Findings Of Fact In recommending that the Public Employees Relations Commission uphold HRS' demotion of petitioner Linda Cook Allen, PERC Hearing Officer Rix wrote: In the instant case, HRS demoted Allen without conducting a special performance appraisal as required by rule 22A-9.009. Rather, Allen was demoted pursuant to HRS Regulation No. 60-10 Section 5(a)(2). This section provides that: As related to this regulation, an employee shall not be demoted as a form of disciplinary action. Rather, this type of action may be used to remove an employee from his class when the employee fails to perform his assigned duties at a satisfactory level. There must be specific documented reasons for such demotion supported by employee performance appraisals and/or documented counseling sessions. See (Exhibit A-10). In short, Powell evaluated Allen's performance over a nine- week period and then initiated action to demote Allen because Powell perceived that Allen was not carrying out her job duties competently. The evidence demonstrates that Powell conducted several counselling sessions with Allen over the nine-week period, which Powell documented pursuant to the above-cited regulation. Recommended Order, page 11. Adopting the Recommended Order, PERC upheld petitioner's demotion from pay grade 19 to pay grade 15, on account of numerous performance deficiencies. The letter HRS sent Ms. Allen notifying her of her demotion made no mention of HRS Regulation No. 60-10. HRS does not have any policy or general practice to rely on "documented counseling sessions" in lieu of employee evaluations before demotions. On September 17, 1990, HRS had in fact prepared a written employee appraisal detailing petitioner's derelictions as a protective investigator, HRS Exhibit No. 3, but petitioner prevailed on a grievance she pursued in connection with the evaluation.
Recommendation It is, accordingly, ORDERED: The petition for administrative determination of rule by hearing officer is denied. DONE and ENTERED this 26th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 26th day of March, 1992. APPENDIX Petitioner's proposed finding of fact No. 1 was neither established nor refuted. Petitioner's proposed findings of fact Nos. 2 through 7 and 11 through 15 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 8, 9 and 10 are properly conclusions of law. Petitioner's proposed findings of fact Nos. 16, 17 and 18 pertain to subordinate matters. COPIES FURNISHED: James C. McCarty, Esquire P.O. Box 2883 Gainesville, FL 32602 Robert L. Powell, Sr., Esquire Department of Health and Rehabilitative Services 407 Building One 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue to be determined in this proceeding is whether Escambia County School Board (“School Board”) Rule 2.04 (2017- 2018)1/ is an invalid exercise of delegated authority, as defined in section 120.52(8)(b), (c), (d), and (e).
Findings Of Fact At hearing, the parties stipulated to adopting the findings of fact from DOAH Case No. 17-4220, which are incorporated herein as follows: Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Escambia County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. The School Board has the statutory responsibility to prescribe qualifications for positions of employment and for the suspension and dismissal of employees subject to the requirements of chapter 1012. At all times relevant to this proceeding, Respondent is a noninstructional support employee, who has been employed as a Custodial Worker I by the School Board since October 13, 2014. Mr. Warren worked 40 hours a week at Pine Forest High School. Mr. Warren’s position with the School Board is annual, rather than based on the academic school year calendar. During the regular school year, students are required to be on campus from 8:30 a.m. to 3:30 p.m. After the school day, there are students who remain at the school for various activities with clubs and organizations. While students are present, custodial workers complete their duties and work assignments throughout the school. On a regular school day students may be present at the school for clubs and organizations until as late as 9:00 p.m. Respondent works the 2:00 p.m. to 10:30 p.m. shift and would be present when students are present. The background regarding Respondent’s arrest arises from a dispute where it was alleged that he forged a quitclaim deed, transferring property from his uncle to himself. On May 9, 2017, Respondent was arrested. Thereafter, an information was filed against Respondent by the State Attorney’s Office alleging that he knowingly obtained or endeavored to obtain certain property of another valued at $20,000.00 or more, but less than $100,000.00, in violation of section 812.014(1)(a) and (1)(b), and (2)(b)1., a second degree felony. At the time of the final hearing, Respondent’s criminal case was pending final disposition. On May 18, 2017, Superintendent of the School Board, Malcolm Thomas, provided written notice to Respondent that he was suspended “with pay effective immediately . . . pending the outcome of an arrest for §812.014.2b1 [sic], F.S., a disqualifying offense.” The Superintendent’s letter did not provide authority for the Superintendent’s action. The Superintendent also cited no authority for his position that the alleged offense was a “disqualifying offense.” Also, on May 18, 2017, the Superintendent notified Respondent of his intent to recommend to the School Board that Mr. Warren be placed on suspension without pay beginning June 21, 2017. In his request to the School Board, the Superintendent stated that his recommendation was “based on conduct as more specifically identified in the notice letter to the employee.” Similar to the notice regarding the intended recommendation, the Superintendent cited no authority for his recommendation, nor his position that the alleged offense was a “disqualifying offense.” By letter dated June 21, 2017, Dr. Scott advised Respondent that the School Board voted to accept the Superintendent’s recommendation placing him on suspension without pay, effective June 21, 2017. As cause for Mr. Warren’s suspension without pay, Dr. Scott’s letter stated that it is “based on conduct as more specifically identified in the [Superintendent’s] notice letter to the employee.” Dr. Scott’s letter did not use the term “disqualifying offense,” nor did it cite any authority for the School Board’s action. Respondent had no history of disciplinary action during his employment by the School Board. In addition, Ms. Touchstone testified that Respondent “has been a good employee for us.” As a noninstructional employee, Mr. Warren is covered by the Collective Bargaining Agreement (“CBA”) between the School Board and the ESP. In addition, the School Board, in part, relied upon rule 2.04 (2017), when it approved the recommendation to suspend Mr. Warren without pay for a criminal arrest. If Mr. Warren had been convicted of the alleged