Findings Of Fact The Petitioner is not a graduate of at least a four-year accredited college or university course, and has not qualified for a degree with a major in accounting. The Petitioner has not completed such courses as would constitute a major in accounting. The Petitioner has not satisfied all of the legal requirements to take the Florida examination or to receive a Reciprocal Certificate from the Respondent. The Petitioner has practiced accountancy for more than fifty years, and he holds Certified Public Accountant Certificates from the state of New York and the Commonwealth of Massachusetts. The Petitioner has also been admitted to practice before the United States Treasury Department and the United States Tax Court. The Petitioner has performed meritorious work as a Certified Public Accountant, and as also performed many important civic services.
Recommendation That the application of Philip M. Percus for a Reciprocal Certificate allowing him to practice as a Certified Public Accountant in Florida be denied. Recommended this 6th day of May, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Laurence J. Marchbanks, Esquire 301 W. Camino Gardens Boulevard Boca Raton, Florida 33432 Attorney for Petitioner James S. Quincey, Esquire P.O. Box 1090 Gainesville, Florida 32602 Attorney for Respondent Douglas N. Thompson, Jr. Executive Director Florida State Board of Accountancy Post Office Box 13475 Gainesville, Florida 32604
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 5, 1999, and, if so, what penalty should be imposed. The Respondent maintains that the instant action is barred by laches and violates Section 455.225, Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating the practice of certified public accountants licensed within the state. At all times material to the allegations of this case, the Respondent, Robert Jarkow, has been licensed in Florida as a certified public accountant, license number AC0010963. On or about December 1996, the Respondent orally agreed to provide accounting services for an individual named Kasman who was doing business as Traditions Workshop, Inc. (Traditions). Traditions manufactured uniforms and listed the federal government among its clients. Revenues to the company from the sale of uniforms were presumably posted in accordance with written contracts. Although the Respondent participated in the monthly completion of financial records for the company, the exact description of his responsibilities for the company and the individual are not known. It is undisputed that Ms. Kasman asked the Respondent to provide a financial statement for the company as part of an effort to secure a line of credit from a bank in New York. It is also undisputed that Ms. Kasman refused to pay for the statement. According to the Respondent, based upon that refusal, he declined to prepare the instrument. Nevertheless, a document entitled "Financial Statements" was generated with a notation "MANAGEMENT USE ONLY-NOT FOR DISTRIBUTION." The Respondent maintains that the document was not prepared as a financial report and that if generated using his data disk it was done without any intention on his part for the product being used to secure a line of credit. The document did not comply with provisions of accounting practice. The Respondent admitted that when his relationship with the party deteriorated, and payment for services was not rendered, he did not release information to a succeeding accountant. Ms. Kasman needed the information, depreciation schedules, in order to accurately complete tax records for Traditions. The Respondent attempted to locate Ms. Kasman and her bookkeeper for hearing but was unable to do so. Ms. Kasman filed a complaint with the Petitioner against the Respondent that was not investigated until several months after it was filed. The Respondent obtained a civil judgment against Traditions for unpaid accounting fees. The Administrative Complaint filed in this case was submitted over a year after the consumer complaint. Neither party presented testimony from the complainant, her bookkeeper, or her succeeding accountant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding the Respondent violated Rule 61H1-23.002, Florida Administrative Code, as set forth in Count II of the Administrative Code; imposing an administrative fine in the amount of $1000; and placing the Respondent on probation for one year subject to terms as may be specified by the Board of Accountancy. DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings 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 this 4th day of December, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Victor K. Rones, Esquire Law Offices of Rones & Navarro 16105 Northeast 18th Avenue North Miami Beach, Florida 33162 Martha Willis, Division Director Division of Certified Public Accounting Department of Business and Professional Regulation 240 Northwest 76 Drive, Suite A Gainesville, Florida 32607 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues are whether Respondent committed an unlawful employment practice against Petitioner, and if so, what corrective action should be taken.
Findings Of Fact Petitioner is a forty-one-year-old black male. He is a 1977 graduate of the University of Florida with a bachelor's degree in Business Administration. His undergraduate major was Finance. Petitioner has approximately 30 credit hours in Accounting from the University of North Florida, which he earned between 1983 and 1988. Petitioner is currently enrolled in the University of North Florida's Masters of Public Administration program. He has completed 30 of the 39 required credit hours in that program. From November of 1979 to March of 1991, Petitioner worked for Occidental Chemical Company as an accountant. After leaving this job, Petitioner was self-employed from April of 1991 to December of 1991. Respondent's District Two office in Lake City, Florida, hired Petitioner on March 6, 1992, as a Purchasing Agent I. Respondent hired Petitioner under administrative rules pertaining to career service employees as promulgated by the Department of Management Services. Petitioner received a copy of Respondent's disciplinary and conduct standards when he was hired. Petitioner worked as a Purchasing Agent I until September of 1992. His salary during that time was $609.00 bi-weekly. In September of 1992, Respondent promoted Petitioner to the position of Accountant II in Respondent's Office of Financial Services. His bi-weekly salary was $752.91, a 23.5 percent increase. As soon as Petitioner became a member of the fiscal section, he received five weeks of intensive training relative to vouchers. This training was necessary because Respondent's central office was beginning to relinquish many functions to its district financial offices, including the vouchering process. Petitioner's direct supervisor in the fiscal section was Faye McClellan. She occupied the position of Accounting Services Supervisor I. Petitioner was indirectly supervised by David Sheffield, District Financial Administrator. On March 1, 1993, David Sheffield hired Karin Davis Charron, a white female, as an Accountant I in Respondent's Office of Financial Services. Her salary was $674.14 bi-weekly, or ten percent above the minimum for an Accountant I. Prior to her employment with Respondent, Ms. Charron had 15 credit hours in Business Administration and Accounting, which she earned at Lake City Community College. Her prior work experience included the following: (a) head cashier at a food store, October of 1983 to June of 1984; (b) accountant/bookkeeper in private