The Issue In an order entered on October 30, 1991, the Florida Commission on Ethics (EC) found probable cause that Respondent, Donald H. Sanders, as a Coral Springs city commissioner, violated section 112.313(7)(a), F.S., by acting as an investment broker for an individual who is president of a large land development company which frequently has business before the city commission. In a subsequent order entered on December 11, 1991, the EC found probable cause that the same respondent in his capacity as city commissioner violated section 112.313(7)(a), F.S., by having a loan contract with a company doing business with the city. The issues for determination in this proceeding are whether those violations did occur and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Donald L. Sanders (Sanders), is now, and for the past fourteen years has been, a city commissioner in Coral Springs, an incorporated city in Broward County, Florida. Sanders' occupation is stockbroker. He has been employed as such for thirty years, the last nineteen of which have been with the firm, Paine Webber. Coral Ridge Properties The City of Coral Springs was created by special act of the legislature in 1963, at the behest of Coral Ridge Properties, Inc., the largest landowner and developer of the community. Personnel of Coral Ridge Properties acted as the city officials in the beginning. Gradually, as the community built up, the city hired employees. In 1969, the then residents of the city elected their first five member commission pursuant to the charter established in the special act. Werner Buntemeyer was involved in the initial creation of the city as an employee of Coral Ridge Properties, Inc., and as the city's first city manager. By 1974, the manager job became too big for Buntemeyer's dual role and he resigned, choosing to stay with the company. He is now president of Coral Ridge Properties, Inc., and has worked in that capacity for thirteen years. Werner Buntemeyer is also president of Florida National Properties, Inc., a wholly owned subsidiary of Coral Ridge Properties, Inc., and the land holding company for Coral Ridge Properties. Both companies, Coral Ridge Properties, Inc., and Florida National Properties, Inc. (CRP/FNP), are wholly owned subsidiaries of Westinghouse Communities, Inc., a part of Westinghouse Corporation. Buntemeyer receives bonuses based on the success of these companies. The twenty-five square miles that comprise the City of Coral Springs has grown in population from zero in 1963, to approximately 85,000. CRP/FNP no longer owns most of the land in the city; it is, however, a large landowner with substantial development interests and the city's major developer. Issues affecting CRP/FNP come before the city commission at virtually every meeting. CRP/FNP has representatives who attend those meetings. Buntemeyer does not attend routinely, and probably has attended only twice in the fourteen years that Respondent Sanders has been on the commission. Buntemeyer lobbies commission members individually by inviting them to his office to discuss issues such as economic development or other issues of interest to the company. Buntemeyer has lobbied Sanders individually in this manner. Sanders moved to Coral Springs in 1975, and became active in the community in various organizations. The city in those days was quite small, and folks gathered in the evening after work to socialize. This is how Sanders initially met Werner Buntemeyer. At some point, Sanders suggested some investments to Buntemeyer. Sanders was recommended to Buntemeyer by someone else, so he made some investments through Sanders, even though he mostly invested through other firms. Sanders checked with the city attorney and understood that so long as he did business with Buntemeyer personally, and not with Coral Ridge Properties, a conflict problem would not exist. Sanders did not pursue a formal opinion from the attorney or from the Ethics Commission on this issue. However, Sanders did ask the Ethics Commission on another occasion whether Paine Webber could bid on city bond issues while he was on the city commission. The answer, as Sanders remembers, was "no." Between 1986 and 1990, Respondent Sanders brokered investment transactions for Werner Buntemeyer totalling approximately $142,883.00. The total commission to the firm on these transactions was $5,696.00, and the total commission paid to Sanders was approximately $2,275.00. The document created at the inception of the relationship was a normal contract between a broker and client. There is no evidence that Sanders' public duty was ever actually compromised by his relationship with Werner Buntemeyer. From the summaries of commission meetings submitted as Advocate's exhibit #12, virtually all of the votes taken on any issue were unanimous, 5-0 or 4-0. In only one instance did Sanders dissent from the majority. It was a minor issue involving a letter from Coral Ridge Properties regarding trespassing. The commission voted to ask the developer to sit down with the offending students and explain its position in a more sensitive manner. According to the minutes of the meeting, Sanders felt the commission was responding to threats. (Advocate's exhibit #12, 11/20/90 meeting). R. L. LaRoche In 1987, Sanders had just purchased a home and was looking for some cash to pay off his bills. He had heard that developers in town sometimes made second mortgage investments through their pension plans so he decided to go that route, if possible, to avoid the points and extra costs of borrowing through a conventional lender. Ronald LaRoche is the sole owner and president of R. L. LaRoche, Inc., a general contracting company specializing in commercial and municipal construction. Sanders and LaRoche were occasional social friends; they played golf and saw each other sometimes at parties. Sanders called up LaRoche, made an appointment, saw him in his office and asked if he had money in his pension fund that he was willing to loan. On May 29, 1987, the parties closed on a $15,000.00 loan to Donald Sanders and his wife, secured by a second mortgage on the Sanders' condominium. The lender and mortgagee is "R. L. LaRoche, Inc. Profit Sharing Plan and Trust." Terms of the note called for monthly interest payments of $150.00 (12 percent), with the principal coming due at the end of a twelve-month period, on May 29, 1988. The loan was extended each year until LaRoche wanted to make a similar loan to someone else and asked Sanders to pay off his loan. The loan was repaid in August 1992. R. L. LaRoche, Inc. Profit Sharing Plan and Trust is a benefit offered to the company's employees, like a pension plan, and is available only to that company's employees. At Ronald LaRoche's election, the company makes contributions to the plan. If the company is profitable, normally contributions are made. The employees receive their benefits when they leave the company. The plan has been in existence for ten to twelve years with the number of employees eligible to participate ranging from six to fifteen. In consultation with his attorney and accountant, Ronald LaRoche makes all of the decisions regarding contributions to, and investments for the plan. There are Internal Revenue Service (IRS) guidelines governing investments and, as fiduciary, LaRoche considered the Sanders' loan to be well within the guidelines. Twelve percent was considered a good return, given the economy at the time. On December 20, 1988, the Coral Springs city commission, including Respondent Sanders, voted to approve R.L. LaRoche, Inc., as one of the contractors to bid on construction of the Coral Springs City Center. LaRoches' bid was $700,000.00 lower than the second bid, and R. L. LaRoche, Inc., was awarded the contract on March 28, 1989. The contract was in excess of $4 million. From time to time, change orders or other matters relating to the contract with R. L. LaRoche, Inc., came before the city commission. The votes were mostly routine, based on recommendations by city staff, but the commissioners also asked questions about the change orders to ensure themselves as laypersons why the change was required. Until the conflict issue was brought up, Sanders voted on the matters affecting the contract. After he was publicly criticized, he abstained from the discussion and votes. At the time that the contract was awarded to Ronald LaRoche's company, Sanders did not think about a potential conflict; when the issue was raised and he did think about it, he felt he was still okay because he considered the profit sharing plan to be a separate entity from the corporation. Moreover, he did not consider that any of his votes were influenced by his loan. The Profit Sharing Plan and Trust is described in a fifty-three page document titled "Summary Plan Description for R. L. LaRoche, Inc. Profit Sharing Plan and Trust" (Advocate's Exhibit #13). Under the plan the trustee is granted substantial discretion. The plan itself is voluntary and the employer, R. L. Laroche, Inc., has the right at any time to reduce benefits, discontinue contributions or terminate the plan and trust. Notification of such must be provided to the appropriate governmental agency or agencies pursuant to the Internal Revenue Service Code of 1954 and the Employee Retirement Income Security Act of 1974 (ERISA). Benefits, once vested, are sacrosanct, and the trustee is prohibited from entering into a transaction with the employer, any relative of the employer, any corporation controlled by the employer, and any officer or stockholder of the employer without first requesting a determination of legality from the U.S. Department of Labor. (See Section 6.15, p. 35/48, Advocate's exhibit #13.) In summary, the plan's very existence, investments and contributions are subject to the discretion of Ronald LaRoche, as trustee, but the exercise of that discretion is heavily regulated by the IRS and the Department of Labor. A creature of the employer corporation, the plan and trust nonetheless has a life of its own.