The Issue The issue in this case, as stipulated by the parties, is whether Respondent violated section 112.313(6), Florida Statutes (2010),1/ by attempting to enter into, or by entering into, pre- dated employment agreements, and/or by attempting to destroy or destroying public records and/or evidence of wrongdoing and/or by attempting to enter into or entering into agreements which exceeded the Respondent's purchasing authority.
Findings Of Fact Respondent, Oel Wingo was employed as the city manager for the City of Holly Hill (City) from January 1, 2010, until October 2010. Prior to serving in that capacity, she was the assistant city manager for the City of Palm Coast for ten years, and the assistant city manager for the City of Ocala for five years. Respondent earned a Ph.D. in Education Administration from the University of Florida. At all times material to the allegations herein, the City operated under a commission/city manager form of government. This meant that the commission decided policy, while the city manager was responsible for implementing policy and handling all operational matters, including the hiring and firing of personnel. Respondent's employment as city manager was governed by an employment agreement. The agreement provided for the payment of severance pay to Respondent in the event she was "terminated" by the City. Under section 10 of the agreement, termination could occur under a number of scenarios, including the following: If the Employer reduces the base salary, compensation or any other financial benefit of the Employee, unless it is applied in no greater percentage than the average reduction of all department heads, such action shall constitute a breach of this agreement and will be regarded as a termination. In the event that Respondent was terminated pursuant to the above provision, "[T]he Employer shall provide, initially, a severance payment equal to six months' salary at the current rate of pay " Respondent's employment agreement with the City further provided that she would not be entitled to receive severance benefits in the event she was terminated for cause. At the time she was terminated from her employment as city manager, Respondent’s annual rate of pay was $124,500.00. When Respondent assumed her duties as city manager, the City was experiencing significant budget problems because of declining property values, and the resultant reduction in tax revenues. Faced with a reduced budget, Respondent was nonetheless charged with the duty to maintain the current level of city services. Consequently, Respondent implemented budget cuts, reorganizations, layoffs, and position eliminations within months of her arrival. Understandably, the atmosphere in city commission meetings was, at times, tense and volatile. Similarly, the rapid personnel changes negatively affected employee morale and fostered resistance to many of the changes proposed by Respondent. When Respondent was hired by the City, only one City department head, City Clerk Valerie Manning, had an employment contract. Ms. Manning's contract with the City provided that if the City were to reduce her compensation in a greater percentage than the applicable across-the-board reduction for all City employees, she could elect to resign and “be terminated without cause,” and therefor eligible for full severance benefits. Manning left the employ of the City in April, 2010. In April 2010, Respondent replaced Manning with Joshua Fruecht. Fruecht testified that he requested an employment contract soon after he was hired. Respondent told him she would consider it after he had worked for the City for six months. Early during Respondent's employment with the City she and the City Attorney, Scott Simpson, had conversations about the desirability of the department heads having employment agreements because, as department heads, they had no protection from arbitrary termination. Entering into employment agreements with the department heads would protect them from being terminated by the city commission for personal reasons. By that time Respondent had already been approached by Administrative Services Director Kurt Swarzlander, who was concerned about his position and also wanted an employment agreement. On May 6, 2010, Respondent e-mailed Attorney Simpson with the following inquiry: We recently discussed the need to contract with Department Heads. Previously, the City Clerk had a contract. I am reviewing similar employment contracts from other cities and would like to pursue this for several reasons. My primary question for you is whether these contracts must go before the Commission. My interpretation of the Charter and my hiring and firing capabilities is that they do not, as long as I remain within the adopted job descriptions and pay ranges. Later that day, Simpson responded to Respondent's inquiry as follows: I agree that an employment contract with department heads should be within your authority as the City Manager. However, if severance is going to be provided to the department heads, then I would recommend having the commission approve this change in benefits even if individually the cost would not exceed your spending authority as cumulatively they probably would and it is a new benefit. This should not be an issue as the commission approved this for the City Clerk. Roland Via served on the city commission from November 2005 through November 2010, and was the mayor when Respondent was hired as the city manager. Mr. Via testified that in January 2010, during her first month of employment, Respondent advanced the idea of employment agreements for City department heads. According to Respondent, employment agreements would permit the City to hire the best managerial talent from other cities and provide a benefit to both the City and the employee. In May 2010, Respondent negotiated an employment agreement with Brad Johnson to serve as the public works director. The contract was executed without approval by the City Commission. City Attorney Simpson and Respondent collaborated in the preparation of the contract. Mr. Johnson's agreement provided that if the City were to reduce his financial benefits in a greater percentage than the applicable across-the-board reduction for all City employees, he could resign and be terminated without cause, thus being eligible for full severance benefits. Specifically, section 4(c) of Mr. Johnson’s employment agreement provided as follows: If the City reduces the financial benefits of the Employee in a greater percentage than the applicable across-the-board reduction for all City employees, or if the City refuses, allowing written notice, to comply with any other provision benefitting the Employee as set forth herein, then Employee may, at his/her option, elect to resign and be “terminated without cause” within the meaning of Section 4(a) of the Agreement and shall receive all compensation and benefits in Section (4)(a). Such resignation shall be in writing to the City Manager. In the event there was a termination under the above circumstances, Mr. Johnson’s agreement provided that the City would pay a minimum of four months’ salary and benefits pursuant to the City’s Personnel Policies. Respondent forwarded an e-mail to the members of the City Commission on May 7, 2010, informing them of her decision to enter into an employment agreement with Mr. Johnson based on a similar agreement with the former City Clerk, Ms. Manning. Respondent also informed the commissioners that the “City Attorney has advised that we consider utilizing employment agreements with new Department Heads.” At the time Respondent offered an employment agreement to Mr. Johnson, she elected not to do so for the other department heads. This was because she needed more time to evaluate each department head’s capabilities and determine on a case by case basis whether offering contracts to them would in the best interest of the City. However, the unrebutted testimony established that early in her tenure as city manager Respondent had formulated the intent to enter into employment contracts with qualified department heads at some future time. When Respondent entered into the written agreement with Mr. Johnson she was aware of the potential limitations imposed on her purchasing authority as a result of the severance provisions of the employment agreement. However, at the time that Respondent entered into the agreement with Mr. Johnson, no language was suggested or offered by the city attorney regarding the limitations imposed on the city manager's purchasing authority by virtue of the City’s purchasing code. While Respondent was hired by unanimous vote of the City commission, her relationship with certain commissioners, particularly Commissioner Glass and Commissioner Patton, began to deteriorate within the first months of her employment. This was the result of several actions by Respondent, including challenging Commissioner Glass about directing an employee to expend funds in a manner inconsistent with commission action, and deciding not to authorize the use of City funds to pay for the spouses and children of commissioners to attend the League of Cities convention. As a result of this friction, Respondent testified, she was threatened by Commissioner Glass on more than one occasion. The July 28, 2010, Employment Agreements (Dated May 21, 2010) At a city commission workshop on the evening of July 27, 2010, Commissioner Patton suggested that Respondent take a 20 percent cut in pay, and that salaries of the department heads also be reduced. At the time that Commissioner Patton suggested the pay cuts, the only department head that had an employment agreement was Mr. Johnson. However, no formal motion was made at this meeting to cut Respondent’s or department head pay, and no evidence was introduced that any action was ever taken by the city commission on this suggestion. In the hours immediately following the commission meeting of July 27, 2010, which Respondent and other witnesses characterized as being "vicious, dysfunctional, screaming and yelling," Respondent wrote a resignation letter and prepared a list of things that needed to be done before she left the City. Among the items on Respondent’s “to do” list was to prepare and complete the employment agreements that she and the city attorney had been discussing for department heads. Respondent testified that she had two reasons for implementing employment agreements immediately following the July 