business, July of 1984 to September of 1985; (c) Fiscal Assistant I, Department of Corrections, November of 1985 to April of 1987; (d) Secretary Specialist/Cashier, Department of Corrections, April of 1987 to May of 1988; and (e) Fiscal Assistant II, Department of Corrections, May of 1988 to March of 1993. In March of 1993, Petitioner completed his probationary period as an Accountant II. On March 27, 1993, Faye McClellan and David Sheffield gave Petitioner an overall performance rating of "exceeds." On June 1, 1993, Petitioner was promoted to the position of Accountant III. At this time, Petitioner's salary was increased by 10 percent to $828.20 bi-weekly. On August 20, 1993, Respondent hired Ricky Haddock, a black male, as a Fiscal Assistant II at a bi-weekly salary of $549.90. Ricky Haddock testified that soon after he was employed, Ms. Charron told him that "we can make your life a living hell." This statement is not credible due to Mr. Haddock's poor memory concerning the circumstances under which Ms. Charron allegedly made this statement. On or about March 11, 1994, Respondent promoted Ms. Charron to Accountant II with a bi-weekly salary of $766.94, a ten percent increase. Subsequently, Dave Sheffield received a promotion and vacated his position as District Financial Administrator. Linda Green, a white female, took his place. Ms. Green had over ten years of managerial experience when she accepted this position. As manager of the fiscal section, Linda Green became responsible for the direct supervision of Faye McClellan. She was Petitioner's and Ms. Charron's indirect supervisor. On or about March 17, 1994, Faye McClellan gave Petitioner a special performance appraisal. The appraisal form indicates that Petitioner, as an Accountant III, had attended voucher quarterly meetings, SAMAS contract training, payroll training, ADA training, and conduct standards training. The appraisal form described Petitioner as a team player. Of special note was his participation in the Youth Motivator Program in the Columbia County School System. Petitioner received a overall performance rating of "exceeds." Linda Green concurred in Ms. McClellan's assessment of Petitioner's job performance. On September 9, 1994, Respondent promoted Petitioner to the position of Accountant IV. The promotion increased Petitioner's salary by ten percent to $938.36 bi-weekly. Linda Green, as manager of the financial office, recommended Petitioner for this promotion. As an Accountant IV, Petitioner's duties primarily consisted of auditing consultant contracts. These contracts are the most complicated contracts that the financial office processes. Petitioner was also responsible for the payroll and for the supervision of other contract auditors. About two months after Petitioner became an Accountant IV, his immediate supervisor, Faye McClellan, requested and received a position reassignment in Respondent's purchasing office. Petitioner filed an employment application to fill the vacancy created by Ms. McClellan's reassignment. On November 21, 1994, Respondent promoted Petitioner to the position of Accounting Services Supervisor I. The promotion increased Petitioner's salary by 19 percent to $1,161.31 bi- weekly. Linda Green recommended Petitioner for the Accounting Services Supervisor I promotion. She became his direct supervisor. As Accounting Services Supervisor I, Petitioner was responsible for the direct supervision of several subordinate Fiscal Assistants and Accountants, including Ms. Charron. Petitioner was the only black supervisor in Respondent's second district. Historically, the financial section is one of the more racially diverse offices in District Two. From November of 1994 through June of 1995, there were approximately ten people working in the fiscal section. Three of these employees were black. At least two employees were members of other minorities. Petitioner, Ricky Haddock, and two other minority employees were the only employees in the financial office with a college education. On December 23, 1994, Respondent promoted Ms. Charron to Accountant IV. Her bi-weekly salary became $928.50 which was equivalent to the minimum of the pay grade for that position. Linda Green recommended Ms. Charron for the promotion to Accountant IV. Petitioner participated on the panel that selected Ms. Charron as the most qualified candidate to fill Petitioner's former position. In so doing, he reviewed her application and interviewed her for the job. There is no credible evidence to support Petitioner's current allegation that Linda Green allowed Ms. Charron to misrepresent her qualifications for the position of Accountant IV. Ms. Charron's application in February of 1994 for the position of Accountant II, and her application in November of 1994 for the position of Accountant IV, accurately describe all duties and responsibilities that she performed at Stafford's Fire Extinguisher Service in 1984-1985. In 1994, an applicant for the position of Accountant IV was required to have a bachelor's degree in accounting, or a certificate as a Certified Public Accountant, or equivalent work experience in accounting. Neither the Petitioner nor Ms. Charron possessed a bachelor's degree in accounting or a certificate as a Certified Public Accountant when Respondent promoted them to their respective Accountant IV positions. Nevertheless, the evidence indicates that they were well qualified for the position of Accountant IV, at the time of their respective appointments, based on a combination of their education and work experience. Petitioner had a bachelor's degree in Finance, over eleven years of accounting experience in private industry, and more than four years of experience in state governmental accounting. Ms. Charron, on the other hand, had less then one year of formal education in business administration/accounting, over one year of accounting experience in private industry, and more than eleven years of experience in state governmental accounting. State employees have to comply with numerous statutes and rules which do not apply to private enterprise. In this case, Ms. Charron's experience in working for the state more than compensated for her lack of formal education. As Accounting Services Supervisor I, Petitioner's supervisory responsibilities increased. In February of 1995, he directly supervised Rick Haddock and three other Fiscal Assistant II positions, two of which were vacant. He also had direct supervision over Ms. Charron. Ms. Charron, in turn, was responsible for the direct supervision of four other Accountant positions. On February 13, 1995, Petitioner signed a Review and Performance Planning (RAPP) form. This was a new form which Respondent began using just prior to implementing a major career service reform within the agency. The form states that from February 1, 1995, through January 31, 1996, Petitioner would be evaluated based on his performance of the following duties: Supervise district vouchering section. Active participation/supervision vouchering section. Coordinate workloads. Provide liaison with personnel, DOT and State Comptroller. Assist in Legislative budget request. Assist with budget preparation for various programs. Assist in formulating budget information into the different entities LBR's. Manage contract section. Manages all contracts. Verifying information and all supporting documentation for payments to vendors. Audit district disbursements. Audit disbursement for accuracy in accordance with GAP and pertinent federal/state/department rules/ regulations/statutes. The RAPP form lists the following as Petitioner's departmental responsibilities: 