The Issue Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner. Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
Findings Of Fact Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol. Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis. Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement. Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits. At all times material, all of the City police officers were Caucasian. While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and Donna Kearney, Administrative Assistant to the City Manager. At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol." Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement. At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida. The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell. Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency. The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City. On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation. Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent. Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans. At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission. Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief. After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/ Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement. On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement. Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City. Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida." There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison. The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank; capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers. Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief. The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies. Paragraph 12 of the proposed interlocal agreement provided, in pertinent part: PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied) The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11). Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor." In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City. Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement. Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice. Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement. On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others, Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed. Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police. Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement. On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement. After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed agreement which had previously been signed by the Sheriff, never took effect. The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions. Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison. Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance. The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001. The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson. Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different. According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement. Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness. Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001. Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later. A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release. There were no further negotiations on an interlocal agreement. Corporal Harrison next served as interim City Police Chief. In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian. Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell. No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement. Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of June, 2004.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes.
Findings Of Fact Respondent, Michael Jones (Jones), was Assistant City Manager for the City of Opa-Locka, Florida (City), from October 1995 to May 1997. As part of his duties, Mr. Jones was in charge of public works, which included the motor pool, where repairs were made to city vehicles. On November 1, 1995, while on the way to a Rotary Club banquet which Ms. Griffin was required to attend as part of her job with the City, Ms. Griffin had an automobile accident, damaging the bumper on her car. She drove the damaged vehicle to the banquet. After the banquet, Ms. Griffin told Mr. Jones that her car had been damaged, and Mr. Jones saw the bumper lying on the ground. Ms. Griffin drove her vehicle to the police station and left it there overnight. The next day, Ms. Griffin picked up her car at the police station and took it to the public works building. She met Mr. Jones who told her that she could wait in his office area while her car was being repaired. Mr. Jones told Jesus Corrales, a City employee, to fix the bumper which had fallen off Ms. Griffin's car. At the time Mr. Corrales worked on the automobile he did not know that Ms. Griffin was the owner of the car. He put the bumper back on Ms. Griffin's car. The job took between two to three hours. Ms. Griffin's car was a white Honda. Ms. Griffin's car was the only white Honda that Mr. Jones ever asked Mr. Corrales to repair. When the repairs were completed, Ms. Griffin offered to pay Mr. Corrales, but Mr. Corrales would not accept any payment. The repairs were made during work hours and using city resources. Mr. Jones knew that it was improper to have cars, other than cars owned by the City, repaired at the City Public Works Department using City employees and City equipment. Ms. Griffin benefited by having her car repaired for free by employees of the City during working hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent, Michael Jones, violated Section 112.313(6), Florida Statutes, imposing a civil penalty of $1,000 and issuing a public censure and reprimand. DONE AND ENTERED this 9th day of October, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1998. COPIES FURNISHED: Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 David Nevel, Esquire Law Offices of Ronald Lowy 420 Lincoln Road Penthouse Seventh Floor Miami Beach, Florida 33139 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets, which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request. INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office. CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P. M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City. Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M. This day was also a work day for Respondent for which he was paid by Petitioner. USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch. Most of the time Respondent would not eat lunch but would work through lunch. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office. Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data. RESPONDENT'S OFFICE SITUATION Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time, Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused. Respondent's performance is not an issue in this proceeding. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour. SUSPENSION/DISMISSAL On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 1995.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of August, 2006.
Findings Of Fact Malcolm McCoy, for nearly 10 years prior to December 19, 1989, was employed by the City of Clearwater in the Gas Division. He was a permanent employee and covered by City of Clearwater's civil service rules and regulations. At the time of his dismissal on December 19, 1989, he served as a crew leader. In June, 1989, McCoy was arrested for possession and sale of cocaine. He was subsequently suspended without pay for five days by the City and awarded 60 disciplinary points (Exhibit 2), and on October 31, 1981, a court order was entered, which shows McCoy pleaded guilty in the Circuit Court in and for Pinellas County to sale or delivery of cocaine and possession of cocaine. Adjudication of guilt and imposition of sentence was withheld, and McCoy was placed on probation for two years (Exhibit 1). On September 11, 1989, McCoy received a letter by certified mail from the City advising him that he had accumulated 60 disciplinary points as a result of the cocaine incident and that any further disciplinary action within a two- year time frame may be grounds for his dismissal (Exhibit 3). On or about November 15, 1989, McCoy removed some City-owned dried out and dead sod from City property, loaded it onto a City vehicle, transported this sod to his address, and, with the help of his assistant, placed this sod in his yard. This occurred during regular working hours. Enroute to McCoy's residence with the sod on the vehicle, McCoy's assistant suggested to McCoy that it was wrong to take this sod to McCoy's property. Nevertheless, at McCoy's direction, the assistant helped McCoy unload the sod from the City truck and place it on McCoy's property. McCoy's stated purpose for placing the sod in his yard was to help arrest erosion on his property. An anonymous phone call reported this fact, the investigation confirmed, and McCoy admitted that he took the sod which was worthless as sod and placed it on his property. McCoy did not feel he had misappropriate City property; only that he had saved the City the expense of disposing of the dead sod.
