STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BREVARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 91-5645
)
DOUGLAS BARNA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on April 30 and May 1, 1992, in Melbourne, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner: Stanley Wolfman
David J. Wolfman STANLEY WOLFMAN, P.A.
Post Office Box 540513
200 West Merritt Island Causeway Merritt Island, Florida 32954-0513
For Respondent: Louis V. Cianfrogna
James H. Earp
Cianfrogna, Telfer, Reda & Faherty, P.A. City Square Professional Center
815 S. Washington Avenue Post Office Drawer 6310-G
Titusville, Florida 32782-6515 STATEMENT OF THE ISSUES
The central issue in this case is whether there is good cause for not reappointing the Respondent for employment with the school district.
PRELIMINARY STATEMENT
This case began on April 23, 1991, when the School Board of Brevard County (Board) did not accept the recommendation of the School Superintendent to reappoint Respondent, Arthur Douglas Barna, for employment with the school district. Thereafter, Respondent filed a petition for formal proceedings to contest the action of the Board, and the matter was forwarded on September 3, 1991, to the Division of Administrative Hearings to conduct a formal hearing on the issues.
The petition filed in this cause alleged, in part, that the Board lacked good cause for its failure to accept the recommendation of the School Superintendent; that in making its decision not to reappoint the Respondent that it had failed to give the employee notice and an opportunity to be heard regarding any allegations of misconduct, malfeasance or nonfeasance; and that his substantial interests had been adversely affected by the Board's refusal to accept the Superintendent's recommendation. In contrast, the Board's position has been that the Respondent did not request a statement of charges outlining its good cause and that, as a matter of law, good cause is not limited to those matters addressed by the statutes or rules dealing with misconduct, malfeasance or nonfeasance.
On October 16, 1991, an order for prehearing statement was entered that required the parties to confer in anticipation of trial and to prepare a prehearing statement. The statement was to contain a general statement of each party's position together with a statement of facts which remained to be litigated. The hearing, then scheduled for January 8, 1992, was continued on several occasions due to conflicts which developed between the parties.
Ultimately, after hearing oral argument from the parties in a conference call conducted on March 13, 1992, an order was entered on March 18, 1992, that directed the parties to proceed on the following basis: that the petition filed in the cause had been construed to be a request for hearing; that the Board was deemed the Petitioner in the case; and that it bore the burden of proof to go forward on the affirmative assertion i.e. that it has good cause for not reappointing the Respondent as recommended by the Superintendent.
In addition to procedural issues to be resolved, discovery issues were addressed in a conference call conducted on April 21, 1992. After that conference failed to resolve issues of discovery, a second telephone hearing was conducted on April 24, 1992. By order entered April 27, 1992 (previously announced to the parties during the telephone call), the Board was directed to produce the original documents identified in the prehearing statement as its exhibits; the Board was directed to file a charging document since its prehearing statement failed to set forth with any particularity the factual matters at issue; the Respondent's request to expedite admissions was denied until the commencement of the hearing when the Board was to consider same proposed stipulations of fact to be addressed on the record; and the Respondent's motion to strike the Board's exhibits was denied.
On April 28, 1992, the Petitioner filed its statement of cause which outlined seven areas of concern that Petitioner alleged gave rise to a loss of confidence in the Respondent. That loss of confidence, according to the pleading, constituted good cause for rejecting the appointment of the Respondent as staff engineer. More specifically, the Petitioner alleged that Respondent's conduct was unacceptable in connection with the following: Stone Middle School; asbestos; Anderson Elementary School; Southwest Junior High School; Cambridge Elementary School; the educational services facilities at Viera; and the FMI energy conservation project. As to each area described, Petitioner alleged specific acts or omissions which it claims evidenced Respondent's failure to satisfactorily perform duties assigned to him.
At the hearing, the Board presented the testimony of the following witnesses: William Walker, school board attorney; Clifford Gordon, president of Southeastern Service Corporation; Kathy Carlson, School Board member; Patricia Manning, School Board member; Vera Mae Williams Walker, School Board member; and by deposition, Douglas Barna. The Board's exhibits marked for identification as Petitioner's Ex. 1, 3, 4, 7, 8, 11-12, 13, 31, 34, 39-40, 91, 97, 98, 99, 100,
107, 110, 115-120, 121, 139 and 163 and 164, 160 and 174, and 180 were admitted into evidence.
The Respondent testified by deposition and presented the testimony of the following witnesses: Howard Hickman, director of personnel services for the Brevard County School Board; and Leon Cowling, former assistant superintendent for facilities and support services for the School Board. The Respondent's exhibits marked for identification as R13, R14, Respondent's Ex. C, Respondent's Ex. D, and Respondent's Ex. E were admitted into evidence. The deposition testimony of the Respondent was received as a joint exhibit of the parties.
After the hearing, the transcript of the proceedings was filed on June 3, 1992. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:
The Petitioner, School Board of Brevard County, Florida, is empowered to designated the personnel positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees for the school district.
The Respondent, Arthur Douglas Barna, has been employed by the Petitioner since the early 1970s.
The Respondent has a degree in mechanical engineering, is a registered professional engineer, and has twenty years of experience in the construction field.
Respondent's first position with the Petitioner was as construction manager. In 1976, Respondent's title was amended to staff engineer and construction manager.
