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Order Summary

PLEASE COPY TO SCHOOL BOARD MEMBERS AND ADMINISTRATORS AS NEEDED

**School Board Cases

VOL. XXVII . . . . . . . . . . . July 10, 2003. . . . . . . . . . . . . NO. 22


PART I . . . . . . . . . . . . . . . . . . . . . . ORDERS ISSUED BY PERC

EL-2003-033 (Relates to RC-2003-039); Order 03E-133 (June 5, 2003)
UC-2003-007; Order 03E-145 (June 24, 2003)
RC-2002-072; EL-2003-038; Order 03E-147 (June 25, 2003)
RC-2003-002; EL-2003-039; Order 03E-149 (June 25, 2003)
RC-2003-027; EL-2003-040; Order 03E-150 (June 25, 2003)
RC-2003-040; EL-2003-037; Order 03E-146 (June 25, 2003)
UC-2003-008; Order 03E-148 (June 24, 2003)
CA-2003-010; Order 03E-153 (June 26, 2003)
EL-2003-019 (Relates to RC-2002-084) (June 26, 2003)
RA-2003-006 (June 26, 2003)
RA-2003-012 (June 26, 2003)
EL-2003-020 (Relates to RC-2003-031) (June 27, 2003)
EL-2003-021 (Relates to RD-2003-002) (June 27, 2003)
RA-2003-009; Order 03E-154 (July 1, 2003)
RA-2003-010; Order 03E-155 (July 2, 2003)
CA-2003-003; Order 03U-156 (July 3, 2003)
CA-2003-039; Order 03GC-157 (July 3, 2003)
CA-2003-008; 011 (July 9, 2003)
WB-2003-002; Order 03WB-158 (July 8, 2003)
RC-2003-021; 036; Order 03E-159 (July 9, 2003)

EL-2003-033 (Relates to RC-2003-039); Order 03E-133 (June 5, 2003)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner,
v.
FLORIDA GULF COAST UNIVERSITY, BOARD OF TRUSTEES, Respondent.

"The Commission orders that a secret ballot election be held in the following unit, as soon as is practicable, including: All full-time and regular part-time non-professional employees in the classifications of administrative assistant, broadcast engineering technician, broadcast production/program assistant, broadcast specialist, carpenter, child care group leader, cinematographer/videographer, computer support specialist, electrician, engineering technician/designer, executive secretary, financial aid officer, library technical assistant, locksmith, maintenance mechanic, maintenance support worker, office assistant, office manager, refrigeration mechanic, senior clerk, senior computer support specialist, senior financial aid officer, senior fiscal assistant, senior library technical assistant, senior secretary, and telephone systems operator; It will exclude: all persons in positions designated with managerial, confidential, temporary or emergency status; employees who have a supervisory conflict of interest with those that are included in the unit; all persons paid from other personnel services (OPS) funds; all certified law enforcement employees; all other professional; all faculty members; all administrative and professional (A&P) employees; and all persons who are currently represented under a certification issued by PERC."


UC-2003-007; Order 03E-145 (June 24, 2003)
OKALOOSA ISLAND FIRE FIGHTERS ASSOCIATION, IAFF, LOCAL 2617, Petitioner,
v.
OKALOOSA ISLAND FIRE DISTRICT, Respondent.

PERC agrees with the hearing officer and grants Local 2617's petition requesting modifications to the unit. Accordingly, the unit now includes, "All Basic Firefighters, Firefighters, Firefighter/Engineers, Lieutenants, and Captains employed by the Okaloosa Island Fire District."


RC-2002-072; EL-2003-038; Order 03E-147 (June 25, 2003)
UNITED FACULTY OF FLORIDA, Petitioner,
v.
FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, Respondent.

The Commission adopts the hearing officer's recommended order, as modified by correction of a scrivener's error, upon its conclusion that the hearing officer's findings of fact are supported by substantial evidence and comply with the essential requirements of law.


RC-2003-002; EL-2003-039; Order 03E-149 (June 25, 2003)
FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,
v.
UNIVERSITY OF FLORIDA, BOARD OF TRUSTEES, Respondent,
v.
FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Intervenor.

PERC adopts the hearing officer's recommended order as the Commission's order directing election, as the unit recommended is appropriate for the purpose of collective bargaining. The Commission orders that a secret ballot election be held as soon as practicable in the bargaining unit including: "all sworn law enforcement officers employed by the University of Florida, Board of Trustees certified pursuant to Chapter 943, Florida Statutes, in the following classifications: Law enforcement officer, law enforcement corporal, law enforcement sergeant, and law enforcement investigator."