27th commission meeting. The first was to protect the department heads from the personal vendettas of the city commission. The second was to ensure that the City had a professional management team in place and continuity of professional management. On the morning of July 28, 2010, Respondent met with all of her department heads at the regularly scheduled weekly executive team meeting. She informed them that she would be working with the human resources director, Diane Cole, to immediately prepare employment agreements for all department heads modeled on the Brad Johnson, May 21, 2010, employment agreement. The reason given by Respondent for the agreements was that the department heads “should all have some protections due to the atmosphere within the city . . . .” During this meeting she also informed her department heads of her intention to resign as city manager. Respondent directed Ms. Cole to use the exact same agreement as had been prepared for Mr. Johnson, and to include the same dates as were included in that agreement. Accordingly, each of the employment agreements was dated as being signed on May 21, 2010, and each contained the same severance pay provision at section 4(c), as did Mr. Johnson’s agreement. Likewise, the effective date of each of the employment agreements was June 7, 2010. On the afternoon of July 28, 2010, each of the department heads, except Police Chief Barker, who was out of town, was presented with and signed their respective employment agreement. Although not present, Chief Barker conferred by telephone with Respondent regarding the employment agreement and advised her that he would not sign a "post-dated" agreement. The July 29, 2010, Agreements Upon further reflection that evening, Respondent became concerned about the “signature date” of May 21, 2010, appearing on contracts actually signed on July 28, 2010. This concern was no doubt fueled by Chief Barker’s comment regarding the “post- dated” nature of the agreements. Accordingly, Respondent decided to have new agreements prepared the following day which would reflect signature dates of July 29, 2010. In addition, both she and Ms. Cole had noted that the some of the agreements signed on July 28, 2010, contained typographical errors that needed to be corrected.2/ On July 29, 2010, Respondent presented a second employment agreement to each of the City department heads for them to sign. Each employment contract was dated as having been executed on July 29, 2010. Each of the employment agreements contained the identical language at section 4(c) as had appeared in the earlier versions signed the previous day. Similarly, the “effective date” of each agreement remained June 7, 2010. Following the execution of the agreements on July 29, 2010, Respondent instructed Ms. Cole to destroy all the agreements dated May 21, 2010. Ms. Cole testified that Respondent directed her to destroy them because they were drafts, they contained typographical errors, and they had been superseded by the July 29, 2010, agreements. Notwithstanding her direction that the hardcopies be destroyed, Respondent testified that she understood that a copy of all of the agreements dated May 21, 2010, remained on the City's computer system, consistent with the City’s record retention procedures. The new agreements tied Respondent's potential severance benefits to base salary reductions of all department heads whose severance benefits were, in turn, tied to reductions in pay and benefits to all City employees.3/ Thus, any potential benefit to Respondent of the new agreements would depend on the type of action taken by the City. At least three scenarios were possible. First, if the City proposed cutting Respondent’s pay and benefits by 20 percent, with no other corresponding reductions to department heads or city personnel, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Second, if the City reduced salary and benefits paid to department heads or city personnel by 10 percent, but reduced Respondent’s pay and benefits by 20 percent, there would be no new benefit to Respondent. She would be entitled to severance as provided in her employment agreement, because her pay and benefits were being cut in a greater percentage than her department heads. Third, if the City reduced Respondent's salary and benefits by 20 percent and her department heads by 20 percent, and the remaining City employees by five percent, Respondent would receive no new benefit. She would not be entitled to severance as provided in her employment agreement because her pay and benefits were not being cut in a greater percentage than her department heads. Under this scenario, the department heads would be entitled to elect to treat the disproportionate pay and benefit reduction as a “termination without cause,” and while the department heads would benefit, Respondent would not. On or about August 20, 2010, having heard about the employee contracts, City Commissioner Rick Glass telephonically requested a copy of all the employment agreements "from 5/21 to present . . . ." In response, Respondent sent an e-mail to all the City Commissioners, the Executive Team, and to the City Attorney stating, in part: Pursuant to the advice of the City Attorney and based on the fact that the Commissioners previously approved the concept of a Department Head Employment Agreement in 2008, the City Attorney prepared an Employment Agreement in May 2010 for implementation. See Attached. Consistent with the City Manager's approved purchasing authority, all non-union managers were subsequently offered the opportunity to enter into the proposed employment agreement. The Employment Agreement protects the City as well as the professionals. The City is protected by ensuring that we have sufficient lead time, four months, prior to a resignation to ensure we have adequate coverage for a professional position and services can continue uninterrupted. Respondent provided the recipients of the e-mail a copy of "the agreement prepared by the City Attorney." On August 23, 2010, Commissioner Glass sent an e-mail to Respondent requesting a copy of the "first signed copy of the employee agreements predated back to May 2010, that Scott, Brad, Diane, Josh, Oel, Kurt, Ron, and Mark signed! Not the contracts you had them re-sign on July 29th." In response, on August 23, 2010, Respondent wrote: This is a follow-up to Mr. Glass's request for Employment Agreement signed on May 21, 2010. The only Department Head that signed an agreement on that date is Brad Johnson. At that time, I chose not to have the other Department Heads sign Employment Agreements as I felt that I needed more time to determine their capabilities in their jobs and whether an employment agreement which committed the City to those individuals was in the best interest of the City. Subsequently, given the tone of the Commission meetings, the pressure to terminate certain individuals, as well as the pressure to treat those without union contracts differently, I chose to provide those employees with the same agreement that Brad Johnson signed on May 21, 2010. I felt morally and ethically obligated to ensure that those employees had similar protections to those employees with union agreements. These employees signed an agreement on July 28, 2010, which still had the May 21, 2010 date on it. On July 29, 2010, we corrected not only the date to reflect July 29, 2010, but several other errors related to titles and responsibilities within the proposed agreements. It was never my intent to imply that these employees had signed the agreement on May 21, 2010. It was my intent to show that they had the same protective status as Brad Johnson acquired on May 21, 2010, so that all were treated the same. As the date could have reflected a different intent and there were other errors in the intermediate document, I corrected the proposed employment agreement the next day and had the managers sign a new agreement. The documents signed on July 28, 2010, are considered draft or intermediate records which are not in and of themselves considered public records and were disposed of in accordance to state guidelines. In an August 24, 2010, e-mail, Attorney Simpson responded to Ms. Wingo's August 23, 2010, e-mail. He wrote that inasmuch as the documents in question "contained errors that were corrected, including the date, and the revised agreements was [sic] subsequently executed by the City Manager and the employees. Based on these facts the original agreements executed would appear to be drafts or precursors to the final employment agreement." Mr. Simpson concluded, "draft documents are not public records." The August 30, 2010, Agreements On August 30, 2010, yet a third version of the employment agreements was presented to each of the department heads. These agreements were prepared and executed following communications with Attorney Simpson regarding whether the severance pay provisions of the July 30, 2010, agreements potentially exceeded Respondent's purchasing authority of $25,000. At issue was the manner in which Respondent had originally calculated the potential severance benefits available to the department heads under the agreements. In an e-mail dated August 24, 2010, Attorney Simpson expressed his concern that the severance pay provisions in the July 30, 2010, agreements had the potential to exceed $25,000 for all of the department heads, with the exception of Joshua Fruecht. The third and final version of the agreement addressed the limitations in the severance benefits offered as a result of the limits on the city manager’s purchasing authority set forth in the City’s purchasing ordinances. Specifically, section 4(a) of the agreement was amended to provide: In the event the Employee is terminated without cause by the City while the Employee is willing and able to perform the duties of the position as Human Resources Manager, the City agrees, subject to the below conditions, to pay the Employee a minimum of four (4) months of salary and benefits health insurance provided to the Employee pursuant to the City’s Personnel Policies not to exceed the City Manager’s purchasing Authority. Additionally, the City shall be responsible to pay all leave accruals at the Employee’s current rate of pay, consistent with City Personnel Rules and Regulations. (Emphasis in original). Each of the employment agreements signed on August 30, 2010, reflects execution on that date. Other than the signature date and revision