STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE ATTORNEY, THIRTEENTH ) JUDICIAL CIRCUIT OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE No. 89-5617BID

) DEPARTMENT OF LABOR & EMPLOYMENT ) SECURITY, DIVISION OF WORKERS' ) COMPENSATION, )

)

Respondent. )

) STATE ATTORNEY, FOURTH JUDICIAL ) CIRCUIT OF FLORIDA and HUBBARD ) HOUSE, INC., )

)

Petitioner, )

)

vs. ) CASE No. 89-5618BID

) DEPARTMENT OF LABOR & EMPLOYMENT ) SECURITY, DIVISION OF WORKERS' ) COMPENSATION, )

)

Respondent. )

) STATE ATTORNEY, SEVENTEENTH )

JUDICIAL CIRCUIT, )

)

Petitioner, )

)

vs. ) CASE No. 89-5619BID

) DEPARTMENT OF LABOR & EMPLOYMENT ) SECURITY, DIVISION OF WORKERS' ) COMPENSATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held herein on November 9, 1989, in Tallahassee, Florida, before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anne Marie Hanratty Lopez, Esquire 13th Jud. Circ. 902 North Florida Avenue

Tampa, Florida 33602

For Petitioner: John R. Jolly, Esquire

4th Jud. Circ. Office of the State Attorney

Duval County Courthouse Jacksonville, Florida 32202-2919

For Petitioner: Stanly E Peacock, Esquire

17th Jud. Circ. 201 S. E 6th Street - Suite 474

Fort Lauderdale, Florida 33301

For Respondent: Stephen D. Barron, Esquire

General Counsel

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

STATEMENT OF THE ISSUES

The issue for consideration herein is whether grant money under the Victims Of Crime Act of 1984, for the 1989-1990 fiscal year should be awarded to Petitioners herein.

PRELIMINARY STATEMENT

On September 21, 1989, the Thirteenth Judicial Circuit State Attorney's Office's Victim Assistance Program Director submitted a protest regarding the award of grants under the Victim of Crime Act of 1984, (VOCA), for the 1989-1990 fiscal year, contending that the award, which excluded this Petitioner, was improper and unfair. By letter dated September 25, 1989, the State Attorney's Office for the Fourth Judicial Circuit of Florida submitted its protest of award on the same grounds. By letter dated September 26, 1989, the State Attorney's Office for the Seventeenth Judicial Circuit filed its similar protest.

By letter dated October 11, 1989, the protest by the Thirteenth and Fourth Judicial Circuits' representatives were forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and by letter dated October 13, 1989, the protest of the Seventh Judicial Circuit's representative was also forwarded.

By Notice of Hearing dated October 27, 1989, Hearing Officer Donald R. Alexander set the case for hearing on November 9, 1989, at which time the consolidated hearing of the three cases was held before the undersigned to whom they had been transferred in the interim.

At the hearing, Respondent presented its evidence first, by agreement of the parties. It presented the testimony of Margaret W. Bates, Bureau Chief within the Department of Labor and Employment Security (Department), whose Bureau produced the grant manual for the instant subgrant process. Respondent also introduced Respondent's Exhibits 4 through 15. Petitioner, Fourth Judicial Circuit, presented the testimony of Rita K. DeYoung, Executive Director of Hubbard House, and Debra G. Garrett, an employee of the State Attorney's Office in its Victim Services Division. Petitioners introduced Petitioners' Exhibit 1

through 25. Respondent's Exhibits 4 through 15 correspond and are joint exhibits with Petitioners' Exhibits 10 through 21, respectively.

No transcript was provided. Subsequent to the hearing, counsel for Petitioners, Thirteenth and Seventeenth Judicial Circuits, and the Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Counsel for the Petitioner, Fourth Judicial Circuit submitted only argument.

FINDINGS OF FACT

1. The Federal Victims of Crime Act (VOCA) of 1984 authorizes the Attorney General of the United States to grant Federal funds to the individual states for the purpose of awarding grants to eligible subgrantees who provide direct assistance to victims of crime. Consistent with the terms of the Act, the U.S. Department of Justice Office for Victims of Crime published a series of guidelines for the implementation of the program.