RC-2003-027; EL-2003-040; Order 03E-150 (June 25, 2003)
FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,
v.
GADSDEN COUNTY SHERIFF'S OFFICE, Respondent.

The Commission adopts the hearing officer's recommended order and approves the recommended unit and orders that a secret ballot election be held as soon as is practicable.


RC-2003-040; EL-2003-037; Order 03E-146 (June 25, 2003)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner,
v.
FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, Respondent.

The Commission accepts the hearing officer's recommendation, as amended in the joint exception filed by both parties, and concludes that the proposed unit is appropriate for the purpose of collective bargaining. Accordingly, the Commission orders that a secret ballot election be held as soon as is practicable including all regularly scheduled full-time operational services employees.


UC-2003-008; Order 03E-148 (June 24, 2003)
LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION #517, AFL-CIO, Petitioner,
v.
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

The Commission remands the case to the hearing officer in order to address a motion to intervene filed by the International Union of Painters and Allied Traders District Council 78, Local Union 1010. "Local 1010 asserts that all the part-timers, including the riggers [that Local 517 wants included per the original petition], should be permitted to elect their bargaining representative rather than be included in the operational services bargaining unit through unit clarification petitions." The hearing officer is to determine whether to grant the motion to intervene and whether the petition should be either amended or dismissed and re-filed as a representation petition.


CA-2003-010; Order 03E-153 (June 26, 2003)
PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, INC., Charging Party,
v.
CITY OF JACKSONVILLE, Respondent.

Final Order in which PERC concurs with the hearing officer's April 18, 2003, recommendations in regards to all issues that actually affect the outcome of the case ruling in favor of the City.


EL-2003-019 (Relates to RC-2002-084) (June 26, 2003)
FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,
v.
FLORIDA STATE UNIVERSITY, BOARD OF TRUSTEES, Respondent.

A secret ballot election conducted May 20 through June 10, 2003 resulted as follows: 54 eligible voters, 29 votes cast for Petitioner, 0 votes against participating organization.


RA-2003-006 (June 26, 2003)
FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Petitioner,
v.
MONROE COUNTY SHERIFF'S OFFICE, Respondent.

The Commission concludes that the petition meets the requirements of Section 447.301(1), F.S (2002) and that the proposed unit is appropriate for the purpose of collective bargaining. Accordingly, the FOP is certified as the exclusive representative for "all certified law enforcement officers appointed as deputy sheriffs employed by the Monroe County Sheriff's Office including officers assigned as bailiffs, road patrol deputies/officers, detectives, airport security deputies/officers, inmate transportation officers, road patrol sergeants, and detective sergeants."


RA-2003-012 (June 26, 2003)
FLORIDA A&M UNIVERSITY GRADUATE ASSISTANTS UNITED, Petitioner,
v.
FLORIDA A&M UNIVERSITY BOARD OF TRUSTEES, Respondent.

The Commission concludes that the that the proposed unit is appropriate for the purpose of collective bargaining and is certified as the exclusive collective bargaining representative of employees included in the following bargaining unit: all employees of the Florida A&M University Board of Trustees classified as graduate research associate (9181), graduate research assistant (9182), graduate teaching associate (9183), graduate teaching assistant (9184), and graduate assistant (9185).


EL-2003-020 (Relates to RC-2003-031) (June 27, 2003)
MARY ESTHER PROFESSIONAL FIRE FIGHTERS ASSOCIATION, IAFF, LOCAL 4247, Petitioner,
v.
CITY OF MARY ESTHER, Respondent.

A secret ballot election conducted May 21 through June 11, 2003 resulted as follows: 6 eligible voters, 4 votes cast for Petitioner, 0 votes against participating organization.


EL-2003-021 (Relates to RD-2003-002) (June 27, 2003)
VICKI GORNY, Petitioner,
v.
FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, Respondent,
v.
CITY OF STUART, Intervenor.

A secret ballot election conducted May 21 through June 11, 2003 resulted as follows: 52 eligible voters, 1 void ballot, 18 votes cast against Respondent, 14 votes cast for Respondent.


RA-2003-009; Order 03E-154 (July 1, 2003)
UNITED FACULTY OF FLORIDA, Petitioner,
v.
NEW COLLEGE OF FLORIDA, BOARD OF TRUSTEES, Respondent.