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order and public report be issued dismissing the complaints in these consolidated cases. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-161EC The following constitute specific rulings on the findings of fact proposed by the parties. The Advocate's Proposed Findings 1 and 2. Adopted in paragraph 1. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 3 and 4. Adopted in paragraph 4. Adopted in paragraphs 2 and 5. Adopted in paragraph 5. Rejected as uneccessary. Adopted in paragraph 6. 11 and 12. Adopted in paragraph 8. 13 and 14. Adopted in paragraph 10. 15 and 16. Adopted in substance in paragraph 12. 17 and 18. Adopted in paragraphs 12 and 14. 19. Adopted in paragraph 13. 20 and 21. Adopted in paragraph 15. 22. Adopted in paragraph 16. 23 - 26. Adopted in paragraph 17. 27 and 28. Adopted in paragraph 18. Rejected as unnecessary and immaterial. Adopted in substance in paragraphs 19 and 20. Rejected as unnecessary. Adopted in substance in paragraph 20. Findings of Fact proposed by Respondent Respondent's findings of fact are included in the first four pages of his "Fact, Law and Recommendation [sic] Order". They are unnumbered and mixed with argument on the issues. The proposed findings of fact are substantially those adopted by the parties by stipulation and as such have been incorporated here. Only two factual statements by Respondent need to be specifically addressed as unsupported by the weight of the evidence: He references the profit sharing plan as a separate corporation; it was not a corporation. He also dismisses LaRoche's authority over the plan as minimal; it was not, but the plan still is a separate entity. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Hilliard Moldoff, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issues in this case are whether Petitioner was properly enrolled in the Florida Retirement System (FRS) Hybrid Option Plan (Hybrid Option) in 2002, and whether he should be retroactively re-enrolled in the Florida 1 All statutory references are to the 2019 version of the Florida Statutes, except where indicated otherwise. Retirement System Pension Plan (Pension Plan) without having to pay a “buy-in” amount.
Findings Of Fact Mr. Marinak began employment with the Marion County Public School System, an FRS-participating employer, in 1989. At that time, the Pension Plan was the only retirement program available for eligible employees, and, thus, Petitioner was enrolled in the Pension Plan. The Pension Plan is administered by the Florida Division of Retirement (Division of Retirement), which is housed within the Department of Management Services. The Pension Plan is a defined benefit plan; the benefit is formula-based. The formula used for calculating a pension plan benefit is based on total years of service at the time of retirement, membership class, and average final compensation. Mr. Marinak has been continuously employed by an FRS-participating employer from 1989 to present. In 2002, the FRS Investment Plan (Investment Plan) became available to employees participating in FRS. The Investment Plan is administered by Respondent. The Investment Plan is a defined contribution plan; the benefit is based on gains and losses due to market performance. Mr. Marinak was provided a choice window of September 1, 2002, through November 30, 2002, to remain in the Pension Plan or switch to the Investment Plan. The parties stipulate that the Plan Choice Administrator at the time, now doing business as Voya, has records indicating Mr. Marinak elected the Hybrid Option by means of a telephone call on November 27, 2002. Voya no longer has a recording of the call. SBA does not have a recording of the telephone call either. The Hybrid Option is as its name indicates—it is a hybrid of the Pension Plan and the Investment Plan. When the Investment Plan was introduced in 2002, Pension Plan participants, with at least five years of service, could elect to enroll in the Investment Plan with a zero balance. With the election of the Hybrid Option, retirement funds from all years of service prior to the election remain in the Pension Plan; everything from the election forward is administered under the Investment Plan. Hybrid Option participants will receive the resulting defined benefit from the Pension Plan (earned prior to the election) upon retirement, plus the benefits from the investments in the Investment Plan after the election. The Pension Plan portion of the Hybrid Option remains with, and continues to be administered by, the Division of Retirement. The Investment Plan portion is administered by Respondent. Mr. Marinak disputes electing to enter the Hybrid Option. He credibly testified that he did not desire to transfer to the Investment Plan and has no recollection of authorizing such a transfer. Beginning at least as early as 2005, Respondent sent or otherwise made available to Mr. Marinak quarterly “FRS Investment Plan” statements. Mr. Marinak testified that he received these statements, but did not know what they meant. The earliest FRS Investment Plan statement documented by Respondent as having been sent to Mr. Marinak covered the period of January 1, 2005, to March 31, 2005. Mr. Marinak did not inquire about the statement or file a complaint with Respondent after receiving this statement. Beginning at least as early as 2008, the Department of Management Services sent or otherwise made available to Mr. Marinak annual “FRS Pension Plan – Hybrid Option” statements. These statements were sent to Mr. Marinak’s address of record at the time the statements were mailed. Mr. Marinak testified that the addresses where the statements were sent were, indeed, his addresses. Since the transfer in 2002, Mr. Marinak has updated his beneficiary designations for both the Pension Plan and Investment Plan portions of his Hybrid Option. In November 2008, Mr. Marinak communicated by e-mail with personnel at the Division of Retirement about the status of the Pension Plan and the years of service used to calculate his benefits. In December 2008, in response to his inquiry, the Division of Retirement prepared and provided to Mr. Marinak an Estimate of Retirement Benefit. The “Comments” section of the Estimate of Retirement Benefit stated as follows: This estimate is based on retirement at 30 years of service. It represents your 13.40 years of service in the Florida Retirement Pension Plan (8/1989 through 11/2002). You will have to terminate all employment with FRS employer to receive this benefit. You have an additional 6.00 years in the Hybrid Investment Plan through 11/2008; the years in the Hybrid Option are not used in calculating your monthly retirement benefit from the pension plan, which is why they are not reflected in your Member Annual Statement. Mr. Marinak did not inquire about the comment or file a complaint after receiving the Estimate of Retirement Benefit.2 Mr. Marinak testified that he saw the comment, but not being an expert in retirement financing, he did not comprehend what it meant. Mr. Marinak did not present documentary evidence or an audio recording demonstrating that he did not elect to transfer from the Pension Plan to the Hybrid Option. In early 2019, Mr. Marinak, nearing retirement, reviewed his retirement account and recognized that he was enrolled in the Hybrid Option. He contacted the Division of Retirement for guidance on how to switch back into the Pension Plan. The Division of Retirement informed Mr. Marinak that he may utilize a one-time “second election” to move back into the Pension Plan, but must pay a sum of approximately $160,000 as a “buy-in” amount to do so. This sum is derived from an actuarial calculation conducted by the Division of Retirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration enter a final order dismissing Petitioner’s Florida Retirement System Investment Plan Petition for Hearing. DONE AND ENTERED this 27th day of July, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2020. COPIES FURNISHED: Ruth E. Vafek, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 (eServed) Herbert M. Hill Law Office of Herbert M. Hill, P.A. Post Office Box 2431 Orlando, Florida 32802 (eServed) Robert John Marinak 16531 Swan View Circle Odessa, Florida 33556 (eServed) Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
The Issue The issue to be determined is whether Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from a prior consolidated action before ALJ F. Scott Boyd, DOAH Case Nos. 16-3298 and 16-3302, pursuant to section 185.05, Florida Statutes. Before the final hearing, the parties stipulated to an amount of reasonable prevailing party attorney’s fees and costs if the undersigned determines that Petitioners are entitled to an award of reasonable prevailing party attorney’s fees and costs stemming from that prior action before ALJ Boyd.