1. Coaching; 2. Delegation; 3. Management control; 4. Leadership/Influence; 5. EEO/Affirmative Action; 6. Performance goals; 7. Planning and organization; 8. Judgment; Resources; and 10. Safety practices. Linda Green wanted to increase the cross-training of all employees so that work would not become back-logged when one of them took leave. She also wanted to give Petitioner an opportunity to broaden his experience in other functions of the financial office. In order to accomplish her goals, Ms. Green gave Petitioner additional budget responsibility and deleted his property administration duties in February of 1995. Linda Green gave Petitioner's property administration duties to Ms. Charron. From February 1995, through May 1995, Ms. Charron spent a portion of her time working on the inventory. Ms. Charron continued to work on several special projects to supervise other accountants. As Accounting Services Supervisor I, Petitioner's desk was located in a glass enclosed area within a larger office. Petitioner was supposed to be a "working" supervisor. However, Petitioner spent an inordinate amount of time in his office with the door closed. During these times, Petitioner had long social visits with an employee from another office in the building. He discussed personal matters with an auditor from the central office on the phone for extended periods of time. At times Petitioner's door was locked, so staff could not use the computer which was located in his office. Petitioner's subordinates were reluctant to disturb Petitioner during these times even if they had a question they needed to ask him. They began to complain to Linda Green about Petitioner's unavailability. Linda Green observed Petitioner sleeping during meetings. At first she ignored the situation. However, employees from other offices began to complain about Petitioner's sleeping during meetings. Linda Green also received complaints from other employees that Petitioner was misusing state property. They claimed that he was receiving facsimile transmissions not related to department business. Linda Green began taking notes about these complaints on her computer. She did not share these notes with Petitioner. Linda Green discussed the prohibitions against misuse of state property in staff meetings. She also discussed her concerns about Petitioner's sleeping in meetings, talking on the telephone, and entertaining visitors with Petitioner personally. In February of 1995, Respondent initiated a new job classification and pay plan. The 1994 Legislature mandated this new system, which is distinct from the career service rules promulgated by the Department of Management Services. The new system is unique to Respondent as an agency. Under the new system, Respondent's employees retain career service status and benefits. However, Respondent changed position descriptions, job classifications, employment qualifications, and pay scale ranges to create more flexibility in hiring, promoting, and reassigning duties of employees within the department. The new system concentrates on the knowledge, skills, and abilities required for each position rather than a minimum qualification for each class specification. Formal education remains important, but it is not the paramount consideration in deciding whether to hire or promote employees. The focus of the new system is to ensure that employees can perform the required functions and duties of the specific positions which they occupy or for which they apply. Under the new system, Respondent can reward employees for productivity by increasing their salary without having to promote them to a new position or reclassify their existing positions. Respondent can increase or decrease salaries within a new classification, depending upon the actual duties assigned and performed by the employees. The new plan reduced the number of career service job classes from over 52 occupational groups with 1700 job classifications to 16 occupational groups divided into six levels. Respondent uses the fourth and fifth levels within an occupational group to recognize the distinctive, but equivalent, value of technical and managerial expertise. For example, each occupational group embraces a Level IV and Level V which corresponds to technical and managerial expertise respectively. A reassignment from a Level V managerial position to a Level IV technical position, or vice versa, is not a demotion or promotion, respectively. The new Level IV and Level V positions allow Respondent to reassign employees to different duties to meet the demands of the changing work load and work force without adversely affecting their work status, employment records, or incomes. Thus, Respondent can shift employees from obsolete duties to new and viable tasks where they are more productive. When Respondent initiated the new system, and for one year thereafter, Respondent's central office had to approve every reassignment from an old career service position "title" to the corresponding new title. In performing this duty, Respondent's central office verified the salary for each position to ensure that the salary corresponded to the duties assigned to that position. The initial reassignments in the new system were effective February 24, 1995. At that time, Linda Green, Ms. Charron, and Petitioner were reassigned to the new Accounting, Audit, and Tax occupational group with no change in their respective salaries. Linda Green was assigned to Level VI, as District Financial Services Manager. Petitioner was assigned Level V, Accounting Services Supervisor I, which required that Petitioner spend over 51 percent of his time supervising other employees. Ms. Charron was assigned to Level III as an Accountant IV. Petitioner continued to be Ms. Charron's direct supervisor. A personality conflict developed between Petitioner and Ms. Charron after she became an Accountant IV in December of 1994. Ms. Charron did not want the employees that she supervised to seek or receive assistance from Petitioner, even though he was her supervisor. If Ms. Charron disagreed with Petitioner, she would go over Petitioner's head to Linda Green to resolve the conflict. Petitioner resented not having total control over all of the employees under his direct and indirect supervision. His attitude became confrontational with other employees when they asked a question or made a comment that he perceived as undermining his authority. At times he was overly assertive in an effort to prove that he was right on one point or another. Linda Green did nothing to open lines of communication between Petitioner, as supervisor, and Ms. Charron, as his subordinate. Petitioner did not seek Ms. Green's assistance in resolving the conflict with Ms. Charron. As the power struggle between Petitioner and Ms. Charron ensued, dissension and poor morale became a problem in the fiscal section. On one occasion, Debbie Williams and Laura Kennon were working with the central office to correct an invoice error on one of Petitioner's consultant contracts. Petitioner questioned the method they were using to correct the problem. He wanted them to correct the error without involving the central office or the State Comptroller's office. Ms. Williams wanted to leave a proper audit trail. Before the situation was resolved, all three employees became angry and confrontational. Around the end of February 1995, a member of the financial services staff requested a meeting to discuss the problems the office was having as a result of the dissension between Petitioner and Ms. Charron. Jean Jones, District Two's Director of Administration attended the