crime, he would have been disqualified from employment with the School Board. While the issue of whether the School Board had authority to suspend Mr. Warren’s license was addressed in DOAH Case No. 17-4220, that matter did not address the issue of the method of reinstatement and back pay for existing employees. As will be further discussed in the Conclusions of Law below, Mr. Warren has standing to challenge the rules in an individual capacity. A Recommended Order upholding Mr. Warren’s suspension without pay was issued on December 22, 2017. The School Board issued a Final Order adopting the Recommended Order in toto, issued on February 23, 2018. Since the Final Order was filed in DOAH Case No. 17-4220, Mr. Warren pled no contest to Filing a False Document, a non-disqualifying offense, pursuant to section 435.04, Florida Statutes, and the court withheld adjudication.3/ Other charges, including the alleged disqualifying offense, were nolle prossed. On December 22, 2017, as a result of the plea agreement, the School Board voted to reinstate Mr. Warren to work, effective November 17, 2017. Mr. Warren’s suspension without pay was formally rescinded, and he was reinstated to his position as a custodial worker. However, in reliance on School Board Policy 2.04, the School Board has refused to pay him back pay and benefits for the roughly five-month period of suspension without pay. Mr. Warren timely appealed the School Board’s decision to deny him back pay and benefits. The case is currently pending at the Division (DOAH Case No. 18-2270). Petitioner, ESP, is the union that solely and exclusively serves as the bargaining agent for collective bargaining on behalf of employees employed by the School Board. ESP has associational standing to represent members of the bargaining unit and to challenge rules that may affect employees covered by the CBA. School Board rule 2.04 is entitled “Recruitment and Selection of Personnel” and provides, in pertinent part, as follows: Guidelines which may disqualify from employment: A. Conviction (as defined in Sections 435.04, F.S., and/or 1012.315, F.S.) of a crime of moral turpitude (Section 1012.33, F.S.). Moral turpitude as defined by the District includes, but is not limited to, crimes listed in Sections 435.04, F.S., and/or 1012.315, F.S. * * * D. Any other felony crime not listed in Sections 435.04, F.S., or 1012.315, F.S., with a final disposition of guilt or plea of nolo contendere (no contest), regardless of adjudication of guilt. * * * J. Noncompliance with the District hiring requirements under Sections 435.04, F.S., 1012.465, F.S., 1012.315, F.S., and 1012.56, F.S. A record clear of disqualifying offenses as defined in Section A above is required for employment and continued employment with the District. Individuals who have pending criminal charges for an offense which would disqualify from employment or who are currently on probation or participating in a program for first-time offenders as a result of the offense will be automatically disqualified from employment or continued employment until resolution of the charge(s). * * * All applicants and vendors have the right to appeal before the Human Resources Appeals Committee. The Assistant Superintendent of Human Resource Services or designated representative will select the members of this committee to ensure diversity. The Committee is responsible for following and abiding by all local, state, and federal employment procedures and laws. A second applicant or vendor appeal will be granted only when new facts or additional information has been presented that was not considered in the first appeal hearing. The Superintendent shall review decisions made by the Human Resources Appeals Committee and has the authority to overturn decisions made by the Committee, excluding appeals from offenses listed in Sections 435.04, F.S., and/or 1012.315, F.S., and/or 1012.467, F.S. Rule 2.04 lists as its statutory authority sections 1001.41, 1001.42, and 1001.43, Florida Statutes, and lists sections 112.3173, 435.04, 440.102, 800.04, 943.051, 1001.01, 1001.10, 1001.42, 1001.43, 1003.02, 1003.32, 1003.451, 1012.22, 1012.27, 1012.32, 1012.335, and 1012.39, Florida Statutes, as the law it implements. The rule does not cite section 435.04 as statutory rulemaking authority. The rule does not list any reference to 1012.315 or 1012.465 as rulemaking authority or as law implemented. Rule 2.04 provides that an individual may be disqualified from employment or continued employment if he or she has pending criminal charges. The rule requires compliance with sections 435.04, 1012.465, and 1012.315. Section 1012.465 provides that noninstructional employees who have direct contact with children must meet the level 2 requirements described in 1012.32, which references section 1012.315 as the list of disqualifying offenses. Moreover, rule 2.04 allows for an employee to be disqualified, i.e., suspended from employment until resolution of the alleged charges, without providing a method for reinstatement or back pay should the allegations be resolved favorably for the employee. The School Board asserts that it has a duty and statutory authority to adopt and implement rules to facilitate the level 2 background screening required by 1012.465. However, there is no such authority in section 1012.465, 1012.315, or 1012.32, by reference or otherwise. Rule 2.04 also does not indicate the criteria that would be used for determining whether an employee should be reinstated with back pay. Dr. Scott testified that, “generally, the decision to award back pay is made on a case-by-case basis. It has been a general ‘practice’ to not award back pay for private conduct which resulted in criminal charges.” Ms. Waters agreed with Dr. Scott that back pay may be awarded based on the circumstances. Ms. Waters testified that the superintendent determines whether a reinstated employee should be awarded back pay, completely, partially, or not at all. Nothing in rule 2.04 provides Mr. Warren, or any other existing employee in his circumstances, with notice that suspension without pay for pending criminal charges for a disqualifying offense may result in the employee being awarded back pay upon reinstatement. The School Board’s determination that back pay would not be awarded following resolution of pending criminal charges was based solely on the superintendent’s discretion. If an employee is suspended without pay based on criminal charges related to the employee’s position and the charges are subsequently resolved, the employee may be awarded back pay.
The Issue Does Petitioner, Lee County School Board (Board or District), have just cause to terminate the employment of Respondent, Stacey Landau, from her position as a school teacher for submitting fraudulent medical documentation in support of applications for accommodations and benefits under the Americans With Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)?