Findings Of Fact The City of Coral Springs is a municipality in Broward County, Florida. It exercises broad power pursuant to article VIII, section 2 of the Florida Constitution, and the Municipal Home Rule Powers Act, chapter 166, Florida Statutes. The City Commission of the City of Coral Springs (“Commission”) may create other offices, boards, or commissions to administer the affairs of the city and may grant them powers and duties. The Commission has adopted the Coral Springs Police Officers’ Pension Plan (“the Plan”), which is amended from time to time by ordinance and is set forth in sections 13-5 through 13-17 of the Code of Ordinances of the City of Coral Springs. The Plan is administered by the City of Coral Springs Police Officers’ Pension Fund Board of Trustees (“Board”), the powers of which are set forth in sections 13-13 through 13-15 of the Code of Ordinances of the City of Coral Springs. The Plan is a local-law defined pension plan created pursuant to chapter 185. In February 2016, the Board adopted a policy to allow for the suspension of pension benefits of members who were charged with crimes specified at section 112.3173, Florida Statutes, and whose benefit payments had equaled or exceeded their contributions to the Plan. The Williamses are retired police officers whose pension benefits had fully vested at the time of the enactment of the aforementioned suspension policy. In February 2016, the Board sought to suspend Petitioners’ benefits under the newly-adopted policy because Petitioners had been charged with crimes specified in section 112.3173 and the benefit payments made to them had exceeded their contributions to the plan. Petitioners requested a formal hearing to challenge the authority of the Board to adopt the suspension policy. Petitioners’ benefits were never suspended at any time during the pendency of this suspension matter. The Board contracted with DOAH to conduct the formal hearing under the authority of section 120.65(6), Florida Statutes. DOAH assigned ALJ Boyd to the prior consolidated action, who issued pre-hearing instructions requiring a statement of all issues. The issue of attorney’s fees was not included by the parties. ALJ Boyd conducted the formal hearing on September 30, 2016, and October 10, 2016. On November 18, 2016, ALJ Boyd issued a Recommended Order finding that the Board did not have the authority to adopt the policy nor apply it to Petitioners. The Recommended Order made no mention of awarding attorney’s fees or costs. Nether Petitioners nor the Board filed exceptions to the Recommended Order. Petitioners raised the issue of fees in a letter to the Board dated December 2, 2016. Counsel for Petitioners appeared at a hearing held before the Board in December 2016 and sought fees as set forth in the December 2, 2016, letter. The Board adopted ALJ Boyd’s Recommended Order in toto on January 3, 2017. The Board also denied Petitioners’ request for a hearing regarding an award of attorney’s fees. On January 13, 2017, Petitioners sought an award of attorney’s fees by filing with DOAH a Verified Motion for Prevailing Party Attorney’s Fees and Costs. On March 1, 2017, ALJ Boyd entered an Order dismissing Petitioners’ motion for fees, stating he lacked jurisdiction to hear the issue of fees. That Order was not appealed. Prior to the final hearing in this matter, Petitioners successfully petitioned the Seventeenth Judicial Circuit Court to compel the Board to grant them a hearing on entitlement to the fees and to quash the Order denying fees for violation of due process. Petitioners then successfully defended an appeal of that Order by the Board to the Fourth District Court of Appeal and a motion for rehearing thereon. Petitioners are not seeking fees for these extraordinary writ actions as these efforts do not fall under chapters 185 or 120. The parties stipulated that “the Williamses prevailed in challenging the Board’s authority to create a policy suspending the benefits.” The Board never applied its proposed suspension policy to Petitioners. Petitioners continue to receive their benefits to this day. Criminal charges against Petitioners remained pending at the time of the hearing in this matter. Petitioners are only seeking entitlement here to an attorney’s fee and costs award for their successful challenge of the suspension policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioners’ request for prevailing party attorney’s fees and costs. DONE AND ENTERED this 19th day of February, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2021. Brandon J. Hechtman, Esquire Wicker, Smith, O’Hara, McCoy & Ford, P.A. 2800 Ponce de Leon Boulevard, Suite 800 Coral Gables, Florida 33134 Pedro Herrera, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Bonni Spatara Jensen, Esquire Klausner, Kaufman, Jensen & Levinson 7080 Northwest 4th Street Plantation, Florida 33317 Kenneth R. Harrison, Esquire Sugarman & Susskind, P.A. 100 Miracle Mile, Suite 300 Coral Gables, Florida 33134 Gina Orlando, Administrator City of Coral Springs Police Officers’ Pension Fund 9551 West Sample Road Coral Springs, Florida 33065
Findings Of Fact Petitioner, EVELYN S. WRIGHT, as an employee of Metropolitan Dade County and a member of the State and County Officers and Employees Retirement System, elected to transfer into the Florida Retirement System (FRS) effective December 1, 1970. (Exhibit 3) On April 10, 1972, Petitioner terminated her employment with Metropolitan Dade County and applied for FRS disability retirement benefits pursuant to Section 121.091(4), Florida Statutes, on May 22, 1972. (Exhibit 2) Petitioner's application for FRS disability retirement benefits was initially denied by the Administrator of the Florida Retirement System on August 21, 1972. (Exhibit 4) On January 6, 1975, Petitioner inquired of the Supervisor of the Respondent's Disability Determination Unit, Mr. David Ragsdale, as to the possibility of withdrawing the accumulated contributions in her retirement account. At this time, Petitioner, was advised by Mr. Ragsdale that a withdrawal of contributions would cancel her membership rights in the Florida Retirement System. (TR - p.9) Respondent forwarded to Petitioner, by letter dated January 7, 1975, the appropriate form for making application for a refund of accumulated retirement contributions. The transmittal letter specifically advised the Petitioner that, "Should you complete and return the enclosed card, M81, you would have no further rights or service credit with the Division of Retirement." (Exhibit 5) On January 14, 1975, Petitioner executed, and her employer verified, an application for refund of accumulated retirement contributions. The application form clearly stipulated: "I hereby make application for refund of my accumulated contributions in the Florida Retirement System. I do hereby waive for myself, my heirs and assignees all rights, title and interest in the Florida Retirement System." (Exhibit 6) Petitioner's application for refund of contributions was received by the Respondent on January 17, 1975. Respondent refunded to Petitioner her accumulated contributions in the amount of $3,056.02 by Voucher No. 237738, Warrant No. 0309435, dated January 28, 1975. (Exhibit 6) The attorney for Petitioner, John H. Abramson, was advised by the undersigned hearing officer by telephone that Leave to Take Deposition was granted. By letter from the said attorney the Division was notified that Petitioner's file was being closed.
