The Issue The issue in this case is whether Respondent, the Department of Environmental Protection, violated the Florida Civil Rights Act of 1992 as alleged in a Petition for Relief filed by Petitioner, Edwin R. Bollinger, with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Edwin R. Bollinger, is a Caucasian male, born March 18, 1936. At the time of the alleged unlawful employment practice at issue in this case, Mr. Bollinger was 58 to 59 years of age. Mr. Bollinger was employed by the State of Florida from at least 1982 until his termination in May 1995. At all times relevant to this matter, Mr. Bollinger was employed by Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), or, prior to its absorption into the Department, the Department of Natural Resources. Prior to July 1994 Mr. Bollinger served as a park officer in the Florida Park Service of the Department. Mr. Bollinger was stationed at Bill Baggs Cape Florida State Recreation Area located in Dade County, Florida. Two other park officers were working with Mr. Bollinger in July 1994: Antonio Sanchez and Kathy Martinez. Effective July 1, 1994, all Florida Park Service officers were reclassified as law enforcement officers and were transferred to the Department's Division of Law Enforcement (hereinafter referred to as the "Division"). The position of park officer was abolished. Colonel Mickey Watson was the Director of the Division at all times relevant to this matter. Captain Carl Nielsen, Mr. Bollinger's immediate supervisor, met with Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on July 1, 1994, to swear them in as law enforcement officers within the Division. Captain Nielsen explained the nature of the new positions to the three officers, gave them a copy of the position description for the positions, and gave them new manuals. In particular, Captain Nielsen explained that the new positions would require the enforcement of the laws and rules that governed the parks on a full-time basis and the devotion of their efforts to full-time law enforcement. On February 3, 1995, Captain Nielsen placed Mr. Bollinger, Ms. Martinez, and Mr. Sanchez on performance improvement plans (hereinafter referred to as "PIPs") because of deficiencies in their performance since their reclassification. Ms. Martinez and Mr. Sanchez successfully completed their PIPs. On May 10, 1995, Mr. Bollinger was dismissed from his position with the Department for failure to perform his duties satisfactorily. The dismissal was recommended by Captain Nielsen and approved by Colonel Watson. Mr. Bollinger was 59 years of age at the time of his dismissal. Colonel Watson, Captain Nielsen, and Mr. Sanchez were in excess of 40 years of age at the time of Mr. Bollinger's dismissal. Ms. Martinez was less than 40 years of age at the time of Mr. Bollinger's dismissal. Mr. Bollinger challenged his dismissal before the Public Employees Relations Commission (hereinafter referred to as "PERC"). On June 22 and 23, 1995, and July 5, 1995, a hearing was conducted by a PERC Hearing Officer. A Recommended Order was entered on August 2, 1995, finding that just cause existed for Mr. Bollinger's dismissal. The Recommended Order included the following conclusion: In conclusion, the Agency has proven by a preponderance of the evidence that Bollinger did not meet his performance standards, after he was informed of the deficiencies, given assistance in improving the deficiencies, and had an amply opportunity to improve his deficiencies. See Croce v. Department of Corrections, 3 FCSR 239 (1988), affirmed, 553 So.2d 1181 (Fla. 4th DCA 1989)(unsatisfactory performance on one or few job duties which are critical factors for the effective functioning of an agency can support discipline for unsatisfactory performance). Thus, Bollinger's unsatisfactory performance of his duties supports just cause for discipline. Page 19, Respondent's Exhibit 1. The Recommended Order was subsequently adopted by PERC by Final Order entered on or about January 23, 1996. The evidence failed to prove that Mr. Bollinger's age played any role in his dismissal by the Department. In June of 1990 Mr. Bollinger underwent extensive surgery on his right shoulder, chest, and neck due to squamous cell carcinoma right parotid gland. Mr. Bollinger returned to work on November 12, 1990. Although the following description of the results of Mr. Bollinger's initial and subsequent surgery was written after Mr. Bollinger's termination from employment with the Department, it adequately describes his condition during the times relevant to this proceeding: This produced a deformity of the chest wall as well as more deformity of the supraclavicular area of the right side of his neck as well as a large scar in that area. The surgery included dissection of the facial nerve which was