meeting. Linda Green and Jean Jones advised the staff that they could go to either Petitioner or Ms. Charron for answers to any questions about their work. Linda Green did not tell her staff in this meeting, or any other meeting, that education did not mean anything in Respondent's financial section. After the meeting was over, Jean Jones told Linda Green that some changes had to be made to better define the lines of communication within the office. Ms. Jones instructed Ms. Green to do some research and develop a solution to the problem. A large part of Ms. Charron's duties included working on special projects. These projects necessitated frequent consultations between Linda Green and Ms. Charron. There is no persuasive evidence that Linda Green showed favoritism to Ms. Charron by conspiring with her against Petitioner in private meetings and conversations. To the contrary, the dissension that existed in the office was the result of a personality conflict between Petitioner and Ms. Charron. Ms. Green's inability to establish a clear chain of command aggravated the situation. Prior to November of 1994, Respondent provided Petitioner with an abundance of training in technical and management subject areas. Some of the technical seminars included consultant procedures and negotiation, contract fund approval and encumbrance, and contractual services training. Other training programs included office staff skills enhancement, employee selection, conduct standards and discipline, district budget development, supervisory decision making, employee performance appraisal, fundamental skills of communication, fundamental skills of management, and Certified Public Management Level I. After November of 1994, Petitioner continued to receive training to enhance his career. Some of the programs he attended included review and performance planning, how to supervise people, managing change, presentation skills, budget and budget orientation, federal aid training, records retention, and management problems of the technical person in a leadership role. Linda Green encouraged Petitioner to participate in the training programs. She gave him the opportunity to develop the skills necessary to enhance his career. In the spring of 1995, Linda Green worked on training plans for all personnel in the fiscal section including Petitioner. On April 7, 1995, Ms. Green discussed Petitioner's training plan with him. On April 25, 1995, a copy of Petitioner's training plan was discovered on his desk with the word "bullshit" written across the bottom. Petitioner admits that he wrote this expletive on his training plan in the presence of Ms. Charron. In April of 1995, the State Comptroller's office rejected and returned a great number of invoices to the financial office. Linda Green responded by assigning Petitioner the responsibility of handling the returns and correcting the errors. In order to stay apprised of the situation, Ms. Green required that all mail relating to returns be directed to her before being delivered to Petitioner. She did not review Petitioner's mail unrelated to the returns. In April of 1995, Linda Green became aware that certain work assigned to Petitioner and/or Petitioner's subordinates was not being performed in a timely manner. Ms. Green had to enlist the help of other personnel to complete the work. In April of 1995, Linda Green initiated the procedure to issue reprimands to Petitioner concerning his continued misuse of the office telephones and facsimile machines, his sleeping on duty, and his social visits that wasted time. However, this procedure was delayed because Petitioner was hospitalized for surgery. Petitioner was out of work on sick leave from April 27, 1995, to May 30, 1995. During his illness, Linda Green extended Petitioner's probationary period for his Accounting Services Supervisor I position. In the 1992-93 fiscal year, the financial services office had approximately 12 primary responsibilities. The financial office gained 10 additional duties in the 1993-94 fiscal year and 18 new duties in the 1994-95 fiscal year. During this time, the number of positions in the financial office doubled. In May of 1995, Linda Green began to plan the reorganization of the financial section. She discussed the reorganization with her supervisor, Jean Jones. They made a decision to divide the responsibilities in the financial services office between Petitioner and Ms. Charron, the two established supervisors. They based the decision in part on a need to accommodate the increased work load. They also decided to split the supervision duties in an effort to improve the lines of communication within the office and to eliminate dissension. Officials in Respondent's central and district offices approved the reorganization. Under the reorganization plan, Ms. Green decided to give Petitioner responsibility for the following: supervising the concentration account; processing purchase orders, local purchase orders, local charge accounts, and utility invoice transmittals; processing travel and individual reimbursements; handling deposits; supervising warrant distribution; and processing mail. Ms. Green deleted Petitioner's duties relative to payroll and contracts. Ms. Charron's duties under the reorganization included supervision of the following: contracts, reconciliations, compliance reports, interest payments, and journal transfers. She assumed supervision of the payroll at the express request of Jean Jones. Additionally, Ms. Charron was assigned numerous special projects. When Petitioner returned to work from sick leave on June 1, 1995, Linda Green discussed the reorganization with Petitioner and Ms. Charron. She advised them that Ms. Charron would supervise four Level Two positions, one of which was vacant. Petitioner would supervise five Level One positions, all of which were occupied. Petitioner and Ms. Charron would report directly to Linda Green. Linda Green decided to have Petitioner supervise the Level One positions because they needed more supervision than the Level Two positions. Petitioner was better qualified than Ms. Charron to supervise the five entry level positions occupied by minority and non-minority employees. On June 15, 1995, Linda Green promoted Ms. Charron to Accounting, Audit, Tax Level V. Her salary was increased by 20 percent to $1,114.20 bi-monthly. The promotion was effective before the expiration of Ms. Charron's probationary period as an Accountant IV. The decisions to reorganize the section and promote Ms. Charron were made while Petitioner was absent on sick leave. Linda Green did not deliberately choose to promote Ms. Charron without consulting Petitioner as her supervisor. Moreover, Ms. Green, as manager, had no duty to consult with Petitioner before reorganizing the office. On June 16, 1995, Linda Green issued two official written reprimands against Petitioner. The first written reprimand involved a violation of Respondent's Conduct Standard 14-17.012(4)(a)6., Florida Administrative Code, for sleeping on duty. The reprimand documented the following occasions that Petitioner violated this conduct standard: November 30, 1994; December 1, 1994; January 5, 1995; March 13, 1995; March 20, 1995; March 21, 1995; March 30, 1995; June 5, 1995; and June 7, 1995. Prior to June of 1995, numerous employees were observed sleeping in meetings. The record contains no evidence that any of them were given written reprimands for sleeping on duty. Except for one of these employees, there is no evidence that their respective supervisors were aware that they were sleeping on duty. One employee, Jim Spencer, was observed sleeping on