The Issue Whether the Respondent violated Section 112.313(6), Florida Statutes, (1) by corruptly using his official position to benefit his wife, Ms. Wanda Bender-Linero and by pressuring the Complainant to upgrade Ms. Bender-Linero's 1992 performance evaluation; (2) by interfering with the Complainant's supervision of Ms. Bender-Linero; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times relevant to this proceeding, Respondent, Aurelio R. Linero (Respondent), was Director of the City of Coral Gables Public Works Department, having been appointed on February 10, 1986. Respondent held that position until his retirement on July 1, 1998. Prior to his appointment as director and since his employment by the City in 1967, Respondent had worked as a draftsman I, draftsman II, Engineering Division supervisor and acting director of the Public Works Department. As the director of the Coral Gables Public Works Department, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent married Ms. Wanda Bender-Linero on November 26, 1982. Prior to her marriage to Respondent, Wanda Bender- Linero was employed by the City of Coral Gables as a daftsman I. In 1980, Ms. Bender-Linero was promoted to the position of daftsman II in the City of Coral Gables Public Works Department. Ms. Bender-Linero has received no promotions after the marriage to Respondent. At all times relevant to this proceeding, Asdrubal Jorge Rey worked as a civil engineer in the Design Unit of the City of Coral Gables Public Works Department. In this capacity, Mr. Rey supervised three employees, including Ms. Wanda Bender- Linero, Respondent's wife. At all times relevant to this proceeding, Mr. Rey was supervised by Mr. Alberto Delgado, the Engineering Division supervisor. Mr. Delgado, in turn, was supervised by Respondent, director of the Public Works Department. In 1992, written performance evaluations for Engineering Division employees were customarily completed in pencil by those employees' immediate supervisors. Each employee's immediate supervisor forwarded the evaluation to the division supervisor for review. After the division supervisor reviewed the evaluation, he was supposed to forward the evaluation to the department director for final review. The division supervisor and the department director were authorized to give input and make recommendations concerning employee evaluations. Typically, the evaluations were typed after the division supervisor and the department director had reviewed the draft version of the evaluation. In August 1992, Ms. Bender-Linero was evaluated for her job performance for the period from June 1991 to June 1992. Ms. Bender-Linero's over-all rating on the Employee Performance Evaluation was "Above Satisfactory." However, because Ms. Bender-Linero had "topped out" in terms of pay, her 1992 evaluation had no effect on her income or standing in the Department. Ms. Bender-Linero’s 1992 evaluation rating was consistent with her prior evaluations and like those evaluations, was initialed by Mr. Rey, Ms. Bender-Linero’s supervisor, and signed by Mr. Delgado, the Engineering Division supervisor, and Respondent, the Department director. Mr. Rey has been Ms. Bender-Linero’s supervisor’s since he began working for the City of Coral Gables in 1985. From that time to September 19, 1996, Mr. Rey and Respondent had a professional and cordial relationship. On September 19, 1996, alleged comments made during a staff meeting adversely impacted Mr. Rey’s feelings and attitude toward Respondent. Mr. Rey was not present at the staff meeting. However, based on comments made to him by individuals who attended the meeting, Mr. Rey believed that Respondent had said that Mr. Rey was unreliable. As a result of his belief, Mr. Rey felt insulted and was very offended by and angry with Respondent. Mr. Rey also believed that the alleged comments meant that Respondent planned to fire him or was phasing-out his job position. The comments that led to Mr. Rey's mistaken beliefs described in paragraph 12 above were attributed to Respondent's statement of a long-standing policy involving the assignment of construction projects. Respondent's comment was made at the September 19, 1996, staff meeting, when Respondent learned that a certain project had been constructed without Mr. Delgado's, the Engineering Division supervisor's knowledge. To prevent this oversight from happening again, Respondent told those attending the meeting that Mr. Rey did not have the authority to assign construction projects to other divisions in the Department of Public Works and that all construction projects must be approved by division supervisors. Mr. Delgado was certified as a professional engineer and was, thus, authorized to sign and seal certain engineering drawings; but Mr. Rey was not a certified professional engineer. On September 19, 1996, after Mr. Rey was told about the comments Respondent made at the staff meeting, he wrote a four-page letter of complaint to the City Manager's Office. In the letter, Mr. Rey stated he had been insulted by Respondent and demanded a public and private apology from Respondent; he expressed concern about future retaliation; and he made vague allegations about nepotism and favoritism in the Department. The letter also noted that earlier that day Mr. Rey had gone to Respondent's office to demand an apology. Mr. Rey's letter of complaint was received by the City Manager's Office on September 30, 1996. The City Manager appointed of team of city officials (Team) to investigate Mr. Rey's complaint. The Team consisted of William Katz, Director of Human Resources; Ana A. Gonzales-Fajardo, Mr. Katz' assistant; and Carmen Lizama-Gaspa, Head of Purchasing. The Team began its investigation on October 1, 1996, the day after Mr. Rey's complaint was received. The Team addressed all three of the issues raised in Mr. Rey’s letter of complaint: the alleged insulting remarks made by Respondent to Mr. Rey; the alleged nepotism or favoritism in the Department of Public Works; and Mr. Rey’s alleged fear of retaliation. To address Mr. Rey's concern that he had been insulted by Respondent, the Team met with Respondent. At the meeting, the Team told Respondent that Mr. Rey had felt insulted by comments that Respondent allegedly made at the September 19, 1996, staff meeting. Respondent informed the Team that he did not mean to insult Mr. Rey. Nonetheless, Respondent agreed to apologize to Mr. Rey and to clarify at the next staff meeting that he had not meant to offend Mr. Rey. Thereafter, Respondent apologized privately to Mr. Rey and also apologized to him at a staff meeting. However, Respondent did not give Mr. Rey what he wanted: the right to assign projects. During the investigation, to allay his claimed fear of retaliation, the Team reassured Mr. Rey that the City would not tolerate any retaliation or retribution. The Team advised Mr. Rey that any such retaliatory actions should be reported immediately. However, Mr. Rey never complained of any retaliation and there is no evidence that there was any. Finally, the Team investigated Mr. Rey's vague allegation of nepotism and favoritism in the Department of Public Works. In addressing this issue, the Team interviewed Mr. Rey; Mr. Delgado; Tom Springer, a former supervisor of Mr. Bender-Linero; and the two draftspersons who worked with Ms. Bender-Linero and were supervised by Mr. Rey. During the almost two-month investigation, the Team continuously and repeatedly asked Mr. Rey for details concerning the allegations of nepotism and favoritism, but he was evasive and refused to provide any information to them that would support these allegations. The only claim made by Mr. Rey to the Team was that his division was the only unit within the Department of Public Works that allowed employees to work flex-time. This comment was apparently an attempt to lead the Team to believe that the flex-time policy was permitted in his Division because Ms. Bender-Linero worked in that unit. This representation was not true at the time it was made by Mr. Rey. In fact, the flex- time policy was allowed throughout the Department of Public Works. On November 18, 1996, a Team member, Ms. Gonzalez- Fajardo, interviewed Mr. Delgado regarding Mr. Rey's allegations of nepotism or favoritism. During the interview, Mr. Delgado stated that he did not know of any favoritism in the Department and that he never saw Respondent reprimand Mr. Rey. Mr. Delgado explained that whenever Mr. Rey and Respondent met, it was always a one-on-one meeting. The Team interviewed Mr. Delgado again on November 22, 1996. This time, Mr. Delgado completely changed the statement that he had given on November 18, 1996. Mr. Delgado stated that Mr. Rey had been reprimanded by Respondent many times because of the situation with