not completely successful because of the entanglement of the tumor around the nerve. [Mr. Bollinger] was left with a facial nerve palsy. He also complains of some loss of hearing, loss of motion of the shoulder and loss of motion of his neck. Petitioner's Exhibit 11. After returning to work after his surgery, Mr. Bollinger informed his immediate supervisor that he could perform his responsibilities without limitation but requested that he be permitted time to switch his firearm qualification from his right hand to his left hand. He also made informal requests for reduced beach patrol, foot patrol, and water patrol so that he could minimize his exposure to the sun. The evidence failed to prove that these informal requests were not granted. Mr. Bollinger did not inform Captain Nielsen that his physical condition would in any way prevent him from satisfying the PIP imposed on him by Captain Nielsen prior to his dismissal. Mr. Bollinger also did not make any request to the Department for any accommodation for his physical condition other than noted, supra. Despite the consequences of the surgery performed on Mr. Bollinger, he continued to carry out his duties with the Department from 1990 to 1994 when he was discharged for reasons unrelated to his medical condition. The evidence failed to prove that Mr. Bollinger's disability played any role in his dismissal by the Department. The evidence failed to prove that the Department's actions were a pretext for discrimination based upon Mr. Bollinger's age or disability. There was no evidence that the Department's dismissal of Mr. Bollinger was grounded on discriminatory animus or that discriminatory reason motivated the Department in its actions toward Mr. Bollinger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding that Edwin R. Bollinger failed to prove that the Department of Environmental Protection committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes (1995), and dismissing, with prejudice, Mr. Bollinger's Petition for Relief. DONE AND ENTERED this 15 day of June, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 June, 2000. COPIES FURNISHED: Edwin R. Bollinger 6372 Alderwood Plaza Woodbury, Minnesota 55125 Marshall G. Wiseheart, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white male. Petitioner was employed by Respondent from 1988 to April 2008. He initially worked as a dump truck driver. He was promoted to park ranger in 1993. Petitioner worked as a park ranger at the Coldwater Horse Stable (Coldwater) from 1999 to January 2006. His job duties included maintaining the facilities at the park, collecting park fees, and interacting with the people using the park. Petitioner utilized prison inmates as laborers to build fences and perform other maintenance work at the park. He was the only park ranger at Coldwater certified to supervise inmates at the time. On November 28, 2005, Petitioner was given a Memorandum of Supervision (MOS) by his supervisor for "sleeping on the job, including times when prison inmates were assigned to [his] supervision." Petitioner disputed that he was sleeping on the job, even though he testified that he was only getting three hours of sleep at night because he was working two jobs at the time. Petitioner decided to stop supervising inmates around the time that he received the MOS. Inmate supervision was voluntary for park rangers at the time. Ben Wolcott, the administrator responsible for operations at Coldwater and several other parks, was not happy with Petitioner's decision not to supervise inmates because he felt that it would reduce the amount of work that would get done at the park. Petitioner testified that there were female park rangers at Coldwater who could have supervised inmates, but that Mr. Wolcott would not allow it. However, as Petitioner acknowledged in his testimony, park rangers were not required to supervise inmates, and Petitioner was the only park ranger at Coldwater certified to supervise inmates at the time. In January 2006, Petitioner was reassigned to Krul Recreation Area (Krul), and the park ranger at Krul was reassigned to Coldwater because he was willing to supervise inmates. Petitioner's job duties and salary were not affected by this reassignment. Krul and Coldwater are both located within the Blackwater River State Forest, but according to Petitioner, Krul was approximately 14 miles farther away from his home than was Coldwater. Petitioner did not file a grievance or any other type of formal complaint regarding his reassignment to Krul or the preferential treatment allegedly given to female park rangers with respect to inmate supervision until February 2008,1 when he filed his complaint with FCHR. On November 30, 2007, Petitioner received a MOS because he was observed by Mr. Wolcott studying for his boat