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.
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 =================================================================
The Issue Whether Respondent Heath Currier committed the violations alleged in the Final Notice of Discipline, and if so, the appropriate discipline that should be imposed.
Findings Of Fact The fire chief, on behalf of the City of Cape Coral Fire Department, is responsible for terminating the employment of employees of the fire department. At all times relevant to the this proceeding, Respondent was employed by Petitioner as a firefighter. The employment position that Respondent occupies is included in the positions covered by the collective bargaining agreement between Petitioner and the Cape Coral Professional Fire Fighters Local 2424 of The International Association of Fire Fighters (Union). Petitioner has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City of Cape Coral Charter, ordinances and rules promulgated thereunder, and the collective bargaining agreement between Petitioner and the Union. According to the Joint Pre-Hearing Statement, “Article 7(d)(2) of the union contract states that employees are entitled to Notice of Intended Discipline” and, according to Respondent, “Heath Currier wasn’t advised that his employment was being terminated until after the fire chief’s pre-disciplinary hearing.” The referenced article of the union contract was not offered into evidence. However, chapter 2, division 7 of the City of Cape Coral Ordinances (division 7), was received into evidence and this ordinance sets forth Respondent’s procedural disciplinary notice rights. Section 2-31.4(b) of division 7 provides in part that “[w]hen disciplinary action against an employee with regular status is contemplated by the city, the department head shall provide the employee with written notice of the intended action(s).” Section 2-31.4(c)(6) provides further that “[i]n no event shall the discipline imposed be greater than that specified in the notice of proposed disciplinary action.” On or about December 22, 2015, Respondent received a notice of proposed disciplinary action from Petitioner which informed him that the fire chief was considering disciplinary action including, but not limited to, “written reprimand, suspension, demotion, and/or termination of employment with the City.” Following the issuance of the notice of proposed disciplinary action, an investigation was conducted which resulted in the issuance of a final notice of disciplinary action which advised Respondent that his employment with the City of Cape Coral was being terminated “effectively immediately.” The notice of proposed disciplinary action provided Respondent with notice that termination of his employment with the City of Cape Coral was a possible consequence resulting from his alleged misconduct, and the notice was issued in accordance with the requirements of division 7. Respondent, at the time of the occurrences that provide the basis for the instant action, was a seven-year member of the Cape Coral Fire Department, and, during all times relevant hereto, worked primarily in the department’s division of operations. The fire department’s division of operations is divided into two battalions, “fire north” and “fire south.” Respondent was assigned to the fire south division. The division of professional standards is another division within the fire department, and, during all times relevant hereto, was under the supervision of then special operations battalion chief Timothy Clark. Housed within the fire department’s division of professional standards is the department’s special operations unit, which includes the department’s dive/rescue team. Mr. Clark, in his capacity as battalion chief for special operations, had the authority to direct fire department employees in matters related to dive/rescue operations. To become a member of the dive/rescue team, a firefighter must go through a competitive process that, if successfully completed, results in the firefighter receiving additional pay in the form of a wage supplement. Members of the dive/rescue team, according to Mr. Clark, must be proficient in the operation of dive-related equipment to the point of knowing the equipment “inside and out, upside down, sideways, backwards, eyes closed, [and] blindfolded.” Respondent is a member of the department’s dive/rescue team. At some point (the exact date is not clear in the record), Respondent was assigned to the fire station where the dive/rescue team is located. The dive/rescue team is under the direct supervision of Ryan Corlew. The dive/rescue team has regular training exercises which require members of the team to perform certain tasks so as to maintain operational efficiency. Mr. Corlew, when working with Respondent, determined that Respondent’s knowledge of the operational aspects of some of the dive/rescue equipment was deficient and in need of remediation. Special operations battalion chief Clark was informed of Respondent’s problems with the dive/rescue equipment, and armed with this information, met with Respondent to discuss the issue. Mr. Clark explained to Respondent that he was displeased that Respondent was not as proficient with the dive/rescue equipment as he should be, and that he was placing Respondent on a non-punitive three-week remedial training program. Mr. Clark “instructed [Respondent] at that time to work with the other guys in [his] station, the lieutenant, the engineer, the firefighters, all