In 1981, Respondent was made Director of Facilities a position he held until February, 1991, when he was returned to the staff engineer position and John Allen was retained to be Director of Facilities.
On April 23, 1991, Respondent was recommended for appointment to the position of staff engineer for the 1991-92 contract term by the school superintendent.
The qualifications for appointment as staff engineer/project manager
are:
Graduation from a college or university with a degree in engineering.
Registered as an engineer in the State of Florida.
Experience (five years minimum) in educational design and facility planning administration.
Experience in administration of educational construction contracts.
Knowledge of Uniform Building Code and Florida School Laws and Regulations.
On April 23, 1991, by a 3-2 vote, the Petitioner rejected the superintendent's recommendation to employ Respondent.
Prior to April 23, 1991, Respondent had received satisfactory personnel evaluations.
Prior to April 23, 1991, Respondent had not been reprimanded or disciplined for any act or omission regarding the performance of his duties.
In the two years prior to April 23, 1991, Respondent had participated in numerous construction and remodeling projects for the Petitioner. Such projects exceeded $46,000,000.00 in cost to the public.
One of projects Respondent was involved with during his tenure with the Board was Stone Middle School (Stone). That project originated with a bid proceeding to choose a contractor to perform the construction work.
One of Respondent's duties was to represent the Board at bid openings. In the case of the Stone project, within a short time after the bid opening, the apparent low bidder on the job, Speegle Construction (Speegle), advised Respondent that an error had been made on the bid form. That error was claimed to be in the amount of $40,000.00.
Speegle's bid was $90,000.00 lower than the next low bidder. Speegle had tendered a bid bond in the amount of $50,000.00. After reviewing the matter with the bidder, Respondent took the matter to his supervisor who then took the issue to the school superintendent and board staff. Among the staff who considered the issue was the school board attorney.
Regardless of any dispute regarding the computation of the $40,000.00 error (such are deemed irrelevant to the essential issue), the Board was presented its options: to take the bid bond and award the contract to the next lowest bidder; to give Speegle the additional $40,000.00 and award it the contract; or, presumably, rebid the project.
Since awarding Speegle the contract, with the $40,000.00 addition, still saved the public $50,000.00, over the next lowest bidder, Respondent recommended that option. His recommendation was supported by his superiors.
After public discussion of the matter, the Board unanimously voted to select Speegle as recommended by staff. No evidence supports the assumption that the Board's decision, based in part on Respondent's recommendation, was found to be illegal, unethical or challenged by the other bidders on the project.
The Stone project had additional problems since the architectural firm hired to complete the drawings did not meet the guidelines established by the Department of Education. On at least two occasions the plans had to be returned to comply with state standards. Consequently, the project was late commencing.
Such lateness was not due to the fault or error of the Respondent.
To the extent he was involved, Respondent properly supervised the Stone construction project and did not approve inferior work. All
specifications of the contract were met and verified by Respondent and then assistant superintendent for facilities, Leon Cowling.
Issues regarding performance of the Stone project arose between Respondent and Cliff Gordon, president of the architectural firm involved with the job. Such issues related to the lockers and an athletic field which Mr. Gordon claimed did not meet specifications. Such allegations are not supported by the record in this case.
When the Stone project was not completed on time, Respondent assessed liquidated damages against Speegle in accordance with the contract terms. Respondent was not responsible for the lateness, and Speegle, in fact, made good on the damages.
Respondent and Mr. Gordon did not agree on aspects of the Stone project. Mr. Gordon became disgruntled when Respondent would not approve payment to Mr. Gordon's firm for work allegedly done. Mr. Gordon attended Board meetings regardless of his claim that Respondent had advised him to stay away.
Respondent was not responsible for the removal or encapsulation of asbestos found in several schools. Respondent's position placed him in a position over construction, not maintenance. Moreover, another school administrator was assigned to be responsible for overseeing issues related to asbestos at all times material to this case.
Respondent did not supervise a project wherein the treatment of asbestos was at issue.
Anderson Elementary School (Anderson) has a noise problem in that sound travels from one area to another. The ceiling tile used in the Anderson project was the same product used in the other schools and was the contractor's choice. At the time of installment an issue arose as to whether the tile to be used met the specifications of the contract. Ultimately, the architect signed off on the use of the tile requested by the contractor.
Unfortunately, the tile used does not buffer noise. Whether the tile originally requested would more effectively buffer the noise is unknown. Whether the design of the facility contributes to the noise problems is also unknown.
That there is a noise problem at Anderson is not due to an act, omission, or the negligence of the Respondent.
In connection with the air conditioning system installed at Southwest Junior High School (Southwest) a problem arose as to that system's design. Respondent did not design the system. In fact, a design firm was retained to complete the work and the system was installed based upon that work.
The Board does not have the personnel or the staff expertise to verify whether outside consultants perform their jobs correctly. Presumably, the Board utilizes such consultants because it does not have the internal resources to do the work requested.
In the case of Southwest, the firm hired designed the system improperly. As a result, the Board made a claim, and collected, against the firm's errors and omissions insurance. Thus, the Board received damages for the design defect.
Cambridge Elementary School (Cambridge) is located adjacent to a housing subdivision developed by Centex Homes.