Findings Of Fact The Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the school district. The District has employed Ms. Landau since January 19, 1998. Most recently, she was assigned to work as a teacher of students with disabilities at Patriot Elementary School. Ms. Landau is an instructional employee and is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). The District employs her pursuant to a professional services contract. Ms. Landau holds a Florida educator's certificate. She is certified in elementary education, English for speakers of other languages, and exceptional student education. Ms. Landau's performance assessments have always been satisfactory or better. The District has not previously disciplined her. Ms. Landau submitted documents to the District in 2012 and 2013 to support her requests for accommodations under ADA and FMLA. The documents included three dated July 25, 2012; August 16, 2012; and June 24, 2013. During a July 24, 2013, meeting of the District ADA Committee to review Ms. Landau's most recent request, members of the committee developed concerns about the authenticity of the June 24, 2013, document. It was one of three documents submitted by Ms. Landau that bore the signature of James Weiner, M.D. The other two were dated July 25, 2012, and August 16, 2012, also purportedly signed by Dr. Weiner. Ranice Monroe, the District's director of Professional Standards and Equity, contacted Dr. Weiner's office to determine the authenticity of the signature. After Dr. Weiner's staff advised Ms. Monroe that neither the doctor nor his staff had completed or signed the form, the District had Dr. Weiner review the other two forms to determine their authenticity. Dr. Weiner is a physician who works for the Sypret Institutes, a neurosurgical practice. He also worked, during the relevant period, for Southwest Florida Neurosurgical and Rehabilitation Associates. Dr. Weiner practices anesthesia, pain management, and rehabilitative medicine. He treated Ms. Landau for several years. During all time periods relevant to this proceeding, Ms. Landau was Dr. Weiner's patient. Ms. Landau was also the patient of an ophthalmologist, Dr. Elmquist, who was treating her for her deteriorating eyesight. Information provided by his office is not relevant to the issues in this proceeding. Throughout his career, Dr. Weiner has consistently followed the same practice when completing forms, such as forms for workers' compensation patients, medical certifications for benefits, and medical certifications for accommodations. He personally completes the forms by hand, usually during the evening at home. He never signs the forms in blank. Ordinarily, Dr. Weiner's staff does not complete these types of forms for him. Dr. Weiner's office does not have and has never had a typewriter. The forms that he completes for patients are never completed by typewriter or other mechanical printing device. Dr. Weiner keeps copies of forms that he completes in his patients' files, whether he provides them to the patient, an employer, or an insurance carrier. July 25, 2012, Form Ms. Landau submitted a form titled, Medical Certification of ADA Qualifying Impairment dated July 25, 2012, in support of her request for accommodations due to a disability. The form has four sections seeking identified information and provides room for physician-identifying information and the physician's signature. "Cervical spasmodic torticollis" is handwritten in the section asking for the "[n]ature and severity of the employee's impairment." "Chronic" is handwritten in the section seeking "[p]ermanent or long term impact." The handwriting for the responses in those two sections is the handwriting of Dr. Weiner. He completed those sections of the form. Dr. Weiner also completed the section of the form providing the name and contact information for the attending physician, which is also in his handwriting. The patient name on the form is in handwriting that Dr. Weiner says is not his. Handwriting that Dr. Weiner says is not his provides the response called for by a section stating: "Major life activities substantially limited by impairment " The response states that, among other things, Ms. Landau has a limited ability to engage in daily activities with her son, grocery shop, carry heavy objects, lift items out of the car, and walk. The following section seeks "[w]ork related restrictions that necessitate a reasonable accommodation for this employee." The response, in handwriting that Dr. Weiner says is not his, states: some physical restraint, deflecting aggressive attacks, [illegible] emotional stress that see daily and extend throughout the long [illegible]. Moving furniture to put classroom back together [illegible] has [illegible]. Dr. Weiner theorized that someone modified a form that he had completed changing the responses in the two sections quoted above. The physical evidence is not consistent with the theory. The form has lines on which to provide the responses. The lines on all sections in question are complete. There is nothing indicating that text on them was erased or pasted over. The writing is on the lines with the loops of letters such as "ys" and "fs" crossing below the lines in a natural manner. There is also plausible testimony from Ms. Landau's mother, also a patient of Dr. Weiner, that on occasion, his staff has completed parts of forms that he signs. Consideration of the persuasive and credible evidence does not result in the conclusion that it is more probable than not that Ms. Landau caused sections of the July 25, 2012, form to be altered after Dr. Weiner completed it. It is probable, accepting Dr. Weiner's testimony that he never signs blank forms, that in this instance, his staff assisted him in completing the form. Comparing the copy of the July 25, 2012, Medical Certification form that Ms. Landau provided the school with the copy of the form, if any, in Dr. Weiner's records, would have demonstrated whether the form that Ms. Landau provided to the school was one that Dr. Weiner had prepared. The record does not contain evidence of a file copy. August 16, 2012, Form The responses on the Medical Certification form dated August 16, 2012, that Ms. Landau provided the District are typed or otherwise mechanically printed. Only the signatures of Dr. Weiner are in script. The responses are typed or printed on pieces of paper that have been obviously pasted or taped over the lines on the form where responses are to be written. This includes the section for the address of the provider. The response to the "[n]ature and severity of the employee's impairment" section is markedly different from that of the form dated July 25, 2012, less than a month earlier. The printed response states: "Positive cervical nodes with intra-abdominal metastases and tumor invasion." The difference between the July 25 and August 16, 2012, response to the "[p]ermanent or long term impact" section is also marked. The printed response states: "Ms. Landau will require routine blood tests and pet scans to monitor for possible future growth. Ms. Landau requires monitoring and assistance with food consumption and nutrition." The responses to the other two sections calling for narrative responses are also very different from the responses in the July 25, 2012, form. These differences, the credible and persuasive testimony of Dr. Weiner that he has never used printed responses on these sorts of forms, and the fact that the responses are plainly added to the form over the lines provided, make it more probable than not that Ms. Landau altered the form intending to deceive the Board. June 24, 2013, Form This form is an acknowledged forgery. Britton Thorne, an unemployed family friend of Ms. Landau forged the responses on the four-page form and Dr. Weiner's signature on it. Because he was unemployed and Ms. Landau needed assistance due to her vision impairment, Mr. Thorne was living with her, helping with household chores, providing transportation, and attending doctor appointments with her. Mr. Thorne testified that he grew frustrated with his inability to have the form completed by Dr. Elmquist and was unwilling to leave the form at the doctor's office for completion. Consequently, he completed the form. He signed Dr. Weiner's name because he had a prescription from Dr. Weiner available with a signature to copy. Mr. Thorne then sealed the forged form in an envelope. He drove Ms. Landau to the District office to deliver the envelope with the forged form. Mr. Thorne did not tell Ms. Landau what he had done until Dr. Weiner's office advised Ms. Landau that he was discharging her because he had learned of the forgery from the District. Mr. Thorne's demeanor while testifying and his acknowledged concern about possible criminal prosecution for his actions made his testimony credible and persuasive. There is no credible, persuasive evidence that Ms. Landau knew of Mr. Thorne's forgery at the time she submitted the form to the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding just cause to terminate the employment of Stacey Landau and dismissing her from her position as a teacher with the Lee County School District. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2014.
