STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PALM BEACH ) COUNTY, FLORIDA, and DR. C. MONICA ) UHLHORN, SUPERINTENDENT OF SCHOOLS, )
)
Petitioner, )
) CASE NO. 91-8262
vs. )
)
J. KENNETH SCHRIMSHER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was conducted in this proceeding from November 16-25, 1992, in West Palm Beach, Florida, before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings,
APPEARANCES
For Petitioners: Donald Feldman, Esquire
Bruce A. Harris, Esquire Weiss & Handler, P.A.
2255 Glades Road, Suite 218A Boca Raton, Florida 33431
For Respondent: John T. Christiansen, Esquire
Neil B. Jagolinzer, Esquire Christiansen, Jacknin & Tuthill Suite 1010, Nations Bank Building 1555 Palm Beach Lakes Boulevard Post Office Box 3346
West Palm Beach, Florida 33401
and
Marnie Ritchie Poncy, Esquire Paul J. Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33410-3317 STATEMENT OF THE ISSUES
The issues for determination in this proceeding are whether Petitioner should be demoted from Associate Superintendent of Planning & Operations for the Palm Beach County School Board to the position of middle school principal, with a corresponding decrease in pay, and whether Respondent should be returned to annual contract status, or should be otherwise disciplined, on the basis of specific acts of incompetency alleged in the Amended Petition For Demotion filed on June 26, 1992.
PRELIMINARY STATEMENT
Petitioners filed a Petition For Demotion on December 19, 1991, and an Amended Petition For Demotion on June 26, 1992. A formal hearing was conducted from November 16-25, 1992.
At the formal hearing, Petitioners submitted approximately 171 exhibits for admission in evidence. Respondent submitted approximately seven exhibits for admission in evidence. The parties' exhibits were identified and admitted in evidence, or rejected, as provided in the transcript of the hearing and in this Recommended Order.
Petitioners presented the testimony of 26 witnesses. Respondent presented the testimony of seven witnesses. The identity of each witness and the scope of expertise, if any, is set forth in the transcript.
The parties represented that each would request attorney fees and costs at the conclusion of the formal hearing and jointly requested that a determination of the entitlement to and amount of fees and costs be reserved for disposition in a separate formal hearing to be conducted after the entry of this Recommended Order. The parties further agreed to reserve the presentation of evidence regarding the amount of fees and costs for a separate hearing.
A transcript of the formal hearing was filed with the undersigned on February 24, 1993. The parties timely filed proposed findings of fact and conclusions of law on April 15, 1993. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.
On July 2, 1993, Petitioners filed a motion to reopen the record for the purpose of admitting newly discovered evidence in the form of a report issued by the State of Florida, Office of the Auditor General, on June 24, 1993 (the "Auditor General's Report"). Respondent filed a written objection on July 7, 1993. A complete copy of the Auditor General's Report was filed with the undersigned on July 12, 1993. Petitioners' request to reopen the record is granted over objection. The complete copy of the Auditor General's Report is admitted in evidence pursuant to Section 120.58(1)(a), Florida Statutes.
FINDINGS OF FACT
Background And Overview
Respondent was first employed by Petitioner, School Board Of Palm Beach County, Florida (the "School Board"), in 1964 as a teacher. Respondent was promoted to principal in 1971,
Assistant Superintendent for the School Board in 1978, and Associate Superintendent of Schools for Planning and Operations on July 1, 1984.
Respondent was one of three Associate Superintendents in the Palm Beach County school district. There was also an Associate Superintendent of Instruction and an Associate Superintendent of Administration. Each Associate Superintendent reported to the Deputy Director who reported to the Superintendent.
Respondent served as Associate Superintendent of Planning and Operations until he was demoted to principal on November 5, 1991. Respondent served under an annual contract as an Associate Superintendent and maintains a continuing contract as a teacher. While employed as an Associate
Superintendent, Respondent never received notice of an allegation of incompetent conduct, was never disciplined, and never received a negative performance evaluation prior to this proceeding. In the Summer of 1991, Respondent was a finalist for the position of Superintendent. The position of Associate Superintendent of Planning and Operations was subsequently abolished effective July 1, 1992.
Planning And Operations: Organization And Regular Duties
The organization of Planning and Operations has changed in specific regards during the years Respondent was its Associate Superintendent. 1/ For the purposes of this proceeding, however, Planning and Operations employed approximately 1,500 people and was organized and operated in three subdivisions: Growth Management; Facilities Planning and Management; and Personnel Relations. Personnel Relations is not at issue in this proceeding. 2/
Growth Management responsibilities included: identifying school district demographics; determining racial balance; and site acquisition for development of schools and other facilities. Facilities Planning and Management responsibilities included: building new schools; renovations; improvements; and maintenance.
Each of the three subdivisions of Planning and Operations was supervised directly by an Assistant Superintendent. The Assistant Superintendents supervised one comptroller and nine directors. Directors had direct responsibility for assistant directors. Assistant directors supervised first-line managers. First-line managers supervised numerous employees who regularly worked on: major school center projects; new school construction; facility design and contract services; facility operations; maintenance and renovations; personnel administration; information management; recruitment and selection; and human resources.
Additional Duties
In addition to their regular duties, Respondent and other senior administrative supervisors were required by Mr. Thomas Mills, the former Superintendent, to promote and solicit the involvement of members of the local business community in the Palm Beach County school system. The school system faced student overcrowding, a lack of materials, a lack of adequate funding, and a rising drop out rate. Members of the business community were recruited to help raise money for operating expenses and to support a bond issue for which the School Board sought voter approval in 1986. Many members of the local business community were also vendors to the School Board.
Respondent was directed by former Superintendent Mills and Dr. James Daniels, the Deputy Superintendent, to contact and network with as many members of the business community as possible. Such activities were considered by former Superintendent Mills to be a high priority. Respondent complied with the directives of the former Superintendent and Deputy Superintendent.
The efforts of Respondent and other senior managers proved successful. The business community in Palm Beach County raised funds to supplement the operating expenses of the school system and supported a bond issue for construction of new facilities and capital improvements to existing facilities. In 1986, the majority of registered voters in Palm Beach County approved a Special Referendum authorizing a $678 million bond issue for the construction of educational facilities in the Palm Beach County School District.
The School Board established a five year plan for the construction of educational and ancillary facilities (the "five year construction plan"). A portion of the bond money was allocated to capital improvement projects to renovate or remodel existing facilities.
Planning and Operations supervised all bond issue projects, including capital improvement projects. In the 1986- 1987 school year, such projects, including capital improvement projects, were supervised by the division of New School Construction. In the Fall of 1987, supervision of capital improvements was transferred to Maintenance and Renovations. Maintenance and Renovations was also organized within Planning and Operations.
Approximately 39 new schools were constructed in Palm Beach County while Respondent was Associate Superintendent of Planning and Operations. The total budget for construction of new schools was approximately $550 million. Thousands of construction projects, renovations, and improvement or maintenance projects were performed by Planning and Operations. Approximately $317 million of the authorized bond issue was issued from 1987 through 1989.
In addition to the construction of new schools, the School Board approved a plan in 1985 to acquire land and construct four ancillary facilities. The ancillary facilities included a new administrative complex, a central warehouse, and a maintenance and operations facility. Planning and Operations supervised the site acquisition and construction of all four ancillary facilities.
Deficiencies In Planning And Operations
Deficiencies in the organization and operation of Planning and Operations were well known to both the School Board and Planning and Operations personnel. They were pandemic deficiencies that Respondent could not correct without the approval and financial support of the School Board and the technical assistance of experts. 3/
The School Board retained an outside consultant, Price Waterhouse, to study deficiencies in Planning and Operations and to formulate an improvement program. The improvement program was to be developed in three phases. The first phase identified deficiencies within Planning and Operations on the basis of discussions with department personnel and outside specialists. The second phase would have focused on verifying and prioritizing problems and their impacts. The third phase would have formulated a program for improvement of Planning and Operations.
Deficiencies in Facilities Planning and Management were identified in interviews conducted by the accounting firm of Price Waterhouse with directors, assistant directors, and first- line managers. In 1987, Price Waterhouse issued a draft report to the School Board describing the deficiencies found in Facilities Planning and Management (the "Price Waterhouse Report"). 4/ The School Board determined that the Price Waterhouse Report merely told the School Board what was already common knowledge and that further expenditures on a program for improvement with Price Waterhouse would be a waste of money.
The School Board knew of the deficiencies in Planning and Operations. The School Board knew that those deficiencies created impediments to the supervision of Planning and Operations. Known deficiencies within Facilities Planning and Management involved: financial procedures and controls; staff
performance, including personnel and control; planning of operations and projects; contract administration; construction administration; and organization structure.
Deficiencies in financial procedures resulted in budgeting without adequate preparation, historical data, timing, and coordination between departments. Poor cost and schedule accounting for capital improvements, maintenance, and operations made it difficult to capture and report cost information in sufficient detail and in a timely manner.
Poor cost controls directly affected the control of operations, decisions to perform work by in-house staff or contractors, and the value received for money spent. Adequate project management tools and policies were not in place to contain costs and adhere to schedules for maintenance, capital improvements, and new construction. Payment of suppliers, contractors, architects, and other vendors was slow, frustrated vendors, and made them reluctant to do work for the School Board.
There were deficiencies in staff performance, personnel, and control. Productivity appeared to be low. There was a lack of performance measurement and reporting mechanisms in place to accurately assess productivity. Productivity was significantly affected by: inadequate work planning and coordination; the condition and availability of equipment and materials; logistics; and geographic constraints.
Many employees were uncertain as to their responsibilities and corresponding authority, particularly at the first-line manager level. Uncertainty over responsibility and authority undermined the effectiveness of first-line managers dealing with vendors, contractors, and architects. Staffing levels and management span were not adequate to maintain existing facilities and operations, control personnel growth, and prevent duplication of field personnel skills between maintenance and capital improvements. Support resources were weak in technical expertise, administrative staff, reference materials, and computer aided design equipment.
Capital improvement, new construction, and maintenance tasks were frequently not scheduled in sufficient accuracy and detail to foresee and anticipate potential problems. Frequent schedule slippage allowed contractors less time to complete construction and meet schedules; adversely affecting productivity, project costs, and the ability to plan for and manage project issues and achieve targeted completion dates.