Due to drainage problems associated with the development, the homeowners' association and the developer requested that the Board execute a drainage easement on the Cambridge property so that the properties might be enhanced.
The homeowners' proposal made to the Board gave the expense of preparing and maintaining the easement to the association.
Respondent was approached regarding the drainage easement and considered the matter to benefit the school site. Respondent and Mr. Cowling recommended granting the easement. Such easement was to be preceeded by an agreement setting forth the homeowners' obligations to the Board.
For reasons not addressed by this record, an agreement was not prepared and returned to the Board as had been directed. In fact, the Board chairman and superintendent executed the drainage easement without evidence of an agreement. Nothing in this record suggests Respondent had anything to do with the execution of the easement or the failure to obtain a written agreement regarding it. Moreover, these events occurred in May and November, 1988, some three years prior to the nonappointment of Respondent.
The construction of the educational services facilities at Viera posed many novel and complicated construction issues for the Board and its staff. For one thing, the Board had not utilized a "design/build" format in construction before. Based upon the record in this case, it is unlikely that the format will be used again.
The design/build format requires the construction of some phases of a project while the design is still occurring. As a result, unlike situations where a contractor has a determined set of plans to follow, the builder in the design/build format is in a constant state of flux and change. As may be expected, the owner is tied to the same constant amendment to plans.
In the case of Viera, Respondent served as the owner's representative on the project. By contract, all notices and changes went through Respondent who was then responsible for coordinating with the Board staff.
At all times material to the Viera project, Respondent kept his supervisor aware of the progress of the project and of the changes to plans or specifications.
It was not Respondent's responsibility to report directly to the Board regarding the Viera project (or any other for that matter). Respondent routinely made reports to his supervisor who then coordinated matters with finance and the superintendent. Respondent was available to the Board for any matters that might require his input.
Early on in the Viera project Respondent advised his supervisor and the Board that they had little control over how the building was constructed. As long as the project stayed within the general design concept, the specifications were fairly open.
Respondent's first priority was to try to keep the Viera project on budget as to the changes that occurred.
To that end, items such as the carpet allotment were reduced to capture more funding for other requested items. In each such case Respondent made his superior aware of the changes.
Ultimately, the changes requested by Respondent, the superintendent, or John Forbes were placed before the Board as change order #1 and approved. While some of the changes had already occurred, there is no evidence that the Board took action to prohibit Respondent and the administration from making the day-to-day decisions on the project.
In fact, the contractor make changes on the Viera project without authorization from any Board administrator. Presumably, necessity caused the Board to accept such work.
There is no evidence that the changes authorized by Respondent on the Viera project were arbitrary or in violation of the contract. Respondent did not fail to abide by the contract terms.
Respondent did not act improperly regarding the Viera project and is not responsible for the quality of the workmanship of the job.
As energy costs became a concern to the Board, the Respondent participated in a conservation effort whereby energy firms were solicited for proposals as to how the Board might save on energy expenses.
Initially five contractors showed interest in the project but only three filed proposals with the facilities department. To evaluate the proposals, which was deemed a "win/win" deal by the Board, an outside consultant was hired to review each of the submittals. The proposals, along with input from the consultant, was then heard and considered by a committee of eleven school board employees. The Respondent was not a voting member of the group.
After receipt of the proposal and the foregoing review, the committee and Respondent recommended to the Board that Facility Masters Incorporated (FMI) be selected for the contract.
The Board also reviewed the proposals and recommendations and approved the recommendation to hire FMI.
The contract between FMI and the Board was reviewed by the school board attorney.
The scope and terms of the project were outlined to the Board and the administrative staff. The concept of the proposal was to replace, at no initial cost to the Board, the outdated and inefficient equipment with new, efficient units so that the energy savings would actually pay for the equipment.
None of the persons who reviewed the FMI project was aware that the proposal might require a performance bond. Respondent and others aware of the project were familiar with bonds and the necessity to have same on certain types of projects. In this instance, the superintendent, the assistant superintendent for facilities, the school board attorney, and Respondent did not request a bond for this job. No Board member questioned whether a bond should be requested for the project. All of the foregoing operated under the assumption that the
replacement of equipment and the construction incidental to that did not require a bond.
The principals employed at FMI had a satisfactory work history on similar projects. Their qualifications were investigated by Mr. Cowling, the assistant superintendent. No prior poor work performance was discovered.
Under the terms of the FMI contract, the Board was to receive and approve a list of subcontractors before FMI was to "commence the installation of the System." There was no requirement that FMI submit a list for subcontractors of subcontractors.
After commencement of the installation of the system, the Board and several of its individual members were sued for amounts allegedly owed Miller Electric, a subcontractor of a subcontractor on the FMI project. That suit brought to light the issue of the performance bond, or lack thereof, and the discovery that an individual, identified in the record as Armondo Diaz, had somehow obtained the balance of $167,000 from the Shawmut Bank. Such monies represented the final draws due on the FMI project.
Respondent, however, did not authorize the final draw from the bank nor is there any evidence that he supported Mr. Diaz in that matter. Subsequently, the Board sued the bank over the release of the funds and settled the suit with Miller. Whether the $167,000 (quickly released) would have settled Miller Electric's claim is unknown. Certainly, it would have greatly reduced it.