   
   

2. In February 1989, the Governor of the State of Florida created the Governor's Coordinating Council on Victim's Rights and Services (Council), which was charged with reviewing applications submitted for VOCA grants and advising the Governor on those programs qualified to receive them. The Council consisted of 23 people appointed by the Governor. At the end of the fiscal year 1988

   $560,000.00 was returned to the Federal government unspent. The Governor's Council was set up this year to prevent this from happening again.

   
   

3. In support of the VOCA program, the Division of Workers' Compensation within the Department of Labor and Employment Security, (Division), drafted and promulgated a Grant Manual for each of the years in which the program was in implementation in Florida. The Fiscal Year 1989-1990 edition of the manual was prepared by the Division without input from the Council. It was published in March or April 1989, prior to the current edition of the Federal guidelines which were published by the Department of Justice in May 1989.

   
   

4. The Federal guidelines provide, in pari materia, that the state to which Federal monies are granted, has sole discretion as to which programs within the state shall be awarded subgrants. The only condition is that the eligibility criteria, set out in the Federal Act and enumerated in the guidelines, are met by any subgrantee to whom funds are allocated.

   
   

5. The Federal guidelines also encourage the various states to consider a funding policy which takes into consideration the needs for victims services throughout the state, the effectiveness of previously funded programs, and the availability of funds from other sources to proposed and previously funded projects. States are encouraged to expand into new service areas as victim funds increase, but are discouraged from establishing a blanket policy of terminating funds to previous year programs solely for the purpose of funding new programs. The Federal guidelines give the states the discretion to expand those Federal guidelines but not waive Federal requirements.

   
   

6. In the preparation of the grant manual, the Division did not waive any of the Federal requirements. Ms. Bates attended all meetings of the committee which drew up the state's manual and believes that no new requirements were added to the Federal requirements by the state.

   
   

7. When the FY 1989-1990 grant manual was published, it announced the state's priority to be given to programs that serve victims of spouse abuse,

   sexual abuse, and child abuse, and further indicated that grant applications should identify which of the various statewide goals it proposed to address. These goals included:

   
   

   1. Enhancing the quality and quantity of existing victim's services.

   2. Enabling existing programs to add additional kinds of victim's services and additional victim's groups.

   3. Expanding victim's services to geographic areas with limited or nonexistent services.

   4. Enabling existing programs to expand victim's services to members of minority populations.

      
      

8. In April and May 1989, the Bureau of Crimes Compensation and Victim Witness Services (Bureau), forwarded copies of the state's grant manual and application forms to various victim's services programs throughout the state. The applications were due to be filed by June 2, 1989. Ninety-two applications, requesting a total of approximately $4.9 million were received from various services organizations. The total amount of grant money available from the Federal government for this period was $1,855,000.00.

   
   

9. The manual furnished to the applicants with the application form also indicated the procedure that would be followed by the Department in evaluation and review of applications, and indicated what factors would be considered by the evaluation committee so that applicants could address these salient factors in their application. In fact, the entire review process, indicating the issues to be considered and the point spread available for each element, was furnished to the prospective applicants in the manual.

   
   

10. The Governor's Council met for the first time on June 12, 1989, and delegated to the VOCA Committee, which it established at that meeting, the task of devising a review process for the applications within the parameters set out in the grant manual. Due to the time constraints involved, the Council was advised that funding for the 1989-1990 would be based on a 9 month period, since the Bureau had previously decided to continue to fund existing programs from FY 1988-1989 for an additional 3 months. This accounted for $424,000.00 of the total $1,855,000.00 available.

    
    

11. Consistent with the direction of the Council to devise a review method, the VOCA Committee met in Tallahassee on June 29, 1989, and after discussion, directed Bureau staff to prepare summaries of the 92 applications received. Before this could was accomplished, however, Council members were given the opportunity to object to this procedure. No objections were voiced.

    
    

12. The VOCA Committee also directed the Bureau staff to evaluate and score each of the applications, utilizing the scoring plan outlined in the grant manual. The Committee also decided to recommend to the Council that existing programs recommended for continuation be funded at 75% of existing levels plus a 5% increase for inflation. Those existing programs which appeared to be questionable or posed a problem to any member of the Council, would be reviewed by the entire Council and the problem discussed and resolved there. At this point, it should be noted that the term, "existing" was interpreted to mean those previously funded with VOCA funds, not those in operation and funded by other fund sources.