to section 4(a), the August 30, 2010, agreements are identical to the July 29, 2010, versions. There is no persuasive evidence in this record that Respondent did not have authority to enter into employment agreements with the City's department heads on behalf of the City. To the contrary, the City's outside labor counsel opined that a strong argument could be made that the city manager possesses the authority to enter into employment contracts, subject to the city manager's purchasing authority. Similarly, Attorney Simpson testified that he believed Respondent had the authority to enter into employment agreements. The only question in his mind was whether the agreements should be presented to the City Commission for review and approval, since in his opinion, offering a severance benefit was a policy issue. There is no question that the City’s department heads received a benefit from having employment agreements with the City. It protected them from arbitrary personnel actions and provided severance benefits under certain circumstances. Specifically, their pay and benefits could not be reduced unless there was a corresponding reduction for all City employees. The evidence adduced at hearing does not clearly and convincingly establish that Respondent acted corruptly in entering into pre-dated employment agreements with her department heads, or in directing that the July 28, 2010, versions of the agreements be destroyed. Rather, the competent substantial evidence established that Respondent believed that she was acting in a manner consistent with the proper performance of her duties as city manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission on Ethics issue a Final Order dismissing the Complaint issued against Respondent in the instant case. DONE AND ENTERED this 8th day of August, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2012.
Findings Of Fact Respondent, Russell Corporation, has a plant located in Marianna, Florida. The work done at the Marianna plant consists of sewing pre-cut cloth into a finished garment. Shirley Melton is a middle-aged black woman who had been employed at Russell Corporation's, Marianna, Florida plant for 4 years as a sewing machine operator. She was one of the plant's best workers and until this incident, her supervisors had never had any trouble with her. On September 30, 1985, Ms. Melton filed a discrimination complaint against Russell Corporation, alleging that Respondent had discriminated against her on the basis of her race. The charge was based on the fact that Ms. Melton did not receive a sewing job she was interested in. The sewing position she sought was a temporary job. Ms. Melton did not know the job was temporary. While the job was originally discussed with Ms. Melton, the decision was made to place Clarice Moats, a white woman in the temporary job. Ms. Moats was chosen because (1) her original job had been eliminated; (2) she had more seniority; (3) little training was required because her prior job was similar; and (4) Ms. Melton was currently in a permanent job. The Human Relations Commission found no probable cause in Ms. Melton's complaint and took no further action regarding the complaint. After that date, but before July 16, 1986, Ms. Melton had gotten in a personal dispute with Carolina Myrick. The dispute was outside of work and did not relate in any way to work. Carolina Myrick was a quality control inspector for Russell Corporation and was related to Ms. Melton. On July 16, 1986, Ms. Melton and Ms. Myrick had worked most of the day without incident. However, beginning about 3:55 p.m., Ms. Melton learned that Ms. Myrick had "red tagged" a bundle of items she had sewn. A red tagged bundle is a bundle of sewn items which have not passed the quality control inspection Ms. Myrick performs on the bundle. Ms. Myrick then returns the rejected bundle to the appropriate employee's supervisor. A red tagged bundle can subject an employee to disciplinary action if the employee receives too many red tags. In this instance, Carol Hall was the floor supervisor over Ms. Melton. Ms. Melton went to see Carol Hall about the bundle "all the women on the line were talking about." While walking to Ms. Hall's desk, she passed Ms. Myrick and stated that she was going to whip Ms. Myrick's tail if she got another red tagged bundle. Upon arriving at Ms. Hall's desk, Ms. Hall informed Ms. Melton that it was her bundle that had been tagged. Ms. Melton left Ms. Hall's desk and began to walk out of the building since the quitting bell had rung. Ms. Melton was quite upset about the red tagged bundle. She believed Ms. Myrick was picking on her because of their earlier personal disagreement. Ms. Melton was in front of Ms. Myrick on the way out when she turned and said that she was an old witch and that "the Lord took the wrong one, it should have been you," referring to Ms. Myrick's sister Christine McGriff, who had suddenly and unexpectedly died of encephalitis a few weeks earlier. Ms. Myrick became upset over Ms. Melton's words and complained to the supervisor, Carol Hall. Carol Hall then took Ms. Myrick in to speak with Doris Durden, the floor supervisor. Ms. Durden then went to talk to Claude Nall, the plant manager. All three people believed that Ms. Melton's action was unusually cruel and it was their policy not to allow such behavior in the plant, particularly where a quality control person was involved. All three individuals testified that they had never had such extreme language used in the plant. The next day, Ms. Melton was suspended, pending an investigation. After a full investigation, during which Ms. Melton admitted making the above statements, it was decided to terminate Ms. Melton for gross insubordination towards a fellow employee and willful verbal abuse by making degrading remarks about the employee's job performance and about her family. It was the willful aspect of this misconduct which formed the basis for the discharge. At the time the termination was decided, Mr. Nall, the plant manager, did not even know about Ms. Melton's earlier complaint, because he had been transferred to the Marianna plant sometime after the earlier complaint had occurred. The decision to terminate was reviewed and approved by the personnel office in Alexander City, Alabama. Ms. Melton was formally terminated on July 21, 1986. Ms. Melton instituted the review proceedings the plant had established for employee disciplinary actions taken by plant supervisors. She appeared before a review board consisting of four (4) people from various other corporate offices and plants. The hearing was held on July 29, 1986. At the hearing, Ms. Melton again admitted making the alleged statements. However, even in the face of these admissions, Ms. Melton, at the hearing, maintained she never said she "would whip Ms. Myrick's tail." Respondent presented sufficient evidence to show that Ms. Melton's denial is incorrect. Ms. Melton asserted at the hearing that there were other incidents of a similar nature at the plant for which termination was not the end result. However, she presented no evidence, other than uncorroborated hearsay, that such incidents had in fact occurred. The witnesses called by Respondent flatly denied that any similar incidents had ever occurred which would be comparable to the extreme nature of Ms. Melton's conduct. Other than these hearsay statements by Ms. Melton, there was absolutely no evidence presented that Respondent discriminated against Ms. Melton in retaliation for her earlier filed discrimination action. Ms. Melton had the right to subpoena the persons involved in the allegedly similar conduct to testify to those matters. However, she did not exercise her right to do so.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition against respondent, Russell Corporation, be dismissed. DONE AND ORDERED this 6th day of May, 1988, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4132 Petitioner did not number her paragraphs in her recommended order. I, therefore, have numbered the paragraphs in her recommended order sequentially and utilize those numbers in this appendix. Petitioner's proposed finding of fact contained in paragraph 1, have been adopted, in so far as material, except the finding regarding Ms. Melton having more experience and the finding regarding retaliation. The evidence did not show these two (2) facts. Petitioner's proposed finding of fact in paragraph 2, have been adopted, in so far as material, except the evidence did demonstrate Ms. Melton said that she would whip Ms. Myrick's tail... and had admitted saying such at least two (2) times prior to the hearing. Because of the prior admissions the evidence demonstrated more than just a swearing match between Ms. Myrick and Ms. Melton. Petitioner's proposed finding of fact contained in paragraph 3 have been adopted as to the admissions. The rest of paragraph 3 is immaterial and uncorroborated hearsay Petitioner's proposed finding of fact contained in paragraph 4 are immaterial and evidence demonstrated admissions by Petitioner. Respondent's proposed finding of fact numbers 1, 4, 6, 9, 10, 11, 13, 22, 24, 25, 26 and 27 have been adopted, in substance, in so far as material. Respondent's proposed finding of fact number 2 was not shown by the evidence. Respondent's proposed finding of fact number 3 have been adopted, in substance, except the last sentence in paragraph 3, which was not shown by the evidence. Respondent's proposed finding of fact number 5 have been adopted, in substance, except evidence showed Ms. Melton's initial statement to Ms. Myrick was on her way back to supervisor's desk and not outside work area. Respondent's proposed finding of fact numbers 7, 8, 16 and 28 are immaterial. Respondent's proposed finding of fact number 12 have been adopted, in substance, except for leaving work area. Respondent's proposed finding of fact number 14 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact number 15 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact numbers 17, 18, 19, 20, 21 and 23 are subordinate. COPIES FURNISHED: Shirley Melton Star Route Box 98 Gordon, Alabama 36343 Carol Sue Nelson, Esquire CONSTANGY, BROOKS & SMITH 1015 First National Southern Natural Building Birmingham, Alabama 35203 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E. Within this context, taking into account a lack of opposition to the $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92- $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Ron