the divers there, to work with them and train with them and have them teach [you] so that when I come back in three weeks, [you will know] this stuff inside out . . . backwards . . . [and] blindfolded.” Respondent explained that after he was instructed by Mr. Clark to work with the other guys at his station, he repeatedly asked (“morning, noon, and evening”) his lieutenant, Mr. Corlew, for training, and each time he was refused. According to Mr. Corlew, Respondent, while at the dinner table one night, asked if Mr. Corlew could personally train him, and Mr. Corlew, as Respondent’s supervisor, told Respondent to first work with firefighters Stalions and Johnson, both of whom are extremely knowledgeable about the workings of the dive equipment. Mr. Corlew went on to advise Respondent that he would personally work with him once firefighters Stalions and Johnson raised Respondent’s proficiency with the equipment to an acceptable level. Firefighter Stalions testified that during this same discussion at the dinner table, he offered to train Respondent, but Respondent refused and said that he wanted to be trained instead by Mr. Corlew. Respondent testified that “[e]very single day [he] would take all of the dive equipment out of the compartments, disassemble it completely, reassemble it and do that at least twice a day.” In an attempt to corroborate this testimony, Respondent called Steven Jobe as a witness. Mr. Jobe testified that he “didn’t necessarily see [Respondent] putting [the dive equipment] together and taking it apart.” Although Mr. Clark told Respondent to be ready to demonstrate his proficiency three weeks from the time of their meeting, it was actually four weeks later when Mr. Clark again met with Respondent. During the follow-up meeting, Mr. Clark gave Respondent “a simple scenario that engine 2 had come back from a call, all the equipment was trashed and everything needed to be replaced.” According to Mr. Clark: I needed [Respondent] to go in the back room, get all the stuff together and assemble a dive setup, check it out and test it and make sure it was ready to go if a call came in. He fumbled through it. It took him a long time to put stuff together. He ultimately figured a couple things out throughout the process of elimination, but there was [sic] still some things that he had wrong. He had the weights, they weren’t properly in the BCs (undefined), which is a critical safety issue, because if you lose your weights on the call, it could cause you to bolt to the surface, which could cause injury to yourself or others. So by placing the weights improperly the way he did, to me was a huge [problem]. (Hearing transcript pg. 83). Mr. Clark went on to explain that “once we were all done, like I said, he had some issues and I knew--it was obvious that he hadn’t done what I instructed him to do[,] [s]o I asked him at the time who he had worked with over the course of that four weeks.” Mr. Clark explained that he asked Respondent who he had trained with during the four-week period because if the individuals that remediated Respondent were performing at or near the same level as Respondent, then Mr. Clark believed that he had a larger issue of operational preparedness that he needed to address by personally retraining all concerned. In response to Mr. Clark’s request for names, Respondent told Mr. Clark “the only people that I’ve had consistently with me are two firefighters that I’ve worked with,” named Johnson and Stalions. Soon after meeting with Mr. Clark, Respondent sent the following text message to firefighters Johnson and Stalions: Hey guys heads up, I just had my “non punative [sic] dive gear quiz” with [C]lark and I missed a few things. He asked who I had been working with and I reluctantly gave him your names after [C]orlew told him I never went to [M]edero for help. Not sure if there will be any fallout but I wanted to let you both know ahead of time. Mr. Johnson credibly testified that he was surprised to have received the referenced text message from Respondent given that he had never been asked to, nor had he ever provided any type of training to Respondent. Firefighter Stalions credibly testified that after receiving the text he spoke with Respondent and “told him I didn’t appreciate being pulled into it because training wise, I didn’t do any formal training with him and it kind of to me felt like he was looking for kind of some backup on it.” Firefighter Stalions went on to explain that he had never trained with Respondent, but certainly would have had he been asked. Because Respondent did not train with either firefighter Johnson or Stalions, Respondent lied to Mr. Clark when informing him that Respondent had trained with these individuals. Respondent’s poor performance on his remedial test, combined with the fact that not a single witness corroborated Respondent’s testimony of having disassembled and reassembled the dive equipment twice a day, every single day, makes incredible his testimony regarding self-directed remedial training. Respondent testified that he “did everything [he] thought [he] could do” to comply with Mr. Clark’s directions and recommendations. Respondent’s assertion is, however, belied by the evidence which demonstrates that Respondent did not train on the dive equipment with firefighters Madero and Johnson, and refused a direct offer from firefighter Stalions to assist Respondent with training. It was solely the fault of Respondent that he did not secure remedial training as directed by Mr. Clark.