duty by his direct supervisor, Jean Jones. He was not on permanent career status at the time. Jean Jones decided to extend Mr. Spencer's probationary status rather than issue him a written reprimand. Ms. Jones made a conscious decision to give Mr. Spencer an opportunity to correct his behavior before dismissing him from employment. The second official written reprimand charged Petitioner with violating Respondent's Conduct Standard 14-17.012(4)(a)25., Florida Administrative Code, for unauthorized use or misuse of state property, services, equipment or personnel, and Respondent's Conduct Standard 14-17.012(4)(a)7., Florida Administrative Code, for loafing. This reprimand was the result of Petitioner's continued abuse of telephone privileges from January through June of 1995, misuse of the facsimile machines from February through May of 1995, and extended social visits with an employee from another office from January through March of 1995. Petitioner's alleged misuse of Respondent's facsimile machine was due to his involvement with the Safe and Drug-free Schools Advisory Council sponsored by the Columbia County School Board. Petitioner was cautioned in staff meetings on February 13, 1995, and February 21, 1995, against using state property for personal reasons. After those meetings, he received announcements of advisory council meetings on February 27, 1995, and April 26, 1995. He received a third fax transmission from the school board on May 16, 1995, while he was on sick leave. The school board solicited Petitioner's participation in the advisory council during one of Respondent's staff meetings. Respondent's employees did not have to request leave to attend the meeting. Nevertheless, Respondent did not give its employees permission to use its facsimile machines to receive notices about advisory council meetings or other volunteer work. Petitioner contacted the school board staff to tell them not to send him notices using Respondent's facsimile machines. The record is not clear as to when Petitioner made this request. Petitioner did not receive facsimile transmissions from the school board after he received the reprimand in June of 1995. The record contains evidence of four written reprimands for employee misuse of state property from December 1994, through May 1995. From February 1996, through June 1996, six employees were given written reprimands for misuse of state property. The reprimands of other employees included misuse of telephone privileges, computers, and agency stamps and stationary. These reprimands, together with competent evidence that Petitioner abused his long-distance telephone privileges as set forth below, eliminate any concern that Petitioner received disparate treatment regarding his reprimand for misuse or unauthorized use of state property. There is no evidence that Respondent has ever cited anyone but Petitioner for loafing. Nevertheless, the record supports this charge against Petitioner. Juanita Aiken works in Respondent's central office as an Disbursement Services Analyst. She testified that she often discussed personal matters with Respondent's employees in long- distance telephone conversations before she addressed the business purpose of her call. Linda Green personally informed Petitioner in January of 1995 that he needed to confine his long-distance telephone conversations with Ms. Aiken to department business. Petitioner did not heed her verbal warning. Ms. Aiken's personal telephone conversations with Petitioner did not cease until Linda Green and Jean Jones contacted her supervisor in Tallahassee. In the spring of 1995, Linda Green solicited Debra Williams' help in monitoring Petitioner's personal telephone calls. Ms. Williams declined to become involved and requested that her desk be relocated to another area. Linda Green assigned Ms. Charron a desk in Petitioner's private office in April of 1995. Ms. Charron complained to Ms. Green that Petitioner was talking on the phone for 30 to 45 minutes everyday and sometimes twice a day. The personal nature of the calls made Ms. Charron feel uncomfortable. Olu Olyewole worked for Respondent as a Distributor Computer Systems Analyst. He was responsible for connecting personal computer terminals to the networking system. He visited Petitioner regularly for extended periods of time until Ms. Green complained to his supervisor. When Mr. Olyewole visited Petitioner, the door to Petitioner's private office would often be closed. Early in 1995, Wanda Jean Hills desk was located in the glass-enclosed office with Petitioner's desk. On one occasion she could not get to her desk because she believed Petitioner and Mr. Olyewole were having a private conversation. The long social visits with Mr. Olyewole wasted time in an office that was overburdened with work. The visits interfered the performance of work by Petitioner and his subordinates. Petitioner was unavailable to his subordinates during these visits because they were reluctant to disturb his conversations, even when they needed his assistance. Linda Green did not reprimand any of her subordinates except Petitioner for misuse of state property, sleeping on duty, or loafing. However, there is no evidence that other employees under her authority violated the same conduct standards that Petitioner violated. There is evidence that Linda Green sold Amway products to employees on Respondent's property over a two-month time span. The record does not reflect the exact period of time in which Ms. Green engaged in this activity. The greater weight of the evidence indicates that Linda Green passed out Amway brochures and delivered merchandise before work in the mornings. At times, her co-workers would place an order with Ms. Green during work hours because they were familiar with Amway products and knew that she was an Amway representative. Occasionally, Respondent's employees would hand Ms. Green a check or leave one in her desk during work hours. Linda Green did not aggressively pursue her private enterprise during work hours. There is no evidence that Ms. Green's private business activities interfered with her duties or usurped a significant portion of her time as manager of the financial section. Respondent did not give Linda Green a written reprimand for conducting private business on Respondent's property. The record does not reflect whether Ms. Green was verbally reprimanded. It does not appear that her supervisor, Jean Jones, was aware that Ms. Green was involved in selling Amway products on department property. The record does not contain evidence of any written reprimand based solely on unauthorized solicitation on state property. It does contain evidence that Respondent issued a written reprimand to an employee for conducting personal business while using a state vehicle. The employee's actions, like Ms. Green's, were incidental to the performance of his duties. The employee's supervisor did not require the employee to reimburse the agency for any cost. On June 16, 1995, Linda Green gave Petitioner a special performance appraisal to evaluate his performance as a supervisor since November 21, 1994. To conduct this evaluation, Ms. Green used the performance appraisal form for supervisors and managers that was in effect when Petitioner was promoted to Accounting Services Supervisor I in November of 1994. Linda Green admits that she did not conduct the required initial review of the relevant performance standards with Petitioner within two weeks of his promotion. Nevertheless, Petitioner's claims that he was not familiar with the performance standards used by Ms. Green to evaluate his performance is