D. Baker (Petitioner), was the personnel director for Indian River County (County or Indian River County). Petitioner was hired to this position by Respondent, James E. Chandler (Respondent), the administrator for Indian River County, on March 18, 1996. As personnel director for Indian River County, Petitioner is a public employee and, thus, subject to the Code of Ethics. Prior to Petitioner's being hired as personnel director for Indian River County, he had served as personnel director for the City of Melbourne from 1989 to 1996. On May 15, 1997, Respondent was contacted by a reporter of the Vero Beach Press Journal and asked to comment on allegations of impropriety that had surfaced with respect to Petitioner. The allegations were that improper procedures had been followed in the County's awarding a contract to Brevard Drug Screening; that Petitioner had requested that the owner of Brevard Drug Screening, Jon Peterson, hire Petitioner's son; and that Petitioner had directed a subordinate to call the City of Melbourne to obtain personal information about the director of aviation of the Melbourne International Airport. With one exception, Respondent was unfamiliar with the allegations. The one allegation raised by the newspaper reporter that had previously been brought to Respondent's attention involved Petitioner's utilizing the services of his subordinate, Colleen Peterson, to make inquiries to the City of Melbourne for personal information about the aviation director for the Melbourne International Airport. The day after the news reporter met with Respondent, in the May 16, 1997, edition of the Press Journal, Indian River County's local newspaper, an article was published that made allegations of impropriety against Petitioner. The allegations included in the newspaper article were the same ones the newspaper reporter discussed with Respondent the preceding day. Because the allegations appeared to relate to Petitioner's employment with Indian River County, after Respondent received information regarding alleged improprieties by Petitioner from the newspaper reporter, he immediately conferred with Assistant County Attorney Terry O'Brien. Later that same day, because of the seriousness of the allegations, O'Brien set up a meeting for Respondent with Indian River County Assistant State Attorney Lynn Park, to review the information that had been provided. Thereafter, Respondent met with both Assistant State Attorney Park and Assistant County Attorney O'Brien concerning the allegations raised by the newspaper reporter. After Respondent conferred with Assistant County Attorney O'Brien and Assistant State Attorney Park, a recommendation was made that the allegations against Petitioner be investigated by the Indian River County Sheriff's Office because of potential criminal violations. On May 22, 1997, Detective Lewis Beckerdite of the Indian River County Sheriff's Office was assigned to investigate the allegations involving Petitioner. Prior to commencing the investigation, Detective Beckerdite requested that Respondent Chandler prepare a memorandum summarizing the information and allegations relative to the matter. In response to Detective Beckerdite's request, Respondent prepared a memorandum detailing the information and allegations that had been presented to him regarding Petitioner and other parties. The memorandum stated that on May 15, 1997, a newspaper reporter raised three issues of alleged impropriety by Petitioner. First, the memorandum noted that the reporter advised Respondent that according to Jon Peterson, Petitioner had requested that Peterson hire Petitioner's son. This was possibly significant because Peterson was owner of Brevard Drug Screening Services, Inc., a firm that had a contract with Indian River County. A second issue raised by the newspaper reporter and addressed in the memorandum was whether proper purchasing procedures were followed in issuance of the Brevard Drug Screening contract. Third, Respondent's memorandum noted that the reporter had made an inquiry concerning Petitioner's directing Colleen Peterson, the County's personnel assistant and his subordinate, to call the City of Melbourne's personnel office to obtain personal information about the director of aviation at the Melbourne International Airport for potential litigation involving Petitioner's wife. With regard to the issuance of the contract to Brevard Drug Screening, Respondent's May 22, 1997, memorandum indicated that he had previously looked into the matter and determined that there was no violation of County policies. Further, the memorandum noted that Respondent had spoken to Petitioner about the call made to the City of Melbourne seeking personal information about the aviation director. According to the memorandum, during that discussion, Petitioner had agreed that it was improper to use County personnel for personal matters and had said it would not happen again. In addition to information described in paragraph 10 above, Respondent's memorandum indicated that on May 16, 1997, he received a call from a County employee who said that he had heard that Jon Peterson had either sold Human Resource Health Care Group or his client list to Mackie Branham of O'Neil, Lee, and Wood, the County's health insurance firm, and that Petitioner was allegedly involved and may have received some monetary gain. The County employee also told Respondent he had heard that Petitioner had made a trip to North Carolina and stayed at a cabin or condominium either paid for or owned by Markie Branham. After receiving Respondent's May 22, 1997, memorandum, Detective Beckerdite commenced an investigation which included his interviewing and taking sworn statements from various persons, including Petitioner, Colleen Peterson, and her husband, Jon Peterson. In addition to giving sworn statements, the Petersons provided Detective Beckerdite with documents to support the allegations that they made against Petitioner. Detective Beckerdite also interviewed James "Jaime" Carraway and County employees, Beth Jordan, Tobi Erts, and Joe Baird. Detective Beckerdite presented his preliminary investigative report, including the documents obtained during the course of the investigation, to the Indian River County State Attorney's Office. The report was reviewed by State Attorney Bruce Colton and Assistant State Attorney Park, who determined that there was insufficient evidence to charge Petitioner with any criminal violation. In light of this determination, Detective Beckerdite concluded his investigation and finalized the investigative report, which included attached documents. The Beckerdite report recommended that Indian River County conduct either an internal investigation of the allegations involving Petitioner or refer the matter to the Ethics Commission. After consulting with legal counsel for the County, Respondent determined that the matter should be referred to the Ethics Commission. The primary reason for this decision was that the Ethics Commission, unlike Indian River County, had the power to subpoena witnesses and documents. Respondent believed that by having subpoena power, the Ethics Commission could address the contradictory and conflicting testimony and statements of individuals by compelling the testimony of witnesses and the production of documents that might support or refute the allegations. Respondent prepared a formal ethics complaint on the form required by and obtained from the Ethics Commission. A narrative was prepared by Respondent and a specification of charges, based upon the Code of Ethics, was prepared by Deputy County Attorney Will Collins. These two parts were combined into one document titled, "Narrative Addendum to Sworn Statement." The narrative portion prepared by Respondent detailed the events that resulted in the decision to file the complaint with the Ethics Commission and expressly stated the basis upon which the allegations against Petitioner were made. In the "Narrative Addendum to Sworn Statement," Respondent stated: On May 15, 1997, I received information regarding allegations concerning Personnel Director Ron D. Baker. The information is reflected in the attached investigative report generated by Indian River County Sheriff's Department. * * * The report summarizes the statements taken by the Sheriff's Department. I believe the report is self-explanatory. In essence there are strong allegations with respect to Mr. Baker and various individuals or firms doing business with Indian River County. As reflected in the report Mr. Baker denies the allegations. The report draws no conclusions other than it is being transmitted to me to determine whether to handle this matter internally or to contact the Florida Commission on Ethics. After a thorough review of the report, it is my opinion and our attorney's office that the allegations are very serious and, if true, would be a violation of [the Code of Ethics]. * * * As a result, as County Administrator, I am requesting an investigation by the State of Florida Commission on Ethics. The Complaint consisted of the complaint form, the "Narrative Addendum to Sworn Statement," a copy of the Beckerdite report and attachments thereto, and a copy of a May 16, 1997, article from the Press Journal. The Complaint form and these attachments were filed with the Ethics Commission on June 30, 1997. Respondent did not publicize the filing of the Ethics Complaint or desseminate it to anyone other than County employees involved in its preparation and to County commissioners. Since no criminal prosecution was to ensue and the Sheriff's Department's investigation was complete, the Beckerdite report became a public record. In light thereof, a copy of the Beckerdite report was provided to Petitioner and to a newspaper reporter. Although the newspaper reporter was provided with a copy of the Beckerdite report, Respondent did not discuss the Beckerdite report with any reporter. After Petitioner received a copy of the Beckerdite report, he requested and was granted an administrative leave of absence with pay. Several weeks after filing the Complaint, Respondent contacted the Ethics Commission Office and asked about the status of resolution of the Complaint. Respondent was advised that it would be a matter of months before a determination would be made as to whether an investigation would proceed. Because Petitioner's administrative leave with pay was scheduled to end in August 