Shortages of materials and supplies often caused project delays. Coordination of work between and within departments failed to determine the optimal sequence in which work was to be performed to maximize the utilization of trade employees and avoid conflicts and rework.
Deficiencies in contract administration led to lack of clarification in the responsibilities, requirements, and expectations of parties to contracts. Contract documents and conditions were too vague and resulted in frequent disputes, delays, and occasional change orders. To avoid delays caused by change orders, contractors sometime proceeded without proper authorization at their own risk.
The definition of authority and responsibility and the guidelines for quality control and inspection for in-house employees and contractors needed to be improved. Such deficiencies in construction administration resulted in
project delays, poor construction, and higher facility life cycle costs. A lack of consistency in procedures and policies for project management exacerbated the deficiencies in construction administration.
Deficiencies in organization structure directly affected problems in other areas of Planning and Operations. Continuity of work was lacking on new construction. Project managers changed when responsibility passed from one division to the next; resulting in a start-stop effect on the project and a loss of specific project knowledge. Improvement was needed in communications between and within departments and in upper management support of lower management authority. There was a need for a long range organization structure and staffing strategy which addressed alternatives such as internal staffing and contracted services.
The presence of deficiencies described in the Price Waterhouse Report in 1987 was confirmed in 1993 in a Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report found that deficiencies similar to those described in the Price Waterhouse Report for Facilities Planning and Management also existed in Growth Management.
Problems reported in the Price Waterhouse Report and in the Auditor General's Report described a deficient organizational and operational system in which the School Board required Respondent to supervise unprecedented growth and activity. Respondent was required to:
supervise a $550 million construction plan involving thousands of projects and four ancillary facilities; 5/
promote involvement of the business community in the school system; and
perform the duties he was otherwise required to perform in the absence of the five year construction plan established by the School Board and associated promotional responsibilities.
In 1987, the Price Waterhouse Report stated that supervisors and assistant directors were stretched very thin, and their roles needed to be more clearly defined. Communication between and within departments and from directors and similar supervisors was poor. 6/ Many of the deficiencies described in the Price Waterhouse Report and the Auditor General's Report created impediments to Respondent's supervision of Planning and Operations irrespective of his additional duties associated with the five year construction plan.
Petitioners' Allegations
Petitioners' allegations against Respondent are based on two separate investigations conducted by Petitioners. 7/ Petitioners' allegations involve:
acquisition of a site for a central warehouse for $3.161 million (the "District Warehouse Site");
acquisition of a site for a west bus compound for $750,000 (the "West Bus
Compound");
construction of an addition to a new maintenance and operations building on Summit Boulevard in West Palm Beach for Maintenance and Renovations and Facility Operations and construction of an addition to a north maintenance building (the "Summit Facility");
requests for additional services on form G-604 (the "G-604" issue);
acceptance of gratuities from members of the business community who were also vendors
of the School Board; and
evaluation of two employees.
Petitioners' allegations of incompetency primarily involve the five year construction plan and ancillary facilities. Few of the alleged acts of incompetence involve other aspects of Respondent's job performance from July 1, 1984, through November 5, 1991.
The District Warehouse Site
The School Board determined in 1985 that a need existed for a centralized warehouse site in Palm Beach County. 8/ The School Board determined that approximately 10 acres would be adequate. Since the value of land in Palm Beach County was appreciating, the School Board also approved the policy of former Superintendent Mills that encouraged the acquisition of land for future expansion if the land could be acquired at a desirable price, i.e., "warehousing" land for future use.
Respondent had advocated a decentralized warehouse system in which separate warehouse functions would be carried out in various regions of Palm Beach County. Others in Planning and Operations supported the concept of a centralized warehouse site. The centralized warehouse concept was accepted and approved by former Superintendent Mills and the School Board.
On October 11, 1989, the School Board purchased approximately 16 acres of real property as a site for a centralized district warehouse. The property was purchased for $3.161 million from KEI Palm Beach Center, Ltd. ("KEI"), a limited partnership in which Mr. William Knight was a limited partner and Knight Enterprises, Inc., a corporation controlled by Mr. William Knight, was the general partner (the "Knight property").
Respondent did not act incompetently and did not violate any statute, rule, policy, instruction, or directive, or circumvent normal acquisition procedures (collectively referred to hereinafter as "applicable standards") with regard to the evaluation and purchase of the Knight property. Respondent neither proposed nor advocated the purchase of a particular warehouse site. Respondent did not propose or advocate the identification, evaluation, selection, and purchase of the Knight property. Respondent showed no favoritism to Mr. William Knight, to his son, Mr. Jim Knight, or to any entity owned by the Knights. Respondent committed no act or omission which impaired his business judgment, compromised his independence, or which was otherwise improper in connection with the acquisition of the District Warehouse Site.
Initial Site Selection And Evaluation
Prior to the acquisition of the Knight property, the School Board attempted to acquire property owned by Palm Beach County and known as Section 6. Negotiations for the acquisition of Section 6 terminated when Section 6 became unavailable.
A site search for the District Warehouse property was conducted by Growth Management. Ten separate sites, including the Knight property, were initially identified and reviewed by a site acquisition team within Growth Management.
The site acquisition team was headed by Mr. William Hukill, Assistant Superintendent for Growth Management. The site acquisition team also included Mr. Robert Skakandy, a real estate acquisition coordinator in Growth Management, and Mr. David Williams, Assistant Director of Growth Management.
Respondent was not significantly involved in identifying the 10 properties considered by the site acquisition team, including the Knight property. Each property was placed on the list by the site acquisition team because it was within or proximate to the geographical area preferred by the site acquisition team or possessed other targeted location characteristics. 9/
Site selection procedures typically did not involve Respondent. Site selection procedures were described in detail in the Auditor General's Report:
. . . upon identification of potential sites, the sites were evaluated by the District's Growth Management Center. A description of each site was presented to the Assistant Superintendent, Growth Management and to the Assistant Director, Growth Management for their review, after which the descriptions were . . . presented to the Superintendent.
Following the Superintendent's review, the preliminary site investigations and site descriptions with the Superintendent's recommendation were to be presented to the School Board for their review and approval. (emphasis supplied)
Auditor General's Report at 63.
Growth Management first considered the Knight property in August, 1988. Mr. Jim Knight communicated the availability of the Knight property to Ms. Linda Howell, a real estate coordinator in Growth Management. Ms. Howell and Mr. Jim Knight conducted further discussions. Ms. Howell identified the Knight property as a potential site and relayed the site information to Mr. Skakandy.
The site acquisition team reduced the list of ten sites to a list of three final sites. The Knight property was not one of the three final sites selected. The three final sites were all less expensive than the Knight property. The three final sites were the Riviera Beach site, the Boyton Beach site, and the Farmer's Market site.
Feasibility problems developed with each of the three final sites.
The Riviera Beach site was sold to another party. The Boyton Beach site was objected to by other staff not on the site acquisition team. It was 15-20 miles
south of the center of the county and failed the express criteria for a "central" warehouse. Environmental problems and costs associated with the disposal of building materials caused Maintenance and Renovations to recommend against purchase of the Farmer's Market site. 10/
Reconsideration Of Knight Property
On or about January 11, 1989, former Superintendent Mills sent a memorandum to Mr. Hukill indicating that Mr. William Knight had called the Superintendent to express his interest in having the Knight property reconsidered for the District Warehouse Site. Respondent received a copy of that memorandum but was not otherwise involved significantly in the reconsideration of the Knight property.
On or about January 20, 1989, Mr. Hukill sent a letter to the former Superintendent indicating that the Knight property was still under consideration and that the Knight property location was quite good under the circumstances. Mr. Hukill indicated that appraisals had been ordered and that a site recommendation would be forthcoming. 11/
The Knight property was reconsidered in accordance with procedures customarily followed in Growth Management. There was no formalized procedure followed in Growth Management for the evaluation of property for site acquisition. Sites were discussed in a free form fashion. Except for a recommendation of the final site selected, written records for recommendations on specific properties were not customarily prepared by staff in Growth Management. 12/ Mr. Hukill made the ultimate decision to add or drop sites from consideration. Acquisition sites were added or deleted from site acquisition lists without notifying Respondent.
The Knight property was evaluated by the entire staff in Growth Management. The evaluation of the Knight property included a review of environmental issues, utilities, zoning, and road use. Mr. Jim Knight had more than 20 meetings with Growth Management staff including Mr. Hukill, Mr. Skakandy, and Mr. Williams. Respondent was not significantly involved in those discussions. 13/
The Knight property was recommended by staff because of its suitability for the District Warehouse and because of the unavailability or unsuitability of the first three sites originally selected by the site acquisition team. The Knight property was located in almost the exact center of the county. It was also located on Southern Boulevard, a roadway that runs directly to western communities in Palm Beach County where many new schools were scheduled for construction.
Respondent properly relied on staff recommendations for the Knight property in accordance with his customary practice. At no time prior to the time the property was acquired did any employee within Growth Management state to Respondent that the Knight property was not a suitable site or that the purchase of the Knight property would be detrimental to the School Board.
Mr. Hukill did not sign the written recommendation for the Knight property. The reason for his refusal, however, had nothing to do with the suitability of the Knight property for the District Warehouse. Mr. Hukill believed, as a philosophical matter, that the School Board should spend its money on schools rather than on additional warehouse sites. Mr. Hukill, in effect, objected to a determination made by the School Board in 1985. Mr.
Hukill agreed with the recommendation that the Knight property was suitable based on the marketplace, location, and ease of distribution for servicing schools.
Respondent neither identified nor advocated the Knight property. Respondent had no conversations with either Mr.
William Knight or Mr. Jim Knight concerning the evaluation of the Knight property as a site for the District Warehouse except as previously described. Except for the price paid for the Knight property, Respondent's involvement in the acquisition of the Knight property was limited to a review of staff recommendations and the acceptance of those recommendations.
Additional Acreage
The initial search for a District Warehouse site focused on the acquisition of 10 acres of property. However, the Knight property included 16 acres.