The Issue This case concerns the charges made by the Petitioner, City of Clearwater, Florida, against its employee Cleven Wyatt, Respondent, which lead to his termination and dismissal as an employee of that municipality. In particular, through charge one, the Respondent has been accused of violating Rule 14, Section 1(e) of the Civil Service Rules of Clearwater, Florida, by being offensive in his conduct toward a fellow employee. Through charge two, the Respondent is accused of committing a level five offense, within the meaning of the Guidelines for Disciplinary Action, City of Clearwater, Florida, in that he had an unauthorized possession of a knife on City property.
Findings Of Fact The Petitioner in this action is a City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community. Among its powers is the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831 pursuant to Chapter 21153, Special Laws of Florida, 1941. This Ordinance deals with the Career Civil Service System for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. In this instance, the Respondent, Cleven Wyatt, has been charged and dismissed from his employment within the Career Civil Service System of the City of Clearwater under the alleged authority set out in the Issues statement of this Recommended Order, pertaining to charges one and two. In association with charge one, it has further been specified that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt, during a verbal exchange between himself and Billy Harbuck, heavy equipment operator, struck Harbuck in the face with his hands and thereafter pulled a knife and threatened Harbuck physically with the knife by using the words, 'I will cut you.'" Further, the specification to charge two states that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt pulled a knife and threatened Mr. Harbuck physically by using the words, 'I will cut you.'" Having been charged with these violations and in keeping with the remedy afforded, the Respondent, pursuant to Ordinance No. 1831, Section 2-38, of the City of Clearwater, Florida, he elected to have a Hearing Officer conduct a formal hearing to determine the accuracy of those charges placed against him. In turn, the City of Clearwater forwarded the case to the Division of Administrative Hearings for consideration. This arrangement was concluded pursuant to the contract between the Division of Administrative Hearings and the City of Clearwater, to provide a Hearing Officer for proceedings of this type. See Subsection 120.65(6), Florida Statutes. On December 15, 1980, the hearing was conducted. The facts in this case reveal that on the morning of September 25, 1980, the Respondent brought his sanitation truck to the transfer station to dump the contents of that vehicle. When he arrived at the transfer station he was approached by another employee, Billy Harbuck, who stepped up to the truck and began a conversation with Wyatt, in which he accused Wyatt of stealing watermelons that were planted in the area of the transfer station. Wyatt then got out of his truck and continued to engage in this conversation which became heated and in the course of the exchange, Wyatt accused Harbuck of "making love" with Harbuck's girlfriend while in the "break-room" of the transfer station. In addition to the verbal intensity of this dispute, there had been finger pointing by both parties and when Wyatt made his remark about Harbuck's alleged amorous adventures, Harbuck struck Wyatt on the shoulder and Wyatt in turn slapped Harbuck in the face. (It was not proven that Wyatt stole the watermelons. The facts did establish that Wyatt's claim related to Harbuck's social life with his girlfriend was a false claim, in that his visit with his companion did net involve sexual intercourse.) Following the physical encounter, the combatants armed themselves. The sequence of their arming was the subject of testimony in this cause in which there was extreme diversity of opinion among the several witnesses who gave testimony. Having reviewed that testimony at length with a view toward the interest in this case held by those witnesses and in particular the combatants and the resulting effect this has had on their creditability, it is unclear which individual armed himself first. However, it is certain that shortly after the blows were struck, Harbuck grabbed a metal stool from the ground. The stool was approximately three feet high and ten inches in diameter. It was also shown that Wyatt took a knife from his pocket and opened it and brandished the knife in the direction of Harbuck. At the time the Respondent and Harbuck took up their weapons, another employee, James Cheatum, stepped between them and grabbed the stool which Harbuck held in his hands and pushed Wyatt away from the affray. When he looked from Harbuck to the direction of Wyatt, he saw the knife in Wyatt's hand. Harbuck being unable to further pursue this circumstance by using the stool, he then grabbed a shovel which was in his vicinity, but was again unable to take further action because he was restrained by Cheatum and a second employee, Grover Wilson. At the time that Harbuck was attempting to pick up the shovel, Respondent still had his knife drawn. Both of the combatants expressed malice through their demeanor at the point where they were armed with the knife, stool and shovel, and both combatants were in fear of their opponent at that juncture. Neither individual attempted to strike the other individual with a weapon. Furthermore, the knife which the Respondent had possession was not a knife which he carried with him as a matter of course. It was a knife given to him by an employee of the City of Clearwater to make repairs on the Respondent's sanitation truck. After that aspect of the circumstance involving the shovel had occurred, the fight ended and at the insistence of the supervisor at the transfer station, the Respondent departed the area. He was later charged with the alleged acts of misconduct.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue Whether cause exists to terminate Respondent’s employment.