The Commission agrees with the hearing officer in concluding that "the petition meets the requirements of Section 447.307(1), F.S. (2002)." They also conclude that the proposed unit is appropriate for collective bargaining as the board of trustees of each university in the State University System is the public employer of the employees of that university for such purposes. "Accordingly, the United Faculty of Florida is certified as the exclusive collective bargaining representative of the following unit to include all employees in the following position classifications holding regular and visiting appointments: 9001 - Professor; 9002 - Associate Professor; 9003 - Assistant Professor; 9004 - Instructor; 9005 - Lecturer; 9009 - Eminent Scholar; 9053 - University Librarian; 9054 - Associate University Librarian; 9055 - Assistant University Librarian; 9056 - Instructor Librarian; 9115 - Coordinator; 9121 - Assistant in ____; 9126 - Program Director; 9173 - Counselor/Advisor; 9178 - Instructional Specialist; 9434 - Psychologist; and employees in the above classifications with the administrative titles "Division Chair" and "Program Director."


RA-2003-010; Order 03E-155 (July 2, 2003)
PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,
v.
FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Respondent.

"We conclude that the petition meets the requirements of Section 447.307(1), F.S., We further conclude that the proposed unit is appropriate for the reasons enunciated by the hearing officer. Accordingly, the Palm Beach County Police Benevolent Association, Inc., is certified as the exclusive collective bargaining representative...."


CA-2003-003; Order 03U-156 (July 3, 2003)
WINTER SPRINGS PROFESSIONAL FIREFIGHTERS ASSOCIATION, LOCAL 3296, Charging Party,
v.
CITY OF WINTER SPRINGS, Respondent

PERC Final Order addressing two exceptions filed by the City and five exceptions filed by Local 3296 to the hearing officer's April 7, recommended order regarding the City's proposals for new collective bargaining agreements. The hearing officer concluded "that the City did not unlawfully impose the wage article, but did act unlawfully by imposing the management rights article. He also recommended against an award of attorney's fees and costs to either party."

The Commission concluded that the City violated its bargaining obligation when the legislative body imposed the "pay freeze" language because it contained a waiver of the employee's bargaining rights (e.g. Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 475 So. 2d 1221 (Fla. 1985), which include the right to the continuation of the status quo.

Since parties are prohibited from communicating with the members of the body legislative body about impasse items during the "insulated period," then it follows that any proposal provided to them after impasse is declared that is materially different from the last one exchanged prior to impasse would also be prohibited. As Brevard County v. Brevard County Fire Rescue Association, Local 2969, 12 FPER ¶ 17284 (1986), ruled that parties are required to continue negotiations even after declaration of impasse, "[i]t is only the unilateral submission to a local legislative body of proposals which are materially different from those exchanged during negotiations, following the parties' waiver of appointment of a special master, that is prohibited.... Accordingly, inasmuch as the legislative body imposed a management rights article that was materially different from the last proposal to Local 3296 when the parties waived appointment of a special master, the City acted unlawfully."

Both parties claim they are entitled to attorney's fees and costs for litigating the "pay freeze" language issue. As a prevailing party, only Local 3296 is entitled to such award for only that portion regarding the "pay freeze" language issue. The Commission agrees with the hearing officer that Local 3296 is not entitled to attorney's fees and costs for prevailing in this portion of its charge, as neither the Commission nor the Florida Courts have previously provided direction on this issue, and cannot conclude that the City was aware that its conduct was unlawful. See Fire Rescue Professionals of Alachua County, Local 3852, IAFF v. Alachua County, 28 FPER ¶ 33158 (2002) (ruling that the county could not or should not have known that its conduct was unlawful regarding issue in which the Commission had not previously provided direction).


CA-2003-039; Order 03GC-157 (July 3, 2003)
DENISE VARGAS, Charging Party,
v.
MIAMI-DADE COUNTY POLICE DEPARTMENT, Respondent.

General Counsel dismisses Vargas' "one-page typewritten letter" as a valid means of filing unfair labor charges. She failed to submit the proper unfair labor practice charge form, as well as supply supporting evidence and factual information needed to properly assess her case or prove that the respondent had committed an unfair labor practice.


CA-2003-008; 011 (July 9, 2003)
FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO and UNITED FACULTY OF FLORIDA, Charging Parties
v.
FLORIDA BOARD OF GOVERNORS and FLORIDA STATE UNIVERSITY BOARD OF TRUSTEES, Respondents.

The Florida Board of Governors filed a motion to be dismissed from the case. This motion was granted by the hearing officer as she determined that the Board of Governors is not appropriately named as public employer in this action.


WB-2003-002; Order 03WB-158 (July 8, 2003)
BARBARA TAYLOR, Complainant,
v.
DEPARTMENT OF HEALTH, Respondent.

