The Issue Whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times pertinent to this case, Nairn was employed by the School Board as a Materials Acquisition Transportation Specialist, more commonly known as a truck driver. The job is an important one in a large, urban school district such as Miami-Dade County. While truck drivers do not directly participate in the education of the tens of thousands of students served by the school district, they play an essential role in supporting and maintaining a physical environment in which learning can safely and comfortably take place. Each day, Nairn and his colleagues drive district-owned trucks throughout Miami-Dade County to pick up essential supplies from vendors and warehouses, and deliver them to the appropriate schools and School Board offices. Any driving is inherently dangerous, and commercial trucks are sufficiently different from regular automobiles that the state requires drivers to hold a special trucking license, which Nairn does. Nairn and his colleagues are supervised by staff whose job it is to see that drivers fulfill their pick-up and delivery responsibilities in a safe and efficient manner. Toward that end, drivers are properly required to stay in close communication with their supervisors, to follow prescribed routes, and to conduct themselves with civility in their dealings with co-workers and members of the public whom they encounter in the course of the work day. Because of the high degree of independence and responsibility accorded to Petitioner's truck drivers, who spend most of their day on the road and out of the sight of their supervisors, they are reasonably expected to exhibit mature behavior and to be able to follow rules without constant reminders. The tasks assigned to drivers change from day to day and sometimes hour to hour, and thus the job requires extensive contact with supervisors. Drivers also must work cooperatively with school board employees and members of the public with whom the School Board does business to effect efficient pick-ups and deliveries. For all of these reasons, drivers are expected to have at least average communication skills, and to use them appropriately. Nairn reported to Heidi Carlo (Carlo) and Joseph Spear (Spear), among others. Nairn and other truck drivers are provided by Carlo with training regarding work site procedures and policies. Individual training is provided by Carlo when an employee is hired, and thereafter group training is provided on an annual basis. Drivers also receive a handbook setting forth procedures and policies applicable to them. Supervisors are available at all times to address questions or concerns any of the truck drivers may have about a particular assignment, policy, or personal or professional problem encountered on or off the job. Another means of resolving issues which affect job performance is offered in the form of an employee assistance program (EAP), which may be accessed by employees upon a self- referral, or an employer referral. Prior to October 1994, Nairn worked for the School Board as a custodian. In October 1994 he began work as a truck driver, and for the first seven months of that employment, there are no documented disciplinary incidents. There is no evidence that Nairn is unable to understand his job requirements. The evidence and testimony offered at the final hearing, coupled with the undersigned's careful observations of Nairn as he testified, and as he interacted with various hearing participants during the course of the two day hearing, demonstrate that he is articulate and well able to communicate effectively and to conduct himself in a gentlemanly manner. At the final hearing, Nairn testified to his side of the story with regard to some, but not all, of the disciplinary incidents documented in his file. Nairn’s testimony was self- serving, uncorroborated, and unpersuasive. In general, Nairn portrays himself as a victim of poor management. He claims that over the years he was unfairly disciplined by capricious supervisors who constantly changed their instructions. This testimony is not consistent with any other evidence in the record. In addition, Nairn did not attempt to deny or explain the most serious charges, the three occasions on which he used his School Board truck for unauthorized purposes. Nairn's first documented encounter with the School Board's disciplinary machinery occurred on May 24, 1995, at which time he received a written warning for failure to follow procedures and destruction of private property. On September 1, 1995, Nairn received a second written reprimand. The subject of the reprimand related to what would become a source of continuing friction between Nairn and his supervisors and co-workers: Nairn's unwillingness to reliably submit himself to the requirement that drivers stay in close communication with their supervisors, and, more specifically, that drivers contact their dispatcher upon arriving and departing each site; schedule lunch in accordance with School Board policies; and respond promptly to pages. On November 18, 1996, Nairn received a verbal warning for having used his School Board-owned truck to go to his residence for two hours during a workday without authorization. On other occasions, Nairn ignored directives by his supervisors to lock School Board-owned vehicles. Nairn was frequently insubordinate toward supervisors, in ways others than the ones noted above. He often demonstrated that he held co-workers in low esteem by abruptly hanging up the telephone during conversations with them. Some, but not all, of this behavior was documented in an October 29, 1997, memorandum to Nairn. By the time of his termination, Nairn had been the subject of at least five formal disciplinary conferences. On March 27, 2000, Nairn again engaged in unauthorized use of his School Board vehicle by taking his truck to Broward County for personal business without permission. When the truck broke down in Broward County, Carlo had to arrange for the it to be towed back to the work site. Nairn exacerbated the seriousness of this breach of trust by using his School Board toll card to pay his tolls for this unauthorized use of time and equipment. Three months after this incident, on June 20, 2000, Respondent once again used a School Board vehicle for personal and unauthorized purposes. The School Board went well beyond what was required of it in allowing Nairn to continue his employment, notwithstanding his inability or unwillingness to follow reasonable rules. In addition to allowing him to keep his job following a number of incidents which, standing alone, would have warranted termination, on November 30, 1999, and April 26, 2000, Carlo referred Nairn to the School Board’s EAP. The EAP offers many kinds of professional services geared to providing confidential assistance for persons who have problems with, for example, submitting to authority; following rules with which they disagree; or getting along with people they dislike. Nairn declined to participate, which is his right, but Carlo's patience was justifiably wearing thin as the disciplinary incidents continued at an accelerating pace. On February 16, 2001, Nairn's 18-year-old son was in a car accident which triggered a series of events resulting in the School Board's decision to terminate Nairn. Under ordinary circumstances, an employee who claimed to have been notified on his cell phone that his son, a new driver, had been