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.
The Issue Whether there is just cause to terminate Respondent's employment with the Miami-Dade County School Board.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this proceeding, Respondent was employed by Petitioner as a school custodian. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the American Federation of State, County, and Municipal Employees ("AFSCME"). Pursuant to the AFSCME contract, Respondent may only be discharged for "just cause." Background From May 2000 through August 2008, Respondent was assigned to the Department of Plant Operations. During that period of time, two conferences for the record were held to discuss Respondent's insubordinate conduct. The first, which was held on June 30, 2005, addressed various concerns, which included Respondent's failure to follow directives, insubordination, and failure to follow procedures. During the second conference for the record, conducted on September 30, 2005, Respondent's superiors again admonished him for insubordinate acts and his failure to follow directives. On August 1, 2008, Respondent was reassigned to Coral Reef Senior High School ("Coral Reef"). Respondent was supervised by a head custodian, who in turn reported to Alvaro Mejia, one of Coral Reef's assistant principals. At the beginning of each school year relevant to this proceeding, Coral Reef administration provided Respondent with typed schedules, which clearly provided, in relevant part, that from 3:00 p.m. to 4:00 p.m., Respondent would "clean all hallways and stairwells . . . . Clean first floor restrooms of main building and any other assigned duty deemed necessary by supervisor." (Emphasis in original). The schedule further provided that Respondent's work day concluded at 4:00 p.m. Almost immediately, administrators noticed that Respondent would often leave work early without permission. As a result of this conduct, two conferences for the record were held with Respondent during September 2008. Respondent's behavior persisted, and a third conference for the record was conducted in March 2009. Instant Allegations During the 2009-2010 academic year, Coral Reef administration again discovered that Respondent was regularly leaving work early without authorization. As a result, on October 14, 2009, Respondent was suspended for 10 days without pay for gross insubordination and refusal to follow payroll procedures. Undeterred by the discipline, Respondent continued to leave campus early upon his return from the suspension. This was confirmed by Mr. Mejia, who reviewed video surveillance footage of the custodial work area. In particular, Mr. Mejia learned that Respondent left work 29 minutes early on October 29, 2009, 93 minutes early on October 30, 26 minutes early on November 2, 29 minutes early on November 4, and 30 minutes early on November 5. Compounding the problem, the sign- out log reveals that on each of these five occasions, Respondent falsely recorded 4:00 p.m. as the time he left work. On November 6, 2009, Ms. Adrianne Leal, the principal of Coral Reef, provided Respondent with a professional responsibilities memorandum, wherein she admonished him for continuing to leave early and for falsifying the payroll record by recording inaccurate sign-out times. The memorandum further reminded Respondent that his work day did not end until 4:00 p.m. Although Respondent ended his practice of recording inaccurate sign-out times, he continued to leave work early, including the very day he received the professional responsibilities memorandum. Specifically, Mr. Mejia's review of the video footage demonstrated that Respondent left 31 minutes early on November 6, 2009, 27 minutes early on November 9, 32 minutes early on November 10, 34 minutes early on November 12, 32 minutes early on November 13, 30 minutes early on November 16, and 31 minutes early on November 17 and 18. Respondent's behavior continued over the course of the next several months, during which he left work early without authorization on 11 occasions. In particular, Mr. Mejia confirmed that Respondent left work 24 minutes early on December 16, 2009, 20 minutes early on January 7, 2010, 31 minutes early on January 8, 26 minutes early on January 20, 30 minutes early on January 21, 92 minutes early on January 22, 12 minutes early on January 25, 34 minutes early on January 26, 29 minutes early on January 27, 26 minutes early on January 28, and 64 minutes early on January 29. Subsequently, on February 3, 2010, Ms. Leal issued Respondent a memorandum titled, "Accrued Leave Without Pay," which notified Respondent that he had been docked one day without pay based upon