After the Commission disposed "all of Taylor's exceptions agrees with the hearing officer that Taylor's complaint is barred by her election of remedies and it is, therefore, dismissed." Taylor utilized the grievance procedure prior to filing a whistle-blower complaint. According to Sections 112.3187 and 447.401, F.S., and the doctrine of election of remedies, she would only be able to use one remedy to resolve the same disciplinary action.


RC-2003-021; 036; Order 03E-159 (July 9, 2003)
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, CLC, Petitioner,
v.
CITY OF MADEIRA BEACH, Respondent.

The Commission adopts the hearing officer's recommended order and concludes that the proposed units are appropriate for purposes of collective bargaining.


PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court Orders

[ From Attorney General's Appellate Alert]

1st District Court of Appeal

"Timeliness of appeal of agency decision... A state commission correctly found that a woman is not entitled to unemployment benefits because she cannot prove that she faxed in an appeal on time, the 1st DCA held over the objects of one judge who said the agency failed the dispute the woman's assertion that she properly sent the fax.

Nadine Mendelsohn lost a bid for unemployment compensation, and the Unemployment Appeals Commission concluded that her appeal of that determination was not received within the 20-day window for filing. Mendelsohn insisted she faxed her appeal three days before the deadline, but could offer no proof other than a telephone record showing a one-minute call to the commission on that date. Two members of the DCA's three-judge panel found evidentiary support to uphold the commission's decision, including 'the absence of any evidence to show that a timely fax request was ever received for filing in the appeals office.'

Writing in dissent, Judge Benton took the opposite approach. 'A telephone bill received as an exhibit at the hearing corroborates un-rebutted testimony that the fax call went through ... Even uncorroborated testimony that mail has been sent or that a facsimile transmission has been made raises a presumption of delivery. This presumption went unrebutted here. Nobody testified that the Commission did not receive the fax Ms. Mendelsohn testified she sent,' the judge wrote in support of Mendelsohn's appeal."
[Mendelsohn v. Unemployment Appeals Commission, 6/26/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/ac19483ff7e22c1085256d5100674a0a!OpenDocument

"Validity of fee for state deferred comp plan... A challenge to administrative fees assessed when state employees enroll in a deferred compensation plan cannot survive because the plaintiffs lack standing to challenge the assessment, the 1st DCA said.

Record-keeping services associated with the deferred compensation program are contracted by a private company, which is paid through a fee submitted by investment providers. The providers recover this cost by adding it to the fees paid by state workers who use the deferred compensation program. Two employees challenged the statutory authority for the assessments. A trial court granted summary judgment in favor of the state, determining that authority for the administrative assessments was inherent in the statutory authority given to the state to contract for administrative services. The trial court also said the plaintiffs waived their challenge when they signed deferred compensation enrollment forms that identified the fees.

The DCA said it did not have to evaluate either of the trial court's reasons for ruling against the employees because standing actually lies with the investment providers who actually submit the fee. '(The appellants') challenge is addressed to the issue of statutory authorization for the contested fees assessed in the contracts between the state and the investment providers. Even if the appellants were able to prevail on this claim, it does not appear that this would invalidate the providers' separate contracts with the appellees. A successful challenge to the contested amounts would therefore not necessarily benefit the appellees, who would presumably still be obligated for the administrative fees in their contracts with the providers,' the DCA said."
[Nedeau and Gomez v. Gallagher, 6/30/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/26103259083c355585256d5f006de3fc!OpenDocument

Medical proof required for disability retirement... Contrary to a state agency's rules, an injured member of the Florida Retirement System who seeks disability retirement benefits is not compelled to have a doctor certify that he is totally and permanently disabled in order to qualify for disability benefits, the 1st DCA held.

As it did nine years ago, the DCA asked the Florida Supreme Court to determine what medical evidence a claimant must present to the Florida Retirement Commission to receive disability benefits. A commission rule requires 'competent medical evidence of total and permanent disability,' but the DCA held in 1994 that Florida law does not require a physician's opinion certifying total and permanent disability. The present case involved a Baker County School Board maintenance worker who was injured on the job. The worker's doctor gave him a 12 percent permanent impairment rating, and the Retirement Commission concluded that was insufficient to justify disability retirement benefits. The DCA disagreed, citing the difference between impairment - a medical determination - and disability, which combines medical considerations with job-related duties.