in an accident, as Nairn did, would instantly be accorded permission by his immediate supervisor, in this case Spear, to leave the workplace. But Nairn, through his own actions, had marked himself as untrustworthy. Spear was justifiably unwilling to allow Nairn to leave on Spear's authority, when Spear's own supervisor, Carlo, was present in the building. Spear thus directed Nairn to see Carlo about his request to leave. Nairn went to Carlo's office, and an ugly scene ensued. Carlo was busy with other things, and unaware of the accident, and reasonably did not drop what she was doing to attend to an agitated Nairn. Instead, she told him to wait his turn. Nairn was loud, angry, and sufficiently insistent upon getting Carlo's undivided attention that she got up from her desk to close her door so that she could finish a telephone conversation with an outside vendor. As Carlo tried to close her door, Nairn stuck his foot in the doorway and pushed the door open. Spear got in front of Respondent and eased him away so that Carlo would be able to close the door. Carlo was upset by this incident. She prepared a memorandum describing the incident and requesting that Respondent be dismissed. In addition, Carlo requested that staff advise her if Respondent was entering her office area. On May 3, 2001, Koski recommended dismissal of Respondent based on the February 16, 2001, incident and Respondent’s lengthy disciplinary history. The recommendation was supported by the Associate Superintendent, Bureau of Procurement and Materials Management. As a result, on June 20, 2001, Petitioner initiated the current dismissal proceedings against Respondent. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Nairn.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment and denying Respondent back pay. DONE AND ENTERED this 25th day of February, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 25th day of February, 2002. COPIES FURNISHED: John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33128 Moneque Walker, Esquire 8260 West Flagler Street, Suite 1E Miami, Florida 33144 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and 222 of the civil engineering examination administered on October 31, 1997.
Findings Of Fact On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number 222 her raw score of 4 was reduced to a 2. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48. Petitioner is entitled to a score of 6 on problem number 122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches. She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 13th day of January, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Bartin, President Florida Engineers Management Corporation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of November, 2011.
The Issue Did Petitioner pass the Mechanical Engineers Examination he took on April 24, 1998?
Findings Of Fact On April 24, 1998, Petitioner took the Mechanical Engineers Examination. He received a score of 69 for his effort. A passing score was 70. The Mechanical Engineers Examination was administered under Respondent's auspices. As alluded to in the preliminary statement, Petitioner challenged the score received on problem 146. The maximum score available for that problem was ten points. Petitioner received eight points. In accordance with the National Council of Examiners for Engineering and Surveying Principles in Practice of Engineering Examinations for spring 1998, score conversion table - discipline specific, Petitioner had a raw score of 47 which equated to a conversion of 69, to include the eight raw points received for problem 146. In addition, the examination provided a scoring plan for problem 146, which assigns scores in increments of two points from zero to ten. To pass, it would be necessary for Petitioner to receive an incremental increase of two points, raising his score from eight points to ten points. This would give him a raw score of 49 points. According to the score conversion table - discipline specific, that would give Petitioner 71 points. According to the scoring plan for problem 146 to receive the ten points, Petitioner would have to demonstrate: Exceptional competence (it is not necessary that the solution to the problem be perfect) generally complete, one math error. Shows in-depth understanding of cooling load calculation psychrometrics. Problem 146 required Petitioner to: Determine the required cooling coil supply air quantity (cfm) and the conditions (°F db and °F wb) of the air entering and leaving the coil." Petitioner was provided a psychrometric chart to assist in solving problem 146. The examination candidates were also allowed to bring reference sources to the examination to assist in solving the examination problems. Petitioner brought to the examination, the Air-Conditioning Systems Design Manual prepared by the ASHRAE 581-RP Project Team, Harold G. Lorsch, Principal Investigator. Petitioner used that manual to determine the wet-bulb temperature of the air entering the coil. In particular, he used an equation from the manual involving air mixtures. For that part of the solution he arrived at a temperature of 65.6°F wb. According to the problem solution by Respondent's affiliate testing agency, reference ASHRAE Fundamentals Chapter 26, the coil entering wet-bulb temperature taken from the psychrometric chart was 66.12°F wb. The scorer in grading Petitioner's solution for problem 146 placed an "x" by the answer provided 65.6°F wb and wrote the words "psychrometric chart." No other entry or comment was made by that scorer in initially reviewing the solution Petitioner provided for that problem. This led to the score of eight. The scoring plan for problem 146 for the April 1998 examination taken by Respondent equates the score of eight as: MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE Either a) Provides correct solution to problem with two math errors or incorrect dry-bulb or wet-bulb for coil entering or leaving conditions or minor total cooling load error, or b) Provides correct solution to items c and d correctly and minor math errors in items a and b of Score 6 below. Petitioner was entitled to review the results of his examination. He exercised that opportunity on September 21, 1998, through a post-examination review session. Petitioner requested and was provided re-scoring of his solution to problem 146. According to correspondence from the National Council of Examiners for Engineering and Surveying to the Florida Member Board from Patricia M. Simpson, Assistant Supervisor of scoring services, the score did not change through re-scoring. In this instance, the October 14, 1998 correspondence on re-scoring states, in relation to problem 146: Incorrect methodology used in calculating coil entering wet-bulb temperature. Incorrect coil entering wet-bulb temperature provided. No calculation provided for coil leaving temperature conditions. The coil leaving wet-bulb temperature in Respondent's proposed solution was 53.22°F wb taken from the psychrometric chart. Petitioner's solution for the coil leaving wet-bulb temperature taken from the psychrometric chart was 53.3°F wb. At hearing Respondent did not provide an expert to establish the basis for point deduction in the original score and the re-scoring of Petitioner's solution for problem 146. Moreover, Respondent did not present expert witnesses to defend the commentary, the preferred written solution in its examination