The additional acreage was purchased to overcome access problems that would have occurred if only 10 acres had been purchased. Unanticipated problems in site selection was one of the deficiencies known to the School Board and discussed in the Price Waterhouse Report in 1987. Engineering involvement frequently did not occur early enough in site acquisition. As a result, sites selected by the site acquisition team required unanticipated expenses, and the full cost of the project was not properly assessed. 14/
The decision to purchase additional acreage was not made by Respondent. Former Superintendent Mills wanted the additional acreage to accommodate future expansion for office space on the warehouse site. The former Superintendent believed that a larger site was desirable to properly accommodate future
expansion needs and directed the purchase of the additional acreage.
The issue of whether to increase the site for the District Warehouse from 10 acres to 16 acres was discussed at a Superintendent's staff meeting. The former Superintendent, the School Board attorney, Respondent, and a dozen other members of the former Superintendent's staff attended the meeting and
participated in the discussion. The decision and recommendation to purchase the additional acreage was made by the former Superintendent.
Purchase Price
The final purchase price for the Knight property was reasonable and beneficial for the School Board. Respondent was responsible for the final purchase price.
Two separate appraisals for the Knight property were obtained by Growth Management in accordance with its customary practice and applicable law. 15/ Respondent did not select the appraisers. They were selected by Mr. Skakandy with the approval of Mr. Williams. The appraisers were qualified and had been used many times in the past by Planning and Operations.
The two appraisals for the Knight property differed by $1.00 a square foot. The higher appraisal was for $5.50 a square foot. The lower appraisal was for $4.50 a square foot. 16/ Respondent refused to accept Mr. William Knight's offer to split the difference between the two appraisals and insisted
on a sales price of $4.42 a square foot. The price paid for the Knight property was reasonable and less than the lowest appraised value.
Contract Negotiations
Respondent was not involved in contract negotiations for the Knight property and did not dictate any of the terms of the contract for the purchase of the Knight property; except the final purchase price discussed in the preceding paragraph. Site acquisition personnel typically negotiated site acquisition contracts in concert with the School Board attorney. Site acquisition personnel did not customarily report the status of contract negotiations to Respondent. No established procedure required such reports. Contract negotiations for the acquisition of the Knight property were carried out entirely by site acquisition personnel within Growth Management and Mr. Robert Rosillo, the School Board attorney. Negotiations by staff and the School Board attorney for the Knight property were within the scope of normal functions for site acquisition.
The School Board attorney did not confer with Respondent during the three months in which contract negotiations for the Knight property were conducted. Respondent never gave the School Board any direction or other information concerning the acquisition of the Knight property. It is the responsibility of the School Board attorney and technical staff in Growth Management to draw acquisition contracts, address zoning requirements, and determine contingencies for closing. Any problems associated with the final contract for purchase of the Knight property were the responsibility of the School Board attorney and staff negotiators.
Road Improvements: Allocation Of Costs Between The Parties
The contract for the Knight property addressed road improvements, right-of-way, and relocation measures necessary for the use of the property. Engineering drawings reflected the right-of-way issues, the need to relocate water and sewer lines and a lift station, and the need for road improvements. The parties to the contract agreed to share the cost of road improvements proportionally. The contract required the seller to place $70,000 in a separate escrow account to be used to fund the necessary road improvements. While Petitioners now complain that the amount escrowed by the seller was inadequate, the terms of the contract were prepared by the School Board attorney and recommended by Growth Management staff in accordance with long standing practice.
In 1987, The Price Waterhouse Report stated that contract documents did not delineate specific responsibilities. The result was confusion, disagreements, and additional costs to the School Board or outside parties. 17/ Adverse impacts from the purchase of the Knight property on October 11, 1989, reflected deficiencies reported in the Price Waterhouse Report in 1987. Those deficiencies were well known to the School Board at least two years before the acquisition of the Knight Property. The School Board chose not to expend additional funds on a program of improvement suggested by Price Waterhouse.
Financial Ability Of Seller To Comply With Repurchase Option
The contract for the Knight property contained a provision which gives the School Board the right to require the seller to repurchase the property if conditions pertaining to zoning are not satisfied (the "repurchase option").
The repurchase option was drafted by the School Board attorney. A decision not
to enforce the repurchase option was made by the School Board, the School Board attorney, and the former Superintendent. If the School Board had elected not to proceed with closing, the contract afforded the seller to right to sue for specific performance.
A foreclosure suit was filed against the Knight property a few days prior to the closing on October 11, 1989. Mr. Rosillo discussed the impact of the foreclosure suit on the purchase with former Superintendent Mills. The issue was not discussed with Respondent. The contract did not require the seller to evidence its financial ability to perform the terms of the contract. Nor did the contract require Mr. William Knight to personally guarantee the obligation of the seller under the repurchase option.
Temporal Considerations
The time required for the evaluation and purchase of the Knight property was reasonable and adequate. The transaction was not "rushed." The evaluation and purchase of the Knight property required approximately 14 months to complete. Once the decision to purchase the property was made, approximately three months were required to finalize the terms of the contract and close the transaction.
Even if the evaluation and purchase of the Knight property was rushed, Respondent did not act as an impetus to rush the transaction. Respondent was not significantly involved in the identification, evaluation, and purchase of the Knight property except for the final purchase price.
Mr. Jim Knight actively negotiated the transaction with Mr. Rosillo, Mr. Hukill, Mr. Williams, and Mr. Skakandy. The entire transaction was discussed fairly and adequately by Growth Management staff and the School Board attorney. Respondent did not propose or advocate the Knight property. Respondent did not negotiate the terms of the contract to purchase the Knight property except for the final purchase price. Respondent did not decide whether to close the transaction or whether to enforce the repurchase option.
Bifurcated Funding For Land Acquisition And Construction
The fact that the Knight property was acquired prior to the time that money was available to construct the District Warehouse does not make Respondent incompetent. Property was customarily purchased first and a building constructed out of budget appropriations in subsequent years.
In 1987, The Price Waterhouse Report included such practices in its list of deficiencies. The capital budgeting process lacked sufficient coordination, timing, and input. Adequate cost accounting tools were not available. Existing reports lacked sufficient detail, accuracy, and timeliness. Capital improvement funding sources were not clearly identified. The fact that priorities for capital improvements were not easily or accurately tracked was a source of frustration for administrators including Respondent. 18/ Those deficiencies were known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a program of improvement with Price Waterhouse.
In 1993, the Auditor General's Report found that originally designated capital outlay moneys had been expended on projects, land purchases, and other purposes which were not contemplated in the 1986 school construction plan. Expenditures not contemplated in the five year construction plan included the District Warehouse Site. 19/ The notice of tax levy for capital improvements
had not been prioritized within categories as required by Section 200.065(9)(a), Florida Statutes. Failure to prioritize the projects contributed to delays in undertaking some of the projects at issue. Furthermore, the School Board did not segregate and account for the proceeds and related expenditures of each respective year's levy. 20/
The decision to purchase the Knight property and rely on budget appropriations in subsequent years for construction was
made by former Superintendent Mills. The former Superintendent's policy was to purchase land at a reasonable price if there was a future need for the property. Land values in Palm Beach County were appreciating rapidly. The money to construct the buildings on such properties typically came from budget appropriations in subsequent years. The Knight property was purchased for less than its lowest appraised value.
2.10 Gratuities And The Knight Property
Respondent went fishing in 1986 and 1987 on Mr. William Knight's fishing boat in St. Thomas, U.S. Virgin Islands, and in Bimini, Bahama Islands. Respondent reported both fishing trips on his annual financial disclosure forms. The two fishing trips did not adversely affect Respondent's business judgment or create the appearance of impropriety. Respondent was not significantly involved in the acquisition of the Knight property in October, 1989.
In 1986, Respondent accepted an invitation from Mr. Robert Howell, a member of the School Board at the time, to
go fishing in St. Thomas. The invitation was made to Respondent through former Superintendent Mills. The former Superintendent joined Respondent on the fishing trip. Respondent had never met Mr. William Knight before that time.
The fishing trip lasted two days. Respondent paid for his own transportation to St. Thomas.
In 1987, Respondent and former Superintendent Mills accepted an invitation from Mr. William Knight to fish with their
children in Bimini. The fishing trip lasted one day.
The West Bus Compound
On or about April 24, 1990, the School Board purchased property in Royal Palm Beach for $750,000 (the "West Bus Compound"). The property was purchased from Mr. John Bills.
Site selection procedures typically did not involve Respondent. 21/ Respondent did not act incompetently or violate applicable standards with regard to the identification, evaluation, and purchase of the West Bus Compound. Respondent did not propose or advocate the West Bus Compound or the evaluation, selection, and purchase of the West Bus Compound. Respondent showed no favoritism to Mr. Bills, or any entity owned by Mr. Bills. Respondent committed no act or omission which impaired his judgment, compromised his independence, or which was otherwise improper in connection with the evaluation and acquisition of the West Bus Compound.
The need for a site to service the western portion of Palm Beach County was identified by Mr. George Baker, the Director of Transportation. Transportation was a division of the Department of Administration. The Associate Superintendent of Administration was Dr. Henry Boekhoff. Respondent had no authority or responsibility over Transportation.
The need for a site to service the western portion of Palm Beach County was uncontroverted. Due to westward population migration, several new schools were built in the western regions of the County. Mr. Baker determined that it was not cost effective to transport buses back and forth from compounds in the eastern portion of the County for maintenance and storage. Mr. Baker and Dr. Boekhoff determined that a West Bus Compound would result in significant savings in the operating budget.
The need for a West Bus Compound was well known within the school district administration, including Growth Management. Mr. Baker had repeatedly stated to everyone "within earshot" that the need for a West Bus Compound was urgent.
Mr. Baker identified a site location in Royal Palm Beach owned by Mr. Bills. Mr. Baker told Mr. Williams, who worked in Growth Management, that Transportation wanted the site owned by Mr. Bills for the West Bus Compound.
Mr. Bills was trying to sell his property. Mr. Bills submitted a brochure on the property to Mr. Hukill and other staff in Growth Management.
Mr. Hukill recommended the property owned by Mr. Bills to Respondent. Respondent discussed the site with former Superintendent Mills. At Mr. Hukill's request, the former Superintendent authorized Mr. Hukill to proceed with negotiations for the property owned by Mr. Bills.
Respondent advised Mr. Williams of the availability of the property owned by Mr. Bills. Respondent instructed Mr. Skakandy to follow normal procedures regarding the West Bus Compound site.
