v. ) CASE NO. 85-3985BID
Respondent. )
This cause was heard by William R. Cave, Hearing Officer with the Division of Administrative Hearings on December 17, 1985, pursuant to an Amended Notice of Hearing in Fort Lauderdale, Florida. The parties were represented by counsel:
For Petitioner: Maurice M. Garcia, Esquire
Kenneth A. Rubin, Esquire 2021 Tyler Street
For Respondent: Edward J. Marko, Esquire
The School Board of Broward County, Florida (BOARD), at a regularly noticed meeting on October 17, 1985, rejected the recommendation of the Architectural Selection Committee (ASC) to award an architectural contract to Cook-Reiff Associates, Inc. (COOK-REIFF), for the design of a project known as the new prototype high school. COOK-REIFF appeared at the meeting on September 17, 1985, and made a presentation.
After the vote to reject the recommendation of ASC, COOK- REIFF followed the procedures set forth in Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida, by filing a Notice of Protest and subsequently filing a formal written protest in the form of the document known as Petition to The School Board of Broward County, Florida.
The BOARD convened a meeting on November 21 and 25, 1985, to consider the Petition. On November 25, 1985, it denied the Petition. This Petition was then filed with the Division of Administrative Hearings on December 2, 1985, in accordance with Section 120.53(5)(d)2, Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida, and a hearing was held on December 17, 1985.
The Petitioner presented the testimony of Robert Irving Pulver and Cary Barnard Cook. Petitioner's Exhibits 1, 2, 4-11, 14, 16-19, 21 and 24 were received into evidence. Respondent presented no testimony. Respondent's Exhibits 1-3 were received into evidence.
The parties submitted post-hearing Proposed Findings of Fact.
A ruling has been made on each proposed finding of fact as reflected in the Appendix attached to this Recommended Order.
Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district.
On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes.
The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC.
On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects.
Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes.
From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC.
At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC.
On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School.
In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications.
On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School.
The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision.
On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School.
On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a
twenty (20) minute oral presentation on September 30, 1985, before the ASC.
On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants.
Following the discussions of these applicants, the following occurred:
Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of
the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner.
As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project.
Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting.
The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote.
The voting procedure which is described above is the same procedure which the ASC had used on different occasions in
the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC.
No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law.
By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school.
Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant
$706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval.
After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith.
Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project.
The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the
approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public.
At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982.
After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida.
The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15.
The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project.
BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose.
COOK-REIFF'S competence is not at issue in this matter.
The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered.
In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (Supp. 1984).
The BOARD is an "agency" as defined in Section 287.055(2)(b), Florida Statutes (1983), and therefore, is required, pursuant to Section 287.055(3)(d), Florida Statutes (1983), to "adopt administrative procedures for the evaluation of professional services, including, but not limited to, capabilities, adequacy of personnel, past record and experience, and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with section 287.055(3)(d), Florida Statutes (1981), the BOARD adopted Rule 6GX6-7003 on January 21, 1982, and amended this rule on January 20, 1983. This rule has not been amended or repealed since January 20, 1983, and therefore, Rule 6GX6-7003 as amended on January 23, 1982, was in effect at all times pertinent to this proceeding.
By resolution dated February 17, 1977, the BOARD created the ASC and since that date the ASC has acted on behalf of the
BOARD in making recommendations to the BOARD for the selection of architectural firms to be awarded contracts for BOARD projects.
As a committee of the BOARD, the ASC is subject to Chapter 286, Florida Statutes (1983), commonly known as the "Florida Sunshine Law." Wood v. Marston, 442 So.2d 934 (Fla. 1983). While the issue of an alleged violation of the Florida Sunshine Law as the basis for voiding certain actions of the ASC II did not arise until COOK-REIFF'S petition for rehearing was finally disposed of on November 25, 1985, the narrow issue which must be resolved in this matter is whether ASC failed to comply with the Florida Sunshine Law while meeting on September 30, 1955, to select COOK-REIFF as the architectural firm to be recommended to the BOARD for award of the Prototype High School project. If the ASC did not violate the Florida Sunshine Law then its selection of COOK-REIFF as the architectural firm to be recommended to the BOARD for award of the Prototype High School project should be accepted by the BOARD for the reason set out below.
The evidence clearly shows that the BOARD, by its past actions, had delegated authority to the ASC to act on its behalf when following the procedures and applying the criteria contained in Rule 6GX6-7003 for selection of the architectural firm to be recommended for award of a contract for BOARD projects and, in a situation such as the instant case, where the ASC had properly followed the procedures and properly applied the criteria contained in the BOARD'S Rule 6GX6-7003 in selecting the architectural firm to be recommended to the BOARD as the firm to be awarded the BOARD'S project, the BOARD, after determining that the ASC had followed criteria contained in its rule, had always in the past awarded the contract to the firm recommended by the ASC. Therefore, unless the BOARD finds that the ASC has not properly followed the procedures or has not properly applied the criteria contained in its rule or there are facts other than dissatisfaction with its rule that reasonably tend to support the BOARD'S decision then it would be an abuse of the BOARD'S discretion to arbitrarily reject the ASC recommendation based solely on the fact that the BOARD was dissatisfied with its rule. See City of Pensacola v. Kirby, 47 So.2d 533 (Fla. 1950).