1997, Respondent believed immediate action needed to be taken to resolve the issues before that time. To accomplish this, Respondent enlisted the assistance of Robert Von Buelow, a fire investigator employed by the County, to pursue further investigation of the allegations and charges against Petitioner. Investigator Von Buelow immediately commenced his investigation by conferring with Detective Beckerdite and reviewing the Beckerdite report. As a part of his investigation, Investigator Von Buelow took sworn statements and/or interviewed several individuals and reviewed documents. Investigator Von Buelow took sworn statements from both Colleen Peterson and her husband, Jon Peterson. The Petersons also provided Investigator Von Buelow with numerous documents which appeared to substantiate their claims or allegations. However, Von Buelow's investigation was limited because of his inability to compel statements of individuals who did not want to provide statements or produce documents. On or about August 1, 1997, the results of Investigator Von Buelow's investigation were presented to Respondent for review. Based upon the investigations of Investigator Von Buelow and Detective Beckerdite and the evidence collected, Petitioner was notified of Respondent's intent to terminate his employment with the County. Petitioner was also provided with all information collected as of that date. After receiving the notice regarding the County's intent to terminate his employment, Petitioner requested a pre- determination hearing. On August 13, 1997, a nine-hour pre- determination was held during which sworn testimony and documentation pertinent to the allegations were presented. This included the sworn testimony of Petitioner, Investigator Von Buelow, Detective Beckerdite, Jon Peterson, Colleen Peterson, Lea Keller, Zander Carraway, and Ron Baker, Jr. Also, a number of evidentiary documents were received into evidence at the proceeding. On August 15, 1997, Respondent determined to terminate the employment of Petitioner based upon the evidence, the documents and sworn testimony, received and reviewed at the pre- termination hearing. However, in his decision on termination, Respondent found that there was insufficient evidence to sustain several of the charges against Petitioner and thus, those charges were not the basis of Petitioner's being terminated. After the decision to terminate Petitioner was rendered, pursuant to County personnel procedures, Petitioner requested a post-termination hearing. The post-termination hearing was held on October 16, 1997, before an appointed hearing officer. At this hearing, sworn testimony was taken from Petitioner, Mackie Branham, James Carraway, Douglas Wright, Elizabeth Jordan, Deborah Archer, Colleen Peterson, and Jon Peterson. The deposition testimony of Dr. Leo Bradman was submitted and a number of exhibits were introduced and received into evidence, including documentary evidence that had been obtained between the pre-termination hearing and post-termination hearing. On November 17, 1997, the hearing officer who presided at the post-termination hearing issued his opinion in which he found that there was insufficient evidence to terminate Petitioner. The Indian River County Commission appealed this decision to the Circuit Court of Indian River County. In November 1997, after the post-termination hearing, Thomas Reaves, the investigator with the Ethics Commission assigned to investigate the Complaint, requested that Respondent provide him with a list of potential witnesses and any documentation relevant to the Complaint. In response to this request, on December 22, 1997, County representatives delivered to Investigator Reaves all the information generated since the Complaint was filed in June 1997. This information included the Von Buelow investigative report and attached documents, transcripts of the pre-determination and the post-termination hearings, depositions, and documentary evidence presented at those hearings or other legal proceedings. Additionally, copies of the hearing officers' decisions in both the pre-determination hearing and the post-determination hearing were provided to Investigator Reaves. Some of the information provided to Investigator Reaves on December 22, 1997, contained information that had not been developed or known at the time the initial complaint was filed. Accordingly, that information was not included in the initial Complaint. After the records had been delivered to Tallahassee, Florida, Respondent spoke to Investigator Reaves by telephone and was advised that allegations or information not included in the original complaint could not be investigated unless an amended complaint was filed. Respondent informed one of the assistant County attorneys of his conversation with Investigator Reaves and discussed the apparent necessity of filing an amendment to the Complaint. Following his discussion with one of the County's assistant attorneys, Respondent prepared an amendment to the Complaint. The Amended Complaint, filed on January 28, 1998, included additional allegations and information based on Investigator Von Buelow's report, depositions, and transcripts of the pre-termination and post-termination hearings. The Amended Complaint included a completed Ethics Commission complaint form and a letter to Investigator Reaves, both which were prepared and signed by Respondent. The letter listed several additional allegations not included in the Complaint that represented potential violations of the Ethics Code. Each of the allegations was based on the testimony or statements of individuals given during the pre-determination or post-determination hearings, depositions, or Investigator Von Buelow's investigation and on documents received during the aforementioned proceedings or investigation. Prior to listing the allegations and the basis thereof, the letter stated: By letter dated November 7, 1997, you advised that the complaint had been forwarded to the Investigative Section. Additionally, a list of potential witnesses and any relevant documentation was requested. Since the original June 30, 1997, transmittal to the Commission, a substantial amount of information and documentation has been developed. This information was presented to you by County Representatives at the December 22, 1997, meeting at your office in Tallahassee. The entire file was presented including additional investigative reports, transcripts, depositions, etc. The files include information that was not known or confirmed at the time the original complaint was filed. This information and documentation appear to represent potential violation of F.S. 112.313(2), (4), (6), (7), and (8). . . . The Ethics Commission determined that the Complaint and Amended Complaint were legally sufficient. On September 29, 1997, Bonnie Williams, Executive Director of the Ethics Commission, entered a Determination of Investigative Jurisdiction and Order to Investigate which authorized Investigator Reaves to investigate allegations in the Complaint. Thereafter, on February 9, 1998, an Amended Determination of Investigative Jurisdiction and Order to Investigate was entered authorizing Investigator Reaves to investigate the allegations in the Amended Complaint. In conducting the investigation, Investigator Reaves took sworn statements from witnesses who had not been questioned during the pre-determination and post-termination proceedings, including Catherine Wendt and Christopher Matteson. He also reviewed and considered the investigative reports of Detective Beckerdite and Investigator Von Buelow; the pertinent transcribed testimony and evidence presented in the nine-hour pre- determination hearing conducted on August 13, 1997; the testimony presented in the ten-hour post-termination hearing on October 16, 1997; the sworn deposition testimony given by Petitioner in a civil action between Jon Peterson and James Carraway; and a sworn statement that Investigator Reaves obtained from Petitioner. Investigator Reaves' findings were summarized in a single-spaced typed, 60-page Report of Investigation which included numerous attached exhibits. At its June 3, 1999, meeting, the Ethics Commission concluded that there was no probable cause found that Petitioner had violated the Code of Ethics. The Ethics Commission's public report memorializing its decision was rendered on June 8, 1999. In this proceeding, the presentation of Petitioner's case centered mainly on the assertion that the alleged violations of the Ethics Code were not proven. However, the standard for this proceeding is not whether a violation of the Ethics Code has been proven. That issue has already been determined by the Ethics Commission in its dismissal of the Complaint and Amended Complaint. Rather, the issue is whether Respondent filed the Complaint and Amended Complaint with a malicious intent to injure the reputation of Petitioner by filing the Complaint and Amended Complaint with knowledge that they contained one or more false allegations, or with reckless disregard for whether they contained false allegations of fact material to a violation of the Ethics Code. Respondent did not file the Complaint or Amended Complaint to injure the reputation of Petitioner, but to carry out the responsibilities of the job as appointed County administrator. As County administrator, Respondent could not reasonably nor justifiably ignore the serious allegations of impropriety made against Petitioner merely because Petitioner denied or disputed the allegations. As described below, the allegations included in the Complaint and Amended Complaint were based upon sworn testimony, interviews, and documents obtained during investigations by trained investigators and confirmed by documentary evidence and sworn testimony presented at official proceedings. One of the allegations in the Complaint was that James Carraway, who had an ownership interest in a company providing contractual services to the County, provided Petitioner's daughter with an airline ticket to travel from Colorado to Florida. Although Baker initially denied that this occurred, in a sworn statement to Detective Beckerdite, Jon Peterson swore that this occurred. During Investigator Reaves' investigation and in this proceeding, Catherine Wendt, secretary to James Carraway, stated under oath that she arranged such a trip in the spring of 1996 using Carraway's frequent flyer miles. This fact was significant because Petitioner