materials. Consequently, Respondent's preferred solution constitutes hearsay about which no facts may be found accepting the validity of Respondent's proposed solution, as opposed to merely reporting that information.1 By contrast, Petitioner provided direct evidence concerning the solution provided for problem 146 in response to the criticisms of his solution that were unsupported by competent evidence at hearing. More importantly the criticisms were responded to at hearing by Geoffrey Spencer, P.E., a mechanical engineer licensed to practice in Florida, who was accepted as an expert in that field for purposes of the hearing. As Petitioner explained at hearing, he used the Air- Conditioning Systems Design Manual equation to arrive at the coil entering wet-bulb temperature, which he believed would provide the answer as readily as the use of the psychrometric chart. (Although the psychrometric chart had been provided to Petitioner for solving problem 146, the instructions for that problem did not prohibit the use of the equation or formula.) Petitioner in his testimony pointed out the equivalency of the process of the use of the psychrometric chart and the equation. Petitioner deemed the equation to be more accurate than the psychrometric chart. Petitioner had a concern that if the answer on the coil entering wet-bulb temperature was inaccurate, this would present difficulty in solving the rest of problem 146 because the error would be carried forward. Petitioner pointed out in his testimony that the solution for determining the coil entering wet-bulb temperature was set out in his answer. The answer that was derived by use of the formula was more time consuming but less prone to error, according the Petitioner's testimony. Petitioner points out in his testimony that the answer he derived, 65.6°F wb, is not significantly different than Respondent's proposed solution of 66.12°F wb. (The instructions concerning problem 146 did not explain what decimal point of a degree the candidate had to respond to in order to get full credit for that portion of the solution to the problem.) Petitioner in his testimony concerning his solution for the coil leaving wet-bulb temperature indicated that the calculation for arriving at that temperature was taken from the psychrometric chart and is sufficiently detailed to be understood. Further, Petitioner testified that the degree of accuracy in which the answer was given as 53.3°F wb, as opposed to Respondent's proposed solution of 53.22°F wb, is in recognition of the use of the psychrometric chart. Petitioner questions whether the proposed solution by Respondent, two decimal points, could be arrived at by the use of the psychrometric chart. In relation to the calculation of the coil entering wet-bulb temperature, Mr. Spencer testified that the formula from the Air-Conditioning Systems Design Manual or the psychrometric chart could have been used. Moreover, Mr. Spencer stated his opinion that the solution for coil entering wet-bulb temperature of 65.6°F wb by Petitioner is sufficiently close to Respondent's proposed solution of 66.12°F wb to be acceptable. Mr. Spencer expressed the opinion that Petitioner had correctly used the formula from the manual in solving the coil entering wet-bulb temperature. Mr. Spencer expressed the opinion that the psychrometric chart is an easier source for obtaining the solution than the use of the formula from the manual. In Mr. Spencer's opinion, the formula shows a more basic knowledge of the physics involved than the use of the psychrometric chart would demonstrate. In relation to the coil leaving wet-bulb temperature, Mr. Spencer expressed the opinion that Petitioner had adequately explained the manner of deriving the answer. Further, Mr. Spencer expressed the opinion that the answer derived was sufficiently accurate. The testimony of Petitioner and opinion of Mr. Spencer is unrefuted and accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Petitioner passed the Florida Board of Professional Engineers April 24, 1998, Mechanical Engineers Examination with a score of 71. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 22nd day of February, 1999.
The Issue Whether the Pinellas County Sheriff's Office (PCSO or Petitioner) properly terminated Respondent, Richard Stotts, from his employment as a deputy sheriff for engaging in conduct that violated Petitioner's General Order 3-1.1, Rule and Regulation 5.15, regarding the Custody of Arrestees/Prisoners.
Findings Of Fact Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri's responsibilities include providing law enforcement services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to have violated PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 12 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Order 13-3 requires that PCSO members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person. At the time of the events in issue in this case, Captain David Danzig (then a Lieutenant) was assigned to the PCSO Administrative Investigations Division. Sergeant Deanna Carey is assigned to the PCSO Administrative Investigations Division. Sergeant Christina Cuttitta is assigned to the PCSO Administrative Investigations Division. Sergeants Carey and Cuttitta investigated the complaint of misconduct that was filed against Respondent on or about June 11, 2013. The complaint of misconduct alleged that on May 8, 2013, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. At the Administrative Review Board (ARB) hearing, Respondent admitted that his use of force on the inmate was not justified because it did not meet the criteria for use of force. PCSO General Order 10-2 covers discipline and ranks certain offenses. This General Order ranks offenses from Level 1 to Level 5. A Level 5 offense is the most severe. A Level 1 offense is the least severe. Further, this General Order sets forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the violation admitted before the ARB in Respondent's case was 50. Respondent had five carryover points from prior discipline. Under PCSO General Order 10-2, 55 points reverts to 50 points. Under PCSO General Order 10-2, the range of discipline for a 50-point violation is a minimum five-day suspension to termination. Sheriff Gualtieri terminated Respondent from his employment with PCSO effective 1200 hours on July 29, 2013. Exhibit 13 is a series of six video clips taken from various angles in the intake and booking section of the Pinellas County Jail. The six video clips document Respondent's actions. Respondent was not involved in bringing the inmate into the intake/booking area. The inmate, who was yelling obscenities and racial slurs, was standing on the mat to have his picture taken when Respondent left his station, approached the inmate, and proceeded to strike the inmate and take him to the floor. Respondent admitted that he used force on the inmate. Respondent admitted that the use of force on this inmate was not justified. In the past three years, two (former) deputy sheriff were terminated for Level 5 offenses. While the exact offenses involved other Level 5 offenses, the consistency in discipline is constant: termination. There was no justification for Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Richard Stotts, violated General Order 3-1.1, Rules and Regulations 5.15, and terminating his employment. DONE AND ENTERED this 12th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of November, 2013.
