School Board officially appointed Petitioner to the position to which James had promoted her, with the retroactive effective date of July 1. For purposes of employment with the various school boards in Florida, the superintendent "recommends" that a person be hired for a particular position, and the school board approves or disapproves the recommendation. Respondent James also gave Petitioner an additional $1,500 increase in salary during the 2005-06 school year. Petitioner and James enjoyed a good working relationship. As Director of Staff Development and Personnel, Petitioner had at least daily contact with James. Throughout her employment with the School Board, Petitioner applied for a variety of employment positions outside of the Gadsden County School System. Some of the positions she applied for were education-related, and some were not. Some of the positions she applied for were in Florida, and some were outside of Florida. By her own testimony, Petitioner kept her eyes open for opportunities for growth and upward movement. Dr. James Brown was the Deputy Superintendent of the Gadsden County School System from prior to the beginning of Petitioner's employment until his retirement in July 2007. Petitioner, Superintendent James, Dr. Sonja Bridges, and other personnel attended weekly management-team meetings at which they discussed, among other things, the attempts being made to find a replacement for Dr. Brown. Prior to Dr. Brown's retirement date, the Deputy Superintendent position that Dr. Brown was vacating was advertised. Although Superintendent James interviewed several candidates for the position, he was unable to find an acceptable candidate to hire. During the months of searching for a deputy superintendent to replace Brown, Dr. Sonja Bridges told James that she would take the job if he could not find anyone else. In a letter dated July 10, 2007, Petitioner wrote to the Jefferson County Schools in Louisville, Kentucky, asking to be considered for the position of Director of District Personnel/Human Resources which was being advertised. The morning of July 11, 2007, Superintendent James asked Petitioner to post a job opening for an Assistant Superintendent for Academic Services position. Later that same day James announced that he had chosen Dr. Sonja Bridges to fill that position. Petitioner told James that Bridges was not qualified to fill the position as it was described in the job posting. James told Petitioner that they would modify the position so that Bridges would be qualified and instructed Petitioner to take down the job description that she had posted. Petitioner also did not meet the qualifications for Assistant Superintendent for Academic Services as the position was posted, and she did not apply for that position during the short time between its posting and its removal. At its July 24, 2007, meeting, in accordance with its standard practice, Respondent Gadsden County School Board proposed a rule change that would modify the job description for an Assistant Superintendent for Academic Services position. This proposed modification was required to be advertised to the public for 30 days to receive comments and could not be finalized until at a Board meeting following the conclusion of that notice period. On August 6, 2007, Petitioner re-posted the Assistant Superintendent for Academic Services position. The proper procedure would have been to wait until after the School Board had approved the rule change at a subsequent meeting, and then post the position. Neither James nor anyone else requested or authorized Petitioner to re-post the position prior to the position being approved by the School Board, and Petitioner re- posted it against established School Board procedure. Also on August 6 Petitioner completed her application for the position and handed it to Regina Gore, a secretary who reported to Petitioner. Petitioner gave Gore no instructions as to what to do with Petitioner's employment application. Petitioner's job responsibilities included compiling and submitting job applications and presenting them to Superintendent James for his consideration. However, Petitioner did not tell anyone other than Gore that she had completed an application for the Assistant Superintendent for Academic Services position, and she never compiled and submitted to James for his consideration her application and the other application that was received in response to her unauthorized August 6 job posting. At its August 2007 meeting, Respondent Gadsden County School Board adopted the rule change for the modified job description after receiving no comments from the public during the 30-day comment period. Respondent Gadsden County School Board then officially appointed Dr. Bridges to the position of Assistant Superintendent for Academic Services to which Superintendent James had promoted her, with a retroactive effective date of July 2, 2007. Dr. Bridges meets the qualifications for the modified Assistant Superintendent for Academic Services position, as does Petitioner. In her new position, Dr. Bridges became Petitioner's immediate supervisor. Prior to Bridges' promotion, she and Petitioner had a professional and friendly working relationship; however, after her promotion, Petitioner became uncomfortable working under Dr. Bridges and had difficulty taking directives from her new supervisor. During the time that Respondent James has been the Superintendent of Gadsden County School System, he has recommended, and Respondent Gadsden County School Board has approved, two Assistant Superintendents: Dr. Bridges and Ms. Bonnie Wood. There have been no other Assistant Superintendents under Superintendent James. Dr. Bridges is a black woman, and Ms. Wood is a white woman. Ms. Wood is the