'Thus, while the determination of impairment is a medical matter, the determination of disability is not solely a medical issue, but involves using non-medical evidence as well,' the DCA explained. 'While the statute does require medical evidence of the impairment, ... the Commission has broader discretion than the (Retirement) Director and may determine whether an applicant is permanently totally disabled based upon medical testimony, vocational testimony, and any other pertinent evidence before it."
[Carver v. Division of Retirement, 7/3/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/4152da6030543aa285256d5f006e296d!OpenDocument


11th District Court of Appeal

"Constitutionality of courthouse Ten Commandments display... The chief justice of the Alabama Supreme Court violated the Establishment Clause of the First Amendment when he installed a two-and-a-half ton monument to the Ten Commandments in the rotunda of the Alabama State Judicial Building, the 11th U.S. Circuit Court of Appeals held.

The court said the placement of the monument as the centerpiece of the rotunda created the impression 'of being in the presence of something holy and sacred.' The 11th Circuit concluded that Chief Justice Roy S. Moore's purpose in displaying the monument was non-secular and said the monument's primary purpose was to advance religion. The court also rejected the chief justice's assertion that, because he is head of an independent unit of government, no court below the U.S. Supreme Court has the authority to order the removal over his objections.

'The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a state supreme court, of all people, should be expected to abide by that principle. We do expect that if he is unable to have the district court's order overturned through the usual appellate processes, when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail,' the 11th Circuit said."
[Glassroth v. Moore, 7/1/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/3cec5137456ef72285256d5f006e10ef!OpenDocument


2nd District Court of Appeal

"Use of hearsay evidence in administrative hearing... An administrative hearing cannot be determined solely based on hearsay evidence that would not be admissible in a civil proceeding, the 2nd DCA said.

The court reversed an order denying unemployment benefits to a hospice worker who was fired for falling behind in making required contact with clients. The man's supervisors testified about his failure to manage his caseload, but their testimony was based only on time sheets and logs that were not introduced into evidence as business records. The court said the worker's shortcomings may have warranted his firing but, based on the evidence presented, did not amount to misconduct sufficient to deny unemployment benefits.

'In administrative proceedings, including hearings before unemployment compensation appeals referees, hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding. The computer report was hearsay. ... That being the case, the testimony describing the report's content was double hearsay that was not admissible under the exception,' the DCA said."
[Yost v. Unemployment Appeals Commission, 7/9/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/ead85b2fe06607a985256d5f006e3dcf!OpenDocument

"Agency's obligation re: eminent domain... A state agency that properly sent out written offers, and then waited the required time for a response, complied fully with eminent domain requirements and cannot be forced to negotiate further, the 2nd DCA held.

The court rejected the claim of property owners who challenged a trial court's eminent domain order of taking in favor of the Department of Environmental Protection. The owners argued that DEP failed to comply with pre-suit negotiation requirements and failed to present a good faith estimate of value based on a valid appraisal. The DCA disagreed, noting that the department sent out, and the property owners received, two written offers that complied with statutory requirements.

'The appellants neglected to respond to the offers, and the Department filed suit after waiting the requisite thirty days under the statute. We reject the appellants' argument that the Department's duty to negotiate extended beyond its duty to send the written offers and await a response in this case. To the contrary, the appellants' failure to respond to the offers ended the negotiations,' the DCA said."
[Simmons, et al., v. Department of Environmental Protection, 7/9/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/378e795f64d8347885256d5f006e5983!OpenDocument


4th District Court of Appeal

"Unemployment benefits - suspected Medicare fraud... An employee who quits her job because she reasonably believes her boss is engaged in Medicare fraud and doesn't want to be liable herself is entitled to unemployment compensation benefits, the 4th DCA held.

Connie Ayers worked for a business that supplied medical shoes and orthotics to people with diabetes, eventually handling the company's billing activities. Ayers became suspicious of the billing practices, and contacted a Medicare benefits administration unit and initiated an investigation. Ayers then quit her job, fearing that she could be held liable if the billing practices were deemed to be Medicare fraud. An appeals referee found that Ayers had acted reasonably and shown good cause attributable to the employer, which would qualify her for unemployment benefits. However, the state Unemployment Appeals Commission rejected that conclusion and denied benefits. The DCA reversed.

'Clearly, an employer's requiring an employee to perform acts which the employee reasonably believes violate the law furnishes the employee with good cause, attributable to the employer, to voluntarily leave employment,' the DCA said."
[Ayers v. Unemployment Appeals Commission, 7/9/03]
http://www.myfloridalegal.com/alerts.nsf/e72b1e067994666c852562910072f437/c4ffdd590979125685256d5f006e72d1!OpenDocument


PART VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous

Tentative Agreement Reports

FEN Calendar


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