admitted that at or near this time, he had contacted Jon Peterson and requested that he submit a bid for the Indian River County drug screening contract and that Peterson, who was a partner with James Carraway in Brevard Drug Screening, was awarded the contract. Thus, the allegation that Peterson made and included in the Complaint, was not false, but was corroborated by Wendt. A second allegation in the Complaint was that Petitioner used a cabin, chalet, or condominium in North Carolina owned by James Carraway. In a sworn statement to Beckerdite and at the pre-determination hearing, Jon Peterson testified that arrangements had been made for Petitioner to use the Carraway cabin or chalet in North Carolina. Although, Petitioner denied that this occurred, Investigator Reaves determined that Carraway owned a cabin, chalet, or condominium in North Carolina that was available for use by friends and associates and that a request was made for Petitioner to use it. Thus, there was evidence to support this allegation. The Complaint also alleged that Petitioner received stock car race tickets from James Carraway. Jon Peterson gave sworn statements to Detective Beckerdite and testified under oath that he had received stock car race tickets from James Carraway and had given the tickets to Petitioner. James Carraway admitted to Investigator Reaves that he had given stock car race tickets to Peterson and that such tickets may have been given to Petitioner. Thus, there was evidence to support this allegation. The Complaint contained an allegation related to the hiring of Petitioner's son, Ron Baker, Jr., by James and Zander Carraway and Jon Peterson. This allegation was based on sworn statements made by Colleen and Jon Peterson and supporting documentation provided by the Petersons, both of which were included in the Beckerdite report. According to the sworn statements given by the Petersons, Petitioner asked Jon Peterson to hire Baker, Jr. and Peterson had agreed to do so. Furthermore, Jon and Colleen Peterson told Beckerdite that they hired Baker, Jr., to work for Brevard Drug Screening. However, the Petersons admitted that in lieu of paying Baker, Jr., a salary for his services, they paid the rent on his apartment, his utility bills and phone bill, and provided him with spending change. The Petersons provided cancelled checks to substantiate these statements. Petitioner's statement to Detective Beckerdite conflicted with the statements given by the Petersons. Contrary to the Petersons' statements, Petitioner denied that he ever asked Peterson to hire Baker, Jr., but indicated that he had asked James Carraway to "help" his son so he could "get on his feet." Notwithstanding Petitioner's denying that he asked Jon Peterson to hire his son, the statements of the Petersons, and the documents they furnished provided some evidence to support the allegation concerning the hiring of Petitioner's son. Another allegation in the Complaint related to Petitioner's potential involvement in a joint venture with James Carraway, owner of a County vendor, and his son, Zander Carraway, and Dr. Leo Bradman. Based on Jon Petersons's statements to Detective Beckerdite and documents Jon Peterson gave to Investigator Beckerdite, it appeared that the joint venture between the aforementioned parties contemplated and would result in their taking over the County's Employee Assistance Program (EAP) contract. The allegation involving the possible joint venture was based on the Beckerdite report, which included Peterson's sworn statement relative to that matter and the substantiating documentation provided by Peterson. Moreover, as noted in the Amended Complaint, the allegation concerning the possible joint venture appeared to be confirmed by the testimony of Dr. Leo Bradman taken on October 13, 1997, and a letter from Zander Carraway to Dr. Bradman. There was evidence to support this allegation at the time the Complaint was filed, as well as additional evidence that appeared to substantiate the allegation at the time the Amended Complaint was filed. The Amended Complaint alleged that, in a deposition taken in a civil action on September 5, 1997, Petitioner admitted that while serving as Personnel Director for Indian River County, he negotiated for the purchase of the EAP business from James Carraway. At the time of these negotiations, Petitioner knew that James Carraway and Jon Peterson were owners of Human Resource Health Care Group, the County's EAP provider, and Brevard Drug Screening, the County's drug screening contractor. Although Petitioner initially claimed to have been a mediator in the negotiations, Peterson testified that if Carraway agreed to sell his interest in the business to Peterson, Peterson and Petitioner would be partners in the EAP. In light of Petitioner's admission and Peterson's sworn statement that Petitioner was, in fact, negotiating a deal involving the purchase of the vendor providing the EAP to Indian River County, there was evidence to support this allegation. The Amended Complaint also alleged that Petitioner co- signed on a credit card application with Colleen Peterson, Petitioner's subordinate and the County's personnel administrator and wife of Jon Peterson, owner of Brevard Drug Screening, a Indian River County vendor. This allegation was based on sworn statements made by Colleen Peterson as well as documents provided by the Petersons to Investigator Von Buelow reflecting that such an application was completed. One of the documents provided by the Petersons was a copy of the completed credit card application. The application appeared to be signed by Petitioner and listed Petitioner's address as the business address of Florida Occupational Health Group in Melbourne, Florida, the entity owned by the Petersons that was vying for the Indian River County EAP contract. According to sworn statements made by the Petersons to Investigator Von Buelow, the application for the credit card was made to fund a joint venture between Petitioner and the Petersons to obtain employee assistance provider contracts, including the one for Indian River County. Notwithstanding Petitioner's testimony at this proceeding that the credit card was never issued, the statements of the Petersons and the substantiating documents they provided to Investigator Von Buelow provided a reasonable basis for Respondent's including this allegation in the Amended Complaint. The Amended Complaint alleged that Petitioner hired Colleen Peterson as personnel assistant and advised her not to disclose that she was married to Jon Peterson, a County vendor. Furthermore, it was alleged that prior to hiring Colleen Peterson to this position, Petitioner directed her to change her resume knowing that she had insufficient experience to meet the advertised job requirements and hired her without interviewing other applicants who had substantial education, qualifications, and experience. These allegations were based on statements made by Colleen Peterson and documents provided to Investigator Von Buelow during his investigation. According to Mrs. Peterson, after Petitioner became personnel director for Indian River County, he invited her to apply for the position of personnel administrator for Indian River County. In her statement, Colleen Peterson indicated that she later met with Petitioner and asked him to review her cover letter and resume; that he reviewed her resume and cover letter; and upon such review, he directed her to change her resume and/or cover letter to be misleading as to her qualifications. Petitioner was aware of Mrs. Peterson's professional experience because she had worked for Petitioner when he was personnel director for the City of Melbourne. In addition to Mrs. Peterson's statements, a review of Mrs. Peterson's resume compared to her actual experience indicated she may not have met the advertised job requirements, education, or experience as a grievance adjudicator. Also, a review of the applications of other applicants for the position of personnel assistant reflected that some of those individuals, none of whom were interviewed, had the required education and experience. Based on the findings in paragraphs 48 and 49, there was evidence to support the allegation relative to Petitioner's hiring of Colleen Peterson. The Amended Complaint further alleged that Petitioner directed an Indian River County employee with a substance abuse problem to Heritage Hospital for an in-patient treatment program at a cost of $12,930.61. This allegation was based on statements Jon Peterson made to Investigator Von Buelow. According to Jon Peterson, when a County employee required an in-patient treatment program for substance abuse, the employee was given three facilities from which to select. However, in this instance, Peterson stated that his job was to convince the employee to go to Heritage Hospital, even though that facility was not pre- certified by Blue Cross/Blue Shield, the County's insurance company; was not on the County's preferred provider list; and was approximately 200 miles from Vero Beach. A facility not on the preferred provider list was allowed to charge 20 percent more than a facility on the list. At the time the County employee was referred to Heritage Hospital, James Carraway was owner of and had a financial interest in Heritage Hospital and Petitioner was aware of Mr. Carraway's ownership interest in that facility. The apparent significance of the referral was that, as noted above, it had been alleged that Petitioner had been negotiating with James Carraway about a possible joint venture involving an EAP and the purchase of an EAP which may have served Indian River County. The allegation in the Amended Complaint relative to Petitioner's referring a County employer to Heritage Hospital was based on statements Jon Peterson made to Investigator Von Buelow and the deposition testimony of Dr. Leo Bradman. Accordingly, there was evidence to support this allegation. Additional allegations in the Amended Complaint concerned Petitioner's requesting that Peterson and the Carraways, both County vendors, make certain payments to Petitioner or Petitioner's relatives. First, it was alleged that Petitioner was paid to perform certain construction work on a bathroom at the Brevard Drug Screening Office. Second, it was alleged that Peterson's company, Brevard Drug Screening, paid medical expenses for Petitioner's wife. These allegations were based on statements Jon Peterson made