The West Bus Compound site was evaluated by Mr. Skakandy and Mr. Williams. They also negotiated the contract for acquisition. Such action on the part of Mr. Skakandy and Mr. Williams was consistent with customary practice within Growth Management and was within the scope of their regular duties and responsibilities.
Two appraisals were obtained for the West Bus Compound. The higher appraisal was for $810,000. The lower appraisal was for $703,000. The property was purchased for $750,000.
Respondent properly relied on the recommendations and advice of technical staff in Growth Management with respect to the acquisition of the West Bus Compound site. Respondent was never informed by anyone within Growth Management that there were any limitations on the use of the site. Certain zoning and easement requirements reduced the usable area for the site below that originally projected by Growth Management. Mr. Baker recommended the site even though the usable area was less than originally projected.
Respondent was not acquainted with Mr. Bills at the time that the West Bus Compound was evaluated and acquired. Subsequently, however, Respondent developed a friendship with Mr. Bills. Respondent never showed any favoritism to Mr. Bills in connection with the West Bus Compound.
The Summit Facility
On July 1, 1989, employees of Maintenance and Renovations and employees of Facility Operations were housed in a leased facility at 3323
Belvedere Road, West Palm Beach, Florida (the "Belvedere" site). A new ancillary facility was nearing completion in the Fall of 1989. The new facility was located at 3300 Summit Boulevard in West Palm Beach (the "Summit Facility"). The Summit Facility included a second building known as the north building.
The landlord for the Belvedere site exercised its rights under the lease to obtain use of the Belvedere site sooner than originally anticipated by the School Board. Electronics employees housed at the Belvedere site were moved to Northshore High School ("Northshore") on a temporary basis until the Summit Facility was completed. Residents of the neighborhood adjacent to Northshore complained to some members of the School Board about increased traffic. The School Board took the matter up at a public meeting during the Fall of 1989.
Approval Of Day Laborers In Trades Sections
At the public meeting conducted in the Fall of 1989, the School Board specifically authorized Mr. David Lord, Director of Maintenance, and former Superintendent Mills to use day- laborers in the trades sections 22/ to construct additions to buildings at the Summit Facility and to relocate electronics employees from Northshore to the Summit Facility by January 1, 1990. Mr. Lord and the former Superintendent discussed the matter with the School Board in detail. 23/ At the public meeting, the School Board instructed Mr. Lord to use whatever resources were available to him to make needed capital improvements to the Summit Facility by January 1, 1990.
Confusion over when to use contractors or in-house personnel was one of the deficiencies discussed in the Price Waterhouse Report in 1987. Criteria for determining when to perform work on a contract basis and when to perform work in- house were not clearly established. This made planning difficult and increased project costs. 24/
Lack of communication and agreement between project managers and construction personnel concerning time and cost of in-house projects resulted in incorrect decisions concerning the desirability of building in-house or by contract, caused delays, cost overruns. 25/ Comparative cost analyses of in- house and contract maintenance construction were not available. 26/
In 1993, the Auditor General's Report found that established procedures did not provide reasonable safeguards to monitor day-labor projects to ensure that goods and labor were used only for authorized projects. The Auditor General's Report recommended that such procedures be established. 27/
Mr. Lord used day-laborers from his trades sections to make the capital improvements mandated by the School Board in accordance with the School Board's instructions. The work was begun in December, 1989, and completed in March, 1990.
Code Violations
In 1991, after considerable time for discussion and analysis among attorneys and technical staff within the Department of Education and Planning and Operations, it was determined that some additions to the Summit Facility were not in compliance with applicable safety code regulations. Respondent properly relied on Mr. Lord and Mr. Lord's immediate supervisor for technical compliance with applicable code provisions.
Florida Administrative Code Chapter 6A-2 contains the State Uniform Building Code. Part A of Chapter 6A-2 ("Part A") applies in some circumstances, and Part B of Chapter 6A-2 ("Part B") applies in other circumstances.
In July, 1990, officials of the Department of Education, Educational Facilities Department, in Fort Lauderdale, Florida, were invited to a demonstration of fire alarms at the Summit Facility. Mr. Russell Smith, Director of Facilities Design, determined that life/safety code violations existed in the two buildings at issue in the Summit Facility.
Mr. Smith's determination of code violations was based on the assumption that Part A applied to the capital improvements at the Summit Facility. Mr. Lord had determined that Part B applied to the capital improvements. The capital improvements at the Summit Facility complied with the requirements of Part B but not Part A.
Mr. Smith did not report the alleged code violations to Respondent until December, 1990. Respondent directed Mr. Smith to obtain a determination from the Department of Education.
Mr. Smith pursued the matter with representatives of the Department of Education as well as Mr. Lord in Growth Management. Ms. Abbey Hairston, General Counsel for the School Board, concluded that there was a strong likelihood that Part B applied. Mr. Lord suggested that an outside consulting firm be retained to determine the applicability of Part A or Part B to the capital improvements at the Summit Facility.
Respondent could not have detected the existence of the alleged code violations in the capital improvements to the Summit Facility. Respondent did not have the expertise to make such a determination. Respondent's regular duties and responsibilities did not require that Respondent maintain such expertise, conduct inspections for the purpose of detecting code violations, or correct code violations.
Respondent did not act incompetently and did not violate applicable standards with regard to the capital improvements to the Summit Facility. Respondent did not propose or advocate that capital improvements be made to the Summit Facility in compliance with Part B. Respondent properly relied on his staff for technical compliance with applicable code requirements. When Respondent received notice of alleged code violations, Respondent acted in a competent and timely manner.
In 1987, The Price Waterhouse Report discussed several deficiencies in staff performance, personnel, and control. The Price Waterhouse Report stated:
Internal expertise is limited. Knowledge of specialized areas is limited, project quality suffers, life cycle costs are higher. . . .
Training programs and budgets are insufficient, especially with respect to technical and safety training. Employees are not as efficient or effective as they could be. Knowledge of project managers is less than they feel is necessary Project
managers are resistant to new management
techniques. . . . Inadequate technical library. . . .
Price Waterhouse Report, Staff Performance, Personnel And Control, Issues 5, 7, and 9, and corresponding Impacts.
In 1993, the Auditor General's Report recommended that:
. . . District personnel strengthen procedures to provide that, prior to occupancy in the future, the required approvals for occupancy are obtained to ensure that the facilities meet the prescribed safety standards.
Auditor General's Report at 64.
Tracking And Reporting Costs
The computer codes and accounting approach used to track and report the cost of capital improvements to the Summit Facility complied with applicable standards. The computer codes and accounting approach recorded each transaction and were subject to separate retrieval in accordance with established procedures. Required object, fund, and function codes were used to document the expenditure of funds for the capital improvements to the Summit Facility.
In 1987, the Price Waterhouse Report stated:
Adequate cost accounting tools are not available. Existing reports lack sufficient detail, accuracy and timeliness. [There is]
. . . [n]o ability to manage and control project cost. This results in true project cost being unknown and lack of problem identification on a timely basis. . . .
Capital Improvement Requests are not easily or accurately tracked. Priorities are
difficult to track and coordinate. This
is a source of school administration frustration. . . . Project management tools are not available. Project cost containment suffers. Control and reporting is
lacking. . . . Accountability is difficult to enforce.
Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, and 17, and corresponding Impacts.
The day-labor hours billed for additions to the Summit Facility totaled approximately 6,373. In the three fiscal years from 1989 through 1992, approximately 566,853.75 day-labor hours were paid and approximately 454,701.75 were billed. Day-labor hours paid exceeded day-labor hours billed by approximately 112,152 hours. 28/ As the Price Waterhouse Report indicated in 1987, adequate cost accounting tools were not available. The cost accounting and reporting procedures that were in fact utilized for the additions to the Summit Facility complied with available cost accounting procedures.
Respondent did not act incompetently and did not violate applicable standards in connection with the method used to track and report the cost of capital improvements to the Summit Facility. Respondent did not propose or advocate any particular accounting procedure. Respondent properly relied on technical staff to track and record the cost of capital
improvements to the Summit Facility, and staff properly utilized the accounting tools available to them.
Purchase Orders
Purchase orders for mezzanine and modular offices were originated by staff in lower levels of Maintenance and Operations. The purchase orders were processed in accordance with normal procedure and approved by Ms. Betty Helser, Director of Purchasing. Ms. Helser was under the supervision of the Associate Superintendent of Administration and was not subject to the authority of Planning and Operations. Planning and Operations had no authority over Purchasing.
Respondent did not participate in the purchase order approval process. Respondent was not responsible for that process. Several names were listed on the purchase orders as resource or contact persons in connection with the purchase order. Respondent was not one of those named.
Funding Source For Capital Improvements
Respondent did not act incompetently and did not violate applicable standards in connection with the funding source for capital projects, including acquisition of the District Warehouse site, the West Bus Compound, and additions to the Summit Facility. Funding sources for such projects were approved by the School Board.
The funds used to pay for the District Warehouse, the West Bus Compound, and the Summit Facility were not misappropriated or misapplied. The School Board approved those capital projects and their corresponding budgets. The budget for each capital project provided for the transfer of capital outlay moneys to the general fund. 29/ Taxes had been levied for capital improvements pursuant to Section 236.25(2), Florida Statutes. Funds were transferred from this special millage money and not from general obligation bond money. Such transfers occurred in prior years and were consistent with customary procedure. Moreover, no funds were used for capital projects without the prior knowledge and consent of the School Board.
Deficiencies in the budget reporting and control process impeded full consideration by the School Board of the impact of capital projects and budget transfers on the 1986 school construction plan. As a result, originally designated capital outlay moneys were expended on capital projects not contemplated in the 1986 school construction plan. Accordingly, some originally contemplated projects were not undertaken in the five year plan due to lack of funds. 30/
Deficiencies in financial processes and controls reported by Price Water House in 1987 and known to the School Board prior to that time created impediments to proper budgeting and resulted in poor budget quality. In 1987, the Price Waterhouse Report stated:
Performance measurement (feedback) needed to assess and improve budget accuracy is lacking.
Poor budget accuracy, control, and forecasting [results]. . . . The capital budgeting process lacks sufficient coordination, timing and department input. Budget priorities may not be sufficiently addressed and quality of actual budgets may suffer. Priorities
for improvements are defined by construction and remodeling, but they may not be consistent with the school's needs. High priority
projects may not be addressed on a timely basis.