Recommendation It is recommended that the dismissal of Malcolm McCoy as a civil service employee of the City of Clearwater be affirmed and McCoy's appeal be dismissed. ENTERED this 4th day of April, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Office Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990. COPIES FURNISHED: Miles Lance, Esquire Post Office Box 4748 Clearwater, FL 33418-4748 Malcolm McCoy 1323 Tioga Avenue Clearwater, FL 34616
Findings Of Fact On November 8, 1994, two new members, George Lipkins (since deceased) and Timothy Holmes, were elected to the City of Opa-Locka's five member City Commission. Following the regular meeting and the swearing in of the new commissioners on November 9, 1994, the issue of a special meeting was raised. The proposed special meeting was to take place on September 10, 1994, and the purpose of the meeting was to consider the removal of then City Manager Dennis Whitt. On November 10, 1994, Mr. Whitt, then Mayor Robert Ingram, and Commissioner Helen Miller (now deceased) reacted to the proposed special meeting by filing a Complaint for Emergency Injunctive Relief (Complaint) against Commissioners Holmes, Steven Barrett, and Lipkins. The Complaint sought to enjoin the special meeting scheduled for September 10, 1994. A ruling on the Complaint was entered on November 10, 1994, at 4:55 p.m. In the Order, Judge Margarita Esquiroz enjoined Commissioners Barrett, Lipkins, and Holmes, as well as any officers or employees of the City of Opa-Locka, from "holding any hearing on November 10, 1994, at 9:00 p.m., until further order of this court." Even though the injunction order had been entered, a special meeting of the Opa-Locka City Commission was convened on the evening of November 10, 1994. At the special meeting, the City Commission suspended City Manager Whitt and appointed Newall Daughtrey as Acting City Manager. At the special meeting, the City Commissioners also appointed Mr. Daughtrey to conduct an investigation into the finances of the City of Opa-Locka. Pursuant to the Commission's directive, Mr. Daughtrey was to investigate the fiscal affairs of the City, but could not target the mayor or the commissioners. Mr. Daughtrey appointed Respondents to assist him in conducting this investigation. During or immediately after the special meeting, Mr. Whitt and Mayor Ingram sought to have the injunction order signed by Judge Esquiroz enforced. As a result of that effort, on November 10, 1994, at 10:30 p.m., an order was entered by Judge J.C. Henderson, Circuit Court Judge, in and for Dade County, Florida, directing the Metro Dade Police Department to enforce the injunction order. Moreover, the order entered by Judge Henderson directed the Metro Dade Police Department "to take all reasonable steps to secure the audio tapes of the meeting that took place in violation of the [injunction] order." Notwithstanding the injunction order, Mr. Daughtrey took the position that the City Commission, by its action at a special meeting held on November 10, 1994, had appointed him Acting City Manager. On the other hand, Mr. Whitt took the position that there had been no lawful action by the City Commission, and refused to physically yield his office to Mr. Daughtrey. During this "stand- off," Mr. Daughtrey did not move into the office designated for the city manager, but moved into another office in City Hall. Acting in his role as Acting City Manager, Mr. Daughtrey informed the commissioners that he was appointing Respondents Rolle and Riley as his assistants. This information was communicated by a memorandum dated November 11, 1994, from Mr. Daughtrey to the City Commissioners. At the end of the week of November 10, 1994, Respondent Riley received a copy of this memorandum when it was hand- delivered to Riley's house. City Manager Whitt, joined by Mayor Ingram and City Commissioner Miller, challenged Mr. Whitt's suspension. As a result thereof, on November 18, 1994, Judge Esquiroz held a hearing on the injunction, and ruled that all actions taken at the November 10, 1994, special meeting were in violation of the law and were without effect. As a result of this ruling, the City Commission scheduled a meeting for December 9, 1994, for the purpose of considering the continued employment of Mr. Whitt. Some time after he received the aforementioned November 11, 1994, memorandum, and before December 10, 1994, Respondent Riley was directed by Mr. Daughtrey to go to the law offices of Wintropp and Greason to assist in preparing the notice for the December 9, 1994, hearing. Respondent Riley complied with this directive and, in fact, worked to ensure that the notice and activities associated therewith complied with the provisions of the Charter