Assistant Superintendent for Business and Finance and, like Dr. Bridges, reports directly to Superintendent James. There were three applicants for Ms. Wood's position: Ms. Wood and two black males, and Superintendent James hired her. There have not been any Deputy Superintendents since Dr. Brown retired. On September 28, 2007, Petitioner was offered the position of Director of Human Resources, Certified Division, with Jefferson County Schools in Louisville, Kentucky. By letter that same day to Superintendent James, not to her supervisor Dr. Bridges, Petitioner voluntarily resigned from her position with Respondent Gadsden County School Board, effective November 15, 2007. After her departure, Petitioner's position was filled on an interim basis by a white male. At the time she voluntarily resigned from her employment with Respondent Gadsden County School Board, Petitioner earned $66,363 annually. Petitioner's salary at her job in Kentucky with the Jefferson County Schools as of the date of the final hearing in this cause was $119,000 annually. Superintendent James never saw Petitioner's application for the position filled by Dr. Bridges until Respondents' counsel showed him a copy in February 2009 in preparation for the final hearing in this cause. Furthermore, James never heard of Petitioner having any interest in that position until after Dr. Bridges' appointment was made official by Respondent Gadsden County School Board. Even then, he did not hear of Petitioner's interest in the position from her; rather, he learned of her disappointment in not having been given the job from comments made to him by others. On December 10, 2007, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations alleging that she had been discriminated against by Respondent James and Respondent Gadsden County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner has failed to prove that Respondents committed an act of discrimination against her and dismissing Petitioner's petition for relief filed in this cause. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of May, 2009. COPIES FURNISHED: Bruce Alexander Minnick, Esquire The Minnick Law Firm Post Office Box 15588 Tallahassee, Florida 32317 Matthew Carson, Esquire Linda G. Bond, Esquire Rumberger, Kirk & Caldwell, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner qualifies, pursuant to Section 212.08(7)(o)2.d., Florida Statutes, for a consumer's Certificate of Exemption as a state, district, or other governing or administrative office, the function of which is to assist or regulate the customary activities of educational organizations or members.
Findings Of Fact The Petitioner is a "not for profit" corporation that, for all relevant periods of time, has held an exemption from federal income tax as an educational institution pursuant to Section 501(c)(3) of the federal Internal Revenue Code. The purpose of the Society, the Petitioner, is to further the practice of the teaching of photography and to insure high standards in photographic education in the educational institutions in this country and in Florida, particularly post- secondary educational institutions. The Society has been provided facilities at the Daytona Beach Community College, including office space, telephones and facsimile lines. The community college provides publication and marketing services to the Society. There is no formal affiliation between the Society and any higher educational institutions. The community college provides these services to the Society in return for the prestige associated with its being home to the Society. The Society is not accredited as an educational institution in its own right. It is an educational organization consisting primarily of university, college and secondary school educators as members. Its purpose is to advance the field of photographic education and to assist its members in their collective interests and concerns as educators. The Society also assists colleges, universities, and other organizations in achieving their educational mission in terms of education in the field of photography. It therefore functions as an administrative office, " . . the function of which is to assist or regulate the customary activities of educational organizations and members." The Society's national office assists the customary activities of the regional organizations under its umbrella through management of their data bases in support of their regional publications and conferences. The dominant function of those conferences is to promote educational standards in photography and related fields. They are typically attended by graduate students and educators in the field of photographic education. Moreover, the Society's national office examines and approves regional budget funding proposals and disburses funds to regional organizations that are in accord with its national by-laws and policies, so as to provide appropriate control and regulation with regard to its educational mission. The treasurer of the Society for photographic education requires uniform accounting procedures for each of the regional treasury accounts. The Society is thus an umbrella organization for eight regional societies located throughout the country. The Society provides money to these regional organizations and the regions are required to prepare and submit financial statements to the Society. These regional societies operate pursuant to the national by-laws and their officers serve at the pleasure of the national organization. Annual national conferences are held as are regional conferences by the regional societies. Participants at these conferences are offered seminar level courses and workshops in different areas of photography, such as digital imaging. There is also typically a trade