Ms. Bender-Linero and that he had been present at some of these meetings. The fact that Mr. Delgado had given inconsistent statements regarding his attending meetings between Respondent and Mr. Rey was noted in the Team's Summary Memorandum. At the hearing, Mr. Delgado testified that he never told Team member, Ms. Gonzalez-Fajardo, that Mr. Rey always met with Respondent one-on-one. Moreover, Mr. Delgado testified that he called Ms. Gonzalez-Fajardo and told her that there was a mistake in the Team's Summary Memorandum. However, the credible testimony of Ms. Gonzalez-Fajardo was that Mr. Delgado never called her and indicated that the Memorandum did not accurately reflect his statement to her. Mr. Delgado violated the sequestration rule by approaching Ms. Gonzalez-Fajardo in the hallway before she testified and tried to "remind" her of the alleged conversation. However, the violation did not prejudice Respondent's case in that Ms. Gonzalez-Fajardo's testimony was not influenced by Mr. Delgado. During the November 22, 1996, interview, for the first time, Mr. Delgado mentioned that a few years ago, Mr. Rey told him that Respondent changed Ms. Bender-Linero's evaluation. However, according to Mr. Delgado, Mr. Rey said he agreed to the recommended changes on the evaluation. Because Mr. Rey indicated that he had no problem with the evaluation and that he and Respondent had reached a consensus, Mr. Delgado did not pursue the matter. Based on its investigation, the Team concluded that there were no facts to support Mr. Rey's allegations of nepotism and favoritism. However, the Team referred the matter to the Coral Gables Police Department, Internal Affairs Division (Internal Affairs), for further investigation. On January 6, 1997, Major Scherer, the officer who conducted the Internal Affairs investigation, took the sworn statement of Mr. Rey. In his sworn statement, Mr. Rey stated that Respondent had pressured him into changing Ms. Bender- Linero’s 1992 evaluation. According to Mr. Rey, he had filled out the evaluation form in pencil, reviewed the evaluation with Ms. Bender-Linero, and then sent the evaluation to be typed. Mr. Rey stated that he never received a copy of the typed evaluation as he had expected, but instead was called into Respondent’s office. According to Mr. Rey, Respondent asked why Ms. Bender-Linero’s evaluation was so low to which he replied, "That's the way I do the evaluations." Mr. Rey stated that Respondent then told him to look at the evaluation again. Finally, in his sworn statement, Mr. Rey said that after his discussion with Respondent about Ms. Bender-Linero's evaluation, Mr. Rey never saw the evaluation again until it was typed. Moreover, Mr. Rey stated that the typed evaluation had been upgraded. In the instant case, Mr. Rey alleged that Respondent pressured him to upgrade Ms. Bender-Linero's 1992 performance evaluation and that Respondent also interfered with his supervision of Ms. Bender-Linero. In this proceeding, Mr. Rey testified that he filled out Ms. Bender-Linero's 1992 performance evaluation in pencil; discussed the evaluation with Ms. Bender-Linero; and sent the penciled draft of the evaluation to be typed. Mr. Rey testified that he never received the typed evaluation, but rather was called into Respondent's office to discuss the evaluation. Mr. Rey stated that, at this meeting, Respondent wrinkled the evaluation, threw it in the waste basket and told Mr. Rey that the evaluation was garbage and that he could do better. Mr. Rey’s further testified that after the meeting, he went back to his office for approximately five minutes, but then returned to Respondent's office; retrieved the wrinkled evaluation from Respondent’s waste basket; and took it to his supervisor, Mr. Delgado. Finally, Mr. Rey testified that after he explained to Mr. Delgado what had happened in his meeting with Respondent, Mr. Delgado told him to look at previous evaluations of Ms. Bender-Linero and use them to upgrade her 1992 evaluation. Mr. Rey testified that he followed Mr. Delgado's advice and used some old evaluations to complete a new evaluation for Ms. Bender-Linero. Mr. Rey testified that he upgraded Ms. Bender-Linero's evaluation in two or three categories including punctuality, volume of acceptable work, and initiative, and changed the comments on the evaluation to reflect more favorably on Ms. Bender-Linero. Mr. Rey testified that one of the reasons the modified 1992 evaluation was too high for Ms. Bender-Linero was that she did not do computer drafting. Finally, Mr. Rey testified that after he completed the upgraded evaluation for Ms. Bender-Linero, he gave the evaluation to the secretary at the Central Administration Section to have it typed; when it came back, Mr. Rey initialed the evaluation and sent it up through the chain of command. Mr. Rey's testimony that Ms. Bender-Linero's 1992 evaluation was too high because she was not proficient in and did not do computer-assisted drawing is not credible. The 1992 evaluation was for the period of June 1991 through June 1992. During that period, the only computer-assisted drawing program that was being used in the Design Unit was DigitCad. That program had been used by the Design Unit since the 1980's and Ms. Bender-Linero was proficient in the use of that program. The newer program which Ms. Bender-Linero had difficulty with, AutoCad, was not installed in the Design Unit or used by that office until March 1993. Therefore, any difficulties experienced by Ms. Bender-Linero is using AutoCad would be inapplicable to her 1992 evaluation. Mr. Rey’s testimony in this proceeding that Respondent pressured him to upgrade Ms. Bender-Linero’s 1992 evaluation is not credible. Mr. Rey's testimony at hearing regarding the events related to Respondent's involvement in Ms. Bender-Linero's evaluation is inconsistent with his earlier sworn statement to Major Scherer. Mr. Rey's testimony also conflicts with that of Mr. Delgado. Mr. Rey and Mr. Delgado have given conflicting versions of the circumstances concerning the Respondent's alleged interference with Ms. Bender-Linero's 1992 evaluation. In his sworn statement in January 1997, Mr. Rey stated under oath that Ms. Bender-Linero’s 1992 evaluation had been altered, typed, and sent to him to be initialed. However, at the hearing, in this proceeding, Mr. Rey testified that he actually changed the 1992 evaluation after meeting with Respondent. Mr. Delgado testified that Mr. Rey mentioned that he and Respondent had discussed Ms. Bender-Linero's evaluation and that based on that conversation, Mr. Rey made changes. However, Mr. Delgado stated that he specifically asked Mr. Rey if he agreed with the changes, and Mr. Rey indicated that he did. Respondent did not pressure Mr. Rey to upgrade Ms. Bender-Linero's 1992 evaluation. Moreover, Respondent’s signing of the evaluation was merely a ministerial task required by his employer and was not inconsistent with the performance of his duties. In this proceeding, Mr. Rey's second allegation is that Respondent interfered with Mr. Rey's supervision of Ms. Bender- Linero in three specific areas: (1) tardiness; (2) project assignments; and (3) computer games. With regard to the tardiness issue, at this proceeding, Mr. Rey testified that during the period covered by the 1992 evaluation, Ms. Bender- Linero was sometimes late to work. Mr. Rey testified that on one occasion when he met with Ms. Bender-Linero about being late, she became upset. Mr. Rey testified that a few minutes after his meeting with Ms. Bender-Linero about being late, he was called into Respondent's office and told to stop "bothering" Ms. Bender- Linero. Mr. Rey indicated that Respondent mentioned the City's flex-time policy as a rationale for Ms. Bender-Linero's tardiness. However, Mr. Rey testified that he did not believe that the flex-time policy applied in this case. Despite Mr. Rey's allegation that Ms. Bender-Linero failed to always report to work on time and that he was concerned about this, he never attempted to discipline her for coming in late. Likewise, there is no indication that Respondent ever told Mr. Rey not to discipline Ms. Bender-Linero if she reported to work late. There was only one occasion when he mentioned the issue of punctuality to Ms. Bender-Linero. In that one instance, Ms. Bender-Linero started crying. She then called Mr. Linero, who came upstairs to the Design Unit, saw both Mr. Rey and Ms. Bender-Linero, and told them to come to his office. Given that Respondent was director of the Department and other employees were in close proximity to Ms. Bender-Linero at the time of the incident, it was appropriate for Respondent to take care of a problem which involved an employee crying in the office. Mr. Rey alleged that Respondent interfered with his assignment of