Price Waterhouse Report, Financial Procedures And Controls, Issues 2, 16, and corresponding Impacts; Price Waterhouse Report, Planning Of Operations And Projects, Issue 9 and corresponding Impact.
Projects funded by the capital outlay millage derived under Section 236.25(2), Florida Statutes, were not prioritized within categories in the notice of tax levy as required by Section 200.065(9)(a). Failure to prioritize the projects to be funded by the capital outlay millage contributed to delays in undertaking some of the projects contemplated in the 1986 construction plan. In addition, the proceeds and related expenditures of each year's levy was not segregated and accounted for. 31/
Reports reviewed by the School Board consisted of monthly financial statements containing analyses of revenues by source of funds and analyses of expenditures by function. Status reports showed comparisons of projected revenues designated for the 1986 school construction plan with actual revenues received. Comparisons of projected construction costs anticipated in the five year construction plan with actual construction costs were not available. Like the notice of tax levy, available status reports did not prioritize projects within categories. The failure to prioritize projects and reporting inadequacies constituted some of the pandemic deficiencies known to the School Board prior to 1987 and did not result from Respondent's alleged incompetence.
In 1993, the Auditor General's Report recommended several procedures for rectifying deficiencies in the budgeting process. First, quarterly status reports on capital projects should be revised to show the projected costs of projects, current expenditures, and the variances over or under projected costs. Second, proposed budget amendments should include an explanation of the possible effects on capital construction plans and operating budgets. Third, the ". . .
Board and the Superintendent. . ." 32/ should develop written management reporting guidelines. Finally, the School Board should re- examine the remaining bond plan projects to ensure that they reflect current needs.
G-604s: Requests For Additional Services
Respondent did not act incompetently and did not violate applicable standards with regard to the use of requests for additional services or change orders on form G-604. Requests for additional professional services or for change orders are made on form G-604. Palm Beach County requires that such requests be reviewed by the School Board. Respondent never attempted to hide requests for architectural services from the School Board or to prevent their review by the School Board.
In August of 1986, Mr. Hukill wrote a memorandum to Respondent requesting that directors be allowed to review and approve appropriate requests for additional services in an amount no greater than $20,000 per request and
then submit the G-604 to the School Board for subsequent review. Respondent approved the procedure requested by Mr. Hukill. Two weeks later, Mr. Larry Mione, Contract Administrator, erroneously wrote a memorandum to four assistant directors authorizing requests for additional services of up to $20,000 per request without the need to have such requests subsequently reviewed by the School Board.
As a result of the erroneous memorandum from Mr. Mione, some G-604s were approved by directors and were not subsequently reviewed by the School Board. This practice was in derogation of the memorandum issued by Respondent.
When the discrepancy was discovered, several investigations were ordered by former Superintendent Mills and Deputy Superintendent Daniels. There were approximately 30 people at staff meetings two times a month. All of them review School Board reports. None of them discovered the discrepancy in the conflicting memoranda until after the violations had occurred. Respondent was not charged with wrongdoing or incompetence and was not found incompetent. An independent outside consultant confirmed the need for the G-604s and the procedure authorized by Respondent.
Gratuities
Former Superintendent Mills established a policy that required all senior administrative personnel, including Respondent, to promote the involvement of members of the business community in the school system. The policy was designed to obtain the aid of business in solving problems such as overcrowding, lack of materials and text books, a lack of funding, and an increasing drop out rate. The policy was a high priority for former Superintendent Mills.
Respondent performed the duties required under the policy established by former Superintendent Mills. Respondent entertained members of the business community and was entertained by them. The gratuities accepted by Respondent generally involved free lunches, dinners, and golf outings.
Policy Directive
Respondent's activities did not violate the policy directive of former Superintendent Mills. Former Superintendent Mills knew of Respondent's activities and approved of those activities. Upper management was encouraged to socialize with members of the business community, including contractors and architects, in an effort to get them involved in solving problems facing the school system.
Business Judgment And Impropriety
Respondent's business judgment was not adversely affected by his association with vendors of the school system. Respondent's association with such members of the business community did not create the appearance of impropriety.
The award of contracts to vendors was the responsibility of Purchasing. Purchasing was under the control of Dr. Boekhoff, the Associate Superintendent of Administration. Ms. Helser was the Director of Purchasing. Respondent did not have the authority to influence decisions made in Purchasing.
Incompetence
Respondent carried out the policy directive of former Superintendent Mills competently with no adverse affect on his business judgement and without the appearance of impropriety. The business community became actively engaged in solving problems of the school district. Companies such as Motorola, Pratt Whitney, and IBM provided opportunities for speakers to address employees to promote the bond issue. The bond issue was approved by the voters. A program known as "Cities in Schools" was developed as a business partnership to prevent drop out. Funds were raised for programs and materials.
Respondent did not improperly promote a particular vendor or product in connection with the business of the School Board. Respondent never violated any administrative directive or established standard of conduct of the Department of Education.
Evaluations
128. The Amended Petition For Demotion alleges that Respondent was incompetent in evaluating two employees. Those employees were Mr. Goode and Mr. Hukill. No credible and persuasive evidence was submitted by Petitioners to support their allegations in this regard.
Attorney Fees And Costs
The parties' request for attorney fees and costs are addressed in the Conclusions of Law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.
Respondent's objection to the admissibility of an order issued by a circuit court in a civil matter which was depreciative of Mr. Scarola's conduct is sustained. The matter is not relevant to issues in this proceeding. Respondent's objection to the admissibility of a report by the State Attorney concerning the G-604 issue is overruled. The State Attorney report is admitted in evidence pursuant to Section 120.58(1)(a), Florida Statutes.
Merits
Petitioners have the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioners must demonstrate by a preponderance of the evidence that Respondent was incompetent for the specific acts alleged in the Amended Petition For Demotion and that they are entitled to take the disciplinary action proposed. Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990); Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978).
Respondent was employed as an Associate Superintendent under an annual contract and held a continuing contract as a teacher. Petitioners are
generally authorized to dismiss a person employed under an annual contract and to return a person employed under a continuing contract to annual contract status. Section 230.23(5)(f), Florida Statutes. 32/ However, Section 230.23(5)(f) expressly provides:
. . . no . . . supervisor, principal, teacher or other member of the instructional
staff. . . may be discharged, removed, or returned to annual contract except as provided in chapter 231. (emphasis supplied)
Section 231.36(6)(b), Florida Statutes, provides that disciplinary action by Petitioners against:
. . . Any member of the district administrative or supervisory staff . . . must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. 34/ (emphasis supplied)
Petitioners' disciplinary action against Respondent is based solely on allegations of incompetency. 35/ Petitioners neither alleged nor presented any evidence of other grounds upon which disciplinary action is legislatively authorized. 36/
The term "incompetency," as it applies to non- instructional personnel, is not defined in applicable statutes or in rules prescribed by the School Board. In the absence of such a definition, a definition applicable to instructional personnel is the best analogue for ascertaining the standard applicable to non-instructional personnel. Smith v. School Board of Leon County, 405 So.2d 183, 184-185 (Fla. 1st DCA 1981).
Incompetency is defined for instructional personnel in Florida Administrative Code Rule 6B-4.009(1) as the inability or lack of fitness to discharge Respondent's required duties as a result of inefficiency. 37/ Inefficiency is defined in Rule 6B- 4.009(1)(a)(1) as the repeated failure to perform duties prescribed by law. 38/ Section 231.09 is the "law" expressly mentioned in Rule 6B-4.009(1)(a)(1). 39/
Duties Prescribed By Law
Respondent did not fail to perform duties prescribed in Section 231.09, Florida Statutes. 40/ Florida Administrative Code Rule 6B- 4.009(1)(a)(1) expressly mentions Section 231.09. The mention of one thing generally excludes matters not mentioned. Thayer v. State, 335 So.2d 815 (Fla. 1976); Interlachen Lakes Estates, Inc., v. Snyder, 304 So.2d 433, 434 (Fla. 1973). Petitioners have no authority to deviate from an applicable rule that is validly promulgated. Section 120.68(12)(b), Florida Statues. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 493 So. 2d 1055, 1057 (Fla. 1st DCA 1986); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977); Price Wise Buying Group v.Nuzum, 343 So.2d 115, 116 (Fla. 1st DCA 1977). 41/
Respondent did not fail to perform duties prescribed in any law other than Section 231.09, Florida Statutes. Assuming, arguendo, that Florida
Administrative Code Rule 6B-4.009(1)(a)(1) pertains to laws other than those expressly mentioned, Respondent did not fail to perform duties prescribed by any other law including Section 112.313(4). 42/
Respondent did not fail to perform duties prescribed in any applicable rule. A lawful rule validly promulgated in accordance with statutory rulemaking authority has the force and effect of law. State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985); Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954); Williams v. Department Of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988). Florida Administrative Code Chapter 6A prescribes safety standards for educational facilities. Rule 6B- 1.006 prohibits the acceptance of certain gratuities, gifts, and favors. Both rules have the force and effect of law.
Respondent did not violate Florida Administrative Code Chapter 6A. Noncompliance with applicable code provisions was not the result of Respondent's inefficiency. A determination of code compliance was not within the scope of Respondent's expertise.
Respondent properly relied on the expertise of his technical staff for a determination of whether the capital improvements to the Summit Facility complied with applicable code requirements. After substantial and lengthy discussions and analysis among many members of the technical staff of various departments and the attorneys for those departments, it was determined that some of the capital improvements to the Summit Facility were in violation of applicable code requirements. While that process may or may not have been inefficient, Respondent was not inefficient, and any inefficiency that did exist was not the result of Respondent's incompetency.
Respondent did not fail to perform duties prescribed in Florida Administrative Code Rule 6B-1.006. Rule 6B-1.006 prohibits employees from accepting a gratuity, gift, or favor that might influence his professional judgment. Respondent accepted no gratuity, gift, or favor that might influence his business judgment.
Respondent did not fail to perform duties required in rules prescribed by the School Board. Section 231.09, Florida Statutes, provides that the violation of a lawful rule "prescribed" by the School Board is a violation for which inefficiency may be found. School Board Rule 1.01 provides:
. . . It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with state statutes, state board of education rules, school board policy,
superintendent's administrative directives and local school and area rules.