At the time of Respondent's departure from employment, the FMI system was operating in seven of the twelve schools in an acceptable manner. The other five schools were operational but not to the efficiency level anticipated.
The Respondent acted reasonably in the selection and award of the contract to FMI, the administration of the project, and is not responsible for the improper release of the final draw.
Three Board members testified that they have lost confidence in Respondent's ability to perform the duties of staff engineer/project manager. None of the three had registered complaints regarding his work performance with Respondent or his supervisor, Mr. Cowling, prior to the Board meeting April 23, 1991.
None of the three Board members was able to articulate the factual basis for her lost confidence when asked to do so in December, 1991.
The Respondent meets all of the qualifications for employment as staff engineer/project manager as that job title is described by the Board.
The Respondent acted appropriately and within the scope and description of his job duties on each of the following projects: Stone Middle School; asbestos; Anderson Elementary School; Southwest Junior High School; Cambridge Elementary School; Viera; and FMI.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The powers and duties of school boards are set forth in Section 230.23, Florida Statutes. Subsection (5), provides, in pertinent part:
PERSONNEL.--Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensa- tion, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
Positions, qualifications, and appointments.--Act upon written recommenda- tions submitted by the superintendent for positions to be filled and for minimum qualifications for personnel for the various positions and act upon written nominations
of persons to fill such positions. The school board may reject for good cause any employee nominated. If the third nomination by the superintendent for any position is rejected for good cause, if the superintendent fails
to submit a nomination for initial employment within a reasonable time as prescribed by the school board, or if the superintendent fails to submit a nomination for reemployment within the time prescribed by law, the school board may proceed on its own motion to fill such position. (emphasis added)
In the case at issue, the parties have stipulated that the foregoing section of law governs the issue of this proceeding.
The term "good cause," as used in the context of this case, has been described by the case Spurlin v. School Board of Sarasota County, 520 So.2d 294 (Fla. 2d DCA 1988), as not being limited to the "seven deadly sins" generally identified as grounds for the suspension or dismissal of a contract employee. In Spurlin, the court was unwilling to limit the school board from exercising its ability to decline a nomination made by its superintendent. The basis for such denial, however, must be lawful, rational, and non-arbitrary. Moreover, such basis must evidence that the nominee is "objectively" unsuitable for the recommended position. Thus, the board does not have an "unfettered power to fashion reasons for rejecting a superintendent's recommendation." Spurlin at
297. Based upon the foregoing, the evidence in this case must be reviewed to determine whether there is a rational, non-arbitrary basis for the action taken.
Any conclusion as to whether a nominee is "objectively" unsuitable for the recommended position must be supported by competent, substantial evidence. Speculation based upon hearsay cannot stand alone as the basis for such conclusion. See State of Florida, Department of Administration, Division of Retirement, 17 FLW D175 (Jan. 1992).
Section 120.58(1)(a), Florida Statutes, provides, in part:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding
unless it would be admissible over objection
in civil actions. This paragraph applies only to proceedings under s. 120.57.
In this case, the Board members voting against Respondent's appointment as staff engineer/project manager had little or no first hand knowledge of any of the allegations ultimately raised against Respondent in the statement of cause. No direct evidence was presented as to any wrongdoing on the part of the Respondent.
The Board failed to establish any basis to demonstrate Respondent was "objectively" unsuitable for the recommended position. None of Respondent's prior supervisors testified to any professional, ethical or character deficiencies. None of the contractors with whom Respondent dealt during his tenure with the Board testified to any professional, ethical or character deficiencies of the Respondent. In short, the only evidence presented was the unsubstantiated claim of "lost confidence." To terminate the twenty year career of an employee recommended for appointment and against whom no qualification, professional, ethical, or character deficiency is found on such basis is unwarranted and not within the leeway Spurlin affords.
With regard to Respondent's claim for attorneys' fees and costs, it is not concluded that the Board has participated in these proceedings for an improper purpose but that it has used poor judgment in attributing to Respondent acts or omissions more correctly placed elsewhere.
Based on the foregoing, it is RECOMMENDED:
That a final order be entered appointing Respondent to the position of staff engineer/project manager with all back pay and benefits withheld him from the date of his termination.
DONE and ENTERED this 31st day of July, 1992, in Tallahassee, Leon County, Florida.
JOYOUS D. PARRISH
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1992.
APPENDIX TO CASE NO. 91-5645
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER, THE SCHOOL BOARD:
It should be noted that Petitioner did not number the paragraphs in its proposed findings of fact. The numbers indicated below were assigned as follows: paragraphs 1 through 20 related to Respondent's general job description and responsibilities; paragraphs 21 through 31 are under the heading related to Viera; paragraphs 32 through 53 are under FMI; paragraphs 54 through
66 are under the Stone Middle School heading; paragraphs 67 and 68 are under Southwest Jr. High School; paragraphs 69 through 73 are under the asbestos heading; and 74 through 79 are under Cambridge Elementary School heading. No proposed findings of fact were submitted for the allegations related to Anderson Elementary School.
Paragraphs 1 through 16 are accepted but do not necessarily reflect accurate quotes of the cited material as there are minor, insignificant irregularities.
Paragraph 17 is rejected as contrary to the weight of the evidence. While it is accepted that three board members testified they had lost confidence in Mr. Barna, it is not concluded that they had objective reasons for that opinion prior to the vote on the Superintendent's recommendation.