not persuasive. Petitioner attended at least two seminars in performance appraisal and performance planning. Petitioner was familiar with the performance standards for a supervisor, which became effective after Respondent initiated its career service reform in February of 1995. He signed the RAPP form on February 13, 1995. The standards contained on the new appraisal form are substantially similar to the performance standards listed on the older appraisal form. Linda Green gave Petitioner an overall performance rating of "below" standards. The record supports her determination that Petitioner's work performance began to fall short of expectations after he assumed the position as an accounting supervisor. Linda Green determined that Petitioner's performance in two categories deserved the highest rating of "achieves." These two categories were EEO/AFFIRMATIVE ACTION and SAFETY PRACTICES. Linda Green determined that Petitioner's performance was substantially below expectations in at least one area of each of the remaining six categories for the following reasons: PLANNING, CONTROLLING AND ORGANIZING WORK Petitioner failed to operate his work areas efficiently. He did not notify his supervisor of job related problems. Petitioner did not take necessary and appropriate action on performance and shortcomings of subordinate employees. SUPERVISION/LEADERSHIP OF PEOPLE Petitioner failed to delegate effectively. Petitioner demonstrated dissension toward other staff members. PERFORMANCE APPRAISALS Petitioner did not take necessary and appropriate action on performance shortcomings of subordinate employees. PROBLEM ANALYSIS/DECISION MAKING Petitioner failed to inform and/or consult with necessary persons during the decision- making process. SELF DIRECTION/PERSONAL SKILLS Petitioner failed to use his work time effectively. He abused his telephone privileges. He wasted time visiting with an other employee. JOB PERFORMANCE Petitioner failed to perform specific job assignments as outlined on his position description or as assigned by appropriate management. A job applicant claimed that he earned 2400 credit hours in a U.S. Army finance school within a two-month period. Petitioner offered the applicant a job without verifying this information. Linda Green subsequently determined that the applicant had misrepresented his qualifications and withdrew the job offer. Based on this incident alone, Petitioner did not meet the standard for job performance in general. In December of 1995, Rick Haddock received a promotion to a Level II accountant. His salary increased by 20 percent to $715.27 bi-monthly. In March of 1996, Petitioner had a confrontation with Mary Caldwell, a white female accountant. Petitioner's voice was loud; he sounded very angry and threatening. The disturbance alarmed several employees who were in the vicinity. Ms. Caldwell and Petitioner went into a private office where the argument continued. Petitioner's behavior toward Ms. Caldwell was totally inappropriate. On March 22, 1996, Linda Green gave Petitioner a written reprimand for violation of Respondent's Conduct Standard 14-17.012(4)(a)16., Florida Administrative Code, involving rudeness, display of uncooperative or antagonistic attitude, actions or behavior. That same day, Ms. Green gave Petitioner a mandatory Employee Assistance Program Referral. In June of 1996, Linda Green deleted Petitioner's duties involving the budget and supervision of the vouchering section. Linda Green gave Patsy Green, a white female, Petitioner's budget responsibilities. Linda Green took this initiative because of the increased work load resulting from continued decentralization. The central office initiated a process in 1996 to conduct a periodic formal Quality Assurance Review (QAR) in each district office. The purpose of the QAR was to ensure that all vouchers were correct before they were sent to the billing office of the State Controller. Ms. Green wanted Petitioner to focus his energy on making sure that District Two's vouchers were in compliance with all state regulations. In June, 1996, Linda Green gave Petitioner additional duties including financial audits and investigations, quality assurance reports, reconciliations, comptroller returns, and liaison with the State Comptroller's office. His new duties were in-depth auditing and accounting responsibilities involving job cost reporting and making sure that the accounting system stayed in balance. Petitioner's salary was not decreased when his job description changed. At the same time, Linda Green gave Ms. Charron additional duties including contract funds management, joint participation agreements, settlement agreements, management reports, training, and numerous special projects. Ms. Green deleted Ms. Charron's supervisory responsibilities over the contract section. Linda Green received information in June 1996, that the central office intended to audit the supervisory positions in District Two. The central office wanted to make sure that all Level V positions in the Accounting, Audit, and Tax occupational group were held by employees spending at least 51 percent of their time in supervision. Petitioner and Ms. Charron were not spending 51 percent of their time in supervising the work of other employees. Accordingly, both of them were reassigned on June 14, 1996, to Level IV of the Accounting, Audit, and Tax occupational group. The working title for each of them became Accounting Services Administrator. This change was not a demotion and did not effect their respective salaries. Instead, the reassignments accurately reflected the actual duties of their positions. After Petitioner filed his Charge of Discrimination, Michael Klump, from Respondent's Minority Program Office in Tallahassee, Florida, was assigned to furnish all information requested by FCHR and to prepare the agency's response to the complaint. Mr. Klump's duties did not involve investigating the alleged charges on behalf of FCHR. Respondent's Minority Program Office prepared a letter dated September 11, 1995, addressed to Petitioner. The purpose of the letter was to advise Petitioner that the agency had received the complaint. It states that Petitioner should contact Mr. Klump if Petitioner had any additional information or questions regarding this matter. There is no competent evidence to indicate whether Petitioner received the letter from the Minority Program Office. Mr. Klump visited Respondent's District Two Office in Lake City to gather the information requested by FCHR. He did not interview Petitioner while he was there. Respondent's Minority Program Office does not routinely interview complainants who file a charge of employment discrimination with FCHR unless the complainant responds to a letter similar to the one addressed to Petitioner. There is no credible evidence that Respondent prepared its response and/or position statement to FCHR with the intention of misrepresenting material facts. Linda Green gave Petitioner a copy of her computer notes relative to dissension in the office when he first requested them. However, she edited the notes to delete the names of employees that had complained about Petitioner. At the hearing, Ms. Green produced an unedited copy of the notes which had been updated beyond the time relevant here. There is no persuasive evidence that Respondent intentionally discriminated against Petitioner on the basis of his race or gender or retaliated against him for filing his Charge of Discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claims of racial and gender discrimination and retaliation. Recommended this 15th