Findings Of Fact On March 25, 1992, the School Board of Collier County ("School Board") issued an invitation to bid ("ITB") on the construction of an elementary school in Naples, Florida, identified as Elementary School "D", Bid #84-3/92. Pursuant to School Board Rule No. R-03/89, potential bidders for proposed projects with a construction cost in excess of $50,000 must be prequalified by the School Board. The prequalification procedure is designed to provide the School Board with a responsible successful bidder. The School Board considers prequalification applications at regularly scheduled board meetings. Contractors are required to submit applications at least two weeks prior to the board meeting at which the application receives consideration. By application dated April 13, 1992, and filed April 14, 1992, G. H. Johnson Construction Company ("GHJ") applied to be prequalified by the School Board. The application contains the signed statement by Reza Yazdani, president of GHJ that all statements contained in the application are true and accurate. Question #19 in the prequalification application states "[w]hat are the three largest contracts (dollar amount) ever performed by your organization?" The April 13 application filed by GHJ indicates that the company's three largest contracts were University of Chicago Replacement Hospital ($7,353,000), V. A. Medical Center, Loma Linda, California ($3,810,000), and Cape Canaveral Hospital Phase I, II, & III (($6,000,000). In relevant part, section 6 of School Board Rule No. R-03/89 states: Unless specified exceptions are made by the Board, the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him. The Board may qualify contractors for projects the value of which does not exceed that of the largest project previously constructed if the experience record, size and qualifications of staff and other pertinent data regarding the contractor justify such action in the discretion of the Board. However, in no event shall a contractor that has not previously performed work for the Board be granted a Certificate of Qualification which exceeds the smaller of the contractor's largest previous project or 10 times the contractor's net quick assets. In the event use of the largest project to establish the pre-qualified amount for the Certificate of Qualification would preclude the contractor from bidding or negotiating because its work in progress exceeds the dollar amount of the largest project, the criterion of ten times the net quick assets may be used if it would yield a larger face amount for the Certificate of Qualification. (emphasis supplied) The copy of School Board Rule No. R-03/89 provided to GHJ prior to the School Board's consideration of the GHJ prequalification application omitted the portion underlined in the preceding excerpt. Although the result of the error was to garble the meaning of the particular sentence, the first sentence of the referenced excerpt provides that, absent specific exception by the School Board, "the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him." Clearly, the value of the largest completed project was of importance in determining a contractor's prequalification amount. There is no evidence that the typographical error caused GHJ to provide incorrect information in the April 13 prequalification application to the School Board. There is no evidence that any GHJ representative read the referenced section until two days before the bid submission deadline. On April 22, 1992, a mandatory prebid conference was held. A representative of GHJ was present at the conference. At the conference, School Board representatives stated that a contractor's bid cost could not exceed the bidder's prequalification amount minus the contractor's work in progress. Contractors were invited to inquire as to prequalification amounts. There is no evidence that the GHJ representative sought any information related to prequalification. The standard bid instructions provided to GHJ state that the School Board "will consider base bid and deduct alternates as may produce a net amount which is acceptable" to the Board. The instructions further state that bid documents include any addenda issued prior to the bid submission deadline. On April 27, 1992, the School Board issued Addendum #2 to the ITB. Addendum #2 defines "alternate" as "an amount proposed by Bidders and stated on the Bid form that will be added to or deducted from Base Bid amount if the Owner (School Board) decides to accept a corresponding change in either scope of work or in products, materials, equipment, systems or installation methods described in Contract Documents." The addendum states "[b]asis for selection of Alternate shall not be limited to price". Addendum #2 instructs bidders to add "removal of exotics" as "Alternate No. 1" to the bid proposal. The alternate identifies the "exotics" as melaleuca trees to be removed from approximately 10.5 acres at the site of middle school "BB". The removal of the exotics is required by an Army Corps of Engineers permit issued to the School Board for middle school site work. The general bid instructions require that, not less than seven days prior to the bid deadline, bidder's must submit written requests for clarification of any error, ambiguity or inconsistency in the bid proposal. Prior to submission of their bid, GHJ representatives discussed whether the add alternate #1 would be considered by the School Board in making the bid award, and, relying solely on the initial bid instructions, determined for themselves that it would not. At no time did GHJ inquire of any School Board representative as to the effect of addendum #2 or the "add alternate #1" on the Board's bid consideration. Based on the information provided in GHJ's April 13 application, the School Board on May 7, 1992, prequalified GHJ for projects not in excess of $7,353,000. The figure is derived directly from GHJ's identification of the three largest jobs completed. The University of Chicago Replacement Hospital's cost of $7,353,000 is the largest of the three jobs cited in the GHJ application for prequalification. There