Paragraph 18 is accepted.
With regard to paragraph 19, it is accepted that the job description had been held by Mr. Barna prior to the Board decision and would have been afterwards had they accepted the Superintendent's recommendation.
Paragraphs 20 and 21 are accepted.
Paragraph 22 is rejected as irrelevant.
Paragraph 23 is accepted.
Paragraph 24 is rejected as contrary to the weight of the credible evidence.
Paragraph 25 is accepted.
With regard to paragraph 26, it is accepted that some, but not all, of the changes addressed by change order 1 were completed prior to the submission of the item to the Board.
Paragraph 27 is rejected as contrary to the weight of the evidence, and contrary to the facts established at hearing. Mr. Barna did not authorize changes without making his superiors aware of the items to be considered. The contract speaks for itself as to his authority.
Paragraph 28 is rejected as contrary to the weight of the evidence; see also comment re: paragraph 27 above.
With regard to paragraph 29, it is accepted that change order 1 represented an increased cost to the project; otherwise rejected as not supported by the record cited.
Paragraph 30 is accepted but is irrelevant since evidence established that Mr. Barna did not approve some of the changes to the project and that they were done without any authorization.
Paragraph 31 is accepted but is irrelevant; Mr. Barna did not stand as the guarantor on the work performed by others.
Paragraph 32 is accepted.
Paragraph 33 is rejected as contrary to the weight of the evidence.
Paragraphs 34 and 35 are accepted.
Paragraph 36 is rejected as not supported by the record cited; weight of the evidence supports the fact that Miller Electric was a subcontractor for a subcontractor and that the contract did not require the disclosure of subs of subs.
Paragraph 37 is rejected as contrary to weight of the evidence; see comment paragraph 36 above.
Paragraph 38 is accepted but is irrelevant.
Paragraph 39 is accepted but is irrelevant.
Paragraph 40 is rejected as contrary to the weight of the evidence.
Paragraph 41 is rejected as irrelevant.
Paragraph 42 is rejected as contrary to the weight of the credible evidence.
Paragraph 43 is rejected as not supported by the evidence; to the extent that the paragraph suggests Mr. Barna was generally familiar with bond requirements and that he compiled "boiler plate" forms it can be accepted, otherwise must be rejected since no evidence that Mr. Barna prepared or drafted documents. The bond form on its face shows it is an AIA document A310 form.
Paragraph 44 is rejected as argument.
Paragraph 45 is rejected as a conclusion of law. The facts of this case establish that no one associated with the School Board side of the project realized it was, or should have been, a bond job until the lawsuit was filed. Had anyone suspected a bond should be required, it would have been requested. Mr. Barna was not at fault for not requesting a bond anymore than Mr. Walker was, or Mr. Cowling, or Mr. Collingsworth, or the individual Board members who know when bonds are required.
Paragraph 46 is rejected as contrary to the weight of the evidence.
Paragraph 47 is rejected as contrary to the weight of the evidence as it suggests Mr. Barna knew a bond was required (as it was a construction job); clearly, neither he nor anyone else realized a bond would, or should, be required.
Paragraph 48 is rejected as irrelevant.
Paragraph 49 is rejected as contrary to the weight of the evidence.
Paragraph 50 is rejected as irrelevant.
Paragraph 51 is accepted.
Paragraph 52 is contrary to the weight of the evidence.
Paragraph 53 is contrary to the weight of the evidence.
Paragraphs 54 through 57 are accepted.
Paragraph 58 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence.
Paragraph 59 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence.
Paragraph 60 is accepted but is irrelevant.
Paragraphs 61 through 66 are rejected as contrary to the weight of the evidence, irrelevant, or assuming facts or conclusions of law not evidence.
Paragraph 67 is accepted.
Paragraphs 68 through 73 are rejected as contrary to the weight of the evidence, conclusions based upon facts not in evidence, or irrelevant.
Paragraph 74 is accepted.
With regard to paragraph 75, it is accepted that Mr. Barna represented that drainage would be improved by the proposed easement drainage; as to the suggestion that Mr. Barna assured "no water" would be drained unto the property, such proposed fact is rejected.
Paragraphs 76 and 77 are rejected as contrary to the weight of the evidence. The Board's decision to accept the concept was not solely based upon Mr. Barna's recommendation.
Paragraph 78 is accepted.
Paragraph 79 is rejected as irrelevant, beyond the scope of this proceeding, and to the extent it suggests Mr. Barna to be at fault, is contrary to the weight of the evidence. Mr. Barna was not responsible for drainage problems at the school.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT, BARNA:
1. Paragraphs 1, 2, 7 through 18, 20, 22, 23, 25 through 38, 41, 43, 46
through 56, 58 through 61, 66 through 71, 77 through 79, 93 through 97, 101, 102
through 105, 109 through 111, 113, 114, 116, 120, 123, 124, 127, 129, 130, 132,
135 through 146, 148, 149, 151 through 157, 159, 160, 162 through 165, 167
through 169, 171, 172, 174, 176, 177, 179, 181, 182, 186, 188, 189, 190, 191 are
accepted.
Paragraphs 3, 4, and 5 are accepted but are irrelevant.
Paragraph 19 is rejected as irrelevant; reiteration of charges, not fact; or argument.