Respondent did not fail to perform duties required by applicable rules, written policies, written directives, and written local school and area rules. No written policy, written directive, written local school and area rule ("policy or directive") was cited by Petitioners, and none was found, defining inefficiency for supervisor personnel.
Policies, Directives, And The Reasonable Man Test
The term "law," as used in Florida Administrative Code Rule 6B- 4.009(1)(a), incorporates a rule by operation of law and by express reference in Section 231.09, Florida Statutes. If Section 231.09 and School Board Rule 1.01 are read in pari materia, written policies and directives defining inefficiency arguably may be imbued with the force and effect of law by the reference to a rule in Section 231.09 and by the reference to policies and directives in Petitioners' rule." 43/ Since Petitioners failed to issue a written policy or directive defining inefficiency for supervisory personnel, the definition in Florida Administrative Code Rule 6B-4.009(1)(a) is the only promulgated definition of inefficiency. However, Petitioners assert that Respondent is subject to an unwritten policy or directive in the form of a reasonable man test or other unwritten standard.
An unwritten policy or directive is not a "law" within the meaning of Florida Administrative Code Rule 6B- 4.009(1)(a)(1). One of the purposes of Chapter 120, Florida Statutes, is to prevent "unwritten" or "invisible" agency action. Straughn v. O'Riordan, 338 So.2d 832, 834 n.3 (Fla. 1976). Rulemaking under Chapter 120 is not discretionary. Section 120.535(1). An unwritten policy or directive that satisfies the requirement for general applicability is a rule within the meaning of Section 120.52(16). An unwritten policy or directive that satisfies the test of general applicability but is not promulgated in accordance with formal rulemaking requirements is unenforceable and does not have the force and effect of law. Sec. 120.535(1); McDonald v. Department of Banking and Finance, 346 So.2d. 569, 580-581 (Fla. 1st DCA 1977). See also, Public Service Commission v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989); Friends of the Everglades, Inc. v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986).
Petitioners' disciplinary action against Respondent must be taken pursuant to Chapter 231, Florida Statutes. Section 230.23(5)(f). An agency has only that power which is expressly or by necessary implication granted by legislative enactment. Lewis Oil Co. , Inc. v. Alachua County, 496 So. 2d 184,
187 (Fla. 1st DCA 1986); Department of Highway Safety & Motor Vehicles v. German, 451 So.2d 1013 (Fla. 3d DCA 1984); State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787, 793 (Fla. 1st DCA 1983). A reasonable man test or similar standard asserted by Petitioners in this proceeding is not expressly authorized in Chapter 231. 44/
Petitioners' assertion that Respondent is governed by the minimum standard of care applicable to professionals 45/ is specifically rejected on the basis of authority cited by counsel for Petitioners. As counsel for Petitioners states:
The definitions applicable to instructional personnel have been used to determine an analogous meaning of the standards for non- instructional personnel. See Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981).
Petitioners' Memorandum On The Existence Of Statutory Grounds For Termination Of Employment Of Respondents, at 2.
Cases cited by Petitioners as precedent for applying a reasonable man test or similar unwritten standard are distinguishable on their facts. They
involve the licensure of professionals by the state, or they involve areas of the law not regulated by the state and not subject to Chapter 120, Florida Statutes.
No necessary implication authorizes Petitioners to subject supervisory staff to an unwritten standard not prescribed for instructional staff. If a basis for a necessary implication exists in this regard, it exists in standards enunciated for instructional personnel under Chapter 231, Florida Statutes. 46/ Until a valid rule prescribing separate standards for non- instructional employees is promulgated, written statutes and rules which address instructional staff provide the best analogue to determine the definition of inefficiency for non-instructional personnel. Smith, 405 So.2d at 184-185.
Agencies are without power to expand their authority beyond that delegated by the legislature. Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla. 1976); Florida Department of Law Enforcement v. Hinson, 429 So.2d 723, 724 (Fla. 1st DCA 1983); Swebilius v. Florida Construction Industry Licensing Board, 365 So.2d 1069 (Fla. 1st DCA 1979). Any reasonable doubt as to the lawful existence of a particular power should be resolved in favor of arresting the further exercise of that power. Edgerton v. International Company, 89 So.2d 488 (Fla. 1956); State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So 969 (Fla. 1908); Fraternal Order of Police, Miami Lodge v. City of Miami, 492 So.2d 1122, 1124 (Fla. 3d DCA 1986).
Neither Chapter 231, Florida Statutes, applicable rules, nor Petitioners' written policies and directives issued under the authority of Chapter 231 define inefficiency as a violation of a reasonable man test or similar unwritten standard. Petitioners have no authority to discipline Respondent except as provided in Chapter 231. Section 230.23(5)(f).
Petitioners are without power to expand their authority beyond that delegated by the legislature in Section 230.23(5)(f).
Assuming, arguendo, that a "reasonable man" test or similar standard may be applied in this proceeding, pursuant to an unwritten policy or directive or pursuant to judicial decisions advocated by Petitioners, Respondent complied with the requirements of such a standard. From 1984-1991, Respondent was required to supervise an organization with pandemic deficiencies that posed numerous impediments to its competent supervision. Those deficiencies were well known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a plan of improvement recommended by Price Waterhouse. From 1984 through 1991, Respondent was never advised of any charge of incompetency, inefficiency, or other undesirable trait or practice. During the entire period, Respondent received satisfactory job performance evaluations. The specific acts complained of by Petitioners were known to the School Board as early as 1986, in some instances, and as late as December, 1990, in one other instance.
Petitioners emphasize the responsibilities and duties listed in Respondent's job description and assert that Respondent is necessarily incompetent as a result of any deficiencies in Planning and Operations that were within the scope of Respondent's job description. However, Petitioners fail to explain why Respondent received satisfactory performance evaluations from 1984- 1991 for the items listed in his job description and never received any notice of inefficiency or incompetence prior to the date of his summary demotion on November 5, 1991.
In most of the instances at issue in this proceeding, either the former Superintendent or School Board made the decision that resulted in adverse
impacts forming the subject of Petitioners' complaints; or the decision was approved by the School Board. To hold Respondent responsible for the pandemic deficiencies and adverse impacts known to the School Board prior to 1987, which the School Board declined to improve in 1987, and which the School Board effectively sanctioned for at least four years, would foster a spurious application of the reasonable man test.
Reinstatement, Back Salary, And Interest
Petitioners failed to prove the specific allegations of incompetence against Respondent. Petitioners failed to prove that the deficiencies and adverse impacts known to the School Board for the four years in which Respondent received satisfactory job performance evaluations were caused by Respondent's incompetence or that Respondent was otherwise incompetent.
Petitioners are required by law to reinstate Respondent immediately and pay him his back salary. Section 231.36(6)(b), Florida Statutes, provides in relevant part:
. . . if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. (emphasis supplied)
Respondent is entitled to back salary and interest at the legal rate from the date his salary became due under his contract. The amount of back salary owed to Respondent by the School Board is a contractual obligation. Respondent is entitled to salary and interest for the entire period of his demotion. Brooks v. School Board of Brevard County, 419 So.2d 659 (Fla. 5th DCA 1982), citing with approval Parker's Mechanical Con. v. Eastpoint Water, 367 So.2d 665 (Fla. 1st DCA 1979). Cf. Krueger v. School District of Hernando County, 540 So.2d 180 (Fla. 5th DCA 1989) (holding that a teacher terminated on unfounded charges was entitled to back salary for the entire time she was improperly terminated).
Even if Petitioners had proved all of the charges against Respondent, Petitioners deviated from the requirements for fair dismissal procedures mandated for "any employee" in applicable rules. Florida Administrative Code Rule 6B-4.008 requires Petitioners to follow fair dismissal procedures in dealing with "any employee" unless the circumstances justify noncompliance with such procedures. The circumstances surrounding Respondent's alleged incompetence were not so serious and exigent that they justified noncompliance with fair dismissal procedures requiring every possible helpful effort to aid Respondent in correcting the alleged incompetence.
From 1984-1991, Respondent was required to supervise an organization with pandemic deficiencies that posed numerous impediments to its competent supervision. Those deficiencies were well known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a plan of improvement to address known deficiencies. From 1984 through 1991, Respondent was never advised of any charge of incompetency or undesirable trait or practice. During the entire period, Respondent received satisfactory job performance evaluations. After Respondent received notice of the alleged incompetency, neither the Deputy Superintendent nor the Superintendent made any effort to aid Respondent in correcting the alleged incompetence, and Respondent was not given sufficient time to improve. Petitioners have no authority to deviate from a validly promulgated rule that has the force and effect of law. Boca Raton Artificial Kidney Center, Inc., 493 So. 2d at 1057; Gadsden State Bank, 348 So.2d 343;
Price Wise Buying Group, 343 So.2d at 116. Sections 120.535((1) and 120.68(12)(b), Florida Statues. See also, Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987) (holding that a school board had no authority to summarily dismiss an employee even though the employee had lost his certification to teach).
Attorney Fees And Costs
Pursuant to agreement, the parties reserved the right to a determination of the entitlement to attorney fees and costs, the amount of such fees and costs, and the presentation of evidence concerning those issues for a separate proceeding. Certain issues pertaining to fees and costs, however, may be disposed of as a matter of law consistent with the terms of the agreement of the parties.
In his proposed findings of facts and conclusions of law, Respondent requested attorney fees and costs based alternatively on Sections 57.111, 120.59(6), and 448.08, Florida Statutes. Respondent has no legal right to fees and costs on the basis of the foregoing statutes.
Respondent's request for fees and costs based on Sections 57.111 and 448.08, Florida Statutes, is denied. An employee of a governmental agency is not a small business party within the meaning of Section 57.111. Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840, 841 (Fla. 1st DCA 1988); Department of Professional Regulation, Division of Real Estate v. Toledo Realty, 549 So.2d 715, 717 (Fla. 1st DCA 1989). Section 448.08 does not apply to administrative proceedings. Werthman v. School Board Of Seminole County, Florida, 599 So.2d 220, 221 (Fla. 5th DCA 1992).