Findings Of Fact Stipulated Facts Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of the PCSO and is responsible for providing law enforcement and corrections services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline in accordance with the Civil Service Act, upon PCSO members/employees who are found to have violated rules or regulations of the PCSO. During all times pertinent to this case, Respondent was employed by the PCSO as a Deputy Sheriff, and had been so for the preceding nine years. As a Deputy Sheriff, Respondent is charged with the responsibility of complying with all applicable state laws and PCSO rules, regulations, general orders, and standard operating procedures. Respondent is familiar with the rules, regulations, general orders, and standard operating procedures of the PCSO. Respondent has been employed by the PCSO for approximately nine years, and has worked exclusively in the bureau of arrestee/prisoner (inmate) corrections and detention, where his primary responsibility is to ensure the care, custody, and control of inmates. Sergeant Bronson Taylor is assigned to the PCSO Administrative Investigations Division. Sergeant Kimon Koungras is assigned to the PCSO Administrative Investigations Division. Sergeants Taylor and Koungras investigated a complaint of misconduct that was filed against Respondent on or about December 16, 2019. The complaint of misconduct alleged that on December 10, 2019, Respondent violated General Order 3-01.1, Rule and Regulation 5.4, Duties and Responsibilities. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that he and an inmate accidentally bumped into each other during the distribution of commissary. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that he pulled out the 911 tool – which is a knife – from his tool belt, walked up to the inmate, and spoke to him. In his sworn statement given during the investigation and in appearing before the Administrative Review Board, Respondent admitted that doing so was “a bad decision.” Respondent told the Administrative Review Board that he made a “poor decision bringing out the 911 tool as we had that interaction.” In his sworn statement given during the investigation, Respondent admitted that his conduct on December 10, 2019, violated rule 5.4. Pursuant to PCSO General Orders, the Administrative Review Board met, reviewed the disciplinary file, questioned Respondent, gave Respondent an opportunity to make a statement, and determined that based on the preponderance of the evidence, Respondent had violated the Sheriff’s rules. The Administrative Review Board sustained the violation of rule 5.4. Pursuant to Petitioner’s progressive discipline policy, the Sheriff is solely responsible for all disciplinary decisions. The determination of disciplinary action is reserved exclusively to the Sheriff. In reviewing evidence from the Administrative Investigation and the findings of the Administrative Review Board, the Sheriff sustained the rule 5.4 charge. PCSO General Order 10-2 covers discipline and ranks certain offenses. PCSO General Order 10-2 ranks offenses from Level 1 to Level 5. Level 1 offenses are the least severe; Level 5 offenses are the most severe. A violation of rule 5.4 is a Level 5 violation. The General Orders set 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 sustained violation found in Respondent’s case is 50. Under PCSO General Order 10-2, the range of discipline for a 50 point violation is a minimum five-day suspension through termination of employment. As a result of the findings of the Administrative Review Board, the Sheriff imposed discipline on Respondent. Specifically, the Sheriff terminated Respondent from his employment with PCSO. Additional Findings of Fact Paragraph 12 of the stipulated facts set forth herein, is further illuminated by the video evidence showing Respondent’s interaction with the inmate in question. The video shows that Respondent, while positioned with his back to the inmate, was having a moment of levity with a co-worker when the inmate, while walking past Respondent, appears to inadvertently make contact with Respondent’s left hand. Upon being touched by the inmate, Respondent’s demeanor instantly changes from laughing and mirthful, to authoritarian and confrontational. The video of Respondent’s interaction with the inmate does not contain audio. However, the video shows that words were exchanged between Respondent and the inmate. The video also shows that within seconds of speaking to the inmate, Respondent removed his 911 tool from his belt holster with his left hand, and then placed the tool in his right hand where he flicked his wrist so as to cause the 911 tool to snap to the fully open position. Respondent then walked towards the inmate and gestured with the 911 tool towards the inmate’s upper torso. Respondent then retracted the bladed portion of the 911 tool, smiled briefly in the direction of the inmate, and then stepped away from the inmate while re-holstering the 911 tool. The 911 tool used by Respondent is a single-edged knife, and is capable of causing bodily injury. Neither the inmate that Respondent threatened with the 911 tool, nor other witnesses to the incident, testified during the final hearing. Petitioner did, however, offer into evidence the sworn statements of the inmate and witnesses to the incident that were prepared as part of the internal investigation conducted by the PCSO. In the context of this proceeding, these hearsay statements have little, if any, evidentiary value for reasons including factual inconsistencies contained in the statements, and the inability of the fact-finder to meaningfully evaluate the credibility of the witnesses.
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, Roy Harper, violated General Order 3-01.1, rule 5.4, and terminating his employment. DONE AND ENTERED this 19th day of August, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of August, 2020. COPIES FURNISHED: Paul Grant Rozelle, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 (eServed) Kyle J. Lee, Esquire 1971 West Lumsden Road, Suite 303 Brandon, Florida 33511 (eServed) Jewel White, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 (eServed) Shannon K. Lockheart, General Counsel Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 (eServed)
Findings Of Fact Respondent is a registered residential and Class A pool contractor having been issued licenses numbered RR 0035167 and RP 0024335. Respondent's address if Route A, Box 19A, Punta Gorda, Florida 33950. In 1980, Respondent contracted to and built a pool for Mr. and Mrs. George Ring of Punta Gorda, Florida. Mr. Robert Berg, the chief building official for the City of Punta Gorda, informed Respondent by letter dated November 13, 1981, that there were code compliance deficiencies in the stem wall constructed by Respondent on the Ring job. On April 16, 1982, the City of Punta Gorda Code Enforcement Board issued an official order, signed by its chairman, directing Respondent to begin remedial work on the stem wall within 15 days. The order further provided that a fine of $25 per day would be imposed for each day past the fifteenth day that work was not started. Respondent assumed that the 15 days began running when he received the order on April 20, 1982, rather than the April 16 order date. He attempted to begin work on May 2, but was unable to do so as the homeowners were then on vacation. Respondent thereafter completed the repairs and, on July 14, 1982, produced an engineer's letter stating that he had inspected the remedial work on the stem wall and found it complied with the building code. The chief building official accepted the engineer's determination and recommended that Respondent's fine be terminated as of July 14, 1982, with an accrued penalty of $1,875.00. These recommendations were later accepted by the Punta Gorda Code Enforcement Board. Respondent contends the fine was miscalculated and that he could not have started work within 15 days of receiving the April 16 order since the homeowners were not present. However, the start work directive and the fine provisions of the April 16 order followed two previous orders citing Respondent for noncompliance in this project. See Petitioner's Exhibit 11 (Board order dated February 12, 1982) and Petitioner's Exhibit 13 (Board order dated march 10, 1982). Thus, the fine ordered on April 16 was resorted to by the local board only after other efforts to obtain Respondent's compliance had failed.