With regard to paragraph 21, it is accepted that projects described in statement of cause were extent of Board consideration (if that); otherwise, not supported by record cited.
5. Paragraph | 24 | is | rejected | as | irrelevant and argument. | |
6. Paragraph | 39 | is | rejected | as | repetitive or argument. | |
7. Paragraph | 40 | is | rejected | as | argument. | |
8. Paragraph | 42 | is | rejected | as | conclusion of law. | |
9. Paragraph | 44 | is | rejected | as | restatement of document not | fact. |
10. Paragraph | 45 | is | rejected | as | argument or comment. | |
11. Paragraph | 57 | is | rejected | as | restatement of document not | fact and |
argument.
Paragraph 62 is rejected as hearsay not supported by direct evidence.
Paragraph 63 is rejected as restatement of document not fact and argument.
Paragraph 64 is rejected as comment, not fact.
Paragraph 65 is rejected as hearsay not supported by direct evidence.
Paragraphs 72 and 73 are rejected as recitation of testimony.
Paragraph 82 is rejected as restatement of document not fact and irrelevant.
Paragraph 83 is rejected as irrelevant.
Paragraph 84 is accepted but is irrelevant to this case.
Paragraphs 85 and 86 are rejected as argument.
Paragraph 87 is rejected as restatement of document not fact.
Paragraph 88 is rejected as argument.
Paragraph 89 is accepted but is irrelevant to this case.
Paragraph 90 is rejected as restatement of document not fact.
Paragraphs 91 and 92 rejected as argument and recitation of testimony.
Paragraph 98 is rejected as irrelevant.
Paragraph 99 is accepted but is irrelevant to this case.
Paragraph 100 is rejected as restatement of document not fact.
Paragraph 106 is accepted but is irrelevant to this case.
Paragraphs 107 and 108 are rejected as restatement of document not fact.
Paragraph 112 is accepted to the extent that the terms outlined were Mr. Barna's understanding but such terms were not reduced to writing in accordance with the Board's directive. Why the easement was signed prior to an agreement being drafted and approved by the Board is unknown. No evidence suggests Mr. Barna was responsible for the oversight.
With regard to paragraph 115, see comment regarding paragraph 112 above.
Paragraph 117 is rejected as irrelevant.
Paragraph 118 is accepted but is irrelevant to this case.
Paragraph 119 is rejected as restatement of document not fact.
Paragraph 122 is rejected as argument.
Paragraph 128 is rejected as not supported by evidence cited.
Paragraph 131 is rejected as hearsay.
Paragraph 133 is rejected as hearsay.
Paragraph 134 is rejected as restatement of document not fact.
Paragraph 147 is accepted but is irrelevant to this case.
Paragraph 150 is rejected as restatement of document not fact.
With regard to paragraph 155, the phrase "which ultimately recommended" should be added before "FMI" to clarify the statement instead of "recommending."
Paragraph 158 is rejected as restatement of document not fact.
Paragraph 161 is rejected as restatement of document not fact.
With regard to paragraph 166, it should be added that at all material times to the review of the project before the letting of the job, the FMI project was considered as described.
Paragraph 170 is accepted with the substitution of the word "acceptably" for "perfectly." It is the view of the trier of fact that no system can be perfect.
Paragraph 173 is rejected as contrary to the weight of the evidence. From this record it would appear that Mr. Walker gave no definitive statements regarding the FMI project.
Paragraph 175 is rejected as contrary to the weight of the evidence. It is accepted that Mr. Barna and Mr. Walker, together with other persons in authority, discussed the FMI project.
Paragraph 178 is rejected as argument.
Paragraph 180 is rejected to the extent it concludes funds were obtained by fraud; clearly that is the Board's position as no one authorized the final draw.
Paragraph 183 is accepted but is irrelevant to this case.
Paragraph 184 and 185 are rejected as argument not fact.
Paragraph 187 is rejected as irrelevant and argument.
Paragraphs 192 through 196 are rejected as argument, conclusion of law, or not supported by the weight of the evidence.
COPIES FURNISHED:
Stanley Wolfman David J. Wolfman
STANLEY WOLFMAN, P.A.
200 W. Merritt Island Causeway Post Office Box 540513
Merritt Island, Florida 32954-0513
Louis V. Cianfrogna James H. Earp CIANFROGNA, TELFER, REDA
& FAHERTY, P.A.
Suite 102
1990 West New Haven Avenue Melbourne, Florida 32904
Abe Collingsworth Superintendent of Schools Brevard County School District 2700 St. Johns Street Melbourne, Florida 32940
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE SCHOOL BOARD OF BREVARD COUNTY, FLORIDA
BREVARD COUNTY SCHOOL BOARD,
Petitioner,
vs. DOAH CASE NO. 91-5645
DOUGLAS BARNA,
Respondent.
/
FINAL ORDER
This matter coming on to be heard by The School board of Brevard County, Florida at its meeting on September 22, 1992, for the entry of a FINAL ORDER and the School board having received, and reviewed the RECOMMENDED ORDER of the Division of Administrative Hearings entered the 31st day of July 1992, and having received and reviewed the Petitioner's Notice of Exceptions and the Respondent's Objections to the same, and the parties hereto being represented by counsel, who each made oral argument before the Board, and the School Board being otherwise fully advised in the premises, and in consideration thereof, it is
THEREUPON ORDERED AND ADJUDGED as follows:
That the School Board does hereby adopt the RECOMMENDED ORDER of the Division of Administrative Hearings entered the 31st day of July 1992, a copy of which is attached hereto, and incorporated herein, as a part of the FINAL ORDER, subject to the things and matter hereinafter set forth.