is no evidence that the approved prequalification amount was calculated incorrectly or contrary to the School Board's rule. By "Certificate of Prequalification" and letter of May 8, 1992, the School Board notified GHJ of the prequalification amount of $7,353,000. GHJ had not received the letter prior the May 12, 1992 bid deadline. On or about May 10, 1992, two days prior to the bid opening, the president of GHJ contacted the School Board to ascertain the approved prequalification amount. The prequalification amount was orally provided to him. At no time prior to the bid opening did GHJ question, challenge or seek to amend the prequalification amount. On May 12, 1992, GHJ timely submitted a bid on the project, with a base bid of $7,146,000 and an alternate #1 bid of $50,850. GHJ's base bid was the lowest base bid submitted. The total GHJ bid, including alternate #1, was $7,196,850, the second lowest total bid submitted. The GHJ "Certificate of Current Capacity" submitted as part of the bid proposal identified GHJ's prequalification amount as $7,353,000, total uncompleted work in progress as $1,325,655, and a current capacity (prequalification amount less current uncompleted work) of $6,027,345. Otherwise stated, the GHJ bid of $7,196,850 exceeds the contractor's capacity by $1,169,505. School Board Rule No. R-03/89, Section 2(d), provides as follows: If the bid of any qualified contractor exceeds the difference between the amount stated on the contractor's Certificate of Qualification (as effective on the date of the bid opening) and the contractors work in progress, the bid shall be rejected by the School Board. GHJ asserts that the bid specifications provided only that the award would be made on the basis of the base bid plus "deduct alternates" (of which there were none). Even assuming that the School Board's addendum #2 failed to indicate that factors other than the base bid would be considered, GHJ's base bid of $7,146,000 exceeds GHJ's capacity by $1,118,655. Under the provisions of the rule, the School Board may properly reject the GHJ bid. On May 12, 1992, Carlson Harris General Contractors, Inc., ("CH") timely submitted a bid on the project, with a base bid of $7,163,513 and an alternate #1 bid of $27,115. The total of the CH bid was $7,190,628. The total CH bid was the lowest of the total bids received. The CH "Certificate of Current Capacity" (based on a prequalification amount of $11,201,000), identified total work in progress of $740,830 and a current capacity of $10,460,170. The standard instructions provided to bidders on the project state that the School Board has the "complete and unrestricted right...to reject any and all bids and to waive any informality or irregularity in any bid received." Among other items required by the bidder instructions, each bidder was required to submit a list, signed by the bidder, of subcontractors and major material suppliers. The Petitioner claims that, at the time of submission, and as late as two days after the bid opening, the CH subcontractor list was unsigned. A witness for the Respondent claims that, as of thirty minutes after the bid opening (when he viewed the CH proposal), the list was signed. The School Board official who actually opened and examined the bids did not testify. The testimony of Reza Yazdani is credited and establishes that, at the time of submission, CH's subcontractor list was unsigned. The Petitioner asserts that CH's submission of an unsigned subcontractor list is a material defect which requires that the bid be rejected. The evidence establishes that such is a minor irregularity which does not affect the total cost of the bid or the ability of the School Board to enforce the contract provisions against CH and accordingly may be waived. The instructions also require submission of a bid bond issued by a Florida-licensed surety with a Best's rating of "A" or better who has fulfilled any previous obligation to the School Board. The bond submitted by CH was issued by Employers Reinsurance Corporation and Reliance Insurance Company, and was signed by the surety agents, although not by the CH representatives. Employers had a Best rating of "A+13" and Reliance had a Best rating of "A-11". The Petitioner asserts that CH's submission of a bid bond signed by the surety and not by the contractor is a material defect which requires that the bid be rejected. The Petitioner further asserts that Reliance's Best rating of "A-11" fails to meet the requirement that the surety have a Best rating of "A" or better. The evidence fails to establish that the irregularities in the bid bond are material. Employers Reinsurance had a Best rating of "A+13". The bid bond sufficiently protects the ability of the School Board to enforce the bond against the surety should CH fail to perform under the contract. At hearing, GHJ asserted that the School Board had previously contracted with CH and favored CH based on prior performance. There is no evidence that the School Board has previously contracted with CH for any construction project. Subsequent to the bid opening, GHJ amended it's application for prequalification to indicate that the University of Chicago Replacement Hospital cost was $11,400,000. Although staff has recommended that GHJ's prequalification amount be amended, the School Board has not taken action on the request. There is no evidence that such amended prequalification amount would be or should be applied retroactively to the bid at issue in this case.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Collier County enter a Final Order DISMISSING the Petition filed by G. H. Johnson Construction Company, Inc. RECOMMENDED this 29th day of June, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3220BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: a. Rejected, irrelevant. Rejected, irrelevant. The prequalification application contains the sworn statement that all statements are true and correct. Absent any indication that the contractor is untruthful, there is no cause for the School Board to independently investigate the contractor's application. Rejected, not supported by the greater weight of credible evidence, which establishes that GHJ representative made no attempt to clarify the garbled language cited. Rejected, not supported by the greater weight of evidence which establishes that the GHJ prequalification amount was based clearly and solely on information supplied by GHJ. Rejected, irrelevant. The rule requires rejection of GHJ's bid. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that CH's total bid was the lowest of those received. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, as argumentative, not finding of fact. Rejected, not supported by the greater weight of evidence which clearly establishes that GHJ was aware of the prequalification amount prior to bid deadline and that the prequalification amount was based on information supplied by GHJ. Rejected. The Petitioner's application for amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. Rejected, irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Rejected, argumentative, irrelevant. The prequalification amount was based on GHJ information. The instructions provided to GHJ clearly indicated that the contractor would be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed. Any mistake in providing information to the School Board was on the contractor's part. The alleged action or lack thereof by the Board related to GHJ's subsequent request to amend the prequalification amount is irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Accepted as to proposed award to CH General Contractors. Rejected as to allegation that one of CH's subcontractors has indicated an unwillingness to perform. There is no indication that CH has or will suggest an inability to perform obligations under the bid contract. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, unnecessary and uncorroborated hearsay. Although the permit is referenced in Addendum #2, which indicates that a copy of the Corps permit is attached to the addendum), the addendum admitted into evidence does not contain the copy of the Corps permit. 4. Rejected, unnecessary. 25-26. Rejected, irrelevant. Rejected, irrelevant. The timeliness of the Petitioner's protest is not at issue. Rejected. Although correct, the Petitioner's action in seeking amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. COPIES FURNISHED: Thomas L. Richey Superintendent School Board of Collier County 3710 Estey Avenue Naples, FL 33942 Matias Blanco, Jr. Esq. 701 North Franklin Street Franklin Street Mall Tampa, FL 33602 James H. Siesky, Esq. Siesky & Lehman, P.A. 700 Eleventh Street South, Suite 203 Naples, FL 33940-6777
The Issue Whether Petitioners committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times relevant to this proceeding, Petitioners Jerry J. Robinson and Charles Osz, were detention deputies employed by the Respondent, Everett S. Rice, Pinellas County Sheriff (Respondent), and assigned to the Pinellas County Jail (Jail). Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioners were responsible for the care, custody, and control of persons held at the Jail. On January 30, 1998, Officer John Fitzgerald of the Largo Police Department took Duston Llano into custody and transported him to the Jail. Joseph Nichols, an Explorer Scout with the Largo Police Department, accompanied Officer Fitzgerald to the Jail. Mr. Llano was not under arrest since he had committed no crime but was taken into custody pursuant to the Marchman Act based upon his intoxicated condition. When he was taken into custody, Mr. Llano did not resist or threaten physical harm to the officers but did threaten to sue the officers. On January 30, 1998, Petitioners Robinson and Osz were assigned to the booking area of the Jail. Upon Mr. Llano's arriving at the Jail, Petitioners Robinson and Osz took possession of him in the pre-booking area. Shortly thereafter, Petitioners transported Mr. Llano to the post-booking section of the Jail and placed him in Cell 4. Mr. Llano was barely able to walk and was assisted by Petitioners Robinson and Osz to the post-booking area. Once in Cell 4, Petitioners began a pat-down search of Mr. Llano. Petitioner Robinson was to the left of Mr. Llano and Petitioner Osz was to Mr. Llano's right. During the search, a substance Petitioners believed might be crack cocaine was found on the person of Mr. Llano. After the suspicious substance was found on Mr. Llano, Detention Deputy Monte Esry requested that Detention Deputy Larry Potts summon Officer Fitzgerald and Mr. Nichols and ask them to remain at the Jail to possibly process the substance and effect an arrest of Mr. Llano. Detention Deputy Potts complied with Detention Deputy Esry's request and then accompanied Officer Fitzgerald and Mr. Nichols down the hall from the pre-booking area to Cell 4 of the post-booking area where Mr. Llano was being held. The substance found on Mr. Llano's person and believed to be contraband was found by Petitioner Osz who gave the substance to Petitioner Robinson. Petitioner Robinson then handed the substance to Detention Deputy Esry who handed it to Detention Deputy Potts who, then, handed it to Officer Fitzgerald for testing. Having found what they believed to be contraband, Petitioners Osz and Robinson began a strip search of Mr. Llano. When they arrived at Cell 4, Officer Fitzgerald stood near the doorway to the cell and Mr. Nichols remained in the hallway outside the cell. From Officer Fitzgerald's and Mr. Nichols' vantage point, it was possible for them to see into Cell 4. Both Officer Fitzgerald and Mr. Nichols observed Mr. Llano sitting on the bunk in the cell with Petitioner Robinson on his left and Petitioner Osz on his right. Mr. Llano was slumped over and again made reference to suing everyone. However, Mr. Llano took no action to resist or otherwise justify the use of force. In an apparent response to Mr. Llano's threat to sue, Petitioner Osz grabbed Mr. Llano by his hair, straightened him up and slapped him on the face or head at least twice. While Petitioner Osz was slapping Mr. Llano, he said something to the effect of "how about another thousand" or "there is another thousand." From his