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner issue a Final Order suspending Respondent's contractor's licenses until he furnishes evidence that he has obtained release or has paid the local board fine. DONE AND RECOMMENDED this 12th day of April, 1984 in Tallahassee, Florida. R. T. CARPENTER 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 12th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 John Polk, Esquire First National Bank Building Suite 306 Punta Gorda, Florida 33950 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Department of Professional Regulation, Board of Psychological Examiners initiated an Administrative Complaint in Department of Professional Regulation Case No. 81809, DOAH Case No. 89-0599, against Petitioner, Frank A. Brown, Ph.D., on January 13, 1989. Petitioner is the owner and proprietor of a professional service business engaged in the practice of psychology. At the time of the filing of the Administrative Complaint, Petitioner's business employed less than twenty- five (25) full-time employees and had a net worth under two million dollars. Additionally, Petitioner's residence, business domicile, and principal office were located in Florida, and have been so located since 1976. The Administrative Complaint alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology, that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, and that Petitioner was unable to practice the profession for which he is licensed under Chapter 490, Florida Statutes, with reasonable skill or competence as a result of impairment due to a mental or physical condition or by reason of illness, drunkenness, or excessive use of drugs, narcotics, chemicals or any other substance, pursuant to Florida Statutes, 1981-1987. On August 24, 1989, an Amended Administrative Complaint was filed alleging the same violations pursuant to Florida Statutes, 1981-1986. Petitioner disputed these allegations and requested a formal administrative hearing. Prior to hearing in the underlying proceeding, DOAH Case Number 89- 0599, Petitioner moved for dismissal of the Amended Administrative Complaint. Petitioner's motion was denied by the Hearing Officer. A formal hearing was held in this matter on September 12-13, 1989. At the hearing and after presentation of a portion of the testimony, the Department voluntarily dismissed its allegation of sexual misconduct in the practice of psychology. The hearing proceeded on the remaining two charges in the Amended Administrative Complaint. After the close of the evidence and submission of Proposed Recommended Orders by both parties, the Hearing Officer, on May 14, 1990, filed a Recommended Order recommending dismissal of the Amended Administrative Complaint against the Petitioner. On July 2, 1990, the Department of Professional Regulation, Board of Psychological Examiners, filed a Final Order adopting the Recommended Order and dismissed the case consistent with the Hearing Officer's Recommended Order. Therefore, Petitioner became the prevailing party in the underlying action. The allegations against Petitioner contained in the Administrative Complaint resulted from a complaint received in 1987 from R.B. and D.B. concerning the care and treatment R.B. received from Petitioner in his capacity as a psychologist which centered on the illicit 7-year love affair between R.B. & Petitioner. It was the turmoil caused by the discovery of this affair by D.B., R.B.'s husband, that caused Petitioner, in April, 1987, to be examined and treated at CPC Parkwood Hospital in Atlanta, Georgia by Psychiatrist Warren A. Hinson, M.D. The Petitioner was advised of the complaint made by R.B. and D.B. around April 14, 1987. Petitioner responded through his attorney on at least two separate occasions with factual and legal arguments regarding the complaint lodged by R.B. and D.B. On November 9, 1987, a Probable Cause Panel of the Board of Psychological Examiners met to review the investigative report and responses from Petitioner. The investigative report consisted of several statements from R.B. and D.B., the responses from Petitioner, an interview with a Dr. Trotter, who had rendered psychological services to both R.B. and Petitioner, together and separately, and various documentary evidence. The investigative report was submitted to the Probable Cause Panel of the Board of Psychological Examiners by the Chief Attorney for Allied Health Services of the Department of Professional Regulation under cover of a memorandum dated October 27, 1987. The memorandum states that the case was being submitted without a recommendation for an administrative complaint or closing order in Petitioner's case. The memorandum states: The attached case is being submitted without a recommended A/C or C/O. There are legal problems with charging sexual misconduct, although a strong argument could be made to support a finding that the subject failed to meet minimum standards of professional per- formance. Another issue, is the subject's fitness to practice by reason of emotional problems. Dr. Brown's attorney has suggested that the probable cause decision be deferred to allow Petitioner to enroll in the Impaired Practitioner's Program. Although there is no statutory provision for a psychologist to participate in the IPP, I see no reason why if couldn't be accomplished (by mutual agreement). The Chief Attorney realized that there was a problem with the allegations against Dr. Brown, in light of the retroactive application of a recent rule of the Board of Psychological Examiners defining the psychologist/client relationship as continuing in perpetuity for purposes of sexual misconduct allegations and in light of the fact that Dr. Brown's conduct could be construed to have occurred after the termination of the professional relationship between Petitioner and R.B. The legal problem created by the fact that Dr. Brown's conduct could be construed to have occurred during a time when the practice of psychology was not regulated did not occur to the Chief Attorney at the time of the 1987 meeting. However, as indicated by both the memorandum and transcript of the comments made at the probable cause meeting there were legal arguments which could be legitimately made which might overcome the problems with this case. 1/ These arguments also could be applied to the legal problem caused by the absence of a statute regulating the practice of psychology. The Probable Cause Panel, in the course of their review, considered the suggestion from Petitioner that a determination of probable cause be deferred pending the entry of the Petitioner into a program for impaired practitioners similar to the Impaired Practitioners Program utilized by other professions regulated by DPR. At that meeting, the Probable Cause Panel of the Board of Psychological Examiners, after reviewing the