to Investigator Von Buelow and on substantiating documents that Peterson provided, both of which were included in Investigator Von Buelow's investigative report. Although it was later determined that the alleged payments were not improperly made, at the time the Amended Complaint was prepared and filed, there was evidence to support these allegations. The Amended Complaint alleged that the Carraways, County vendors, had advanced Petitioner's son, Baker, Jr., $2,000 to move from Jacksonville to Melbourne. This allegation was based on statements made by Jon Peterson during the Von Buelow investigation and during the August 1997 pre-determination hearing. Thus, there was evidence to support this allegation. The Amended Complaint alleged that Jon Peterson, a County vendor, paid the cellular telephone bill for Petitioner and expressly noted that this allegation was based on "testimony" of Colleen Peterson. In addition to Mrs. Peterson's statement, this allegation was supported by Jon Peterson's testimony at the August 13, 1997, pre-determination hearing and by a copy of a canceled check given to Detective Beckerdite by the Petersons. At hearing, Petitioner testified that Jon Peterson had, in fact, paid his cellular bill as indicated by the cancelled check provided by the Petersons. However, Petitioner explained that Jon Peterson asked to borrow Petitioner's cellular phone and that he had allowed Peterson to do so on the condition that Peterson pay the bill for the time period that he had the telephone in his possession. Notwithstanding Petitioner's testimony explaining the reason for the payment, at the time Respondent completed the Amended Complaint, there was evidence to support this allegation. Another allegation in the Amended Complaint was that Petitioner directed Colleen Peterson, a County employee, to prepare personal letters for him during business hours using County equipment. This allegation was based on statements Colleen Peterson made to Investigator Von Buelow and on supporting documentation, copies of the letters, that Mrs. Peterson gave to Investigator Von Buelow. In view of Mrs. Peterson's statements and the substantiating documentation, there was evidence to support this allegation at the time the Amended Complaint was filed. Finally, the Amended Complaint alleged that Petitioner utilized the research resources of the Indian River County Attorney's Office to obtain information and materials for his son for a project unrelated to Indian River County business. This allegation was based on statements Jon Peterson gave to Investigator Von Buelow and documents Peterson provided to Investigator Von Buelow. The documents that Petitioner provided were WestLaw documents and research materials which Peterson stated were found in Petitioner's son's office at Brevard Drug Screening after he was no longer employed there. Investigator Von Buelow interviewed a legal assistant in the County Attorney's Office who confirmed that she had conducted the subject research for and at Petitioner's request. The allegations in the Complaint and Amended Complaint could not be substantiated and/or did not constitute violations of the Code of Ethics. Nonetheless, the inclusion of those allegations were reasonably based on information that Respondent obtained from reliable sources, including the Beckerdite and Von Buelow's investigative reports, the records of the pre- determination and the post-termination hearings; and depositions from other legal proceedings. On or about July 9, 1997, Respondent retained Jack B. Nichols, Esquire, to represent him in the defense of the Ethics Complaint and Amended Complaint 97-103. Mr. Nichols' regular hourly rate is $225. However, trial time is billed at $450 an hour and travel time is billed at one-half of the hourly rate or $112.50 an hour. For the period July 9, 1997, through March 23, 2000, Mr. Nichols has expended 233.70 hours on this matter. As a result of Mr. Nichols' representation, Petitioner has incurred total attorney's fees and costs of $55,576.25 and $10,296.83, respectively. These attorney's fees and costs are reasonable. However, based on the foregoing findings, it is clear that Respondent did not file the Complaint and the Amended Complaint against Petitioner with a malicious intent to injure the reputation of Petitioner by filing such complaints with knowledge that the complaints contained one or more false allegation or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Ethics Code. Therefore, Petitioner is not entitled to an award of attorney's fees and costs from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a Final Order be entered finding that Respondent, James E. Chandler, is not liable for attorney's fees and costs and dismissing the Petition for Attorney's Fees. DONE AND ENTERED this 29th day of June, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2000. COPIES FURNISHED: Jack B. Nichols, Esquire 801 North Magnolia Avenue Suite 414 Orlando, Florida 32803 George P. Roberts, Jr., Esquire Roberts and Reynolds, P.A. 470 Columbia Drive Suite 101C West Palm Beach, Florida 33409 Sheri L. Gerety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue DOAH Case No. 11-5494TTS: The issue is whether Respondent, Joseph Fayed (Fayed), committed the violations alleged, and, if so, what penalty should be imposed. DOAH Case No. 11-5495TTS: The issue is whether Respondent, Walt Petters (Petters), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is a district school board created by Article IX, section 4, of the Florida Constitution. As such, Petitioner’s authority and responsibilities extend to personnel matters, and include the power to hire, suspend, and dismiss Board employees. At all times material to these cases, Petitioner’s organizational structure designated Maintenance as the department responsible for repairs and upkeep to all School District property. Maintenance was charged to budget for and complete repairs and improvements to hundreds of school sites and other Board properties. At all times material to these cases, Petitioner kept a list of vendors who could be called upon by Maintenance to complete work that could not be performed by Board personnel. Maintenance’s system allowed it to assign work previously approved or contemplated by the budget to a vendor and then submit a purchase order to the Board’s purchasing department so that the vendor would be paid at the conclusion of the work. At all times material to the allegations of this matter, Respondent Fayed was employed by the Board on an annual contract and served as supervisor of central services in the Maintenance Department. Fayed oversaw maintenance work performed within his service area. It is undisputed that the annual contract held by Fayed could be non-renewed without cause. Therefore, at the conclusion of the 2011-2012 school year (presuming his contract ended concurrent with the school year), Petitioner was not obligated to retain Fayed. By history, Fayed worked for Petitioner for well over 30 years, completed his DROP time, and separated from the School District. After remaining out of the system for some period of time, Fayed returned to work for the School District and continued to do much of the same type of work he had done prior to retirement. At all times material to the allegations of this matter, Respondent Petters was employed by Petitioner on an annual contract. Petters was the director of Maintenance. His responsibilities required him to supervise all employees within the School District’s Maintenance Department. Fayed served under Petters’ supervision. As director of Maintenance, Petters oversaw all of the geographical service areas for the School District. All outside vendors who performed maintenance work for School District properties were directly tied to Petters’ department. The Controversy Prior to August 15, 2011, Board employees raised concerns of improprieties committed by Petters and Fayed in connection with the performance of their duties in the Board’s Maintenance Department. An internal investigation of the School District’s maintenance department suggested that there were 25 separate instances of improper activity. Based upon the investigation, Petitioner procured an independent audit to be performed by RSM McGladrey, Inc. (McGladrey). McGladrey was tasked to review the 25 claims, review all pertinent records of the Maintenance Department, and present a detailed report to the School District’s Superintendent. That report, dated September 23, 2011, formed the basis for the charges against Petters and Fayed. The McGladrey report was attached to letters from the Superintendent dated October 5, 2011, that advised Petters and Fayed that their employment with the School District would be recommended for termination at the Board’s October 11, 2011, meeting. At that meeting, Petters and Fayed were terminated subject to their administrative rights to contest the action. Respondents timely sought a formal administrative hearing in connection with the charges of misconduct, willful neglect of duty, and/or being incompetent. The Vendors SMG SMG Coatings, Inc. (SMG), is a painting company operated by Tim Tillotson (Mr. Tillotson). Although, technically owned by Mrs. Tillotson, the company’s day-to-day field operations are directed and supervised by Mr. Tillotson. At all times material to the allegations of these cases, SMG routinely bid on contracts for the School District. It also competed for the “primary contractor” designation. Petitioner used two methods of procurement for maintenance work to be performed by outside vendors. One method, “primary contractor,” was for minor projects that did not exceed $5,000.00, in value. Vendors designated as the “primary contractor” were utilized to do these minor jobs without additional bidding. When a job exceeded $5,000.00, all vendors on a list of approved vendors were allowed to bid on the project. These vendors are known as “continuing contract” holders in this record. Vendors on the “continuing contract” approved list were to receive notice of the job and be given an opportunity to successfully bid the work. Although the threshold amount was later raised, and the method of evaluating contractors was later changed from an hourly rate to a unit measure for the type of painting work, the underlying concerns regarding how SMG received the Board’s work remain the same. At all times material to these cases, SMG was a “primary contractor” on the