show at these conferences where corporations demonstrate new products in the field of photography. Most of the persons attending these conferences are either graduate students or faculty members of various educational institutions. While the Society does not provide educational credit to attend these, the programs at these conferences are educational in nature, designed to further the education of the attendees in the aspects of the field of photographic education. The Society does not regularly provide educational curricula to other organizations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Department of Revenue enter a Final Order granting the consumer Certificate of Exemption applied for by the Petitioner. DONE AND ENTERED this 7th day of July, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Kevin O'Donnell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 James J. Murphy, Executive Director Society for Photographic Education Post Office Box 2811 Daytona Beach, Florida 32120-2811 Linda Lettera, Esquire Department of Revenue 204 Carson Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact From May 26, 1989 to September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the Building Official for the City of Boynton Beach, Florida (City). As part of Jaeger's responsibilities he oversaw the zoning, construction, code enforcement and occupational licensing for the City. His job description stated that he would keep abreast of new changes in applicable laws and regulations and recommend changes to the laws and regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing codes are elements which affect affordable housing in the City. In the fall semester of 1991, Jaeger enrolled in an academic program leading to a doctorate degree in public administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating that the pursuit of a doctorate degree in public administration was not applicable to being a building official. During the fall semester of 1991, Jaeger took a course entitled State Government and Public Policy at FAU taught by former Governor Reuben Askew. For his State Government and Public Policy Course, Jaeger wrote a research paper entitled "The Effect of Government Regulation on Affordable Housing -- Competing Public Policy Objectives." Jaeger dictated the original draft of his research paper to his administrative assistant, Fran Sceblo, who then typed it up, presented it to him for editing and retyped it whenever he made corrections. She worked for approximately two and half to three weeks on the report. During some of the time she shifted some her work to others in the office so that she could finish the report. Some of the dictation and typing of Jaeger's research paper was done during regular Monday-through-Friday work hours. All dictation and typing of the Respondent's research paper were done in City offices, on City equipment and using City paper. Jaeger provided the computer disk upon which the work in progress and final product of his research paper were stored. Before beginning dictation, Jaeger offered to pay Ms. Sceblo for working on his research paper, if she worked outside her normal working hours. On a few occasions, Ms. Sceblo stayed in the office past five o'clock to work on Jaeger's research paper. Jaeger never paid Ms. Sceblo for any of her work on his research paper. On February 20, 1992, Jaeger sent a letter to Samuel Gerace, along with a manuscript of his research paper, offering that research paper for publication in Southern Building Magazine. The paper was never published. Jaeger received a satisfactory grade in his State Government and Public Policy course, and that grade was based in part on his 16-page research paper. Jaeger did not submit copies of the paper to his colleagues on the City's staff, the City manager, or the City commissioners. Jaeger attended three conferences concerning affordable housing prior to the time the research paper was written. The cost for the conferences and the cost of attending were paid by the City. Jaeger had prepared other school related reports using City resources, during business hours, with the knowledge and permission of the City manager. These reports reflected activities that were directly related to his work with the City. The research paper did have some benefit to the City because the City did deal with issues dealing with affordable housing and the City had evidenced its intention to have some of its employees, including Jaeger, educated on the issues involving affordable housing. There was no city policy which would have prohibited Jaeger from researching the issue of affordable housing and making a report on his research. Jaeger's job description stated that the building official "has wide latitude for exercise of independent jugment and use of delegated authority, laws, regulations, codes, and ordinances applicable to Inspection Division operations." The cost of the time spent by Jaeger and Ms. Sceblo on the paper was approximately $1,745.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Donald Jaeger did not violate Section 112.313(6), Florida Statutes and dismissing the complaint against Donald Jaeger. DONE AND ENTERED this 30th day of January, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 30th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2502EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Accepted to the extent that the City would not pay for the coursework because it was not considered applicable to a building official. Rejected to the extent that it implies that any project or report that Jaeger may do during the coursework would also not be applicable to the work of the building official. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraphs 4-6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Accepted in substance. Paragraphs 9: Rejected as subordinate to the facts actually found. Paragraph 10: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 11-13: Rejected as constituting argument. Paragraph 14: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. The third sentence is rejected as subordinate to the facts actually found. Paragraphs 15-16: Rejected as constituting argument. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Respondent's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Rejected as unnecessary. Paragraph 2: Accepted in substance. Paragraphs 3-4: Accepted in substance. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance except as it relates to Civil Service Rules. There was no competent substantial evidence to support such a finding as it related to the Civil Service Rules. Paragraph 9: The portion relating to the job description is accepted in substance. The remaining is rejected as not supported by competent substantial evidence. Paragraph 10: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Kerrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty Moore, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Randall Henley, Esq. 328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue This case addresses the issues of whether the school board had good cause for rejecting the nominations of persons to fill administrative employment positions in the school system. Petitioner as superintendent had recommended the appointments. In particular, the superintendent asked the school board to employ the nominees for a period of three years. The school board rejected that recommendation in favor of a one year appointment because it did not wish to obligate itself to a three year contract period believing that such an arrangement would be imprudent given what it believed to be a troubled economic climate for the school system. It also did not wish to obligate a future superintendent to work with the nominees for three years being convinced that the present superintendent who made the nominations would not seek reelection. Additionally, this case concerns itself with the appropriate outcome beyond this point should good cause be shown for rejecting the nominations. See Section 230.23(5)(a), Florida Statutes.
Findings Of Fact On May 12, 1992, Petitioner, superintendent for the Union County Public School System nominated twelve employees for consideration for reemployment by the Respondent, School Board of Union County. Those nominees were and would be administrative employees. They were nominated for positions falling into two broad categories. The first category was that of professional administrative assistant to the superintendent in the positions of Deputy Superintendent, Assistant Superintendent for Finance, Assistant Superintendent for Instruction, Assistant Superintendent for Operations, Director of Student Services, Supervisor of Instruction and Director of Maintenance and Construction. The second category was that of Principals and Assistant Principals including the nomination of three principals and two assistant principals. Unlike the circumstance in previous years the superintendent recommended that the administrative employees be given a three year contract which would be subject to annual review and renewal as addressed in Section 231.36(1)(b), Florida Statutes. The contrast is that the superintendent has traditionally nominated administrative employees for annual contracts. The sole exception to his practice during the 24 years of service as superintendent in the previous 28 years was provision of a three year contract for Billy Foister in 1975 as a principal. In the history of the school system described at the final hearing there was only one other occasion in which three year contracts were provided to administrative personnel. This was in 1978 under the administration of Superintendent McGill when Mr. Foister and a Ms. Riherd received three year contracts. The recommendation for a three year contract for the administrative employees was unexpected. After discussion at its regular meeting of May 12, 1992 the school board tabled the nominations and requested its legal counsel to research the definition of "good cause" for rejecting the nominations found within Section 230.23(5)(a), Florida Statutes, before deciding its response to the nominations made by the superintendent. On May 21, 1992, a special meeting was held by the school board at which time it rejected the nominations for appointment made by the superintendent. The reasons for rejecting the nominations concern the unanimous belief by the school board members that the decision to obligate school funds for an expanded period related to the administrative employees was an inappropriate choice in difficult economic times. Moreover, the school board was of the unanimous opinion that it would be an unwise decision in a circumstance in which the school board believed that the superintendent would not seek reelection in 1992 and the three year contract would unduly hinder the next school superintendent in choosing administrative employees to serve his or her administration. In making its decision to reject the nominations the school board took no issue with the moral and professional standing of the nominees. Each nominee was offered as a candidate for the same duty functions as those nominees had previously performed in the school year 1991-92. In essence those functions would not change in the school years 1992-93, 1993-94 and 1994-95 under the nominations made by the superintendent. The school board was prepared to offer contracts to the nominees for the up coming school year 1992-93. As David Thomas Dose, the Director of Finance for the school system