The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue The ultimate issue in this case is whether Respondents' proposed amendment to Florida Administrative Code Rule 6A-5.030, which would establish procedures and standards governing the submission, review, and approval (or disapproval) of each school district's instructional personnel and school administrator evaluation systems, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent Department of Education ("DOE") is the state agency responsible for administering and implementing educational policy under the direction and control of Respondent State Board of Education (the "SBE"), a collegial body consisting of seven members appointed by the governor. DOE and the SBE will be referred to collectively as "Respondents" except when it is necessary to identify a specific actor. On September 30, 2011, DOE caused a Notice of Development of Rulemaking to be published in the Florida Administrative Weekly ("FAW"), which announced the agency's intent to substantially amend Florida Administrative Code Rule 6B-4.010 so as to establish procedures for the submission, review, and approval of district evaluation systems in accordance with section 1012.34(8), Florida Statutes.1 DOE caused a second Notice of Development of Rulemaking to be published in the FAW on November 23, 2011. This notice informed the public that the procedures for the submission, review, and approval of district evaluation systems would be set forth in an amendment to rule 6A-5.030, instead of rule 6B- 4.010. In addition, three rule development workshops were scheduled to occur between December 12 and December 14, 2011. On February 24, 2012, a Notice of Proposed Rule was published in volume 38, no. 8, of the FAW, pages 804-07, https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2012/38 08/3808doc.pdf. The full text of proposed rule 6A-5.030 is included in this notice. Subparagraph (1)(a) of the proposed rule contains a statement that a document entitled "Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012" ("Checklist"), is incorporated by reference.2 (The published text of rule 6A-5.030 will be referred to as the "Rule Text" when necessary to distinguish between the Rule Text and any material incorporated by reference.) The Notice of Proposed Rule further advised that the rule would be presented to the SBE for its approval at a meeting on March 27, 2012. By letter dated March 16, 2012, the Joint Administrative Procedures Committee ("JAPC") provided comments on the proposed rule to DOE. On March 26, 2012, Petitioners filed a Petition to Invalidate Proposed Rule with DOAH. At the SBE meeting on March 27, 2012, which constituted the final public hearing on the proposed rule, DOE recommended that the proposed rule be revised to reflect JAPC's comments, and the SBE voted in favor of such revisions. The SBE approved nontechnical changes that modified both the Rule Text and the Checklist. Among the changes was the insertion into the Checklist of an incorporative reference to a document entitled "High Effect Size Indicators (2012)" ("HESI Document"). As a result of the SBE's action, proposed rule 6A- 5.030, as amended, comprises three separate documents: the amended Rule Text, the amended Checklist, and the HESI Document.3 Collectively, these three items will be called the "Rule." Respondents have not caused a notice of change concerning the Rule to be published in the FAW pursuant to section 120.54(3)(d), Florida Statutes. The documents which constitute the Rule can be found, however, online at Florida Department of Education, District Performance Evaluation Systems, http://www.fldoe.org/profdev/pa.asp (last visited Aug. 20, 2012). On March 30, 2012, Petitioners filed an Amended Petition to Invalidate Proposed Rule, which revised their original petition to take account of the changes to the Rule that had been made by the SBE on March 27, 2012.4 Petitioner Karen Peek ("Peek") is a teacher employed by the Okaloosa County School Board. During the 2011-12 school year, Peek taught Language Arts and Science to fifth-grade students who took the Reading and Math portions of the Florida Comprehensive Assessment Test ("FCAT"). A portion of Peek's performance evaluation for 2011-12 school year will be based upon her students' FCAT Reading scores according to the formula approved by the Commissioner of Education pursuant to section 1012.34(7), which formula is mentioned in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations. The Rule requires school districts to make significant changes in their personnel evaluation systems. These changes will affect the evaluation criteria that will be used to measure Peek's level of performance and determine whether she is rated highly effective, effective, needs improvement, or unsatisfactory. A rating of unsatisfactory could be grounds for dismissal. Petitioner Beth Weatherstone ("Weatherstone") is a teacher employed by the Indian River County School Board. During the 2011-12 school year, Weatherstone taught Algebra I to eighth-grade students who were tested on the Math portion of the FCAT during the school year. A portion of Weatherstone's 2011- 12 performance evaluation will be calculated using her Algebra I students' FCAT Math scores according to the formula referenced in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations conducted according to an evaluation system that will need to conform to the requirements of the Rule. The Florida Education Association (the "FEA") is a professional association of educators and education support employees which works with and through affiliated local unions around the state in representing public school teachers in collective bargaining. The FEA and its local affiliates represent approximately 135,000 member educators in Florida on all matters associated with the wages they earn and how their performance is assessed, in addition to other issues related to their working conditions.
