VOL. XXV                 July 4, 2001                        NO. 23

 

PART I.      ORDERS ISSUED BY PERC

 

WB-2001-002;Order 01GC-158(June 26, 2001)

LAWTON E. WHIDDON, Complainant,

v.

DEPARTMENT OF INSURANCE, Respondent.

AThe gravamen of Whiddon's complaint appears to be that another unit's supervisor, Linda Tucker, wrote a derogatory e-mail to Whiddon's supervisor complaining that he-was "confronting" and "abusing" employees.  Whiddon vigorously disputed the truth of the e-mail and grieved that e-mail through the employer's internal grievance procedure.  Whiddon later elected to resign when the employer's Achief of staff@ Linda Shelley denied his grievance...

Section 112.3187, Florida Statutes, prohibits retaliation by a state agency for whistle-blowing by state employees.  However, the employee must have reported "to an appropriate agency" a violation of law that created a substantial and specific danger to the public health, safety, or welfare; or disclosed information about improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty...

Here, Whiddon has described an internal agency dispute between himself and Linda Tucker.  This is not the type of activity the legislature has described as whistle-­blowing.  In addition, it is doubtful the filing of an internal agency grievance is the type of disclosure envisioned by the Legislature as whistle-blowing.@

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

**CA-2001-032;Order 01GC-159(June 27, 2001)

OSCAR WALKER, Charging Party

v.

DUVAL COUNTY SCHOOL BOARD, Respondent.

The General Counsel summarily dismisses the amended charge, that was untimely amended so considered a new charge, that the employer violated the Act when it Achanged the art schedule, circumvented Walker's use of the art lab, and changed the manner for art instruction.

Further, Walker asserts that the School Board's human resources and affirmative action departments did not follow, the collective bargaining agreement's guidelines for involuntary transfer of teachers when facilities are closed.  Finally, Walker alleges that School Board member Susan Wilkinson neglected to answer Walker's request for assistance regarding the grievance procedure and the Duval Teachers United (DTU) failed to provide him with assistance.@

This charge is dismissed for the same reasons as the first charge, Athe scope of the Commission's jurisdiction over disputes between public employees and their employer is limited to ensuring that the rights provided employees by Chapter 447, Part II; are not abridged.@

Walker has failed to demonstrate that he has participated in any protected, concerted activity that would serve as a basis for retaliation or discrimination against him.  Further, there was no evidence provided that his grievance was a violation of the contract or that his grievance was not processed.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

RC-2000-090;Order 01E-160(Issued: June 27, 2001)

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Petitioner,

v.

CITY OF HIALEAH, Respondent,

v.

HIALEAH CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME, LOCAL 3032, Intervenor.

PERC denies the city=s petition to amend its order of April 17, 2001, to amend a classification of public service aid.  If this position was inadvertently omitted then the city is free to file a unit clarification petition for consideration.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

AC-2001-006;Order 01E-161(June 29, 2001)

SOUTHWEST FLORIDA PROFESSIONAL FIRE FIGHTERS & PARAMEDICS, LOCAL 1826, IAFF, INC., Petitioner,

v.

CITY OF FORT MYERS, Respondent.

PERC grants the union=s unopposed petition to change the name of the exclusive bargaining agent for certification 813.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

UC-2001-035;Order 01E-162(June 29, 2001)

INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, AFL-CIO, LOCAL UNION 2301, Petitioner,

v.

CITY OF CAPE CORAL, Respondent.

PERC grants the union=s unopposed petition to clarify unit 986 to include Athe classifications of accounts specialist, associate planner, buyer II, clerk/switchboard operator, computer technician I; computer/network specialist, lead customer service representative, lock attendant, plans review technician, property acquisition agent, public service aide, CAD operator/design specialist, chef, code enforcement

officer, juvenile liaison specialist, and commercial customer coordinator...

... The classifications of CAD operator, chef/water park, code compliance specialist, juvenile system liaison representative, and zoning technician have been deleted because they have been re-titled.  The classifications of zoning technician II and senior telecommunicator have been deleted because they have been abolished.@

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

PART II.            Court Orders

[From Attorney General=s Appellate Alert]

2^nd District Court of Appeal

AUniversity student's due process rights...  A state university improperly failed to give a student due process when it denied him the opportunity to question witnesses against him at a hearing into his suspension from classes, the 2^nd DCA held.

The court said the actions by University of South Florida officials violated the student code of conduct contained within the Florida Administrative Code.  Graduate student Van Morfit was accused of misconduct during his work on a school-related project at a Veterans Administration hospital.  Even though the student code specifically grants students the right to question adverse witnesses, Morfit was suspended based only on the written report of a security officer who had interviewed one alleged victim.  The DCA said this was improper.

"Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them.  This is a fundamental ingredient of due process in any judicial or quasi judicial proceeding," the DCA said. "We must conclude that the school denied Morfit his right to due process."  [Morfit vs. University of South Florida, 6/27/01]@

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

4^th District Court of Appeal

AWhistle-Blower - opportunity to present defense...  A city was improperly denied the opportunity to present evidence as to why it fired its police chief in defending itself against a whistle-blower's suit by the former chief, the 4^th DCA held.

The court rejected the chief's breach of contract claim against the city, noting that the city charter specifically said he served at the pleasure of the city manager.  A letter from the manager agreeing to allow the chief to extend his retirement date did not have the effect of an employment contract guaranteeing his continued employment until that date, the DCA said.

The DCA also said the trial court erred in excluding evidence relevant to the whistle-blower claim.  The trial court blocked the city from introducing evidence of any reason for terminating the chief other than the reason listed in its notice of termination, which was that the termination was in the "best interests" of the city.  The trial court did not even let the city manager explain why the termination was in the city's best interest.  This was error, as provisions of Florida's Whistle-Blower Act allow for such defenses, the DCA concluded.  [City of Hollywood vs. Witt, 6/27/01]@

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

Part VII. MISCELLANEOUS