described, the school board has been able to meet the salary schedule for its employees in the school year 1991-92. Likewise, he believes that the school board will be able to meet the salary schedule for the school year 1992-93. That salary schedule for 1992-93 has been passed by the board. Dose does not believe that the budget which he has prepared for the school year 1992-93 is in any jeopardy concerning the ability to honor the obligations set out in that budget. However, the budget for the school year 1992-93 does not contain salary increases based upon a decision made by the school board on May 12, 1992. That decision was recommended by the superintendent on information provided by the Director of Finance. It is not to be unexpected that the Director of Finance had not met with the school board concerning the upcoming 1992-93 budget before it voted on the nominations. The budget was not due until mid-July, 1992. The Director of Finance would have made information available to the school board about the budget for 1992-93 had the school board requested such information in aid of its determination on the three year contract proposal by the superintendent for the administrative personnel described here. The school board did not seek the assistance of the director of finance in any manner in determining that it would be inappropriate to offer three year contracts for the administrative personnel given the uncertain economic environment. Nonetheless, the school board had reason to be concerned about the fiscal propriety of three year contracts for the administrative personnel. As the school board's chief negotiator on their collective bargaining team describes it, financial circumstances for the school board were "tight" coming into the school year 1992-93 and the financial situation for the school year 1993-94 was described as "not good", referring to the economic climate for the school system in Union County. Even the superintendent acknowledges that there is a "tightening up process". In particular the school year 1991-92 saw three state cutbacks in revenues resulting in a reduction of the budget for the Union County School System and the superintendent was and is aware of that fact. In view of the economic problems some employees who worked for the school system in 1991-92 were not reappointed for the school year 1992-93. The school board had in February, 1992 of the school year 1991-92 voted an annualized raise of 5% for non-instructional personnel. That raise was not retroactive such that the non-instructional personnel would have received the benefit of a 5% raise for the full school year 1991-92; however, the raise carries forward at a 5% rate for the upcoming school year 1992-93. The school board also appointed 15 teachers to professional service contracts in May, 1992, which is tantamount to a tenured or lifetime contractual arrangement. The school board had a $400,000 working surplus at the time the Director of Finance completed the draft budget for the upcoming school year 1992-93. Some adjustment to the benefit of the school board concerning fiscal policy occurred as a result of a mistake in the FTE count in the school year 1991-92 which will make more money available for the same number of students for the school year 1992-93. The Financial Director also made mention of the 6% increase in projected revenues for the state by the Estimating Conference in its most recent projection. The financial situation in the school years 1993-94 and 1994-95 is less clear than for the school year 1992-93. The revenue estimate for the school year 1993-94 will not be made until January, 1993, ergo the revenue estimate for the school year 1994-95 will not be made until January, 1994. The school board members and the Director of Finance are aware that other school systems throughout Florida have been less fortunate than Union County concerning fiscal matters and this influenced the school board in its thinking when rejecting the three year contract proposals by the superintendent. On balance there is sufficient certainty in the school year 1992-93 to support a contract with the 12 administrative employees in question. That certainty is lacking in the school years 1993-94 and 1994-95 concerning the fiscal position for the school system. Concerning the latter two years, although the school board has the right to transfer the administrative employees in the second and third year of the recommended contract period, the contract is subject to annual review and renewal based upon satisfactory performance by those employees, there is a commitment to reduce the budget without dismissing employees and there is the ability to abolish positions should the need arise, it is not unreasonable for the school board to avoid those complications by contracting on an annual basis with the administrative employees. This avoids the awkwardness in operating the school system in an potentially less favorable economic climate in the school years 1993-94 and 1994-95 where it might become necessary to affect employee transfers associated with administrative personnel in to other positions to honor the contracts with those administrative employee, other budget adjustments or the abolition of employment positions that were filled. This is as contrasted with the flexibility to make decisions going into the school years 1993-94 and 1994-95 concerning the appointment of administrative personnel. Such an arrangement for annual contract with administrative employees is in keeping with the traditions by the school system to contract with administrative employees on an annual basis, a system which the present superintendent has found acceptable until this occasion. The twelve administrative personnel are the close advisors to