investigative report and attachments, believed there was sufficient evidence to find probable cause. However, in light of the problems with this case and Petitioner's request to attempt to enter an impaired practitioners program (IPP), the Probable Cause Panel agreed to defer a finding of probable cause on condition that Petitioner develop and present to the Probable Cause Panel a comprehensive treatment and practice plan and possibly undergo a psychological/psychiatric evaluation. Around November 10, 1987, the Chief Attorney for the Department of Professional Regulation, Allied Health Services, notified the Petitioner that the Probable Cause Panel of the Board of Psychology voted to "defer the probable cause decision", and requested that Petitioner initiate action to be accepted into an IPP and further, that Petitioner provide a comprehensive practice and treatment plan for the Probable Cause Panel's consideration at its next meeting. The Chief Attorney also requested that Petitioner's attorney contact the Department when he had the requested documentation prepared. Importantly, neither the transcript nor the letter from the Department's Chief Attorney indicates what the Board or the Probable Cause Panel might do after the deferral period. At best, from a reading of the transcript, it appears that the Panel intended to leave its options open as to whether the Panel might later find probable cause even if Petitioner complied with the Panel's instructions. Clearly, both attorney's involved in the matter hoped the case would be settled. However, such attorney's hopes do not translate into a Board or Panel promise or settlement agreement to forgo action against Petitioner should he comply with the Panel's instructions. Given the transcript of the probable cause panels meeting, deferring a decision cannot be translated into an agreement to not take any action by the Panel. 2/ In any event, the Petitioner initiated action to enroll in an IPP. Around January 1988, Dr. Goetz, Director of the Physician Recovery Network accepted Petitioner into the IPP program. Dr. Brown began participation in the Impaired Practitioners' Program by undergoing a five day inpatient evaluation in Atlanta. There was no judgment reached from this five day review that Petitioner was either incompetent or that he could not return to practice. Since there was no actual impairment of Dr. Brown, he returned to Pensacola to continue quarterly evaluations by psychiatrist Lawrence E. Mobley, M.D., and Pat O'Connell, M.D., and psychotherapy supervision with psychologist Jack Keller, Ph.D. The Department received several generalized reports of Petitioner's status and progress with the IPP program. The reports were dated July 29, August 18, August 16, November 10, and December 1, 1988. The Department also received at least two status reports from Petitioner's attorney. Around October 6, 1988, the Petitioner's attorney requested from the IPP program the information necessary to develop a comprehensive practice and treatment plan as requested by the November, 1987, Probable Cause Panel. The Respondent was never provided a comprehensive treatment and practice plan which was satisfactory to it. However, the Petitioner did make attempts to comply with this requirement. 3/ Believing Petitioner had complied with the Board's instructions, sometime around October 6, 1988, Petitioner's attorney informed the Department the Petitioner was established with an IPP program and that the matter was now ready for the Board's consideration. On December 4, 1988, the Probable Cause Panel reviewed the investigative report which included, in part, the diagnosis and report of Dr. Hinson relating to the Petitioner and his hospitalization at CPC Parkwood, in Atlanta, Georgia; the Petitioner's responses and arguments as presented by his attorney's correspondence with DPR; the Petitioner's letter to R.B., returning professional fees previously collected during treatment; the August 5, November 10, and December 1, 1988, reports from the IPP program regarding Petitioner; the opinions of Patrick Cook, Ph.D., and Deborah Frank, R.N. Ph.D., L.M.F.T.; the interviews of R.B. and D.B.; additional sworn statements of R.B. and D.B., and various documentary evidence associated with the underlying case. Neither Dr. Brown nor his attorney were permitted to attend this Probable Cause Panel's meeting. On the same date, the Probable Cause Panel after reviewing the investigative report, discussing the allegations, and consulting with legal counsel for the Board, Mr. Allen Grossman, Assistant Attorney General, by unanimous vote determined the existence of probable cause and directed the issuance of an Administrative Complaint as outlined in paragraph 3 above. At the time a finding of probable cause was made by the Board, at least two factual issues were considered by the Probable Cause Panel. Those issues were whether the Petitioner built his intimate relationship with R.B. upon an existing professional relationship interrelated with whether there had been a termination of that professional relationship and whether Petitioner's romantic involvement with R.B. occurred during a time when the practice of psychology was a regulated profession. The Probable Cause Panel relied upon the interviews of R.B. and her additional sworn statements regarding her romantic and professional relationship with the Petitioner. These statements as well as other evidence in the investigative file supported a finding of probable cause of sexual misconduct with a patient. Additionally, the Probable Cause Panel reasonably relied upon the statements of R.B. and D.B. and Petitioner's responses to DPR, regarding his relationship with R.B. and her family in finding probable cause of practicing below the prevailing standard for practice. On both these issues, the relevant time periods involved in this case were unclear from the information the Probable Cause Panel had before it. However, there was enough evidence in the investigative file for the Board to reasonably conclude that Petitioner had engaged in actions which would subject him to discipline during a time when the practice of psychology was regulated or cause his later behavior to relate back to a time when the practice of psychology was regulated. Additionally, as noted with the 1987 Probable Cause Panel, there were legitimate legal arguments which could be made in an attempt to overcome the problems due to a lack of rules or statutes incurred in the underlying action. Therefore, given the fact that the Board had a reasonable basis in law and fact to find probable cause against Petitioner for violation of Chapter 490, Florida Statutes, Petitioner is not entitled to an award of attorney's fees. The Probable Cause Panel also, considered the issue of Petitioner's mental health vis a vis Petitioner's ability to safely practice psychology. This latter issue and the resultant charge in the Administrative Complaint appears to be a "throw in" charge for which the Panel had no reasonable legal or factual basis to find probable cause. However, the issue of Petitioner's mental health was never seriously prosecuted by the Department and did not play a significant role in the litigation or the fees expended in the litigation. Additionally, the evidence did not demonstrate what portion of the Petitioner's attorney's fees and costs could be attributed to this single issue. Therefore, Petitioner is not entitled to an apportionment of attorney's fees and costs based on this issue.
The Issue The issue is whether Petitioner had just cause to discipline Respondent and; if so, what discipline should be imposed for Respondent’s actions.