13. Minutes of the Committee meeting of June 29, 1989, were subsequently forwarded to all council members followed by a packet containing a listing of applicants and the amount requested, an allocation of funds consistent with the

    75 plus 5 percent formula, and a summary of each of the applications.

    
    

14. The full Council met on August 21 and 22, 1989, and, inter alia, approved the minutes of the VOCA Committee's June 29 meeting. It decided to fund no more than 66 programs for the 1989-1990 fiscal year.

    
    

15. When it evaluated the applications submitted, the council decided to group the 62 previously funded applications by Judicial Circuit. Each was reviewed, and upon motion, was either recommended for funding at the stipulated level, or tabled. Those which were tabled, were thereafter reexamined by the full Council and either recommended for funding or probation or denied. Four existing (previously funded), programs were not recommended for continuing funding. Fifty-eight of the sixty-two previously funded programs were recommended for funding at the stipulated level.

    
    

16. The sum of $75,000.00 of the amount available for grant was set aside by unanimous vote of the Council to be used as an appeal fund for those unfunded programs which successfully appealed their initial denial.

    
    

17. The Council also approved for funding certain agencies which had not previously been funded. The Council recommended that the highest scoring program in every Circuit receive funding whether previously funded or not. As a result, some previously unfunded programs were recommended for funding and others were recommended for funding if money became available from the

    $75,000.00 appeal fund.

    
    

18. Through their cross examination of Ms. Bates, who presented the only direct evidence relating to the evaluation and award process, Petitioners attempted to show that the process was tainted by favoritism and was flawed as being arbitrarily and capriciously applied. This is not so.

    
    

19. To be a recipient of VOCA money, all applicants had to meet the requirements outlined in the grant manual and in Ms. Bates' opinion, all agencies which received VOCA money as a result of this process met the minimum criteria. Petitioners presented no direct evidence to show to the contrary. While admittedly some agencies which received grants were represented on the Governor's Council, by the very nature of the purpose and makeup of the Council this may be expected. However, there is no evidence to demonstrate even a hint of misconduct on the part of any of these agency representatives or that their agency was given a grant when either it was not qualified under the guidelines or had been guilty of malfeasance or misfeasance in a prior award period.

    
    

20. Scoring of the applications was done by an administrator and two grant specialists. These individuals attended the council meeting but had no voting power. While one administrator expressed some concern that grants were being recommended to agencies which were not qualified, no evidence as to the particulars of that matter was presented and apparently the full Council was not sufficiently concerned by it to indicate it was a problem area with any of the grantees.

    
    

21. Another issue raised at hearing by the Petitioners was the allegation that not all Council members attended the entire August 21 - 22, 1989 meeting at which the grants were approved. The minutes of the meeting indicate, however,

    that some members who were not present sent written communications to express their viewpoints, and also that some agencies who were represented at the meeting were ultimately denied a grant. Petitioners also questioned the use by the Committee of a "hit list." Though an unfortunate choice of words, the list in question, maintained by the Bureau, contained the name of 11 previously funded agencies which had demonstrated difficulties functioning as grantees and which were on probation for such items as failing to make timely reimbursement, failing to file reports on time, and the like. Of these 11 agencies, 7 were refunded and 4 were not.

    
    

22. The review committee which evaluated the applications prepared summaries for the Council. These summaries were prepared after the qualification review was made of the application and it was scored. That relating to the Fourth Judicial Circuit indicated that this Petitioner was not in the forefront of one activity which is an area of state priority, post- conviction services. Emphasis in the process was placed on the program the agency provides rather than on an evaluation of the agency which provides it.

    
    

23. The Council was provided with a list of all previously existing programs and which of those had applied for a grant in the current fiscal year. It was the Council, not the evaluating Committee, which chose to examine existing programs and give them priority. Second on the list of priority was the group of previously mentioned probationary programs, then the $75,000.00 set aside for post-appeals funding, and the remaining $82,000.00 was to be used for enhancement of existing programs. Though this procedure is not called for or announced in the grant manual, it is not inconsistent with the manual's provisions. An area for examination by both the Committee and the Council was that of matching funds. By Federal rule, existing programs had to show 20% matching funds and new programs, 35% matching funds to qualify. The purpose of this was to make new programs demonstrate they had a reasonable chance of success This requirement is not unreasonable.