captain's exam while he was on duty, even though according to Mr. Wolcott, there was "plenty of work to do" in the park at the time. Petitioner did not dispute that he was studying for his boat captain's exam while he was on duty, but he claimed that there was no work for him to do at the time because it was raining. However, Mr. Wolcott credibly testified that it had not been raining for at least 30 minutes prior to the time that he observed Petitioner studying. Petitioner received "very good" performance evaluations in 2006 and 2007. His 2008 evaluation was lower, but it still reflected that Petitioner was "consistently meeting expectations." Petitioner quit his job as a park ranger effective April 21, 2008. He started working as a boat captain trainee for Cal Dive International the following day. Petitioner is earning approximately $56,000 per year as a boat captain trainee, which is $30,000 more than he was making as a park ranger. There is no credible evidence that the November 2007 MOS was related in any way to the November 2005 MOS or to Petitioner's decision to not supervise inmates. Respondent's personnel director, Elaine Cooper, credibly testified that a MOS is considered counseling, not disciplinary action. Consistent with this testimony, Respondent's Disciplinary Policy and Employee Standard of Conduct explains that a MOS is to be used to document "[m]inor violations that do not warrant disciplinary action."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 30th day of December, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, 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 30th day of December, 2008.
Findings Of Fact Petitioner, T L Consultants, Inc., is a corporation which manages health care facilities. Vettraino Associates Investment Company owns 90 percent of T L Consultants and Grace LaRocca owns the other 10 percent. Vettraino Associates Investment Company is owned in trust by the children of Henry Vettraino, Sr., who set up the trust. Louis Vettraino, son of Henry Vettraino, Sr., is one of the individual trustholders of Vettraino Associates Investment Company and acts as president of T L Consultants, Inc. Grace LaRocca acts as vice president of T L Consultants. In 1980, W. S. Samford, Residential Services Director for District 8 of the Department of Health and Rehabilitative Services was overseeing the implementation of the cluster concept to initiate and aid in the development of Intermediate Care Facilities for the Mentally Retarded (ICF/MR's) in his district. At the request of his supervisor, Mr. Samford returned a call from a Mr. Bundschu. Mr. Bundschu, who dealt in real estate and was involved in the construction company of Bundschu, Bundschu, Kraft and Vettraino, knew of the need for ICF/MR's and indicated he had some Michigan investors who were interested in starting up such a facility. Through Mr. Bundschu, Mr. Samford met with Louis Vettraino and Henry Vettraino, Sr., who indicated that they were interested in building and operating an ICF/MR. Subsequently, Louis Vettraino contacted Maurice Reisman concerning ownership of the facility. Mr. Reisman indicated he would be interested in owning such a facility and, together with Grace LaRocca and Louis Vettraino, he met with Mr. Samford to discuss the application for a certificate of need (CON). Prior to applying for a CON or construction of the facility, it was understood by all of the parties that Henry Vettraino's construction company would build the facility and lease it to Maurice Reisman who would contract with T L Consultants for management services. Louis Vettraino was aware from the beginning that a management firm could not own a facility and charge a fee. He acknowledged that the management firm had sought out the owner instead of the owner seeking out a management firm in the open market. Concerned about the propriety of the management structure which was contemplated, Mr. Reisman wrote Mr. Samford in February of 1981 and asked for a determination by HRS as to whether the proposal met the guidelines for reimbursement. In response to his inquiry, Mr. Reisman was notified that the Department of Health and Rehabilitative Services considered the structure to illustrate a "control" situation, subject to reimbursement limitations. In applying for the CON for the facility, Maurice Reisman relied heavily on the financial backing of Henry Vettraino, Sr. Although Mr. Reisman was applying for a CON for a 1.2 million dollar facility (later increased to 2.7 million dollars), he had only $142,000 in assets. To qualify for the CON, the assets of Henry, Sr., and Jennette Vettraino were included in both the original and amended CON applications. In the minutes of the Lee County Industrial Authority monthly meeting dated June 10, 1982, the bond issue for