Findings Of Fact Parties Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Lake County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was a physical education (“PE”) instructor at Clermont Middle School. During the 2016-2017 school year, Mr. McCallion was assigned to instruct five classes with 40 students in each class, for a total of 200 students. As a PE instructor Mr. McCallion maintains records for students, including students in the Exceptional Student Education (“ESE”) program. The student files contain confidential information, including student 504 plans, Individual Education Plans (“IEPs”), student grades, teacher comments regarding students, social security numbers, and personal health information. Mr. McCallion maintained the student records in five binders and stored them on a cart so he could easily transport the records between his office and the class meeting location. When class was not in session, the records were stored in Mr. McCallion’s office. In addition to student files, Mr. McCallion stored his school-assigned lap top; his personal effects, including his wallet and car keys; and money collected from students for school-related activities in his office. Office/Security of Records In accordance with the Collective Bargaining Agreement, Mr. McCallion was assigned an office located in the boys’ locker room. He did not share his office with any other school employee. However, there were reportedly 20 keys issued to individuals that could be used for Mr. McCallion’s office. Mr. McCallion shared with the school principal, Mr. McCue, his concern about the number of keys to his office. School Board Policy 5.70 states that “rules and procedures for maintaining student records shall be consistent with Florida Statutes, State Board of Education rules, and “Federal Education Rights and Privacy Act” (“FERPA”) and “Privacy Rights of Parents and Students.” Rule 6A-1.0955 requires that student records used or maintained by a public institution or agency be protected in accordance with FERPA. Further, this rule requires that the confidentiality of the student records be maintained from unauthorized or unintentional access and that the school principal or designee is responsible for those records at the school level. Mr. McCue acknowledged that the security of student records is important and that it was Mr. McCallion’s responsibility to secure the records. Mr. McCallion did not have a locked file cabinet in his office. The testimony at hearing revealed that there was a room within Mr. McCallion’s office that could be used to store files. However, that room did not have a lock. While Mr. McCue stated there were other alternatives within Mr. McCallion’s office that could be used to store files, all other options known to Mr. McCallion would not provide the same security as a locked office. Events Giving Rise to This Proceeding On February 9, 2017, Mr. McCallion was scheduled to work the usual school day followed by car duty until 4:15 p.m. On the same evening, two basketball games were scheduled to take place in the school gym, beginning with the boys’ game at 5:30 p.m. After car duty, at approximately 5:15 p.m., Mr. McCallion returned to his office and discovered a male referee changing clothes in his office. Mr. McCallion had not given the referee permission to use his office and had no knowledge who gave him permission. Although each room at Clermont Middle School could be rented through a rental agreement, Mr. McCue confirmed at hearing that the referees did not have an agreement to use Mr. McCallion’s office. The undersigned finds that the security of the student records was compromised when an unauthorized person had access to them. Mr. McCallion went to the gym and spoke with the athletic director, Coach Seabrook. Mr. McCallion expressed his “concern” about the referee using his office without his prior knowledge. According to Mr. McCallion, Coach Seabrook advised him that she allowed the referee to use his office because she did not know where to put him. Concerned, in part, for the safety of the student records, Mr. McCallion decided to replace the lock on his office door. He purchased a lock from the local Lowe’s home improvement store, removed the School Board-owned lock, and replaced that lock with the lock he purchased at Lowe’s. The boys’ game had ended when Mr. McCallion finished changing the lock, so he placed the referee’s personal items on a bench within the locked locker room. The referee’s personal items were secure because all persons with access to the locker room after the game ended were school personnel. Mr. McCallion did not have permission from Mr. McCue or any administrator to replace the lock on his office door. Approximately five days later, he told Mr. McCue about the lock change. Unbeknownst to Mr. McCallion, at some point after the boys’ game started on February 9, 2017, Mr. McCue arrived at the game. The athletic director approached him and told him that Mr. McCallion had a conversation with her about using his office for the referees to change. However, Mr. McCue and Mr. McCallion did not see each other at the game. After the game, Mr. McCue went to let the referee into Mr. McCallion’s office to retrieve his personal items. He walked through the locked boys’ locker room to get there. Mr. McCue’s key did not work on the office door. He asked the athletic director and her key did not work either. Then, Mr. McCue asked the custodian to try his key without success. It was about this time that Mr. McCue noticed that the referee’s personal items were on a bench in the locker room and they had walked past them. Mr. McCue also noticed that the door handle/lock to Mr. McCallion’s office had been replaced with an unauthorized lock. School Board policy requires that only authorized district personnel may change locks on school board property. Prior Discipline Prior to the February 2017 incident, Mr. McCallion had prior discipline which arose from an incident involving damage to school property (a door lock). During the 2013-2014 school year, Mr. McCallion chaperoned a school field trip. He returned from the field trip after 6:30 p.m. and discovered that the locks to the gym had been changed. Mr. McCallion was unable to access his office to retrieve his personal items. Then, he used a pocket knife to gain access to the gym, which caused damage to the gym door handle. Due to Mr. McCallion’s actions, he was issued a Level II written reprimand on April 15, 2014. After the incident, Mr. McCue discussed the circumstances with the employee relations office. They discussed the School Board’s policy on progressive discipline. Petitioner has adopted, as policy, section 6.361 of the School Board of Lake County, an Employee Discipline Plan. The Employee Discipline Plan includes a Progressive Discipline Method by which sanctions are graduated based on the severity of the occurrence, and on whether it has recurred. The purpose of the policy is to let employees know the nature of the violation and provide an opportunity to correct the behavior. Each subsequent offense calls for the next step in discipline. On February 15, 2017, Respondent discussed the incident with Mr. McCue. On February 27, 2017, Mr. McCue issued a letter notifying Respondent that he would recommend to the Superintendent that Mr. McCallion be suspended without pay for one day for his actions. Mr. McCallion’s complete employee file was not presented at the hearing. However, the performance evaluation documents that were entered into evidence show that he was an employee of the School Board for at least the past 12 years and had received satisfactory evaluations in the area of classroom instruction and supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lake County School Board, enter a final order: dismissing the allegations in the notice of recommendation of suspension that Respondent failed to appropriately communicate with colleagues and administrators; finding that Patrick McCallion engaged in misconduct by removing the lock on his office door without authorization and replacing it with an unauthorized lock; and finding that Lake County School Board had just cause to discipline Patrick McCallion with a one-day suspension without pay for misconduct in office. DONE AND ENTERED this 6th day of October, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 October, 2017. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin and Burnsed 1000 West Main Street Post Office Box 491357 Leesburg, Florida 34749-1357 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Ronald G. Stowers, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Diane S. Kornegay, M.Ed. Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