Respondent's motion for attorney fees and costs under Section 120.59(6), Florida Statutes, is denied. Petitioners satisfy the definition of an agency in Section 120.52(1)(c). Agencies are not subject to fees and costs under Section 120.59(6) pursuant to Section 120.59(6)(a).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order
finding Respondent not guilty of any of the allegations in the Amended Petition
For Demotion, award Respondent back salary with applicable interest for the entire period of his demotion, immediately reinstate Respondent to a salary level comparable to that received as Associate Superintendent of Planning and Operations in accordance with Section 231.36(6)(b), Florida Statutes, dismiss the request to return Respondent to annual contract status under Section 231.35(4)(c), and maintain Respondent on continuing contract.
RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida.
DANIEL MANRY
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 23rd day of July, 1993.
ENDNOTES
1/ See Petitioners' Exhibit No. 124.
2/ Personnel Relations was reorganized under the jurisdiction of Planning and Operations in 1988. In 1988, the division of Planning was removed from Planning and operations and replaced with the division of Personnel Relations. Personnel Relations has responsibility for staff development, certification, recruitment, personnel files, retirement, and discrimination and discipline.
3/ The Superintendent is responsible for the administration of the school system in Palm Beach County. Sec. 230.03(3), Fla. Stat. An internal control structure must be established by the Superintendent to assure the efficient and affective operation of the school system. The objectives of an internal control structure are to provide management with reasonable assurances that assets are safeguarded against loss from unauthorized use or disposition, that transactions are executed in accordance with the School Board's authorization and recorded properly to permit the preparation of general purpose financial statements, and that federal financial assistance programs are managed in compliance with applicable laws and regulations. Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 at 32 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report used over 100 paragraphs to discuss significant deficiencies in the design or operation of the internal control structure that could adversely affect the ability of management to record, process, summarize, and report financial statements or to administer federal financial assistance programs in accordance with applicable laws and regulations. Auditor General's Report at 34. The relationship of the School Board and the Superintendent is that of principal and agent. LeDew v.
Unemployment Appeals Commission, 456 So.2d 1219, 1222 (Fla. 1st DCA 1984); Johnson, 403 So.2d at 527-528; Hollis v. School Board of Leon County, 384 So.2d at 661, 664 (Fla. 1st DCA 1980); Zorick v. Tynes, 372 So.2d 133, 142 (Fla. 1st
DCA 1979); Witgenstein v. School Board of Leon County, 347 So.2d 1069, 1073 (Fla. 1st DCA 1977).
4/ Petitioners' Exhibit No. 520.
5/ Approximately $317 million of the authorized bond issue was issued from 1987-1989. See Auditor General's Report at 57.
6/ Price Waterhouse Report, Organization Structure, Issues 2, 3, and 6.
7/ On July 1, 1992, the School Board voted to terminate all internal investigations and referred the investigation to law enforcement agencies. As of April 30, 1993, an investigation by the Office of the State Attorney, Fifteenth Judicial Circuit, was still in progress. Auditor General's Report at 13.
8/ See discussion in para. 13, supra, concerning a central warehouse site authorized by the School Board in 1985.
9/ Evaluation criteria for sites generally included: proximity to students; relationship to neutral zone (equal access to various races); health and safety; vehicular, pedestrian, and utility access; relationship to surrounding property; environmental sensitivity; acreage and dimensions; zoning considerations; and the impact of the project on adjacent roads. Auditor General's Report at 62.
The general criteria were designed with schools in mind. The criteria used by the site acquisition team were designed specifically for the needs of a central warehouse site. See paras. 46 and 47, infra.
10/ Findings in this order are based on all of the evidence presented during the formal hearing including credible and persuasive testimony. Compare Auditor General's Report at 63 stating that it is based solely on documentary evidence provided to it by Petitioners.
11/ Sec. 235.054, Fla. Stat., and School Board Policy 7.01 prescribes appraisal procedures for all property recommended to the School Board.
12/ But see Auditor General's Report at 62 (finding that the District had established written procedures for identifying, acquiring, and disposing of property). As a threshold matter, the issue is moot since established site selection procedures did not involve Respondent. See para. 39, supra. Assuming arguendo that the issue is not moot with respect to Respondent, the Price Waterhouse Report stated in 1987 that project managers were resistant to new management techniques, that employee morale and motivation was low, that assistant directors and supervisors were stretched thin, and that there roles needed to be more clearly defined. In 1993, the Auditor General's Report at 63 determined there was no documentary evidence that Growth Management had complied with written procedures for site selection with respect to the Knight property by providing written descriptions of the final three sites and the Knight property to the Superintendent of the School Board for review and evaluation.
The Auditor General's Report recommended:
. . . District records be maintained to demonstrate the evaluation of alternative sites based on the criteria in the District's written procedures. Additionally, we recommend that preliminary site investigations and descriptions be provided to the Superintendent and the Board to demonstrate of record the Superintendent's and the Board's concurrences with the recommended site from among the alternative sites considered. (emphasis supplied)
Auditor General's Report at 64.
13/ As previously stated, Respondent was not typically involved in the site selection process. See para. 39, supra. Even if he had been typically
involved, communication within departments was poor and it would not have been unusual for him to be excluded from the loop. See Price Waterhouse Report, Organization And Structure, Issue 6. Auditor General's Report at 64.
14/ Price Waterhouse Report, Planning Of Operations And Projects, Issue 11 and corresponding Impacts.
15/ Sec. 235.054, Fla. Stat., and School Board Policy 7.01 prescribes appraisal procedures for all property recommended to the School Board.
16/ A third appraisal provided by William Knight valued the Knight property at
$7.50 a square foot.
17/ Price Waterhouse Report, Contract Administration, Issue 16, and Corresponding Impact.
18/ Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, 14 and 16, and corresponding Impacts.
19/ Auditor General's Report at 58-59.
20/ Auditor General's Report at 13-14. The Auditor General's Report recommended:
. . . that a quarterly status report on the capital projects be provided to the Board showing the projected costs of the projects, current expenditures, and the variances over or under projected costs. . . . that all proposed budget amendments presented to the Board include an explanation of the possible effects on the District's capital construction plans and/or operating budgets. that
the Board re-examine the remaining bond plan projects to ensure that such projects reflect the current District needs. that
the Board and Superintendent develop written management reporting guidelines. . . .
Auditor General's Report at 59-60.
21/ See discussion at para. 39, supra.
22/ Trade sections are electrical, landscaping, carpentry, roofing, and sheet metal sections within Maintenance and Renovations. Day-laborers are employees in Capital Improvement paid on an hourly basis without benefits other than retirement. Auditor General's Report at 69-70.
23/ While the written records reviewed in the Auditor General's Report did not "clearly demonstrate the Board's consideration," (emphasis supplied) credible and persuasive evidence presented in the formal hearing was clear.
24/ Price Waterhouse Report, Planning Of Operations And Projects, Issue 22 and corresponding Impact.
25/ Price Waterhouse Report, Construction Administration, Issue 7 and corresponding Impact.
26/ Price Waterhouse Report, Construction Administration, Issue 13 and corresponding Impact.
27/ Auditor General's Report at 71.
28/ In 1993, the Auditor General's Report described the tracking procedure for in-house capital improvements in the following manner:
. . . minor capital construction projects (projects costing less than $200,000) within the District were initiated either by the school principal or department heads (externally) or by the various departments within the Division of Planning and Operations (internally). For
projects initiated within the Division of Planning and Operations, Department personnel prepared a handwritten work order request which was assigned a six-digit number using a stamp machine. The handwritten work order was then entered into the work order system which coverts the six-digit number into a nine-digit number by adding a three-zero prefix.
If the project was to be completed using
day-labor forces . . ., the work order was trade-coded as "901" and forwarded to Facility Design's Capital Improvement Project Group (CIP). This group was responsible for prioritizing the projects and determining the project's needs and the estimated cost of the project, including labor and material. Upon review and approval by the District's architect, documentation on the project was then forwarded to the District's Comptroller Office for review and funding verification.
The work orders were then sent to the area Construction Project Manager for scheduling. Once scheduled, the work orders were forwarded to the coordinator supervisor who recorded the work order as "C.I.P." to denote capital improvement project, and generated
a revised work order. The work orders were then forwarded to the applicable trade sections . . . to perform the work. The trade supervisor was also provided with a copy of the plans and specifications for the job. The trade supervisor was responsible
for scheduling the required work and assigning a project manager, a project foreman, and
day-labor personnel to the project. Upon completion of the job, the project foreman completed a portion of the work order noting the employee who performed the job, the date the job was performed, the time required to perform the job, any materials used, and the cost of any materials used for thee job.
However, the job foreman did not sign the
work order as approving the work. At the completion of each trade's portion of the work, the labor data from the work order was entered into the trade-based computer system for tracking capital improvement projects.
The system calculated the total labor amount by using a billable rate of $23 and hour.
All Capital Improvement Project Group employees, with the exception of the foreman, were required to punch time cards. At the end of the pay-period, the time cards were forwarded to the trade secretary who prepared a payroll report of hours worked by employee. The payroll report and supporting time cards were forwarded tot he coordinator supervisor for preparation of the weekly supplemental payroll report and weekly over time payroll report. The two reports were then delivered to the payroll department for on-line entry into the District's payroll system.
. . . Our comparison of day-labor hours paid (as supported by time cards) to day-labor hours billed (as supported by the work orders) as reported by the District for the last three years disclosed the following differences, totaling 112.152 hours:
Fiscal Year Hours Difference
Paid Billed
1989-90 | 190,418.00 156,518.25 33,899.75 |
1990-91 | 197,745.50 158,292.00 39,453.50 |
1991-92 | 178,690.25 139,891.50 38,798.75 |
District records did not indicate an accounting for much of the differences noted above. . . .
[S]chedules of labor charges for the additions to the new maintenance and operations building and to the north maintenance building . . .
disclosed that 4,131 and 2,242 day-labor hours were charged by Capital Improvement Project Group employees (hourly employees) for the construction of the additions to the two buildings, respectively [and] . . . that an additional 4,161 and 2,304 hours, respectively, were charged by maintenance (regular) employees for the two projects.
29/ Auditor General's Report at 13. 30/ Id.
31/ For further discussion, see Auditor General's Report at 14. 32/ Auditor General's Report at 60.
33/ Sec. 230.23(5)(f), Fla. Stat., expressly authorizes Petitioners to suspend, dismiss, and return certain employees to annual contract status. That section does not expressly empower Petitioners to demote Respondent. But see,
representation of counsel to the contrary in the Amended Petition For Demotion at paras. 80, 89, 99, 105, and 112.