approved “continuing contract” vendor list. The allegations of these cases aver SMG received preferential treatment not afforded other vendors doing business with the School District. Sena-Tech Sena-Tech, LLC (Sena-Tech), is an electrical contractor that first became authorized to do School District work during 2008. Steve Terry (Mr. Terry) is the president of Sena-Tech. The allegations of these cases aver Sena-Tech received preferential treatment not afforded other electrical vendors doing business with the School District. The Relationships Petters and Fayed are long-term employees of the School District, who have forged friendships with each other and with vendors doing business with the Board. Specific to these cases are the friendships between Petters, Mr. Tillotson, and Mr. Terry. It is undisputed that at all times relevant to the allegations of these cases, Petters and Mr. Tillotson ate lunch together many times a month. Petters vacationed with Mr. Tillotson on one or more occasions. Petters and Mr. Tillotson made no effort to hide their close friendship. Similarly, Fayed is friends with Mr. Tillotson. Although they are not as close as Petters and Tillotson, it is undisputed that Fayed also lunched with Mr. Tillotson on a regular basis. Given his work history, Fayed is familiar with painting contractors doing business in the school district. There is no evidence that Fayed made any effort to encourage other painting vendors to compete with SMG for the Board’s business. Fayed has also known Steve Terry for years. Mr. Terry has been to Fayed’s home in the past and considers Fayed a friend. Petters and Mr. Terry are also well known to one another. Mr. Terry has joined Fayed and Petters for lunch. Neither Fayed nor Petters acknowledged that forging friendships with vendors doing business with the School District gave the appearance of impropriety to persons looking at the situation from outside of the Maintenance Department. The Jobs Sena-Tech Prior to 2008, Sena-Tech did not have standing as a “continuing contractor” or vendor approved to do work for the School District. Nevertheless, Sena-Tech received jobs and was paid for work done prior to its inclusion on the list. Purchase Orders (POs) were approved by Petters for payment to Sena-Tech in connection with nine specific jobs. Petters was required to sign-off on jobs and to submit POs so that the vendor would be paid. A purchase order is the written document formalizing the transaction between the Board and the vendor. In this case, all POs were initiated by Maintenance and paid by Petitioner’s Purchasing Department. The weight of the credible evidence confirms that nine jobs given to Sena-Tech prior to 2008 were electrical in nature and should have gone to a contractor on the approved list or, if not technically “electrical” due to the voltage of the work, should have been given to a vendor that successfully bid the jobs. In either instance without competent supporting documentation, Sena-Tech would not have automatically received the work. There is inadequate evidence that the work performed by Sena-Tech resulted in a higher cost to the Board, however, because the process, by which work should have been distributed to vendors, was circumvented in connection with the nine Sena- Tech POs approved by Petters. There is no evidence that Petters personally benefitted from the work given to Sena-Tech. There is insufficient evidence to establish that Fayed was personally involved in the disputed Sena-Tech POs, or that he participated in the selection of that company for the disputed work. There is no evidence that Fayed personally benefitted from the work given to Sena-Tech. SMG The weight of the credible evidence established that SMG circumvented the Board’s bidding process by submitting false information. SMG obtained work based upon unrealistically low hourly rates. To calculate the labor cost for a job required a simple formula: hourly rate multiplied by the number of hours to complete the job. Theoretically, all vendors would take the same amount of time to complete a job. Because the hourly rate would be multiplied by the number of hours the job required, the job labor cost would be correct. In these cases, that did not happen. Instead, SMG inflated the number of hours for the job and thereby assured itself a payment greater than its hourly rate would have afforded had the rate been applied to the actual hours worked for the job. In some instances, SMG billed the job at a higher hourly rate than its contract allowed. According to Fayed and Petters, so long as the bottom line (the ultimate cost to the School District) was reasonable, the process was adequate and had long been in place. Fayed and Petters did not acknowledge that the method used by SMG might have resulted in a higher cost to the Board. Based upon their professional experience in the Maintenance Department, both Respondents claimed that the amounts charged by SMG and paid for by Petitioner were appropriate. In truth, the process was not appropriate because vendors who bid actual (as opposed to illusory) hourly rates did not have the opportunity to obtain jobs. Vendors who bid the hourly rates that would be applied to the real hours of work could not compete with SMG’s unrealistically low rate. SMG was assured of “primary contractor” status without meaningful competition so long as its hourly rate was less than its competitors. At all times material to these cases, SMG was the preferred painting vendor. Fayed and Petters knew the system was flawed. In fact, Petters claimed that he told superiors that the system should be changed. When the threshold amount of jobs was increased from $5,000.00, to $20,000.00, the hourly rate method was still used. More important, neither Petters nor Fayed required SMG to bill only its actual hours for a job. There are a number of ways to track time on a given painting job. Outside vendors could be required to sign in and out at a job location. A site supervisor could verify the daily hours worked at a given location. No reasonable effort to verify the actual hours spent on a job was used when it came to SMG. Petters and Fayed knew or should have known that the hours submitted by SMG were false. Whether the Board could have or should have paid less for the SMG jobs is unknown. Another vendor working fewer hours at a higher rate might have cost the School District the same amount. Because the hours billed by SMG were false, it is impossible to calculate what the jobs should have cost. For the jobs that SMG billed a higher hourly rate than their contract allowed, it would be possible for the Board to calculate an overpayment. At the heart of this matter is the indifference displayed by Fayed and Petters to hold SMG accountable for the actual hours worked. The dispute might have been avoided if SMG had either bid fair hourly rates or billed actual hours worked. SMG did neither. Petters knew what was going on and did not intervene to stop the fiction. Recapping Board payments made to SMG, pursuant to the 2004-2005 paint contract, shows that of the $772,467.13, spent for painting jobs, only $8,200.00, went to a vendor other than SMG. Of the projects that exceeded $5,000.00, $276,614.68 went to SMG without meaningful bids from other vendors on the approved list. All approved paint vendors were entitled to submit proposals for the projects that exceeded $5,000.00. Of the ten projects that met the $5,000.00 threshold, a competing vendor was able to submit a proposal on only three of the jobs. When the threshold was raised to $20,000.00 in 2008, SMG’s competition had fewer opportunities to obtain work from the School District. As the primary vendor (again using a false hourly rate), SMG was able to capture more jobs because the Maintenance Department did not have to offer work to another vendor unless the amount exceeded $20,000.00. Fayed and Petters supported the higher threshold and Fayed lobbied for its approval. Board payments made during the 2008 paint contract requested by the Maintenance Department totaled $1,246,184.37. The entire amount went to SMG. Whether the Board could have obtained the work for a lesser amount is unknown. A review of the 2008 paint jobs established that no bids were obtained for work that exceeded the $20,000.00 threshold. No serious effort was made to secure outside bids or vendors to compete against SMG. Had Petters or Fayed brought the lack of competition to the Board’s attention (or to any supervisor in the school system), it is unknown whether SMG would have obtained the volume of work it was paid for during this time. The Other Claims SMG was allowed to use Board equipment and fuel without cost. It is unknown whether other vendors could have saved these expenses when presenting their bids for School District work. Arguably, Petters and Fayed would have let other successful vendors use Petitioner’s equipment and fuel. As SMG secured the work, the question cannot be resolved. Petitioner’s policy allows personnel to use School District transportation when their work duties require travel to more than one work-site. Fayed’s duties required travel to job sites throughout the central area. Vehicles provided for official business may not be used for personal activities. The weight of the credible evidence established that Fayed used his School District vehicle to attend to personal matters such as doctor visits, stops at his personal residence, and a trip to Patrick Air Force base. See Policy 8651. Petitioner’s ethics policy is designed to create a culture of honesty and integrity. See Policy 4210. Fayed and Petters ignored the reality that their close friendship with a vendor caused the honesty and integrity of the Maintenance Department to be brought into question. Petters defiantly insisted that SMG retain “primary contractor” status when another company prevailed on the 2010 paint contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter Final Orders as follows: As to DOAH Case No. 11-5494TTS, finding there is just cause to terminate the employment of Joseph Fayed effective October 11, 2011. As to DOAH Case No. 11-5495TTS, finding there is just cause to terminate the employment of Walt Petters effective October 11, 2011. DONE AND ENTERED this 6th day of September, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2012. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Dr. Brian Binggeli, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