of City of Opa-Locka and Chapter 119, Florida Statutes. Respondent Riley also performed other tasks during this time period at the request of at least one of the City Commissioners. Although Respondent Riley performed these assignments before the December 9, 1994, meeting, he did not routinely work in City Hall due to Mr. Whitt's refusing to allow him to work there. Consistent with the November 11, 1994, memorandum, Mr. Daughtrey offered Respondent Rolle a job as the City Manager's assistant, working as the Director of Personnel. Respondent Rolle accepted the offer, and thereafter began performing services for the City in November 1994. This was Respondent Rolle's first experience working for a governmental entity. During the period between November 1994 and December 1994, Respondents went to City Hall on numerous occasions to retrieve information and materials necessary to perform their various job-related activities. Respondents were observed by Mr. Whitt, commissioners, and city staff members in City Hall performing these activities. According to Mr. Whitt, the Respondents were "busy with activities relating to [Whitt's] removal." Also, during the period, Respondents met weekly with Mr. Daughtrey and some of the City Commissioners. At the December 9, 1994, City Commission meeting, the Commissioners removed Mr. Whitt as City Manager and appointed Newall Daughtrey as City Manger. However, during the period between November 10, 1994, and December 9, 1994, Mr. Whitt remained on the City of Opa-Locka payroll as the City Manager and continued to physically occupy the City Manager's Office. Moreover, Mr. Whitt and his staff managed the day-to-day operations of the City of Opa-Locka. At all times pertinent hereto, personnel actions in the City of Opa-Locka, including new hires, terminations, and salary changes, were accomplished through completion of a Report of Personnel Action (RPA). The procedure for processing RPA forms required the signatures of four persons: (1) the affected employee; (2) the applicable Department Director; (3) the Director of Personnel; and (4) the Personnel Department staff member processing the form. After the Personnel Department processed RPA forms, it retained one copy of the RPA form and forwarded the other copy to the City's Finance Department. In the case of new hires, the Finance Department then prepared warrants in amounts that corresponded with the amount designated on the RPA forms. The Finance Department also prepared a check register that listed the amount and payee of each check. This check register was provided to the City Manager along with the unsigned warrants. After reviewing of the check register, the City Manager was required to personally sign each warrant prior to issuance thereof. On or about December 13, 1994, upon the new administration, including Respondents, moving into their offices in City Hall, RPA forms were processed for both Respondents. Because Respondents were appointed as the City Manager's assistants, City Manager Daughtrey, was considered their Department Director. Hence, on Respondents' RPA forms, Mr. Daughtrey should have signed on the line designated "Department Director." On or about December 13, 1994, and prior to Respondents' RPA forms being processed, Respondent Rolle brought his RPA form to the City of Opa-Locka Personnel Office and gave it to Sharon Jones, a personnel specialist. Rather than process the form, Ms. Jones gave the form to her supervisor, Ana Otero, Acting Personnel Director. Ms. Jones was reluctant to process the RPA because the City Manager's signature was not on the form. At some point while Respondent Rolle's RPA form was being processed, Ms. Otero told Respondent Rolle that she did not believe that he was entitled to retroactive pay. Respondent Rolle then took the form from Ms. Otero and left the Personnel Office. On or about December 13, 1994, Respondent Riley took his and/or Respondent Rolle's RPA form to Mr. Daughtrey to sign. However, when Respondent Riley presented the RPA forms to him, Mr. Daughtrey was very busy dealing with other pressing matters involving the City of Opa-Locka and did not sign Respondents' RPA forms. The reason Daughtrey did not sign the forms is that he was concerned about the salary amount shown on the forms. Thereafter, Respondent Riley, in his role of Assistant City Manager, signed his own name on the line designated for the Department Director on both his and Respondent Rolle's RPA forms. Moreover, on both RPA forms, Respondent Rolle, as the Director of Personnel, signed his own name on the lines designated for the signature of the Director of Personnel and the personnel staff member who processed the form. Both Respondents signed their names as