vantage point in the hall, not more than 15 feet away, Mr. Nichols saw Petitioner Osz slap Mr. Llano and heard the comments by Petitioner Osz. Officer Fitzgerald, who was at the doorway of Cell 4, approximately nine feet, also saw the slapping incident and heard the comments made by Petitioner Osz. During the course of the slapping incident, Detention Deputy Potts was also in Cell 4. Nonetheless, he testified that he did not see Petitioner Osz slap Mr. Llano. When Petitioner Osz slapped Mr. Llano, Petitioner Robinson was in Cell 4 and within five or six feet of Petitioner Osz and Mr. Llano. However, at the time of the incident, Petitioner Robinson was preoccupied with depositing items obtained from Mr. Llano's person into a property bag that was on a steel table in the cell and did not see Petitioner Osz slap Mr. Llano. Also, because the Jail was very busy and loud on this evening, Petitioner Robinson did not hear Petitioner Osz slap Mr. Llano. Because Petitioner Robinson did not observe the incident, he did not respond to or report Petitioner Osz' actions toward Mr. Llano. Neither Officer Fitzgerald nor Mr. Nichols observed Petitioner Robinson during the slapping incident and could not testify as to where he was looking when the incident occurred. After the slapping incident, Officer Fitzgerald and Mr. Nichols then left the area of Cell 4 in order to conduct a test of the substance found in Mr. Llano's pants pocket. As a result of the test performed by Officer Fitzgerald, it was determined that the substance was not illegal. After conducting the presumptive test, Officer Fitzgerald and Mr. Nichols left the Jail. Officer Fitzgerald and Mr. Nichols subsequently reported the slapping incident to their supervisors and prepared reports memorializing the events they observed. A representative of the City of Largo Police Department then reported the incident to the Respondent, who initiated an investigation by the Pinellas County Sheriff's Office, Inspections Bureau, Administrative Inquiry Division. As a part of the investigation regarding the conduct in question, sworn statements were taken from Officer Fitzgerald, Mr. Nichols, Detention Deputy Potts, Detention Deputy Esry and Petitioners Osz and Robinson. Attempts to speak with Mr. Llano were fruitless based upon his lack of recollection of the incident. During the course of his sworn statement, Petitioner Robinson stated that he did not see Petitioner Osz slap Mr. Llano. Detention Deputy Potts, who was also in Cell 4 during the incident, also stated in his sworn statement that he did not observe Petitioner Osz slap Mr. Llano. During his sworn statement, Petitioner Osz denied that he ever struck Mr. Llano. After completing its investigation, the Administrative Inquiry Division presented its entire investigative file to the Chain of Command Board without conclusion or recommendation. The Chain of Command Board met and after reviewing the materials provided by the Administrative Inquiry Division and giving Petitioners the opportunity to respond further, the complaints against Petitioners were sustained. Specifically, the violations determined to have occurred as to Petitioner Osz were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, A (Level Five Violation), 021, relating to custody of arrestees/prisoners; Violation of PCSO Rule C1, V, C (Level Three Violation), 060, relating to standard of conduct. Under the PCSO Guidelines, a sustained finding of two Level Five violations and one Level Three violation is the basis for assigning 115 disciplinary points. As a result, Petitioner Osz was assessed 115 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 115 points to be a minimum discipline of a 15-day suspension and a maximum discipline termination. In the instant case, the discipline imposed against Petitioner Osz was termination. Specifically, the violations determined to have occurred as to Petitioner Robinson were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by the Laws of Florida, 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of PCSO Rule C1, V, A (Level Five Violation), 006, relating to truthfulness; Violation of PCSO Rule C1, V, B (Level Four violation), 037, relating to reporting violations of laws, ordinances, rules or orders. Under the PCSO Guidelines, a sustained finding of one Level Five violation and one Level Four violation is the basis for assigning 80 disciplinary points. As a result, in the instant case, Petitioner Robinson was assessed 80 disciplinary points. The Sheriff's Office General Order B-15 identifies a disciplinary range for a total point award of 80 points to be a minimum discipline of a 10-day suspension and a maximum discipline of termination. In the instant case, the discipline imposed against Petitioner Robinson was termination. The conduct engaged in by Petitioner Osz in slapping Mr. Llano was unnecessary, excessive, did not constitute a good correction practice and is not consistent with the training or conduct expected of correctional officers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the PCSO enter a Final Order: 1) finding Petitioner Osz guilty of the conduct alleged in the charging document; (2) upholding the termination of Petitioner Osz' employment as a detention deputy with the PCSO; (3) dismissing the charges against Petitioner Robinson; and, (4) reinstating Petitioner Robinson as a detention deputy with the PCSO. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999. COPIES FURNISHED: William M. LauBach, Esquire Executive Director Pinellas County Police Benevolent Association 3737 16th Street, North St. Petersburg, Florida 33704 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 Charles Osz, pro se 2545 Coachman Road Northeast Number 127 Clearwater, Florida 33765 Keith Tischler, Esquire Power, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue Whether the Respondent, a non-instructional employee of the School Board, should be disciplined in accordance with Section 230.23(5)(f), Florida Statutes, for alleged acts of misconduct as set forth in the letter, dated November 5, 1992, signed by the Superintendent of Schools.