his early departures from campus during December 2009 and January 2010. On February 18, 2010, Ms. Leal held a conference for the record with Respondent, during which she discussed his history of misbehavior, reminded him of his responsibilities, and emphasized the fact that his work day did not end until 4:00 p.m. Nevertheless, Respondent persisted with his misconduct and failed to work until 4:00 p.m. on approximately 30 occasions during the months of February, March, and April 2010. On March 12, April 21, and May 17, 2010, Ms. Leal issued Respondent "Accrued Leave Without Pay" notices. As the months passed, Mr. Mejia continued to document numerous instances where Respondent departed campus prior to 4:00 p.m. without permission. In particular, from July 27, 2010, through October 21, 2010, Respondent left work at 3:40 p.m. or earlier on no fewer than 28 occasions. On November 2, 2010, its benevolence finally exhausted, Petitioner summoned Respondent to the School Board's Office of Professional Standards for a final conference for the record. Subsequently, Petitioner notified Respondent in writing that it intended to suspend him without pay and initiate dismissal proceedings. Ultimate Findings The greater weight of the evidence establishes that Respondent is guilty of gross insubordination. The greater weight of the evidence establishes that Respondent is guilty of non-performance of job duties. The greater weight of the evidence establishes that Respondent is guilty of failing to behave in such a manner that reflects credit upon himself and the school system. The greater weight of the evidence establishes that Respondent is guilty of violating the School Board's Code of Ethics.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 16th day of March, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 16th day of March, 2011.
Findings Of Fact The Coral Reef Yacht Club is a non-profit Florida corporation with an active membership of over five hundred (500) families. The purpose of the club is to encourage water sports such as boating, fishing and skindiving. The club presently has a waiting list of approximately forty to fifty members wanting wet slips for their boats. Historically the boats berthed in Coral Reef's docks have been a fifty- fifty mixture of sail and power craft with a length between 22 to 45 feet. It is anticipated by the club that similar craft will use the new slips if constructed. Since the club's beginning 25 years ago it has leased submerged land for all of its docking facilities from the City of Miami, the fee simple owner. In June 1979, the lease agreement was renegotiated to add the submerged land over which the proposed project would be constructed. In consideration for that addition the club deeded an 18 foot strip of its property to Miami for a bicycle path parallel to South Bayshore Drive. The site of the proposed project is in that part of Biscayne Bay known colloquially as Dinner Key. Dinner Key is well suited to marina development. It had been a Pan American Clipper base in the 1930's. It is close to population centers and provides direct access to the Atlantic Ocean without passing through drawbridges. The Dinner Key area is delineated by a crescent of spoil banks which were created by dredging of channels out toward the deep water of Biscayne Bay, a navigable state water. These banks create a sheltered area for the mooring and berthing of small craft. Other marina facilities in the Dinner Key include Biscayne Yacht Club (56 slips), Dinner Key Marina (330 slips), Monty Trainer's (40 slips), Merrill-Stevens (56 slips), and the City of Miami Docks (50 slips). Coral Reef's dredge and fill application was filed with DER on July 10, 1979. It was denied on November 21, 1979 for the following reasons: The project would eliminate a productive and diverse seagrass bed in a 1.8 acre area. The removal of the seagrasses would result in a degradation of water quality contrary to Section 17-3.061 and 17-1.121, Florida Administrative Code. The project would interfere with the conservation of fish and wildlife contrary to Chapter 253, Florida Statutes. The proposal would conflict with the intent of the Biscayne Bay Aquatic Preserve Act [Section 258.165(3), Florida Statutes] to preserve the bay in its natural condition. The project as proposed in Coral Reef's application is to expand its present marina facility of 72 slips by adding 4,290 square feet of docking to accommodate 27 additional wet slips. In order for there to be an adequate draft of 7 feet, 6,400 cubic yards of submerged bottom would be dredged from an area of approximately 1.8 acres (200 ft. by 400 ft.). The spoil resulting from