the affected employee on their respective RPA forms. There is no indication that the City of Opa-Locka had a policy that precluded Respondent Rolle as Personnel Director, from signing either his or Respondent's RPA forms in the places designated for the signature of the Personnel Director and staff of the Personnel Office involved in processing the forms. On December 13, 1994, RPAs were processed for the Respondents, appointing them as the City Manager's Assistants, effective November 10, 1994, and providing for payment of $50,000 per year effective November 10, 1994. According to the RPA forms, the retroactive payment due each Respondent was $4,231.04. On the Respondent Rolle's RPA form, the amount of retroactive payment typed on the form was $4,227.52; however, this amount was lined through and the amount hand-written immediately below it was $4,231.04. Next to the amount that had been lined through were the hand-written initials "alo." These appear to be the initials of Ana Otero. However, Ms. Oetero was unsure if she had, in fact, completed any of the information required on the RPA forms. It is unknown when or how Respondents' rate of pay as assistants to the City Manger was determined. However, it was always anticipated that Respondents would be compensated for their work as the City Manager's Assistants, even though Mr. Daughtrey never specifically talked about salary. Notwithstanding the fact that Mr. Daughtrey did not sign Respondents' RPA forms, he acknowledged that Respondents were entitled to compensation for the period between November 1994 and December 1994, but was unsure as to how much they should be compensated. On December 14, 1994, after Respondents' RPA forms were processed, the City of Opa-Locka issued warrants for retroactive pay in the amount of $4,231.04 to the Respondents. City Manager Daughtrey personally signed the payroll checks which were thereafter issued to Respondents in the normal course of business. These warrants were eventually cashed by Respondents. Once the City Manager signed the checks for retroactive payment to Respondents, the subject checks were legally authorized. Mr. Daughtrey also received a payroll check from the City of Opa-Locka for the period November 10, 1994, through December 10, 1994. On June 10, 1995, the Opa-Locka City Commission removed Newall Daughtrey as City Manager. This action was taken after Mr. Daughtrey questioned the City Commissioners' entitlement to deferred compensation disbursed to them by their former City Manager. Mr. Daughtrey raised this issue with the City Commission based on his belief that the amount of that disbursement was in violation of the City Charter. On June 28, 1995, the Opa-Lock City Commission directed the new City Manager to refer the issue of the propriety of Respondents' and Daughtrey's receipt of the subject paychecks to the State Attorney for the Eleventh Judicial Circuit of Florida. After investigating the matter, the State Attorney found no probable cause to believe that any theft had been committed and referred the case to the Ethics Commission. As a result of Mr. Daughtrey's receiving the paycheck for the period November 1994 to December 1994, he was the subject of a complaint to the Ethics Commission by the same complainants at the same time as the Respondents. However, the Commission on Ethics found no probable cause to believe Daughtrey had committed an ethics violation in accepting his paycheck. In 1996, after Respondent Riley was an announced candidate for Mayor of the City of Opa-Locka, the City Commission, including Mayor Ingram, directed the City Attorney to sue Mr. Daughtrey and Respondents in Circuit Court, alleging civil theft of the disputed paychecks and violation of Section 112.313(6), Florida Statutes. That suit, Case No. 96-18670 CA-30, City of Opa-Locka vs. Newall Daughtrey, John Riley, and Wellington Rolle, remains open, pending jury trial. At no time prior to filing that suit did the City of Opa-Locka or any of its officers or officials demand return of the disputed payments from either Respondents or Newall Daughtrey.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondents, John Riley and Wellington Rolle, did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 8th day of October, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399-1050 James H. Greason, Esquire 3191 Coral Way Miami, Florida 33145 Kerrie Stillman, Complaint Coordinator Commission on Ethics 2822 Remington Green Circle, Suite 1 Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether the Respondent's proposed award of DCPHU Bid I-90 to the Intervenor, Meyers Parking Systems, Inc., for the management of a parking facility located at 1350 Northwest 14th Street should be upheld.