    
    

24. The scores assigned according to the criteria outlined in the grant manual were not the only factor considered by the Council. In fact, some applicants which were funded had scores lower than some which were not. Other factors considered included the expertise of the members of the Council who may have had experience with a particular type of program; priorities assigned by the Federal government; the announced State goals; and the prior performance of the agency in question. All of the 92 applicants' files were submitted to the Council which considered them in the light of the criteria previously discussed herein. The packet submitted to the Council on each applicant included the cover sheet, a description of the agency's program, a budget summary, and the total victim services budget. Ultimately, most of the previously funded programs, including 7 of those on probation, were again funded by the Council. It should be noted here that none of the successful applicants received in grant as much had been requested. Whereas the average request was for approximately

    $53,750.00, the average grant was $23,000.00

    
    

25. In FY 1988-1989, Petitioner, Fourth Judicial Circuit, had as its primary goal, the enhancement of services provided by the Victim/Witness Service Program in that office. It sought to increase the number of compensation applications by one fifth, and proposed to implement a rape crisis on-call program with the personnel for all of these programs to come entirely from the State Attorney's Office. In its FY 1989-1990 application, that Petitioner applied jointly with Hubbard House, requesting funds to hire three additional personnel to service battered women. The State Attorney's Office was merely to

    provide office space, materials, and clerical assistance to the program that would be operated by Hubbard House.

    
    

26. The council considered the FY 1989-1990 projected program to be substantially different than, rather than an enhancement of, that in the previous years, when considering the use of funds to be received, and on that basis, treated the combined application as a new, rather than a continuing, program. While open to differing opinion, the Council's determination is found to be not inconsistent with the facts.

    
    

27. Turning to the grant application filed by the Thirteenth Judicial Circuit, this office, with a current score higher than quite a few other agencies which were funded this year, had received VOCA funds in the 1986-1987 and 1987-1988 fiscal years, but did not apply for funds in FY 1988-1989. On the basis of this, the program was considered a new, rather than a continuing (previously funded) program when it applied for FY 1989-1990. This determination is found to be consistent with published criteria and supportable.

    
    

28. The Seventeenth Judicial Circuit application was passed over in favor of a grant to Women in Distress, which was awarded the highest number of points within that Circuit. However, according to Ms. Bates, and there is no contradictory evidence of record, the Broward County program had started in January 1989, and was, under any definition, a new program. It had not been previously funded with VOCA funds and had no track record. The Council determination here is also found to be consistent with the published criteria and is supportable.

    
    

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

30. The burden of proof in this case is upon the unsuccessful bidder which seeks to establish that it is entitled to an award. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, Petitioners have the burden to establish that the Department's intended grants in this case to applicants other than themselves, resulted from illegality, fraud, oppression, or misconduct, and was not the result of a fair, full and honest exercise of the Department's discretion. Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505 (Fla. 1982).

    
    

31. An agency has wide discretion in soliciting and accepting bids and a decision based on an honest exercise of its discretion may not be overturned even if reasonable persons disagree with the outcome, C. H. Barco Contracting Co. v. State, Department of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County, supra.

    
    

32. While an agency has wide discretion in evaluating bids and awarding contracts or grants in the nature of a procurement, it may not act arbitrarily or capriciously, nor can it subvert the award process through any element of bias, fraud, favoritism, illegality or dishonesty, Department of Transportation

    1. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1980). In short, the integrity of the award process must not be tainted by any element of bias or prejudice of agency personnel, Solar Energy Control, Inc. v HRS, 377 So.2d 746 (Fla. 1st DCA 1979); International Medical Centers v. HRS, 417 So.2d 734 (Fla. 1st DCA 1982).