That the Respondent, Douglas Barna be and he hereby is entitled to receive the following sums in full settlement of this matter for the fiscal year for which he was recommended by the Superintendent, namely, July 1, 1991, through and including June 30, 1992, as back pay and benefits for said period of time less and except any lawful offsets such as income earned for personal
services, unemployment payments and Florida Retirement System retirement benefits received, all during the period of time from and including July 1, 1991 to and including June 30, 1992:
A. Back Pay (Gross) - 1991-92 $ 55,532.48
Less Retirement received - 12,509.16
$43,023.32
(Subject to any legal withholding requirement for income taxes and social security.)
B. Benefits Health Insurance 2,778.00 Vision Insurance 50.82
Life Insurance 194.88
Sick Leave (12 days) 2,563.04
Vacation Leave (18 days) 3,844.56
9,431.30
$52,454.62
That the Petitioner's Notice of Exceptions and the Respondent's Objection to the same have been reviewed and considered and those that were considered material and relevant have been incorporated herein.
That the parties are hereby informed of their right to judicial review of this Final Order in accordance with the procedures set forth in the Florida Rules of Appellate Procedure which must be strictly followed in order to obtain judicial review. These rules establish a time that requires that the Notice of Appeal be filed within thirty (30) days of the rendition of this Final Order. The entry of this Final Order shall be subject to the above right of appeal and in the event of an Appeal, the payments provided for herein, shall be stayed pending the final disposition of the Appeal.
Done and Ordered this 22nd day of September, 1992, in Melbourne, Brevard County Florida.
THE SCHOOL BOARD OF BREVARD COUNTY FLORIDA
Vera W. Walker, Chairman
ATTEST: Abe Collinsworth
Superintendent
CERTIFICATE OF SERVICE
I certify that copy hereof has been furnished to Louis V. Cianfrogna, James
H. Earp, Attorneys for Respondent and Stanley Wolnp, David J. Wolfman, Attorneys for Petitioner by mail this 23rd day September, 1992.
Bill Walker
School Board Attorney
Filed with the Clerk in the Office of the Superintendent
this 23rd day of September, 1992.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 1993
ARTHUR DOUGLAS BARNA, NOT FINAL UNTIL THE TIME EXPIRES
TO FILE REHEARING MOTION, AND,
Appellant, IF FILED, DISPOSED OF.
v. CASE NO. 92-2480
DOAH CASE NO. 91-5645
BREVARD COUNTY SCHOOL BOARD,
Appellee.
/ Decision filed May 11, 1993
Administrative Appeal from the Brevard County School Board
Louis V. Cianfrogna and James H. Earp of Cianfrogna, Telfer, Reda & Faherty, P.A., Titusville, for Appellant.
William C. Walker, Jr., Melbourne, for Appellee. PER CURIAM.
AFFIRMED.
SHARP, W., GRIFFIN and DIAMANTIS, JJ., concur.
| Issue Date | Proceedings |
|---|---|
| Jul. 08, 1993 | Mandate filed. |
| May 17, 1993 | Letter from W.C. Walker School Board Attorney Brevard Co. to J.D. Parrish with 5th DCA Decision attached filed. |
| Sep. 28, 1992 | Final Order filed. |
| Sep. 23, 1992 | BY ORDER OF THE COURT filed. (re: Petition for writ of prohibition, denied) |
| Sep. 21, 1992 | Acknowledgment of Petition for Writ of Prohibition filed. |
| Aug. 21, 1992 | Respondent`s Objection to Petitioner`s Exceptions filed. |
| Jul. 31, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held April 30 and May 1, 1992. |
| Jun. 15, 1992 | (unsigned) Proposed Order, Finding of Fact and Conclusions of Law filed. |
| Jun. 15, 1992 | (unsigned) Proposed Order of Recommendation filed. (From Stanley Wolfman) |
| Jun. 03, 1992 | Transcript (Volumes 1-3) filed. |
| May 01, 1992 | CASE STATUS: Hearing Held. |
| Apr. 30, 1992 | (Respondent) Notice of Service of Answers to Supplemental Interrogatories to Petitioner filed. |
| Apr. 28, 1992 | Statement of Cause filed. (From Stanley Wolfman) |
| Apr. 27, 1992 | Order sent out. (Motion to Compel Production of original documents are granted; Respondent`s demand for charging documents granted; Respondent`s Motion To Strike School Board Exhibits denied) |
| Apr. 27, 1992 | (Petitioner) Notice of Service of Answers to Supplemental Interrogatories to Petitioner; Addendum to Petitioner`s Pretrial Compliance Statement filed. |
| Apr. 24, 1992 | Notice of Telephonic Hearing; Motion to Compel Production of Original Documents; Demand for Charging Document; Request to Admit; Motion to Strike School Board Exhibits filed. (From James H. Earp) |