Findings Of Fact For approximately the last ten years, Kinney has operated the parking lot at the Dade County Public Health Unit building located at 1350 N.W. 14th Street in Miami, Florida (the "Parking Lot") pursuant to a contract with HRS. The existing contract between Kinney and HRS for the management of the Parking Lot was entered in June 1989 and was scheduled to expire on June 30, 1990. That contract included two one-year options to renew. The contract also included a provision that allowed either party to terminate the contract upon thirty days notice. The contracts for management of the Parking Lot in previous years were substantially identical in form to the existing contract. In February of each year, a contract review committee consisting of the head of the administrative services department of the facility (the "Contract Manager') and several other employees of the facility would meet to discuss the Parking Lot contract and to determine whether to renew the contract or rebid it. (This Committee will be referred to as "Parking Lot Committee.") The Contract Manager (whose title has been recently changed to Administrative Services Director) essentially chaired the Parking Lot Committee and appointed the other employees who served on the Committee. For the last ten years the Contract Manager has been responsible for overseeing this contract. During this time, his main contacts at Kinney were Chuck Adams, who was usually at the Parking Lot on a daily basis, and Mr. Adams' supervisor, Ken Deutsch. Both Mr. Deutsch and Mr. Adams left the employ of Kinney sometime prior to February, 1990. The exact date of their departure was not established. Both Mr. Deutsch and Mr. Adams now work for Meyers. Kinney's new representative with respect to the Parking Lot contract was Tony Benyon, who assumed those responsibilities on February 1, 1990. Mr. Benyon had previously worked for Meyers and was on the job only twenty two days before the decision was made to rebid the contract. On February 22, 1990, the Parking Lot Committee met and determined not to renew the contract with Kinney. At the time this decision was made, the Contract Manager was aware that the former Kinney employees had switched jobs and were now working for Meyers. However, it does not appear that he brought the job changes to the attention of the Parking Lot Committee because at least one member of the Committee was not aware of the job changes. On or about March 23, 1990, HRS issued an invitation to bid for the management and operation of the Parking Lot (the "Invitation to Bid.") Although the evidence did not establish exactly how many time this contract had been bid in the past, it appears that bids were solicited for this contract on at least two prior occasions during the ten years that Kinney had been operating the Parking Lot. On each occasion, the Invitation to Bid form was substantially identical to the form used in March of 1990. Page 6 of the Invitation to Bid requested bidders to submit a resume of their backgrounds. Page 8 of the Invitation to Bid was entitled "Bid Sheet" and required bidders to submit the following information: "(1) Proposal for Operating the Lot; (2) Proposed Rates, (3) Proposed Net Income Distribution." The Invitation to Bid did not require the bidders to provide any documentation regarding their financial condition nor did it indicate that prior job performance would be considered in evaluating the bids. The Invitation to Bid contained a provision that "any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening." Between the time the Invitation to Bid was sent out and the bids were received, the Contract Manager admits that he "probably" had conversations with some of the bidders and responded to questions about the bid. The Contract Manager could not specifically recall any such discussions with potential bidders between the time the Invitation to Bid was sent out and the date the bids were submitted. However, he admitted that it was likely that some discussions took place. Kinney was never advised of any such discussions between the Contract Manager and other potential bidders. Three sealed bids (including proposals from Kinney and Meyers) were received and opened by HRS at a bid opening on April 4, 1990. A fourth bid was disqualified because it was not sealed. The members of the Parking Lot Committee and representatives of the bidders were present at the bid opening. The bid submitted by Kinney proposed a net income distribution to HRS of 82.5 percent with the remaining 17.5 percent being retained by Petitioner. The Kinney bid also contained a specific breakdown of anticipated costs, fees and expenses to be deducted from the projected gross income to achieve projected net income, a resume and a list of references regarding other-lots being managed by the Petitioner in the area. Meyers and Hi-Rise Parking Systems, Inc. ("Hi- Rise") also submitted bids. Both of those bids contained a proposed net income distribution of 90 percent to HRS. Neither the Hi-Rise nor the Meyers' bids contained a resume or a list of local references of other lots being managed by the companies nor did they contain a listing of anticipated costs, fees and expenses. At the bid opening, the Contract Manager indicated that the bids submitted by Meyers and Hi-Rise were the low bids and the Parking Lot Committee would meet to determine how to "break the tie." At this point, Kinney was effectively eliminated from consideration. By letter dated April 10, 1990, the Contract Manager requested additional information from Meyers and Hi-Rise as follows: Company background information including officers, organization and latest financial/management audit; [and] At least three references to include name of contact person, firm, mailing address and telephone number. The Contract Manager did not request any additional information from Kinney or the disqualified bidder. On or about April 16, 1990, Meyers submitted the requested information to the Contract Manager. On or about April 17, 1990, Hi-Rise submitted the requested information to the Contract Manager. Thus, it is clear that information