day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact In July of 2006, Respondent advertised an opening for an Accountant II, position #70557, in its revenue and contracts division. The primary responsibility in the position was accounting for and paying or reimbursing expenses in state programs that were funded through federal money by drawing down the accounts in which the federal funds were maintained. Therefore, among other things, the position required accounting experience and a working knowledge of FLAIR. FLAIR is the computerized accounting and records system used by all state agencies in the State of Florida. The vacant position required significant knowledge and experience in both the accounting codes utilized in FLAIR and the computer screens associated with those codes. Additionally, there was a critical need to immediately fill the position with an experienced person because of the involvement with federal funds and due to the fact that another employee, Deborah Schimmel, was performing the work required in her position, as well as, the work required in the vacant position. In 2006, Petitioner, who is Caucasian and 67 years old, applied for the Accountant II position with Respondent. As part of the application process, Petitioner answered a series of qualifying questions relevant to the vacant position. The questions were used by Respondent to help with preliminary screening of the applicants. Some of the questions involved the applicants’ experience with FLAIR, grants and revenue. Petitioner answered the qualifying questions and indicated he had one year of experience with FLAIR, a college degree in accounting and experience with grants. There were four other applicants for the position. Petitioner did not know the race of any of the other applicants for the position and did not offer any evidence regarding the race of these individuals. Salwa Soliman, the Commission’s Revenue and Contracts Manager, was advised that the Accountant II position was vacant and had been advertised. She was also aware that the position needed to be filled as soon as possible with a person who could perform the accounting and billing duties of that position with little or no training. Ms. Soliman reviewed the applications for the vacant position. Based on a review of his application and qualifying questions, Petitioner was granted an interview because he was a veteran, held a bachelor's degree in accounting, had revenue experience and had experience with FLAIR. On October 13, 2006, Petitioner was interviewed for the position by Ms. Soliman and Ms. Schimmel. During Petitioner's interview, it was clear that Petitioner's experience with revenue related to tax returns and not grants. Likewise, Petitioner's experience with grants was only in writing or applying for grants. He had not billed or disbursed federal money from such grants. More importantly, Petitioner's experience with FLAIR was “view only” experience. “View only” experience or authorization meant that Petitioner was only able to view or look at certain screens but not input data or change the screens in FLAIR. Thus, Petitioner did not have experience with data input to FLAIR and/or the pull-down menus associated with such input. In short, Petitioner’s experience and skills did not relate to the work required in the position at issue. Neither tax experience nor grant writing experience was the type of revenue experience required for the vacant position. Additionally, Petitioner did not have sufficient experience or working knowledge of FLAIR to enable him to fill the position with little or no training. Petitioner was not hired for the position. In all likelihood, Petitioner could have been trained for the position. However, due to the nature of the position, Respondent reasonably wanted to hire a person who could immediately fill it. Indeed, none of the applicants for the position were hired because no person had the necessary working knowledge of FLAIR and grant billing to fill the Accountant II position immediately with little or no training required. There was no evidence that Respondent’s reasons for not hiring Petitioner were unreasonable or a pretext for discriminating against Petitioner. When a batch of applicants does not meet Respondent’s needs for a vacant position, Respondent’s policy was to review any applications for other employment opportunities with Respondent submitted within six months of the closing date of the job announcement for the current vacancy. Because of the critical need to fill the Accounting II position, Ms. Soliman asked that other previously submitted applications be forwarded to her by Respondent’s personnel department. In order to transfer an application from one job posting to another job posting, People’s First, the State’s contractor for some personnel matters, must transfer the previously filed application in its database to the file for the current vacancy. Other than requesting the transfer of the application, Respondent is not involved in the actions necessary to transfer an application to another file for a vacant position. In this case, Respondent’s personnel department requested People’s First to transfer applications from an earlier-filled Accountant II position with Respondent. One of the transferred applications was from Debra Shriver who was 23 years old and Caucasian. For unknown reasons, in the computer process of transferring the application, the date on Ms. Shriver’s application was changed. The evidence was clear that Respondent did not ask for or cause the date on Ms. Shriver’s application to change. In fact, the change in the application’s date was immaterial to Respondent’s criteria or requirements in filling the position at issue here and does not demonstrate any fraud, falsification or misrepresentation on the part of Respondent in filling the position. Based on her application, Ms. Soliman interviewed Ms. Shriver for the vacant position. The evidence was clear that Ms. Shriver had the experience and knowledge being sought and required for the position at issue. She was currently working in the grant billing division in another state agency and had significant experience and working knowledge of FLAIR as it relates to grants and billing. Ms. Soliman had worked with the successful candidate before but they were not personal friends. Ms. Soliman knew that Ms. Shriver was a competent employee. Based on these facts, Ms. Shriver was hired for the vacant position and did not require significant training once she began working in that position. There was no evidence that Ms. Shriver’s selection was based on her race or her age. She was selected based on her qualifications to immediately perform in the position for which she was hired. Likewise, there was no evidence that Petitioner was not hired based on his race, which was the same as Ms. Shriver’s, or his age. Petitioner was not hired because he did not have the experience necessary to enable him to immediately begin performing the duties of the position for which he applied. Finally, there was no evidence that Petitioner’s requirements for selecting a person to fill the vacant position or for selecting Ms. Shriver were unreasonable or a pretext for discrimination against Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that a final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Albert H. Beddy 7281 Sycamore Road Quincy, Florida 32351 Stan M. Warden, Esquire Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the certificate of Respondent to practice public accounting in Florida should be revoked, annulled, withdrawn or suspended as indicated in the administrative complaint.