33. The evidence presented here clearly indicates that all prospective grantees were amply notified, in the grant manual furnished by the Department at the time it distributed the application forms, of the criteria upon which the Department proposed to evaluate the applications for subgrants. There is nothing in the form or in the manual which is so unique or difficult to understand as to raise a likelihood of misunderstanding. The only possible area for dispute would be in the definition of the term "existing" in regard to programs under consideration, and here, the most logical conclusions which could be drawn, and that which was drawn by the Department, was that the term meant, "previously funded with VOCA money during the prior fiscal year."

    
    

34. The evidence also indicates that the evaluation process, while perhaps not the most efficient, was, nonetheless, sufficiently comprehensive to insure that all applicants were fairly evaluated, and there is nothing in the evidence presented which would indicate that the evaluation and award processes were compromised or in any other way unfair.

    
    

35. There can be little legitimate debate that neither the Thirteenth nor the Seventeenth Judicial Circuit programs were existing programs as that term was applied fairly by the Department. As to the Fourth Circuit expansion program, some might well conclude it was merely a permitted expansion of an existing program, and as such, consistent with the guidelines and goals contained in the Department's grant Manual. The Council has concluded otherwise, however, and absent a showing that the Council's determination was either arbitrary or capricious, since the evaluation process has been determined to have been appropriate and legitimate, it must, under the current law, be sustained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent, Department of Labor and Employment Security, enter a Final Order denying the Petitions of the States Attorneys for the Fourth, Thirteenth and Seventeenth Judicial Circuits

RECOMMENDED this 19th day of December, 1989, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER

IN CASES No. 89-56I7BID, 56I7BID, and 5617 BID

The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner, Thirteenth Judicial Circuit:

1. Rejected.

2. Rejected.

3. Rejected.

4. Rejected.

5. Not proven. Council member's use of experience in general is not improper. Members cannot operate in a vacuum, and no evidence was presented tending to show any member improperly voted because of personal knowledge.

6. Rejected.

7. Not proven.

8. Rejected.

9. Not a Finding of Fact.

   
   

   By the Petitioner, Seventeenth Judicial Circuit:

   
   

   This Petitioner's Proposed Findings of Fact are not numbered. They will be addressed in the order in which they appear in its submittal.

   
   

   1. The exhibit which Petitioner classifies as # 21 is, in reality. # 23. It states what Petitioner claims, but also reflects that a summary of "each application that were submitted" was included. From that it can only be concluded that the exhibit introduced at hearing was not the complete memo submitted to the Council. The testimony of Ms. Bates indicates that the Council got to consider al applictions, though admittedly, priority was given to "existing" programs.

   2. Accepted, but see comments next above.

   3. Proposed Finding of Fact is accepted, but argument is not persuasive.

   4. First sentence accepted. Second sentence is a comment on the evidence.

   5. Accepted. Correctly quoted.

   6. Rejected. Exhibit in question is merely a report to the Governor and does not exclude the existence of a working copy of the report going to the Department.

   7. Not proven. Tape transcript is fragmented and presents comments out of context. No proof that either quoted individual was correct in his evaluation.

   8. Rejected as contra to the evidence.

   9. Accepted.

   10. Accepted and incorporated herein.

   11. Accepted.

   12. & 13. Accepted.

14. & 15. Accepted.

16. Accepted.

By the Respondent:

1-3. Accepted and incorporated herein.

1. Accepted, and as pertinent, incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. & 8. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. - 13. Accepted and incorporated herein.

14. & 15. Accepted and incorporated herein.

16. - 19. Accepted and, in part, incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

COPIES FURNISHED:

Stanley E Peacock, Esquire Supervisor

Victim Advocate Unit

201 S.E. 6th Street, Room 474 Ft. Lauderdale, Florida 33301

John Jolly, Esquire

Office of the State Attorney Duval County Courthouse Jacksonville, Florida 32202-2919

Nancy Lopez, Esquire

Domestic Violence Intervention Program 902 North Florida Avenue

Tampa, Florida 33602

Stephen D. Barron, Esquire General Counsel

Florida Department of Labor and Employment Security

2562 Executive Center Circle, East Tallahassee, Florida 32399-0657

Hugo Menendes, Secretary Department of Labor and

Employment Security

Berkeley Building. Suite 200

2590 Executive Center Circle, East Tallahassee, Florida 32399-2152

Docket for Case No: 89-005617BID

Orders for Case No: 89-005617BID