the superintendent in directing his or her administration. Consequently, there must be a comfortable working relationship with these persons. The present superintendent had recognized this necessity when he took office from former Superintendent McGill and requested the resignations of similar administrative personnel to allow him to put in place his own management team. Nonetheless the present superintendent is attempting to bind a possible successor to the present superintendent's choice in administrative personnel. This is done in a setting in which as many as seven candidates have sought the superintendent's position in the upcoming election for the year 1992. In that election the new superintendent comes into office in November, 1992. The present superintendent, concerning his own intentions to seek reelection has been at least elusive if not evasive in a setting in which his position on reelection is crucial to resolving the issue of the propriety of his three year recommendation for the contract term. He has led the board to believe that he is not seeking reelection. On occasion he has even told one board member that he would not seek reelection. In discussion at the May 12, 1992 school board meeting the present superintendent referred to the possibility of a new superintendent but did not discuss his candidacy. At that time he should have made clear that he intended to run for reelection if he expected to have his recommendation for a three year contract for administrative employees to have legitimacy. When asked the question at hearing whether he had made the decision to run or not the present superintendent responded: "You'll know on July 17." While it is true that a majority of board members are leaving their positions this year, they have the right to be concerned about the preservation of needed flexibility on the part of an incoming superintendent to choose his or her close administrative personnel, those positions at issue here. The present superintendent's equivocation concerning his intentions to run for reelection does not serve the legitimate interests of the school system on this subject. Nor does this unwillingness to confirm his position to seek reelection or decline that opportunity offer rationale support for his decision to break with his long standing policy to recommend annual contracts for administrative personnel. The present superintendent was no more compelling in his attempt to describe why the annual contract for administrative personnel had seemed advisable in the past but an unwise arrangement for the future. The present superintendent speaks of the need to treat the administrative personnel as professionals and to afford them job security and to remove them from the whims of political process. When questioned on the meaning of those reasons or explanations his responses were vague. He was unable to explain the inconsistency in having believed that the superintendent needed to have immediate control concerning the administrative personnel and use of an annual contract to maintain that power in carrying out his duties with the close assistance of the administrative personnel and the sudden commitment to a three year contract at a point in time when he might not be the superintendent by choice. When asked why he had not made this decision last year, why it was not important last year to have three year contracts for the administrative personnel he responded "maybe I should have, you know". Moreover, when asked the question had it only become more of a problem now that he might not be the superintendent, he stated "I don't have no idea". When asked why on the May 21, 1992, when the decision was being made about the three year contracts proposed that he did not advise the school board of a decision to remain as superintendent, the present superintendent acknowledged that he did not say anything on that occasion to allow the school board to know his position concerning his future involvement with the school system beyond the 1992 election. The present superintendent alluded to his perceived motivation of the school board in rejecting his contract period for the administrative personnel. He called the motivation political, having nothing to do with the budget or fiscal concerns. On the other hand, the superintendent explained that he was interested in rectifying his approaches in the past by giving multi-year contracts to administrative personnel as he should have done years ago and that he finds it important to have continuity in the system through the administrative personnel in a setting in which the superintendent may change and as many as four board members may change in the upcoming election. When questioned about the influence of such an arrangement on an incoming superintendent, that is a three year contract for administrative personnel, the present superintendent responded that the new superintendent should have appointment powers for those administrative personnel and that all the new superintendent would have to do was wait two years and get all the appointment powers that the new superintendent might need. This points out that the present superintendent would set aside a workable and flexible approach to the appointment of administrative personnel to annual contracts which he had fostered to his benefit as the serving superintendent in favor of restrictions on the control exercised by an incoming superintendent, an unreasonable legacy of patronage beyond the present superintendent's tenure. It is the present superintendent who seeks to restrict and hinder the orderly process in managing close subordinates to the superintendent, not the outgoing school board which by vying for a one year contract for administrative personnel protects an incoming