the dredging would be piped to an existing spoil bank 600 feet to the southeast of the site. Coral Reef proposes to stabilize the spoil by planting salt resistant grasses and shrubs on it. At present the Club's docks extend 460 feet out into Biscayne Bay. The proposed addition would add another 213 feet. At the final hearing Coral Reef amended its application by proposing to add rip-rap in piles 3 feet high and 12 feet center-to-center to be placed only under the main walkway of the new proposed dock area. DER was given the opportunity to request a continuance of the final hearing to have time to evaluate the amendment, but no continuance was necessary. The site of the proposed dock expansion has two distinct biological regimes. Under tic existing dock where there has already been dredging there is little bottom life but a considerable population of fish. The number of marine organisms is limited. There are no larger plants and there is approximately 1 inch of silt on the bottom. In the area of the proposed dredging the bottom is covered by a great number of invertebrates--mollusks and crustaceans. There are thick seagrass beds giving approximately 55 percent coverage over a sandy bottom. Turtle grass (thalassia testudinum) and cuban shoal weed (halodule wrighti) predominate there. The sea grasses ace important to the environment because (a) they are the base of the detrital food chain; (b) they provide erosion and turbidity control; and (c) they serve as a nursery ground and refuge for numerous marine organisms and small fish. The spoil island on which Coral Reef proposes depositing the new spoil has a stand of Australian pines and a fringe of red, white, and black mangroves, primarily on the west side of the island. The fauna over the grass beds in the proposed dredging area consist of fish such as french grunts, snappers, great barracuda, and the commercially valuable pink shrimp. If the proposed dredging takes place, the grass beds will be destroyed. They will not re-establish themselves because at the new bottom depth of 7 feet there will be insufficient light for repropogation. To prevent damages to the sea grasses which surround the spoil island measures must be taken to prevent the new spoil from washing off the island and smothering the grass. Coral Reef proposes retaining the spoil on the island by a 1.5 foot high sand bag dike on the east side of the island where most of the 6,400 cubic yards of spoil will be deposited. At no point would the slope of the spoil exceed 1 to 20. Turbidity curtains are proposed to be used during the time the spoil is deposited. No significant environmental damage is expected to result from this placement of the spoil. It is possible that the placing of rip-rap under the newly constructed docks as proposed would create a habitat for the small and medium size fish in the Dinner Key area. The surface of the rip-rap would provide a suitable substrate for marine fouling organisms such as barnacles to grow on, and if the interstices of the rubble are large enough, fish could find shelter there. The rip-rap proposal is offered to mitigate the admitted environmental damage which would result from the dredging. There is however, no way to determine either qualitatively or quantitatively if the benefit of the rip-rap would compensate for the harm of dredging. The importance of the seagrasses is well established while the environmental benefits provided by the rip-rap is only speculative at this time. The Miami Area has an acute shortage of boat slips. It is estimated by the Comprehensive Marina Development Study (February 1979) prepared by the Greenleaf/Telesca firm for the City of Miami that by 1985 there will be a shortage of 3,350 wet and dry boat slips. The City of Miami supports the proposed expansion of Coral Reef facilities as an aid in ameliorating the slip shortage. If the Coral Reef Marina were expanded, it is likely that some of the Coral Reef members who presently have their craft in public marina facilities would move them to the new Coral Reef slips, but no reliable estimate of the number of public slips which would thus be vacated has been made.
Recommendation For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the State of Florida, Department of Environmental Regulation enter an order denying Coral Reef's application in File No. DF12-21762 to expand its marina facilities by dredging and filling in Biscayne Bay. DONE and RECOMMENDED this 31st day of October, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Robert J. Paterno, Esquire TAYLOR BRION BUKER & GREEN 1451 Brickel Avenue Miami, Florida 33131 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