regarding the financial condition of Meyers and Hi-Rise was not submitted until after the bids were opened. On May 1, 1990, the Parking Lot Committee met to discuss the additional information received from Meyers and Hi- Rise. At that meeting, the members of the Committee completed a "bid selection review form" that listed (1) net income distribution (2) references and (3) company management and financial condition as the criteria for evaluation of the bids. The Committee determined that Meyers and Hi--Rise were "tied" in all categories except financial condition. At best, the submitted financial information provides a cloudy picture of Meyers' financial status. The information indicates that Meyers showed an income loss for the year 1988-1989 of $3,670,000. While a large portion of this loss is apparently related to corporate restructuring, it does not appear that any members of the Parking Lot Committee understood or fully considered this financial information nor did they seek to have the submitted financial information reviewed by an accountant. Hi-Rise's financial records indicate that it is a significantly smaller company, but its records indicated a positive cash flow for the preceding year. Notwithstanding these facts, the Committee decided to award the contract to Meyers. This decision was essentially made on the recommendation of the Contract Manager. The bid selection review form stated as follows: Based on bids and additional information provided, the Parking Lot Management Bid Selection Team recommended award of DCPH Bid No. I-90 to Meyers Parking System, Inc. On May 9, 1990, HRS provided all interested parties with a notice of its selection of Meyers as the successful bidder. In the Notice of Selection, HRS indicated that Meyers had been selected based on the proposed net income distribution, references, background and financial condition. Petitioner timely filed a protest of the proposed award of the contract. The Parking Lot Committee excluded Kinney from consideration based solely upon the net income distribution percentage. However, since the Invitation to Bid did not require the bidders to specify or limit in any way the expenses that could be deducted from gross revenues prior to distributing proceeds to HRS, there was an insufficient basis to accurately evaluate the proceeds that HRS could reasonably expect pursuant to any of the bid proposals. HRS and Meyers have argued that, because HRS has many years experience and expense records relating to the operation of the Parking Lot, the information provided pursuant to the Invitation to Bid provided HRS with sufficient information to make a reasonable evaluation of the financial terms of the proposals. This contention is rejected. To permit such uncertainty and discretion to be built into the bid process would substantially undermine the integrity and dependability of the process. Item 12 on page 6 of the Invitation to Bid required that "bidders will submit a resume of their background and other local lots they are currently managing." No such resume or lists were provided by Meyers. Meyers contends that its response to Item 1 on Page 8 of 8 adequately addressed this requirement. That response provided as follows: PROPOSAL FOR OPERATING LOT. Meyers Parking System, Inc. proposes to operate the Dade County Health department's parking lot with the same high degree of professionalism that we are known for and have demonstrated to our other clients throughout the county. The facility will be managed by trained, uniformed, courteous employees and supervised regularly and closely with our field supervisors and our Regional Vice-President... This statement is not a sufficient response to Item 12 of the Invitation to Bid. During the Parking Lot Committee meeting on February 22, 1990, several complaints were made regarding Kinney's performance under the existing contract. However, no efforts were ever undertaken by HRS to terminate the existing contract with Kinney. While HRS contends that the complaints were part of the reason for deciding to rebid the contract, no steps were taken to disqualify Kinney from bidding on the new contract. In any event, most of the complaints voiced on February 22, 1990 would have been the responsibility of the prior managers of Kinney who now work for Meyers. In February and March of 1990, the disbursements to HRS under the existing contract diminished significantly. This decrease in payments was the result of embezzlement by Kinney employees. While HRS has cited this shortage to justify its decision in awarding the contract to Meyers, there is no evidence that HRS ever attempted to terminate the existing contract nor does it appear that the Parking Lot Committee considered this fact in deciding to eliminate Kinney's bid from consideration. Similarly, the evidence established that there have been problems during the months of March, April and May of 1990 with attendants failing to appear at work on time or leaving the job site. Again, however, there is no indication that HRS attempted to terminate the existing contract or that the Parking Lot Committee relied upon these factors in deciding to eliminate the Kinney bid from consideration. There have been recurring complaints made to Kinney under the existing contract regarding excessive towing of cars from the Parking Lot. The problem of parking lot attendants ordering cars towed without the permission of HRS has existed off and on for sometime. Even though HRS representatives had voiced complaints about the. towing policies, the evidence indicates that this recurring problem became worse in the late spring and early summer of 1990. Nonetheless, HRS never sought to terminate the existing contract because of the towing problems nor did the Parking Lot Committee rely upon this fact in deciding to eliminate the Kinney bid from consideration.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for DCPHU Bid I-90 and issue a new Invitation to Bid. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31 day of October, 1990. J. STEPHEN MENTON 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 31 day of October, 1990.