superintendent from being hamstrung by administrative appointments that will exist for much of his or her term, without tangible benefit to the present board beyond the time which it will serve. Where the present superintendent testified about this belief that in the past administrative personnel were political pawns, he would now make them his political pawns by seeking to control the administrative appointments of an incoming superintendent for years following the election of that new superintendent. The present superintendent makes mention that the three year contract proposal benefits the present administrative personnel. It would. It might help recruitment. It might redress complaints by administrative personnel that the board does not appreciate them when it denies the three year recommendation. Those concerns are overshadowed by the need of an incoming superintendent to be able to choose administrative personnel that he or she would be comfortable with and not be bound by the decision of the present superintendent to deviate from his prior course of annual contract recommendations. Finally, the present superintendent says that if he does not have the authority and the power over his administrative employees to appoint them, then he can not control them. Nothing that he has said in his testimony nor revealed in this record leads to the conclusion that his control is any less effective in asking for a one year contract as opposed to a three year contract in a setting in which it is not clear whether he will seek reelection or be successful in that endeavor should he choose to stand for another term. If he runs and is successful he may on the next occasion of proposing a contract set out his preference for a three year contract beginning with the school year 1993-94. If he does not run or is unsuccessful in his candidacy it is no longer his responsibility nor right to decide the direction the school system shall follow. In the event that he is reelected the control which he may exert in the school year 1992-93 on an annual contract is no less effective than a three year contract for administrative personnel. Under the circumstances the board had good cause for rejecting a three year contract for administrative personnel as it might interfere with the authority and control exerted by an incoming superintendent in the school years 1993-94 and 1994-95.
Recommendation Upon consideration, it is, RECOMMENDED: That a Final Order be entered which rejects the superintendent's recommendation for a three year contract period for the twelve administrative employees while upholding their nomination and that the final order grant reasonable attorneys fees to the superintendent's counsel. DONE and ENTERED this 22nd day of July, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed fact-finding of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 is rejected in any suggestion that the budget circumstance favors three year contract for the nominees, similarly Paragraph 11 is rejected. Paragraphs 12 and 13 are subordinate to facts found with the exception of the latter sentence of Paragraph 13 which is rejected. Paragraph 14 is subordinate to facts found. Paragraphs 15 and 16 are rejected. Paragraph 17 to the extent that it suggests unacceptable process in the decision to reject the three year contract period is rejected. Paragraph 18 is accepted as discussed in the Conclusions of Law. Respondent's Facts Paragraphs 1 through 18 are subordinate to facts found. Paragraph 19 is not necessary to the resolution of the dispute. Paragraph 20 for purposes of this case is not accepted as the basis for rejecting the three year contract period. Paragraphs 21 through 29 are subordinate to facts found. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive Tallahassee, FL 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2522 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, FL 32302 Bobby Lex Kirby, Esquire Route 2 Box 219 Lake Butler, FL 32054 Regina Parrish, Chairperson Union County School Board 55 SW 6th Street Lake Butler, FL 32054
The Issue The issue presented is whether Petitioner's application for licensure by examination as a professional engineer should be granted.
Findings Of Fact Petitioner is an applicant for licensure by examination as a professional engineer. By letter dated February 6, 1991, Respondent notified Petitioner that his education did not meet the criteria for licensure. Specifically, Petitioner's education was not deemed to be equivalent to an accredited engineering degree because it lacked 6 credit hours of mathematics, 24 credit hours of engineering sciences, and 8 credit hours of humanities and social sciences. Further, Petitioner had failed to submit any evidence of possessing computer skills. Petitioner is a graduate of the Indian Institute of Technology in Kharagpur, India. He received a degree styled Bachelor of Technology in Civil Engineering in 1967. Petitioner is not a graduate of Florida's State University System. Further, Petitioner did not notify Respondent before July 1, 1984, that he was engaged in active and responsible engineering work on July 1, 1981. Petitioner had his transcript evaluated by the World Education Service (hereinafter "WES"). WES filed a report, dated September 20, 1985, attesting that Petitioner's education was the equivalent of an engineering technology degree. A second report issued by WES, dated March 14, 1988, is identical. A third report, dated January 7, 1991, is identical to the first two, except that in this latest report, the WES opines that Petitioner has the equivalent of a bachelor's degree in civil engineering. The Board's Education Advisory Committee reviews foreign degree candidates to determine if their education meets the