financing the facility is referred to as the "Vettraino bond issue." It was noted in the CON application that T L Consultants would be the management firm. The CON application was not prepared by Mr. Reisman, but by Grace LaRocca as Operations Director. Ms. LaRocca, a principal in T L Consultants, indicated in the CON application that she was on the Board of Directors of Sandy Park Rehabilitation Center, the corporation that Mr. Reisman formed to own the facility. In addition, when application was made for an amended CON, the request for expedited review listed T L Consultants as a Principal Party in the application. While waiting for the new facility to be built, Mr. Reisman and T L Consultants entered into an agreement to temporarily occupy the existing state facility. Concerned about his responsibilities, Mr. Reisman contacted Mr. Samford for clarification of the agreement. Mr. Samford indicated that although it seemed that Mr. Reisman was not in direct "financial interest" and control of the management firm, as holder of the CON, he was responsible for performance in meeting licensure requirements. This was a separate issue from the question of control for reimbursement purposes and was not a change in the Department's position on that issue. Notwithstanding the original opinion of the Department of Health and Rehabilitative Services, Mr. Reisman made application to the Medicaid Cost Reimbursement Unit (Medicaid) for reimbursement of management fees to be charged by T L Consultants. Mr. Reisman reiterated the fact that T L Consultants had contacted him and acknowledged that he had not sought competitive bids for management services. A proposed management agreement was submitted to Medicaid but was rejected because it had no termination clause. When a new management contract was submitted , the management fee had jumped from 7.5 percent to 10 percent without explanation. In submitting proof of Sandy Park's financial ability to Medicaid, a $100,000 line of credit from Lee County Bank was indicated. Investigation into that line of credit revealed that Henry Vettraino, Sr., had co-signed the loan for Maurice Reisman. These facts, along with the fact that Maurice Reisman had never previously owned a nursing home, the fact that T L Consultants had arranged the entire operation, and the facts surrounding the financing and involvement of Henry Vettraino, Sr., resulted in the denial of the management fees by Medicaid.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that management fees over and above the actual costs of services to T L Consultants, Inc. be allowed for reimbursement by Medicaid to Sandy Park Rehabilitation Center. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1984. COPIES FURNISHED: William B. Fitzgerald, Esquire Sandra J. Frank, Esquire Fitzgerald, Hodgman, Kazul, Rutledge, Cawthorne & King 1000 First Federal Building Detroit, Michigan 48226 Theodore E. Mack, Esquire Assistant General Counsel Department of HRS 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301
Findings Of Fact Parties The applicant for permit is Brevard County's Facilities Construction Division (County). The Department of Environmental Protection (DEP), formerly the Department of Environmental Regulation and Department of Natural Resources, is the state agency responsible for reviewing the permit application pursuant to Chapters 373 and 403, F.S. Petitioner, Carolyn Martel (Ms. Martel) owns property adjacent to, and north of the county park. She has owned the property for approximately sixteen years and uses it for a vacation home, with the intent to retire there eventually. The Project On October 26, 1992, the county applied for a permit to construct a public fishing pier and dock at its existing recreational facility, Fisherman's Landing Park, in Grant, Florida, at the south end of Brevard County. Fisherman's Landing Park is located on the Indian River in an area known as the Malabar to Sebastian Aquatic Preserve. The park lies between the river and U.S. Highway No. 1, approximately seven miles north of Sebastian, Florida. The park is approximately 7.9 acres, with approximately 2000 feet frontage along the river. The proposed pier/dock is the second phase of the park construction project, funded in part by the Florida Inland Navigation District (FIND), to provide picnic, restroom and emergency docking access for the boating public already using the intercoastal waterway. The only access for boats is from the waterway. No boat ramp exists, nor is one planned for the area. The project site is in Class II waters, and is subject to Outstanding Florida Waters (OFW) criteria which apply in the aquatic preserve pursuant to rule 17-302.700(9)(i), F.A.C.. The pier/dock was originally planned to be much larger, but was reduced in size to comply with