Findings Of Fact The parties stipulated to certain facts, as follow: That the Certificate Holder received an undergraduate degree in accounting from the University of Cincinnati in August of 1968. That the Certificate Holder was employed by major CPA firms from August of 1968 to September of 1970 as an accountant. That the Certificate Holder passed the uniform CPA exam in California in 1969, and was granted a CPA license by California upon completion of the necessary experience requirements in May of 1971. That the Certificate Holder attended law school at the Ohio State University from September 1970 through December 1972. In December 1972 he was awarded a Juris Doctor Degree from that institution. That prior to graduating from law school, the Certificate Holder made application to secure a position in accounting. He secured a position with the certified public accounting firm of Arthur Young and Co. in Cincinnati, Ohio, which position commenced on January 1, 1973. That while employed as a certified public accountant by Arthur Young and Co., the Certificate Holder, in the summer of 1973, was offered a position with a certified public accounting firm in Miami, Florida. That in July 1973 the Certificate Holder accepted that position with McClain and Co., CPA's of Miami, Florida, which position was to begin in August 1973. That during the summer of 1973, the Certificate Holder requested the Florida State Board of Accountancy to forward him an application to apply for a reciprocal CPA certificate and the Board responded that an application would not be sent to anyone who was not a resident of the State of Florida. That during the summer of 1973, the Certificate Holder made an application with the Florida Bar to become a member of the Florida Bar. That the Certificate Holder moved his family from Cincinnati, Ohio, to Fort Lauderdale, Florida, in July 1973 and began working on a full-time basis for the Florida CPA firm of McClain and Co. in August of 1973. At that time he again requested an application for a reciprocal CPA certificate; said application being received by the Certificate Holder in late September of 1973. That the Certificate Holder completed the application for a reciprocal CPA certificate and submitted the same to the Florida State Board of Accountancy in October 1973. That in November 1973 the Certificate Holder took the Florida Bar examination in Tampa, Florida. That the Certificate Holder was admitted to the Florida Bar in December 1973 and was granted a reciprocal CPA certificate by the Florida State Board of Accountancy in January 1974. That the Certificate Holder was discharged by the Florida certified public accounting firm of McClain and Co. in may 1974. That the Certificate Holder taught part-time in the Accounting Department of Florida International University beginning in January 1974 thru 1976. After his discharge from the public accounting firm of McClain and Co., he continued at Florida International University on a substantially full-time basis thru the summer of 1974 and into the fall of 1974. That in August 1974 the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, but this office was staffed only on a part-time basis as the Certificate Holder was devoting the great bulk of his time to his teaching activities at Florida International University in Miami, Florida. That in February, 1975, the Certificate Holder opened an office for the practice of law in Fort Lauderdale, Florida, (200 SE 6th Street, Suite 100- B), which office was from that time staffed on a full-time basis by the Certificate Holder. That since February 1975 the Certificate Holder has been actively engaged in the full-time practice of law in the city of Fort Lauderdale, Florida; and That the Certificate Holder has been a resident of and domiciled in the State of Florida from August 1973 thru and including the date of the Stipulation." (Exhibit 1). The parties stipulated at the hearing that the respondent joined the Florida Institute of Certified Practicing Accountants on Jun 17, 1974, as an active member, and changed his status to that of a non-practicing member of the institute on August 22, 1975. Respondent testified at the hearing that his purpose in attending law school in 1970 and eventually obtaining a law degree was predicated upon his desire to advance more rapidly in the tax department of an accounting firm. He had noted that most of the accountants doing tax work in accounting firms generally held law degrees and received higher salaries. Since he was interested in taxation, he did not obtain a master's degree in accounting which involves primarily audit work or preparation of financial statements. Respondent did tax work for an accounting firm in Cincinnati, Ohio, after graduation from law school in 1972 and secured a similar position with an accounting firm in Florida, McClain and Company, in the summer of 1973. He applied for admission to the Florida Bar the same summer because he believed his failure to do so might cause an adverse reaction by prospective employers in the accounting field. Prior to the Florida move, respondent did not seek employment with a law firm because he felt that the opportunities were much better in public accounting and he enjoyed that type of work. After passing the Florida Bar examination in October 1973, respondent did not seek employment in a law firm because he was well satisfied with his accounting position. After he was involuntarily discharged from his job with McClain and Company in May 1974, he sought employment with both accountant firms and law firms in the tax area. Although he began a graduate law program in taxation in January 1974, his purpose was to acquire greater knowledge and ability concerning tax matters for his work in accounting. Respondent testified that at the time he had applied for the Florida reciprocal license as a certified public accountant, he intended to practice public accounting in the State of Florida on a full-time year-round basis. He conceded that he has not been engaged in the full-time practice of accountancy since his termination with the accounting firm in the spring of 1974. (Testimony of Respondent, Exhibits 2, 3). On December 30, 1975, respondent advised the petitioner by means of a "CPA information card" that he was not engaged in the practice of public accounting. By letter of June 21, 1976, petitioner requested respondent to return his certificate along with a stipulation and waiver of hearing. The practice of petitioner in such cases is to request that a registrant waive his right to a hearing on the question of whether or not his certificate should be revoked on the ground that he is not engaged in the full-time year-round practice of public accounting in Florida. In the event the registrant does not agree to waive such a hearing, petitioner normally proceeds to file an administrative complaint seeking revocation of the certificate. (Testimony of Respondent, Composite Exhibit 4).
Recommendation That petitioner's administrative complaint against respondent Thomas F. Luken be dismissed. DONE AND ENTERED this 16th day of November 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November 1977. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 David Hoines, Esquire First National Bank Building Fort Lauderdale, Florida 33394
Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Chapter 473 and rules promulgated thereunder as set forth in the Conclusions of Law portion of this Order. His license should be suspended for one year with probation thereafter for a period of two years. He should also be required to take such additional continuing education courses as the Board deems appropriate. DONE and ORDERED this 15th day of April, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1986.
Findings Of Fact Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2). In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1). In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs. A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2). By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2) Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