projects to Ms. Bender-Linero. At hearing, both Mr. Rey and Mr. Delgado testified that Respondent interfered with the assignment of projects to Ms. Bender-Linero by giving Ms. Bender-Linero the projects she liked and wanted to work on. Mr. Rey indicated that to accomplish this, he had to take projects already assigned to other draftspersons and give them to Ms. Bender-Linero. Mr. Delgado could not recall Respondent changing any draftsperson assignments other than Ms. Bender- Linero. Mr. Rey's testimony at the hearing in this instant case conflicts with the sworn statement that he made in January 1997. In his sworn statement to Major Scherer, Mr. Rey stated that Respondent sometimes directed that changes be made in project assignments to Ms. Bender-Linero, as well as to other employees. Mr. Rey's testimony from his January 6, 1997, sworn statement is as follows: Q. Has he [Respondent] ever come to you about changing any other employee's project load or saying, no, I don't want this individual to handle this project? A. Yea, it's been the case, yes. Q. What reason would that be? A. I think it's because he understands that one employee would be more capable than the other one, that may be the case why. Q. All right. Did Mr. Linero come to you and tell you to give his wife another project or to take that one away because he felt that she wasn't capable, or somebody was more capable than she? Did he ever give a reason? A. Yeah. Well, not a reason, not a reason. He would say like "You better give this to so and so, because he knows how to do it better. You better give it to so and so, because he might do it better. Based on the foregoing, there is no indication that Respondent interfered with Mr. Rey's assignments of projects to Ms. Bender-Linero to benefit her. Rather, based on Mr. Rey's earliest statement regarding assignment of projects, any change in project assignments were made to appropriately match projects with the employees' strengths and abilities. The third allegation regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero involved her use of computer games. Mr. Rey and Mr. Delgado provided conflicting testimony on this allegation. Mr. Delgado testified that on one occasion, Respondent told Mr. Rey to stop "picking on" Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. Mr. Delgado testified that he was present when Respondent called Mr. Rey into his office and told Mr. Rey that he shouldn't be "picking on" Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. According to Mr. Delgado, Mr. Rey argued with Respondent but Respondent persisted in his demand that Mr. Rey stop "picking on" Ms. Bender-Linero. Finally, Mr. Delgado testified that after the meeting, he and Mr. Rey had a conversation about Respondent’s interfering in his supervision of Ms. Bender-Linero. Contrary to Mr. Delgado's testimony concerning computer games, Mr. Rey testified that he saw Ms. Bender-Linero and other employees in his unit playing computer games. Subsequently, Mr. Rey met alone with Respondent and told him that "people" were playing computer games. According to Mr. Rey, Respondent told him that since he was the boss upstairs he was supposed to take charge of that situation. Mr. Rey admitted that Respondent never interfered in his supervision of Ms. Bender-Linero in connection with computer games. Respondent never interfered with Mr. Rey's supervisor of Ms. Bender-Linero. In fact, at work, Respondent went out of his way not to show preference or get involved in matters related to his wife's work. It is also found that Mr. Rey's and Mr. Delgado's testimony regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero lacks credibility. There are numerous inconsistencies and discrepancies in the statements of Mr. Rey and Mr. Delgado. Despite his serious and numerous allegations against Respondent, Mr. Rey failed to provide any documentation of a single incident that involved the alleged disciplinary problems that he had with Ms. Bender-Linero and that resulted in Respondent's involvement. In fact, Mr. Rey acknowledged that he failed to document the time, date, and other details related to the alleged incidents. In light of the length of time that has elapsed since the alleged incident, the absence of any documentation of the alleged incidents, and the discrepancies, conflicts, and inconsistencies in testimony, it has not been established that the alleged offenses occurred.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, Aurelio R. Linero, did not violate Section 112.313(6), Florida Statutes, and denying Respondent's request for attorney's fees. DONE AND ENTERED this 4th day of June, 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 4th day of June, 1999. COPIES FURNISHED: Eric S. Scott, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Sheri Garety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Ronald J. Cohen, Esquire Brickell Bayview Centre 80 Southwest Eighth Street Suite 1910 Miami, Florida 33130
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of March, 2003.
Findings Of Fact Ms. Mamie Wilson worked at the Southeast Florida Tuberculosis Hospital in Lantana, Florida from January, 1952 to September, 1958. At that time she resided at 1109 Sapodilla Avenue. She left the job in 1958 after she became pregnant. Ms. Wilson thereafter moved to 1103 Division Street in West Palm Beach. Ms. Wilson was thereafter employed at the county nursing home by Palm Beach County from March, 1964 through August, 1974. She resigned due to injuries that she received in an automobile accident. In 1983, Ms. Wilson wrote to the Administrator of the Division of Retirement and requested that her retirement beneficiary be changed from her mother, Anna Williams, who had died, to her son, Alonzo Peterson. In response, she received a letter dated November 21, 1983 from the Division of Retirement stating that if she retired as of November 1, 1983 she would be retired to a retirement benefit of $65.96 per month based upon 10.75 total years of service with average final compensation of $4,788. The letter also told her that her service at the Lantana Tuberculosis Hospital may be creditable and if she wished to claim that service she should have her salaries and earnings certified to determine if this service was includable for retirement purposes. Ms. Wilson never responded to this letter because she did not intend to retire at that time, she only wanted to change her beneficiary. In January, 1986, Ms. Wilson was preparing to retire and went to the county courthouse where she was assisted in preparing a Request for Audit form for retirement effective as of March 16, 1986. On the form the only employment she had listed was that at the Palm Beach County Nursing Home from 1964 to 1974. She then received a letter dated February 25, 1986 estimating her service as 16.33 years on the assumption that Ms. Wilson would pay $1,413.82 to repurchase the time she worked at the tuberculosis hospital for which the Division of Retirement contended her contributions had been refunded in 1961. If she did so, her retirement benefit would be $106.41 per month. If her retirement was based solely on the time she worked at the county nursing home, her monthly benefit would be $66.19 per month. The evidence is not persuasive that Ms. Wilson received, in 1961, $449 as a refund of her retirement contributions for the time she was employed at the tuberculosis hospital. The Department of Administration, Division of Retirement has been unable to show any application by Ms. Wilson for these funds, and had been unable to produce the state warrant by which these funds were paid to show that it was cashed by her [the warrant has since been destroyed]. The Department has produced a receipt prepared for use in connection with the delivery of that warrant. It shows Ms. Wilson's address as 1103 Division Street, an address where she did not live at the time she actually worked for the hospital, though she did move to that address later. That receipt is not signed, however. The appearance of an address on that receipt of a place where Ms. Wilson did not live at the time she was employed at the hospital gives rise to the inference that someone must have been in contact with the hospital to provide a current address for Ms. Wilson as of 1961. That fact, standing alone, is not sufficient to carry the burden of persuasion that Ms. Wilson received the money in the absence of a signature on that receipt, any signature on an application from Ms. Wilson seeking the refund of her retirement contributions or a signature on the refund warrant. That a warrant was prepared at the request of someone, delivered to someone and cashed by someone, with no proof that that someone was Ms. Wilson, is insufficient to deprive her of her retirement benefits.