suggestions by various reviewing agencies. As now proposed, construction will connect with an existing boardwalk and will run in a northeasterly direction over the water, approximately 209 feet, with a platform at the end in a "T" configuration, 30 feet by 9 feet. Its total length is 220 feet, tip to tip. Various governmental agencies, including the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the Office of Protected Species Management of the Florida DEP were involved in the review. After requested changes were made, the project was approved, with general and special conditions, in permit no. 05-221736-4. Because this is a public project, a state-owned lands lease was not required. Instead, a letter of consent was issued on October 5, 1993. THE PERMIT CRITERIA The public health, safety, or welfare or property of others The project must, and will, comply with state water quality standards. No work will be performed on shore or underwater except for pile driving and some renovation to meet handicapped accessibility standards. Projects such as this do not typically cause excessive turbidity. Any turbidity during the construction phase will subside within 24-48 hours. The water quality in the area, already degraded for years, will not be further degraded by the project. The temporary mooring access will discourage pollution already being caused by boaters using the waterway and illegally disposing of waste and garbage. This was a primary rationale for the FIND funding for the project. The pier will be fully accessible to wheelchairs and will meet all accessibility requirements of the Americans with Disabilities Act (ADA). The only evidence of criminal activity in the park has been some minor vandalism and graffiti. County park rangers patrol the park several times a day. The marine patrol is in charge of law enforcement from the water, and the sheriff conducts frequent patrols from along U.S. Highway No. 1. Park hours (daylight only) are posted, along with other park regulations. The conservation of fish and wildlife, including endangered or threatened species, or their habitats The project is within the Brevard County manatee protection zone which requires a slow speed for boats. As a condition of the permit, manatee and seagrass informational and educational signs shall be placed on the structure. Manatees use the area for grazing and will continue to do so. The project will not significantly increase boating activity; it is not considered a very desirable boating area. The project is intended to divert boats already on the waterway and illegally picnicking and disposing of waste and garbage elsewhere. If manatees are observed in the area during construction, construction will have to stop until the manatees leave. East of the site and east of the channel in the river is Grant Farm Island, a bird rookery which includes endangered birds. According to the scale on the vicinity map (County exhibit #12), the island is approximately 1/4 mile from the park. According to competent expert testimony, the birds will not be affected by the project. There are seagrasses at the site, as surveyed by county and state environmental staff, and as a condition of the permit, the surveys must continue and reports must be made to the DEP. Restoration of any areas damaged by boats must be provided by the county. However, little damage is anticipated since boats will be confined to the end of the dock, where the water is 5-6 feet deep. The entire dock will be constructed at a minimum level of 5 feet above mean high water to allow sunlight to continue nourishing the grasses. With the conditions placed in the permit, the seagrasses shall be only minimally affected. Navigation and the flow of water; no harmful erosion or shoaling The project will not affect the flow of water nor will it cause erosion or shoaling, according to the only competent evidence offered on this subject. The end of the dock is over 350 feet from the channel of the intercoastal waterway, far enough to avoid any navigational hazards. There will be lights and reflectors to warn boaters. Fishing or recreational values and marine productivity Long-standing pollution, including pollution from septic tanks has caused this area to be restricted or closed to shellfish harvesting since the 1970's. It is not a highly productive area for commercial fishing. Opportunities for recreational fishing and other recreation is substantially enhanced by the project, particularly for handicapped persons. There is very little existing public access to the Indian River in this portion of Brevard County. The nature of the project: temporary or permanent There is no dispute that the project is permanent. Significant historical and archaeological resources The Grant community in Brevard County is an old Florida