| Apr. 22, 1992 | Ltr to D.J. Wolfman and J. H. Earp from J.D. Parrish (RE: telephone conference of 4-21-92) filed. |
| Apr. 22, 1992 | (Petitioner) Notice of Service of Answers to Supplemental Interrogatories to Petitioner filed. |
| Apr. 20, 1992 | Respondent`s Unilateral Pretrial Compliance Statement filed. |
| Apr. 20, 1992 | (Petitioner) Pretrial Compliance Statement filed. |
| Apr. 06, 1992 | Motion to Compel Supplemental Interrogatories and Notice of Telephonic Hearing w/Exhibits A-C filed. (From James H. Earp) |
| Apr. 06, 1992 | (Petitioner) Notice of Telephonic Hearing; Notice of Taking Deposition Duces Tecum; Supplemental Response to Request to Produce Dated August 30, 1991; Supplemental Response to Supplemental Request to Produce Dated November 12, 1991 filed. |
| Mar. 24, 1992 | Notice of Hearing sent out. (hearing set for April 30-May 1, 1992; 9:00am; Melbourne) |
| Mar. 18, 1992 | Order out. (hearing rescheduled for April 30- May 1, 1992; Melbourne; parties prehearing statement shall be filed not later than 4-20-92.) |
| Mar. 10, 1992 | (Petitioner) Notice of Telephonic Hearing filed. |
| Mar. 02, 1992 | Subpoena Ad Testificandum (13); Subpoena Duces Tecum (6) filed. (From James H. Earp) |
| Mar. 02, 1992 | Response to Motion to Determine Petitioner w/Exhibit-A filed. |
| Feb. 21, 1992 | Letter to JDP from David J. Wolfman (re: rescheduling hearing) filed. |
| Feb. 21, 1992 | Letter to JDP from James H. Earp (re: hearing dates) filed. |
| Feb. 21, 1992 | (School Board) Motion to Determine Petitioner filed. |
| Feb. 18, 1992 | Order Granting Continuance sent out. (parties to file report by 2-28-92) |
| Feb. 10, 1992 | Order Denying Continuance sent out. |
| Feb. 10, 1992 | (Respondent) Notice of Service of Supplemental Interrogatories filed. |
| Feb. 10, 1992 | Notice of Telephonic Hearing (set for 2/13/92); Amended Motion for Continuance filed. |
| Feb. 10, 1992 | Notice of Taking Deposition; Stipulation; cc: Motion for Continuance;& Cover Letter from J. Earp filed. |
| Feb. 03, 1992 | (Respondent) Motion for Continuance filed. |
| Jan. 29, 1992 | Amended Notice of Taking Deposition filed. |
| Jan. 27, 1992 | (Respondent) Notice of Service of Answers to Interrogatories filed. |
| Jan. 21, 1992 | (Respondent) Notice of Filing of Interrogatories; Notice of Service of Answers to Interrogatories (3); Interrogatories (3 answered) filed. |
| Jan. 13, 1992 | (Respondent) Amended Notice of Taking Deposition filed. |
| Jan. 13, 1992 | (Respondent) Notice of Service of Answers to Interrogatories filed. |
| Dec. 30, 1991 | (School Board) Notice of Service of Answers to Interrogatories filed. |
| Dec. 13, 1991 | (Respondent) Notice of Service of Answers to Interrogatories filed. |
| Dec. 05, 1991 | (Respondent) Notice of Cancellation of Depositions filed. |
| Dec. 02, 1991 | (Respondent) Notice of Service of Interrogatories 2nd Set to Petitioner filed. |
| Nov. 22, 1991 | CC Letter to JDP from David J. Wolfman (re: rescheduling hearing) filed. |
| Nov. 21, 1991 | (Respondent) Response to Supplemental Request to Produce & cover ltr filed. |
| Nov. 18, 1991 | (Respondent) Notice of Taking Deposition filed. |
| Nov. 14, 1991 | (Respondent) Supplemental Request to Produce filed. |
| Nov. 07, 1991 | Order sent out. (hearing continued; rescheduled for Jan. 28-29, 1992; 9:00am; Melbourne). |
| Nov. 06, 1991 | (Respondent) Notice of Service of Interrogatories filed. |
| Nov. 06, 1991 | (Petitioner) Motion for Continuance of Hearing; Notice of Service of Interrogatories; First Interrogatories and Notice of Service filed. |
| Nov. 04, 1991 | Amended Notice of Hearing sent out. (amended as to hearing room location only) |
| Oct. 16, 1991 | Order for Prehearing Statement sent out. |
| Oct. 10, 1991 | Motion for Pre-Hearing Conference filed. (From Francine DeLuca) |
| Oct. 04, 1991 | Notice of Hearing sent out. (hearing set for Jan. 8, 1992; 9:00am; Melbourne). |
| Sep. 30, 1991 | (Respondent) Answer to Request for Production filed. (From Stanley Wolfman) |
| Sep. 27, 1991 | Joint Response to Initial Order filed. |
| Sep. 09, 1991 | Initial Order issued. |
| Sep. 03, 1991 | Agency referral letter; Petition for Formal Proceeding filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1993 | Opinion | |
| Sep. 22, 1992 | Agency Final Order | |
| Jul. 31, 1992 | Recommended Order | Board failed to establish good cause for rejecting superintendent's nominee for job. |