Recommendation It is RECOMMENDED that the retirement benefit paid to Ms. Wilson be in the amount of $106 per month for 16.33 years of creditable service. DONE and ORDERED this 23rd day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. COPIES FURNISHED: Alexander Myers, Esquire Forum III, Suite 106 1655 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Brett Findler, Esquire Florida National Bank, Suite 350 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Burton M. Michaels, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C, Suite 207 Tallahassee, Florida 32399 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
Findings Of Fact The Respondent, Ronald Miller, holds a Florida teaching certificate numbered 464113, covering the area of physical education. During the 1980-81 school year he was employed as a teacher of physical education at Miami Coral Park Senior High School in Miami, Florida. He was also hired that year by Miami Coral Park Senior High School to be an assistant basketball coach for the junior varsity basketball team and an assistant coach for the varsity football team. At the beginning of that school year, the head coach for the varsity basketball team, Mr. Edward Joyner, was delayed in his arrival at school. For this reason during the first three or four weeks of school, Mr. Miller was appointed to take Mr. Joyner's place in coaching the varsity basketball team as well. This was the first year of Mr. Miller's assignment as a full-time teacher. The Petitioners are, respectively, the School Board of Dade County, a public agency charged with the hiring, employment and regulation of the operations, activities and practices of teachers it employs to instruct students in the Dade County Public School System. The Education Practices Commission is an agency of the State of Florida within the Department of Education and is charged with the duty of licensing and regulating the licensure status, practice and practice standards of teachers in the State of Florida. During the 1980-81 school year, as in the recent past, Coral Park Senior High School had a club called the Cagerettes which assisted the school's junior varsity basketball and varsity basketball teams by helping to raise funds for different functions as well as to work with the coaching staff performing such services as taking statistics during games. Members of that group were selected from the student body after "tryouts" where the individual applicants were judged on their personality and participation. Cindy Castillo was the captain or president of club for the 1980-81 school year. This was her third consecutive year as a member of the club and her second year as its president. Cindy Castillo approached Mr. Miller shortly after he became employed and after the school year began and asked him to be the faculty sponsor for the club. He had had no previous experience as a club sponsor for any school, but based upon Miss Castillo's representations concerning his insignificant duties as club sponsor, he agreed to become the sponsor of the club. One of the initial witnesses called by the Petitioner was Mr. Doug Wycoff. Mr. Wycoff was an instructor in the English Department at times pertinent here to and also acted in the capacity of athletic business manager for Coral Park Senior High School. As athletic business manger, Mr. Wycoff was required to oversee the financial business and accounting for monies received by the athletic department. These duties included overseeing ticket sales, crowd control, personnel at athletic events, overseeing fund raising efforts and managing the money received therefrom and in general assisting the athletic director. Mr. Wycoff testified that the high school maintained its banking accounts with the Sun Bank. Any monies derived from fund raising activities should go to him as a member of the athletic office in charge of finance and then they would be deposited with the school treasurer. The treasurer typically makes deposits on a daily basis via the Wells Fargo Armored Express Company. At all times material to these proceedings the practice was to segregate all accounts with the bank so that each different sports activity and the personnel involved therein would have their own account and otherwise maintain constant accessibility to the account. Prior to the commencement of the 1980-81 school year, Mr. Wycoff gave general instructions to all faculty members involved with the athletic program regarding who to contact should they have any questions regarding their involvement with a fund raising activity and how to account for the money. Although it was the witnesses' opinion that the Respondent had been present at that meeting, the Respondent denied it and the record does not establish whether or not the Respondent was present at that particular meeting. A condition precedent to the establishment of any fund raising activity of the high school, or a club or a group operating under the auspices of the school, required that the sponsor of the group obtain approval from Mr. Wycoff. The school records reveal, through Mr. Wycoff's testimony, that there were only two functions which had previously been approved for the basketball team. One was a car wash held at the beginning of the year in question and the the second was an M & M candy sale which took place later during the spring of the 80-81 school year. The approval for the car wash was obtained from Mr. Wycoff by the Cagerette captain, Miss Castillo. Near the close of the 80-81 school year the school principal ultimately learned that other fund raising activities had been conducted for which substantial sums of money had been received, which had been unapproved fund raising activities. The generated proceeds were received and unaccounted for by the Respondent. The car wash took place on or about September 27, 1980. Mr. Wycoff issued to Miss Castillo one hundred tickets with a prestamped price of $1.50 on each ticket for sale of car washes. The car wash was a success and generated approximately $900 in gross proceeds Two hundred dollars of that (apparently checks) was turned over to Mr. Wycoff, the balance in cash was retained by the Respondent. The Respondent admitted receiving perhaps $200 to $300 within a few days after this event. The Respondent explained ;to Miss Castillo and the other students involved in the car wash activity, that the monies were going to be held by him for the benefit of the Cagerettes and the basketball team in a special account at a bank near his home. On October 4, 1980, a car wash was held by the Cagerettes with the help of the Respondent. Mr. Wycoff was not requested to approve this endeavor, nor were the funds raised therefrom ever accounted for to Mr. Wycoff or any other employee or official of the school. Approximately $256 was generated and the proceeds were placed in the Respondent's custody at his request. The Respondent admitted that with regard to this fund raising effort he received approximately $247. On approximately October 11, 1980, at the instance of the Respondent and without prior knowledge or approval from Mr. Wycoff, the Cagerettes and basketball players held a donut sale. The total proceeds of that sale approximated the sum of $900. Cynthia Castillo took $594 of that sum to pay the vendor of the donuts and the balance, in the approximate sum of $311, was turned over to the Respondent. The Respondent admitted that he received approximately $300 from that fund raising activity. A second donut sale was held a short time later, also not approved by Mr. Wycoff or any personnel in his office. Approximately $368 were generated from that venture which was initially given to Coach Joyner. The record in this proceeding does not reflect what became of that $368, but it was not included in the sum ultimately the subject of criminal proceedings against the Respondent. In the fall of 1980, the Respondent suggested and initiated a procedure whereby members of the Cagerettes would pay monthly dues. This was a practice that was followed with the dues set in their approximate amount of $2 per member per month. These dues were collected for approximately one month and the monies were turned over to the Respondent in the amount of between $30 and $40. The Respondent never accounted for this money. The Respondent also initiated a procedure whereby the members of the Cagerettes would take up donations from individual girls for "penny week." These donations were taken up in the form of pennies on Monday; nickels on Tuesday; dimes on Wednesday; quarters on Thursday; and dollars on Friday. This activity grossed approximately $43 which was turned over to the Respondent and never accounted for. The initiation of this program on his own by the Respondent without approval of any one in authority was in direct conflict with rules promulgated by the school. Prescribed receipt books were to have been obtained from Mr. Wycoff and used so as to avoid any accounting for the money. This was not done. The Respondent also conducted another fund raising project whereby he solicited donations from students of $1 each for the purchase of athletic socks. At least one student made such a donation, but no socks were purchased. Mr. Wycoff established that no such collection project came to his knowledge and that the athletic department purchases and provides socks for its junior varsity teams at no cost to its members, thus the alleged need for donations to purchase athletic socks was false. During the course of the the 1980-81 school year, both the Respondent and his fellow coach and colleague, Mr. Joyner, made several attempts to have a banquet in honor of the basketball team and Cagerettes. Because of the lack of financing, the banquet never came to fruition. This