The Issue The issue in this case is whether the discipline imposed on Petitioner, Alisha Fessel, by Respondent, City of Cape Coral (the "City"), was appropriate.
Findings Of Fact Based on the Stipulated Record, the following Findings of Fact are made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated under the Charter. Ms. Fessel was employed by the City as an administrative secretary in the City's Police Department, and she was a member of the Union. Ms. Fessel had been counseled and disciplined on several occasions regarding her work performance and behavior pursuant to the City's personal rules and regulations as codified in the City of Cape Coral Code of Ordinances and the Cape Coral Police Department General Orders. All disciplinary proceedings against Ms. Fessel were initiated under the City of Cape Coral Code of Ordinances, Chapter 2, Article III, Division 7, entitled, Discipline of Regular Employees, and pursuant to the collective bargaining agreement between the City and the Union. On September 30, 2011, Ms. Fessel was placed on a 120-day performance improvement plan. On November 2, 2012, Ms. Fessel was suspended for 40 hours. On March 7, 2013, Ms. Fessel was placed on administrative leave with pay. On March 12, 2013, Ms. Fessel remained on paid administrative leave while the City conducted a pre-disciplinary hearing. On April 18, 2013, Ms. Fessel's employment with the City was terminated. The parties have stipulated: The underlying discipline is not being challenged; rather, Petitioner [Ms. Fessel] contends that the suspension with pay during the period March 7, 2013[,] up to and including April 18, 2013, constituted disciplinary action barring any further discipline (i.e., Fessel's termination on or about April 18, 2013) for the same actions.
The Issue The issue for determination is whether the Florida Department of Labor and Employment Security illegally rejected Petitioner's bid as nonresponsive.
Findings Of Fact Fred Boozer, Sr., (Boozer), the Petitioner, owns Boozer Properties, a family business which includes a building at 2235 South Babcock Street, Melbourne, Brevard County, Florida. The building is currently occupied by staff of the Florida Department of Labor and Employment Security (LES) and other tenants. In south Brevard, LES staff also occupies another building in Palm Bay. Because of staff expansion and the need to co-locate its offices, LES issued a Request for Proposal (RFP) for Lease No. 540:0904 on January 28, 1992. The RFP had been previously advertised but was successfully challenged on issues unrelated to the issues in this proceeding. The January 1992 RFP sought approximately 11,474 to 11,818 square feet of office space. The RFP also specified that 95 off-street parking spaces be provided for the exclusive use of LES employees and clients. The spaces were to be suitably paved and lined, and under the control of the bidder. The RFP advertised a pre-proposal conference on February 4, 1992. No bidder attended, and no objections to the RFP were filed. Six responses were received on the February 28th deadline, one of which was immediately determined to be nonresponsive. The remaining bid proposals were evaluated, and Boozer's bid, offering his Babcock Street site, and 95 parking spaces, received the highest points from the evaluation committee. During a recent LES bidding process for office space in West Palm Beach, a problem arose with a bidder's ability to provide the required parking spaces. Cognizant of this, the LES leasing manager contacted the City of Melbourne to determine whether the apparent bid winner, Boozer, could meet his obligation to provide 95 spaces. The written response dated March 20, 1992, from Dominic Mauriello, a Melbourne city planner, provides his estimation that, for the various uses in the Babcock Street building, 207 parking spaces would be required. The memo states that a site plan on file at the city planning office reflects that there are 165 spaces. The site plan attached to Boozer's bid proposal submitted to LES indicates that 175 spaces are available. LES staff person, Lynne Mobley, telephoned Fred Boozer on March 24, 1992, informing him of the memorandum from the city. He responded with a request that he be allowed twenty-four hours to provide additional information. By March 27, 1992, the LES leasing office had not received further information from Boozer. The RFP had advertised a 30-day deadline for the bid award, which deadline fell on a weekend. The agency considered that it needed to make the award on Friday, the 27th. After contacting the City of Palm Bay to assure that the next highest rated response could deliver the requisite parking spaces, a letter was sent notifying Woodlake S.W. No. 1, Ltd., (Woodlake) of