standards established by the Accreditation Board for Engineering and Technology, Inc., (hereinafter "ABET"). The ABET standards for an approved baccalaureate degree in engineering include: 16 hours of mathematics (calculus through differential equations), 16 hours of basic sciences, 32 hours of engineering sciences, 16 hours of engineering design, and 16 hours of humanities and social sciences. There is a major difference between an engineering degree and an engineering technology degree. An engineering technology degree does not require the same number of hours in advanced mathematics (calculus through differential equations) as an engineering degree. Furthermore, an engineering technology curriculum emphasizes the technical aspects of the profession, such as engineering design coursework, but does not stress the underlying engineering sciences. Petitioner's transcript and course titles were typical of an engineering technology curriculum. Petitioner's mathematics courses were not solely at the advanced math level, but also included algebra and geometry. Furthermore, Petitioner's transcript only demonstrated 8 hours of engineering sciences. The title of Petitioner's degree is not dispositive. What is dispositive is that Petitioner's course of study had its emphasis on technical design courses rather than on higher math and engineering sciences courses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by examination. DONE and ENTERED this 24th day of September, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER Respondent's proposed findings of fact numbered 1-3, 6, and 8-11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. COPIES FURNISHED: Om Prakash Bhola 3600 Khayyam Avenue Apt. #7 Orlando, Florida 32826 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Carrie Flynn, Acting Executive Director Department of Professional Regulation Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Each of the three petitioners in this proceeding timely applied to the Psychological Services Office of the Department of Professional Regulation for licensure as a Mental Health Counselor without examination. Within ninety days of receipt of the complete information required from each applicant, the Psychological Services Office denied their requests for licensure by exception on the ground that they had not received a master's degree from a college or university approved by the United States Department of Education (U.S. DOE), as required by Section 490.013(3)(b), Florida Statutes, (Chapter 82-179, s. 37, Laws of Florida 1982) Each petitioner received a master's degree from International College in Los Angeles, California. International College has administrative offices in California, but has no campus and no library. Its graduate degree program is based upon a tutorial process via a learning contract prepared by a tutor and a student. International College is approved by the State of California Department of Education. It is eligible for institutional financing administered by the U.S. Department of Education and its students are eligible for federal funding. International College is not accredited by an accrediting association approved by the U.S. DOE, though it is currently seeking such accreditation. The U.S. DOE, in accordance with its policy and statutory mandate of non-interference with the internal affairs of educational institutions, does not "approve" individual colleges or universities. It does make determinations of institutional eligibility for federal funding and it also determines the eligibility for listing in a publication entitled Education Directory Colleges and Universities. This publication is a standard federal publication for use by the general public and other federal agencies. It contains a listing of degree- granting institutions with informational data on the institutions listed. It includes accredited post-secondary institutions, as well as those non-accredited universities or colleges holding the three institutional certification. The latter category includes colleges or universities which have had students transfer to three institutions which are accredited by a nationally recognized accrediting agency. International College is listed in the latest edition of the Education Directory - Colleges and Universities as the holder of a three institutional certification. Listing in the Directory does not establish eligibility for federal funding and does not otherwise constitute an "approval" by the U.S. DOE, other than an approval" or qualification for listing in the Directory. That publication is merely a compilation of ready reference to over 3,000 institutions of higher education. While the U.S. DOE does not "approve" colleges or universities or otherwise conduct an independent investigation or analysis of any college or university, it does recognize accrediting agencies pursuant to published criteria and maintains a published listing of nationally recognized accrediting agencies.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the applications of petitioners Sheryle Rubin Baker, Rose Marie Anderson, a/k/a Rie C. Anderson, and Carmella Christopher Kelsey for licensure as mental health counselors by exception, pursuant to Section 490.013(3), Florida Statutes Chapter 82-179, s. 37, Laws of Florida 1982), be DENIED. Respectfully submitted and entered this 13th day of September, 1983 in Tallahassee, Florida. DIANE D. TREMOR, 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 13th day of September, 1983. COPIES FURNISHED: Dave Webster, Esquire 9385 North 56 Street Suite 301 Temple Terrace, Fla. 33617 Drucilla E. Bell, Esquire Deputy General Counsel 130 North Monroe Street Tallahassee, Fla. 32301 Secretary Fred Roche Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