was because certain funds raised by the above-mentioned fund raising projects during the year were unaccounted for by the Respondent, thus the banquet was severely under-financed. Additionally, several students paid to Mr. Miller at least $10 per banquet ticket for anticipated attendance of themselves and their respective guests. When the banquet was finally cancelled, the Respondent did not return their ticket purchase money. Mr. Lopez established that he was a student at that time and a member of the varsity basketball team. He purchased three tickets at $10 each, payable in cash, and was never refunded when the banquet was cancelled. JoAnn Oropesa paid the Respondent cash for banquet tickets, but was never refunded her money. She made demand on the Respondent for her money and the Respondent informed her that he would make a refund by check in the mail at the end of the school year. He failed to do so. During the school year the Cagerettes and the basketball team agreed with Coach Joyner to have a skating party at a neighboring commercial skating rink. In order to fund this event, the students involved agreed to sell tickets at the price of $3 per ticket. Mr. Wycoff was not advised of this money raising effort either and never received any money for an accounting, therefor, from either Respondent or Coach Joyner. JoAnn Oropesa sold all ten tickets assigned to her at $3 per ticket. The Respondent acknowledged receipt of the monies from that fund raising activity, representing that the money would be used for the banquet in lieu of the skating event which was cancelled, Ultimately, these monies were never returned to JoAnn Oropesa or other students purchasing tickets. Manuel Martinez purchased tickets for the skating party and never had a refund, being merely told by the Respondent to "wait." The same student, Manuel Martinez, established that the Respondent solicited members of his class on more than one occasion to make contributions to a touring gospel singing group of which he was a member and that in consideration for this donation a student could receive an "A" for a test or make-up work. The Respondent also offered that "detentions" or "make-up requirements" could be taken off a student's record, for any of the classes in which the student was enrolled with the Respondent, in return for such donations. The testimony of Manuel Martinez was corroborated by Raphael Lopez, another student of the Respondent's, who established that the Respondent solicited students for contributions to his gospel group in return for enhancement of their grades. Marilyn Munne observed the Respondent soliciting students for contributions to his gospel group in consideration for which he would have a detention "dropped off" which would automatically result in a better grade. The Respondent ultimately proved unable to account for the proceeds of the money generated by the various fund raising projects outlined above and caused resulting concern to the various witnesses testifying on behalf of the Petitioners. Miss Castillo estimated that at least $1,700 had been placed in the Respondent's custody, exclusive of the $368 which she had given to Coach Joyner and which was apparently not accounted for either. Even by the Respondent's own admission he received at least between $900 and $1,100 from these fund raising projects that school year. The testimony of Miss Castillo and other witnesses establishes that the Respondent represented that those monies were to held in a special account for the benefit of the Cagerettes and the basketball team. The Respondent by his own admission acknowledged that he told Miss Castillo that he would "possibly" place the monies in such an account. The Respondent did not have a bank account and did not customarily maintain one. He testified that he maintained a "strong box" used as a depository within his own home. The Respondent testified that he placed the subject money in a green plastic zippered bag (Respondent's Exhibit A) up until the time it was supposedly removed by persons unknown who, according to the Respondent, stole his car on or about February 8, 1981. The Respondent testified that he was about to go spend the night with a friend and put the subject zippered plastic bag or case into his car, went back into the house to get some more belongings and the car was stolen while he was inside. The car was not recovered until some days later and the money was gone, although the plastic bag remained in or returned to the Respondent's possession and was made Exhibit A in this proceeding. The Respondent did not demonstrate that any efforts were made to replace the money prior to his being prosecuted for its disappearance. He did not, for instance, establish that he made any effort to file a claim against his automobile insurance carrier in order to see that the students were recompensed. Ultimately, the State Attorney's Office for the Eleventh Judicial Circuit in and for Dade County, Florida, filed a one count felony Information charging the Respondent with grand theft. The victim in that case was alleged to be the Petitioner's chief witness, Miss Cynthia Castillo. The Respondent, in that criminal proceeding, never went to trial, offering instead to enter into an agreement with the State Attorney to go into the "pre-trial intervention program" which is apparently a sort of probationary status coupled with a court enforced reimbursement of at least $1,700 to the Dade County School Board. The entire scenario described above concerning the fund raising efforts, diversion of the funds generated by them and the Respondent's ultimate refusal or at least inability to account for the whereabouts of those funds and his ultimate criminal prosecution for diversions of the funds became a matter of knowledge of a number of students and parents at the school as well as Mr. Wycoff, Desmond Patrick Gray and other members of the Dade County School Board's administrative staff. It should be noted that although no conviction has been entered against the Respondent in the criminal proceedings referred to above, it has been established without question that he took the cash portions of the funds generated by the various above-described fund raising efforts into his possession, failed to properly account for them, failed to place them in a bank account and failed to deliver them over to Mr. Wycoff or other responsible authorities. He exhibited adequate knowledge of whom he should have delivered the funds to because he only retained the cash portions of the monies generated by each fund raising effort, turning over the non-fungible checks to those entitled to them.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That with regard to case No. 81-2115, the petition of the School Board of Dade County against Ronald Miller, the Respondent, Ronald Miller, be dismissed from his employment with the School Board of Dade County and forfeit all back pay. It is, further RECOMMENDED: With regard to case No. 82-1234, the petition of the Education Practices Commission, Department of Education, Ralph D. Turlington, Commissioner against Ronald Miller, that Ronald Miller have his Florida teaching certificate No. 464113 permanently revoked. DONE and ENTERED this 22nd day of December, 1982 in Tallahassee, Florida. P. MICHAEL RUFF 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 22nd day of December, 1982. COPIES FURNISHED: Michael J. Neimand, Esquire Attorney for School Board 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Craig Wilson, Esquire Attorney for Education Practices Commission 315 West Third Street West Palm Beach, Florida 33401 Sarah Lea Tobocman, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton, Superintendent Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 81-2115 RONALD MILLER, Respondent. /
The Issue The issue is whether Petitioner is eligible to participate in the Florida Retirement System (FRS), within the meaning of Subsection 121.021(17)(a), Florida Statutes (2009),1 as a substitute teacher for the Lee County School Board.
Findings Of Fact Petitioner has been an employee of the Lee County School Board (the School Board) from February 28, 2001, through the date of the final hearing. The School Board is a participating member in the FRS. Petitioner has never been a full-time employee of the School Board and has never been eligible for service credits for purposes of the FRS. From February 28, 2001, until some time in May 2004, the School Board employed Petitioner in a temporary, part-time position. From some time in May 2004 through the date of the final hearing, the School Board has employed Petitioner as a substitute teacher. From February 28, 2001, through some time in May 2004, the School Board required part-time employees such as Petitioner to participate in a plan identified in the record as the Bencor FICA Alternative Plan (the Bencor Plan). The Bencor Plan provided retirement benefits for temporary teachers, who were not eligible for FRS retirement benefits. On May 25, 2004, Petitioner submitted a Distribution Request Form to withdraw her accumulated savings from the Bencor Plan. Petitioner was eligible to withdraw her retirement benefits from the Bencor Plan, because she changed her employment status from a temporary teacher to a substitute teacher. Some time in May 2004, Petitioner began teaching as a substitute teacher for the School Board. Petitioner has continued as a substitute teacher for the School Board through the date of the final hearing. As a substitute teacher, Petitioner is not a full-time employee, who is eligible for service credits for purposes of the FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for FRS benefits. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of August, 2010.