its award. In a letter dated March 27, 1992, LES notified Boozer that its bid was determined nonresponsive based on the outcome of investigation and consultation with the city regarding his inability to produce the required 95 exclusive spaces. In the meantime, Fred Boozer had contacted Peggy Bray, the City's Planning and Zoning Administrator, who provided an amended estimation stating that 190 spaces would be required for the Babcock Street site, and that the site currently includes 184 parking spaces. Ms. Bray's letter, dated March 27, 1992, states that in order to provide 95 spaces for the Department of Labor, 1800 square feet of office space would need to remain vacant. The Bray letter was immediately sent by facsimile transmission to LES, and was received the afternoon of March 27th, after the award and rejection notices were sent. Boozer's building is approximately 39,000 square feet. Several tenants are month to month lessees, and another tenant is expected to move prior to the beginning of the LES lease term. Boozer is willing to keep vacant the 1800 square feet and contemplated that necessity when he submitted his bid proposal. He did not include this agreement in his written bid response, but neither did LES specifically ask, either in the bid form or at the time of the committee's site walk-through prior to the bid award. Boozer contends that he responded on the bid proposal that he would provide 95 exclusive spaces and he remains willing to provide those spaces. At hearing, Boozer disclosed that 20 additional parking spaces are located adjacent to the subject property and are available for use by HRS' County Health Services, another tenant in the Babcock Street building. The spaces would reduce by 20 the spaces required by the city code, but their existence was not disclosed in the bid proposal as they are not part of the attached site plan. Boozer's onsite parking spaces range from one-half to one foot short of the eleven-feet width required by the city code. No evidence was presented with regard to any pending or contemplated enforcement action, and LES did not base its decision on this defect. LES did base its decision on a good-faith reliance on the communication by a member of the City of Melbourne planning staff. Even when that initial communication was corrected by the planning administrator, the number of spaces available were still less than needed for LES purposes and to comply with the City's code. LES did not anticipate, nor was it informed prior to bid award, of Boozer's ability and willingness to keep space vacant to comply with his commitment to provide 95 parking spaces to LES.
Recommendation Based on the foregoing, it is hereby, recommended that a final order be entered dismissing Petitioner's protest of intended bid award. RECOMMENDED this 18th day of June, 1992, 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 18th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2372BID The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact Adopted in paragraphs 2, 3 and 4. Adopted in paragraphs 4 and 9. Adopted in paragraph 6. Adopted in substance in paragraph 7. Rejected as unnecessary. The testimony of Ms. Mobley is that she did not receive the message. Adopted in paragraph 10. Adopted in paragraphs 8 and 9. Adopted in paragraphs 10 and 13. Rejected as unnecessary. 10-13. Adopted in paragraph 11. Rejected as unsubstantiated by competent evidence. Adopted by implication in paragraph 5. Rejected as irrelevant, except as to Intervenor's spaces, which is adopted in paragraph 8. 1718. Rejected as unnecessary and irrelevant. Respondent's Proposed Findings of Fact 1. Adopted in paragraph 3. 2. Adopted in paragraph 1. 3. Adopted in paragraph 2. 4-5. Adopted in paragraph 4. 6-7. Adopted in paragraph 5. 8. Adopted in paragraph 6. 9. Adopted in paragraph 7. 10-11. Adopted in paragraph 8. 12. Adopted in paragraph 10. 13. Adopted in paragraph 12. 14. Adopted in paragraph 9. Intervenor's Proposed Findings of Fact 1-2. Adopted in substance in paragraph 3. 3. Rejected as unnecessary. 4-5. Adopted in paragraph 4. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 11. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in paragraph 9. 15-16. Adopted in paragraph 8. Rejected as unnecessary. Adopted in Preliminary Statement. 19-28. Rejected as unnecessary. COPIES FURNISHED: Howard M. Swerbilow, Esquire Post Office Box 541271 Merritt Island, FL 32954-1271 Edward A. Dion, Esquire Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, FL 32399-2189 Jack Spira, Esquire 5205 Babcock Street N.E. Palm Bay, FL 32905 Alan Taylor Elizabethan Development Corporation 245 Avenue O S.W. Winter Haven, FL 33880 Frank Scruggs, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, FL 32399-2152