The evidence clearly shows that the ASC followed the procedures and properly applied the criteria contained in Rule 6GX6-7003 in making its recommendation to the BOARD that COOK- REIFF be awarded the Prototype High School project. A review of the BOARD'S minutes of the meetings on October 17, 1985, and November 21 and 25, 1985, Petitioner's Exhibit No. 21 and
Respondent's Exhibit No. 2, respectively, clearly shows that the BOARD never expressed any concern as to whether the ASC had followed the procedures and applied the criteria contained in Rule 6GX6-7003. The BOARD'S main concern, particularly in its October 17, 1985 meeting, was its dissatisfaction with the rule.
In deciding whether the ASC violated the Florida Sunshine Law a review of Section 286.011(1), Florida Statutes (1983), is necessary and in pertinent part provides:
(1) All meetings of any board or commission of any state agency, or political subdivision, at which official acts are to be taken are declared to be public meetings open to the public at all times . . . .
Although the above-quoted section does not require notice to the public for governmental meetings such as the meetings held by the ASC on September 30, 1985, the courts have ruled as a practical matter that in order for such a meeting to be "public," reasonable notice is mandatory. Yarbrough v. Young, 462 So.2d 515 (1st DCA Fla. 1985). Hough v. Stembridge 278 So.2d 288 (3rd DCA Fla.
1973).
The Petitioner as the party asserting the affirmative has the burden of proof to show by a preponderance of the evidence that the meeting held by the ASC on September 30, 1985, was not in violation of Section 286.011(1), Florida Statutes (1983), and, as such, had the burden to show that a reasonable notice of that meeting was given to the public. Balino v. Department of HRS, 348 So.2d 347 (1st DCA Fla. 1977). The record is void of any evidence reflecting that a reasonable notice was given to place the public on notice as to when and where the ASC would be meeting, and therefore, it must be assumed that the ASC failed to give reasonable notice to the public of its meetings scheduled for September 30, 1985, and unless the action by the ASC at this unannounced meeting can be properly "cured" and brought out in the "sunshine" by subsequent action of the BOARD at a properly noticed meeting open to the public then such action being in violation of the Florida Sunshine Law is void ab initio Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla. 1981); Yarbrough v. Young;
462 So.2d 515 (1st DCA Fla. 1985); Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla. 1974).
The BOARD argues that the method of voting which was used by its own ASC in its September 30, 1985 meeting, violates the Sunshine Act's provisions. The method of voting that was used
is more fully set out in the Findings of Fact 15; however, in summary, the committee selected its first, second and third preferences by each of the committee members who were present at the time of voting; writing their first, second and third choices on a slip of paper and these votes were then tabulated.
Each member who was present at the time of voting did in fact, vote. The results of the vote were not only announced at the meeting, but in addition, they are reflected in the minutes of the September 30, 1985 ASC meeting. Although the individual members are not identified by name with their vote in the minutes of the meeting, the evidence shows that no one at the September 30, 1985 meeting objected to the form of voting and the individual members were free to announce how they voted after the vote was taken.
This same method of balloting had been used by the committee, according to Mr. Pulver on a number of occasions in the past and each time that method of voting had been reflected in the minutes of the ASC. Andy each time in the past, the BOARD; had approved and awarded the contract pursuant to the ASC's recommendations without voicing any objections to the method of balloting.
The BOARD argues that Ruff v. School Board of Collier County, 426 So.2d 1015 (2nd DCA Fla. 1983) is not dispositive of the issue in the instant case dealing with the manner in which each committee member voted because the Court was not presented with the issue of whether Chapter 286, Florida Statutes, required a roll call vote in order to satisfy the Florida Sunshine Law. However a close reading of Ruff shows that that was the issue presented to the Court because the Courts, in the face of an alleged violation of the Florida Sunshine Law, found the appellee's Task Force to be subject to the Florida Sunshine Law but sustained the summary judgment on the basis of the trial judge's finding of adequate notice, and that Section 286.12, Florida Statutes, did not require "a so-called roll call vote of the members of a public agency who are present and voting so that each member's specific vote on every subject is recorded." On the basis of Ruff the manner of voting used by each member voting at the September 30, 1985 meeting of the ASC does not violate Section 286.011(1), Florida Statutes.
The evidence clearly shows that although the BOARD had delegated a major portion of its responsibilities under Section 287.055, Florida Statutes, to the ASC, the BOARD retained and exercised the final authority with regard to awarding the contract
to an architectural firm under Section 287.055, Florida Statutes, and its Rule 6GX6-7003. The facts are clear that the BOARD'S function in this regard is not a "perfunctory ratification" of the decision of the ASC made at a prior meeting and, therefore, could be "cured" or brought out into the "sunshine" by subsequent action of the BOARD at a properly noticed meeting that is open to the public. Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla. 1981); Bassett v. Braddock 262 So.2d 425 (Fla. 1972); Yarbrough v. Young; 462 So.2d 515 (1st DCA Fla. 1985).
Although the BOARD did not approve the decision of the ASC made at its September 30, 1985 meeting, a meeting that was not reasonably noticed, at the BOARD'S October 17, 1985 meeting, there was sufficient discussion between the BOARD members and between the BOARD members and Mr. Robert Pulver of the agenda item, E-14 Assignment of Architect-Prototype High School, at this BOARD meeting to "cure" or to bring this matter out into the "sunshine." The "public" was present at this meeting and participated in the discussion of this item.
Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc.
Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, Florida.
WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February 1986.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting."
21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20.
Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street
Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369
Ralph D. Turlington Commissioner of Education
School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