riverfront community. The Grant historical house located at the site will not be affected, except that enjoyment and access to the house will be enhanced for boaters who temporarily moor at the dock. The old house has a dock that is no longer accessible. The current condition and relative value of functions being performed by areas affected by the proposed area As provided above, the water quality in the area is already degraded, and the project will not contribute to further degradation, but rather should enhance the quality as an alternative to illegal dumping and disposal. Specific conditions in the permit are intended to maintain the value of functions performed by the existing seagrasses, and adequate monitoring is placed in those conditions to assure their success. The value or function of the public park facility is substantially improved by opening access from the water to boaters, and from the shore to handicapped individuals. Balancing the Criteria and summary of findings Based on competent expert testimony and evidence, the county has provided reasonable assurance that the project is clearly in the public interest. With a degree in biology and a master's degree in public health, Ms. Martel is an articulate and knowledgeable advocate for her own position. However, most of her testimony or evidence regarding the project's impacts on the environment was very general; for example: seagrasses are vital to estuarine ecology; manatees are frequently tragic victims of boaters; Brevard County is home to a wide variety of endangered flora and fauna; and similar well-accepted facts. Some of Ms. Martel's concerns are beyond the scope of this proceeding. The park itself was constructed on public property in 1989. The restroom facilities and septic tank were permitted several years ago as part of that earlier phase of park development. Any run-off or other effects of the parking spaces at the site are also the result of the earlier phase and will not be exacerbated by this project. Ms. Martel's concerns about trespassers or squatters on her property are not issues within the permit criteria addressed above.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order approving permit 05-221736-4, with the proposed general and special conditions attached, and with the additional condition stipulated by the parties with regard to prohibiting refreshment or bait and tackle concessions. DONE AND RECOMMENDED this 10th day of June, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5566 The following constitute specific rulings on the parties' findings of fact as provided in section 120.59(2), F.S.: Petitioner's Proposed Findings 1.-2. Adopted in substance in paragraph 1. Adopted in substance in paragraph 2. Adopted in substance in paragraph 4. Adopted in paragraph 6; however, the finding with regard to approval for shellfish harvesting is rejected as not supported by competent evidence. Rejected as cumulative or unnecessary. Adopted, as to location, in paragraph 3; otherwise rejected as unsupported by competent evidence. Adopted generally in paragraph 16. Rejected as immaterial; there is no evidence of any impact of this project on wetland areas or on shoreline vegetation. Adopted generally in paragraph 15. Rejected as irrelevant and immaterial. 12.-13. Adopted generally in paragraph 7. 14.-18. Rejected as unnecessary. 19. Adopted in general in paragraph 16. 20.-29. Rejected as argument or comment on the evidence, rather than findings of fact. 30. Rejected as unnecessary. As found in paragraph 8, the letter of consent was issued. 31.-38. Rejected as argument rather than findings of fact, or irrelevant (as to the septic tank and parking facilities). 39.-40. Rejected as unsupported by competent evidence. 41. Addressed in preliminary statement and in recommendation. 42.-45. Rejected as unnecessary or argument, rather than findings of fact. 46. Rejected generally as unsupported by competent evidence (as to negative affect on navigation). 47.-51. Rejected as argument, or unnecessary. 52.-55. Rejected as contrary to the weight of evidence (as to negative impacts), and unnecessary (as to Tamy Weingarden's qualifications). Ample competent testimony was presented by the applicant. Rejected as unnecessary. Rejected as unsupported by competent evidence (as to cumulative impacts). Rejected as argument or unnecessary. 59.-60. Rejected as contrary to the weight of evidence (as to negative impacts and negative balance). 61. Adopted in paragraph 21. COPIES FURNISHED: Carolyn Martel Post Office Box 54872 Oklahoma City, Oklahoma 73154 Lisa Perlmutter Troner Assistant County Attorney Brevard County Board of County Commissioners 2725 St. Johns Street Melbourne, Florida 32940 John L. Chaves Asst. General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2015.