Findings Of Fact The Respondent, John D. Culver, is employed by the Pinellas County School Board as a Supervisor in the Pest Control Department. He has been employed by the School Board in the Pest Control Division for approximately 9 1/2 years. He has been the foreman for six (6) years, supervising approximately six other employees. He is required to pass the State Exam in pest control use. He has a state license, which authorizes him to use chemicals for commercial pest control, but is not licensed to do private residences. The School Board of Pinellas County, Florida has adopted disciplinary guidelines for support services employees which apply to Respondent. These guidelines include prohibitions for falsification of District documents, absence from duty without approved leave, misconduct defined as conduct that impairs an employee's effectiveness, or brings the District into disrepute, unauthorized use or theft of School Board property, failure to comply with state or law or Board policy. During the period of June 1 through August 7, 1992, Respondent and the crew worked a four day work week with a ten hour day. The scheduled work hours were 7:30 a.m. until 6:00 p.m. The employees were allowed a thirty minute break for lunch and two fifteen minute breaks during the day. This four day work week was for the summer months only. Occasionally, an employee would work overtime on Fridays, and exceed the 40 hour per week work schedule. Although they generally knew that work commenced at about 7:30 a.m. with a half hour for lunch and two fifteen (15) minute breaks, and that work concluded at about 6:00 p.m., the employees would appear at High Point Service Center, and commence their work schedule earlier than 7:30 a.m. Generally, they would begin work by preparing pest control chemicals, have a staff meeting, get the equipment ready for work, and obtain the work schedule. Each employee indicated that they would leave the High Point Service Center (their base) after having worked prior to the 7:30 a.m. schedule, and go to their assigned facilities, within the school district. The employees did not have a specific work location. They provided pest control treatment at various School Board owned facilities in the county. Some of the facilities were located more than 20 miles from the High Point Service Center. During the summer schedule, the employees travel time could exceed 45 minutes. The Payroll Time Sheets did not indicate that the employees were required to commence work at 7:30 a.m., and conclude work at 6:00 p.m. Throughout the summer months of 1992, Respondent authorized the crew to leave approximately fifteen to twenty minutes before 6 p.m. on a daily basis. The crew had not requested to leave early, but merely, took the direction given by Respondent. Respondent left early on these occasions with the rest of the crew. The crew did not leave early during the normal shift of the five day work week during the regular school year. The Payroll Time Sheets show that each employee worked 10 hours per day, four days a week. The School Board did not have an employee company clock to punch in and punch out. The employees started work earlier than 7:30 a.m., and concluded their work prior to 6:00 p.m. Each employee put in a minimum of ten (10) hours each day during the summer work schedule. This was recorded on the School Board's Time Sheets signed by Respondent as being "correct to the best of my knowledge." He did not note on the sheets that many of the crew began work early each day, or that he allowed them to leave early each day. During the summer schedule, the employees generally ate lunch at about 12:00 noon, but not always because of the task they were performing. The task being performed would dictate when the employee would be allowed to take his lunch breaks at various times during the summer schedule depending on the task performed. There was no set time for the 15 minute break, so that their work day would exceed 10 hours. However, they did not receive overtime pay on such occasions. Respondent took his vacation from July 11, 1992, to July 24, 1992. The practice continued and Wirtemburg signed the time sheets for that period, certifying that the Pest Control employees worked ten (10) hours per day during that period. The School District has a procedure for developing flex hours for departments based on a showing of appropriateness. No request for flex hours was requested by the Pest Control Department which would allow for different hours. Respondent referred to his supervisor, Ed Hobson, (an African American) as a "token nigger" and a "high-priced errand boy" on more than one occasion. Culver and the rest of the crew are Caucasian. Respondent made the racial remarks when he seemed angry or disturbed by Mr. Hobson. The remarks were made during the 1991-92 school year, and were heard by several members of the crew. Respondent admitted that he referred to Mr. Hobson as a "token nigger", that it was an inappropriate remark, and apologized for the comment. There was no evidence produced which showed that the Respondent's supervisory authority was damaged as a result of Respondent's remarks. Respondent sprayed the home of Frank Aceto, a bus mechanic for the Pinellas County School Board, for fleas and charged $17.00 for each visit every couple of months. Respondent used the School Board chemical Dursban for six months. He used the School Board's hand sprayer only on occasion. Respondent sprayed the home of Donna Sisenstein, a Head Plant Operator, for the Pinellas County School Board, once a month for approximately six years charging $8.00 each month. Respondent used School Board equipment occasionally. He used the chemical Dursban to spray these residences, the value of the chemical did not exceed $30.00. Respondent has had excellent evaluations for nine (9) years. His last evaluation was dated January 31, 1992. He has seven (7) satisfactory marks and two (2) better than satisfactory marks. He has had seven (7) years of perfect attendance in the Pest Control Department. He has received compliments from Head Plant Operators at school facilities for his pest control services, and he has stayed within his budget during the last six (6) years. His crew members think that he is a good supervisor. Respondent has received a written reprimand on one occasion. The School Board uses a system of progressive discipline in dealing with employee work performance and/or conduct pursuant to School Board Rules and Regulations 6Gx52-7.12. The School Board, in this case, charged Respondent with misconduct, which is defined by the School Board Rule 6Gx52-7.12 as "conduct serious enough to impair the employees effectiveness in the school district, or which may bring the service of the School Board into disrepute."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that John D. Culver is not guilty of falsifying documents but did commit misconduct by leaving work early and allowing his crew to leave work early without approval; that he did direct a racial slur at his supervisor; and that he did commit grave misconduct by using School Board equipment and chemicals to spray private residences for personal gain in violation of School Board Supporting Services Disciplinary Guidelines 6Gx52-7.12. It is further RECOMMENDED that a Final Order be issued adopting the recommendation of the Superintendent by dismissing Respondent, John D. Culver, from his employment. DONE AND ENTERED this 13th day of May, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 21, 22, 24, 25, 27(in part) Rejected as subsumed or irrelevant and immaterial: paragraphs 3, 10, 11, 15, 19, 20, 23, 26, 27(in part), 28 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1(in substated part), 2, 3(in part), 6, 7, 8, 9, 10, 11, 12(in part), 19(in part), 21(in part), 25(in part) Rejected as subsumed or irrelevant and immaterial: paragraphs 1(in part), 3(in part), 4, 5, 12(in part), 13, 14, 15, 16, 17, 18, 19(in part), 20, 21(in part), 22, 23, 24, 25(in part), 26, 27, 28, 29, 30, 31 COPIES FURNISHED: M. Teresa Harris, Esquire Pinellas County School Board P. O. Box 2942 Largo, Florida 34649-2942 Dr. J. Howard Hinesley Superintendent Pinellas County School Board P.O. Box 2942 Largo, Florida 34649-2942 B. Edwin Johnson, Esquire 1433 South Fort Harrison Avenue Suite C Clearwater, Florida 34616 Karen Barr Wilde Professional Practices Services Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