34/ The grounds upon which disciplinary action by Petitioners must be based are the same whether the disciplinary action involves dismissal or suspension under Respondent's annual contract or return of Respondent from his continuing contract to annual contract status. Compare Sec. 231.36(6)(b), Fla. Stat., with Sec. 231.36(4)(c). Unlike the language in the foregoing statutes, Sec.
231.36(1)(a) authorizes disciplinary action against instructional staff on the basis of "just cause." The term "just cause" is defined to include, but not be limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. If Respondent were returned to annual contract status from his continuing contract as a teacher, he would be subject to instructional staff under annual contract.
35/ See Amended Petition For Demotion, paras. 74, 76, 78, 79, 88, 98, 104, and
111.
36/ Id.
37/ Fla. Admin. Code Rule 6B-4.009(1) also defines incompetency as the inability or lack of fitness to discharge Respondent's required duties as a result of incapacity. Incapacity is defined in Rule 6B-4.009(10(b) as lack of emotional stability, lack of adequate physical ability, lack of general educational background, or lack of adequate command of his area of specialization. No issue or proof was ever asserted by Petitioner that Respondent was incompetent due to incapacity. See, e.g., Amended Petition For Demotion at para. 74.
38/ Rule 6B-4.009(1)(a)(3) applies to supervisors and administrators. Rule 6B- 4.009(1)(a)(2), however, applies too the repeated failure of a teacher to relate to children in the classroom. Respondent had no teachers under his supervision. Thus, the only basis upon which Petitioners were authorized under Sec.
231.36(6)(b), Fla. Stat., and applicable administrative rules to dismiss Respondent from his annual contract and return him from his continuing contract to annual contract status was if Respondent was inefficient within the meaning of Rule 6B-4.009(1)(a)(1).
39/ See also Petitioners' Memorandum On The Existence Of Statutory Grounds For Termination Of Employment Of Respondents at 2.
40/ Sec. 231.09, Fla. Stat., provides:
Duties of instructional personnel.-Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. (emphasis supplied)
Compare Fla. Admin. Code Rule 6B-4.009(1)(a)(3) which expressly relates to repeated failures on the part of an administrator or supervisor.
41/ Prior to 1984, Sec. 120.68(12)(b), Fla. Stat. (1983), required remand of a case if the exercise of agency discretion was ". . . [i]nconsistent with an agency rule. . .' and deviation from the rule was not ". . . explained by the agency. . . ." An agency could deviate from its rule in a particular case if the agency exposed and elucidated its reasons sufficiently to permit judicial review within the meaning of Sec. 120.68(12)(B). McDonald, 346 So.2d at 583; Price Wise Buying Group, 343 So.2d at 116. In 1984, the legislature repealed the statutory authority that had allowed deviation an from an existing rule if the deviation was explicated by the agency. Sec. 120.68(12)(b), Fla. Stat. (1991). In this proceeding, Petitioners can not deviate from their valid existing rule irrespective of their explication. Boca Raton Artificial Kidney Center, Inc. v. Department of Health and Rehabilitative Services, 493 So.2d 1055, 1057 (Fla. 1st DCA 1986); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). See also Sec. 120.535(2)(a).
42/ Sec. 112.313(4), Fla. Stat., provides:
. . . No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public office or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.
See also Petitioner's Proposed Recommended Order at 65.
43/ Unlike a rule, a policy or directive lacks general applicability. It is the element of general applicability that elevates a policy, directive, or other statement to the level of a rule. Sec. 120.52(16), Fla. Stat. A rule that is promulgated in accordance with formal rulemaking procedures has the force and effect of law. State v. Jenkins, 469 So.2d 733, 734 (Fla. 1985); Florida Livestock Board v. Gladden, 76 So.2d 291 (Fla. 1954); Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988). A policy or directive that is not promulgated in accordance with formal rulemaking requirements is unenforceable. Sec. 120.535(1); McDonald v. Department of Banking and Finance,
346 So.2d. 569, 580-581 (Fla. 1st DCA 1977). See also, Public Service Commission v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989); Friends of the Everglades, Inc. v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986).
44/ See also Petitioners' Memorandum On The Existence Of Statutory Grounds For Termination Of Employment Of Respondents at 2.
45/ Counsel for Petitioners asserts:
In general, Florida courts have described "incompetency" as "a failure to comply with the minimum standard of care" of the professional "under the circumstances." See generally Purvis v. Department of Professional Regulation, 461. So.2d 134, 136 (Fla. 1st DCA
1984).
Petitioners' Memorandum On The Existence Of Statutory Grounds For Termination Of Employment Of Respondents, at 3.
46/ Compare Fla. Admin. Code Rule 6B-4.009(1)(a)(3), which applies to supervisors and administrators, with Rule 6B-4.009(1)(a), which applies to instructional staff.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-8262
Petitioner's Proposed Findings Of Fact. 1.-5 Accepted in substance
Rejected for lack of credible and persuasive evidence
Accepted in substance
8.-10. Irrelevant and immaterial
11. Accepted in part and rejected in part
12.-13. Rejected for lack of credible and persuasive evidence 14.-15. Irrelevant and immaterial
16.-21. Rejected as conclusion of law and for lack of credible and persuasive evidence
22. Accepted in substance 23.-25. Irrelevant an immaterial
Rejected for lack of credible an persuasive evidence.
Irrelevant and immaterial
Rejected in part for lack of credible and persuasive evidence and accepted in part.
29.-31. Accepted in substance.
32.-33. Rejected for lack of credible and persuasive evidence
34. Irrelevant and immaterial
35.-39. Rejected for lack of credible and persuasive evidence
Irrelevant and immaterial
Rejected for lack of credible and persuasive evidence 42.-53. Irrelevant and immaterial
54.-58. Rejected for lack of credible and persuasive evidence
Rejected. There was no program for $678,000.
Accepted in substance
Rejected for lack of credible and persuasive evidence
Accepted in substance
Rejected for lack of credible and persuasive evidence
Irrelevant and immaterial
Accepted in substance 66.-69. Accepted in substance
70.-73. Rejected for lack of credible and persuasive evidence
74. Accepted in substance but not as to characterization 75.-102. Rejected for lack of credible and persuasive evidence
Respondents' Proposed Findings Of Fact.
1.-19. Accepted in substance
20. Rejected as recited testimony 21.-31. Accepted in substance
32. Rejected as recited testimony 33.-67. Accepted in substance
68. Rejected as recited testimony 69.-86. Accepted in substance
87. Rejected as conclusion of law 88.-104. Accepted in substance
105. Irrelevant an immaterial
106.-133. Accepted in part and rejected in part as irrelevant and immaterial
COPIES FURNISHED:
Dr. Monica C. Ulhorn, Superintendent Palm Beach County School Board
3340 Forest Hill Boulevard, Suite C320 West Palm Beach, Florida 33406-5869
Henry B. Handler, Esquire Donald Feldman, Esquire Bruce A. Harris, Esquire Weiss & Handler, P.A.
2255 Glades Road, Suite 218A Boca Raton, Florida 33431
John T. Christiansen, Esquire Neil B. Jagolinzer, Esquire Christiansen, Jacknin & Tuthill Suite 1010, Nations Bank Building 1555 Palm Beach Lakes Boulevard
P.O. Box 3346
West Palm Beach, Florida 33401
Marnie Ritchie Poncy, Esquire Paul J. Nicoletti, P.A.
317 Tenth Street
West Palm Beach, Florida 33410-3317
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 PALM BEACH COUNTY, FLORIDA
SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, and DR. C. MONICA UHLHORN, SUPERINTENDENT OF SCHOOLS,
Petitioners,
DOAH CASE NO. 91-8262
vs. SCHOOL BOARD CASE NO. 91/92-010
JACK KENNETH SCHRIMSHER, JR. and LEWIS W. FRIEND, as Co-
Personal Representatives of the Estate of JACK KENNETH SCHRIMSHER, Deceased,
Respondents.
/
FINAL ORDER
THIS CAUSE came before the SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA (the
"SCHOOL BOARD"), for the purpose of issuing a Final Agency Order. Daniel Manry, the Hearing Officer assigned by the Division of Administrative Hearings ("DOAH") in the above- styled cause, has submitted on July 23, 1993 a Recommended Order, which was received by the SCHOOL BOARD on July 26, 1993. A correction to the Recommended Order was submitted on July 26, 1993. A copy of the Recommended Order and its correction is attached hereto (as ruled upon by this SCHOOL BOARD with rejections and modifications noted), as Appendix A.
Petitioners timely filed Exceptions on August 2, 1993 to almost all of the Findings of Fact and Conclusions of Law of the Recommended Order. Respondent untimely filed Exceptions on or about August 25, 1993 to the Hearing Officer's conclusions concerning attorneys' fees. Each party also filed Responses to the other party's Exceptions, and these Responses and Exceptions were duly considered.
METHODOLOGY OF REVIEW
This, the SCHOOL BOARD OF PALM BEACH COUNTY ("BOARD") did, en banc, review the Recommended Order of the Hearing Officer. The Exceptions as well as written submissions of both sides were considered. This BOARD engaged the special assistance of Douglas K. Sands, Esquire, for the sole purpose of providing it with legal advice, which he has so done. Both the Petitioners and Respondents were given the opportunity to make oral presentations and to argue for or against their respective exceptions to the Recommended Order. Mr. Sands sent notices to all parties of the deliberation meetings and invited all parties to attend each meeting. Respondent declined to make any oral presentation or attend any meetings, while Petitioners, through Bruce A. Harris, Esquire and
Donald Feldman, Esquire, of Weiss and Handler, P.A. attended and made oral presentations at meetings.
Each member of this BOARD has read the entire Record. All of the BOARD members have discussed this case, upon this review, only during the numerous hours of deliberations at duly convened public meetings. These meetings were initially held on the following dates: September 1, 13, 21, 27, and October 4,
6, 11 and 13, 1993.
On October 17, 1993, the Respondent, J. KENNETH SCHRIMSHER, died. As a result, the previously scheduled deliberation meetings for October 18 and 20, 1993, to attempt to finalize the Order, were cancelled.
At a meeting on October 25, 1993, the BOARD determined it could not proceed without Respondent and issued an Order suspending the proceedings in view of Floyd v. Wallace, 339 So. 2d 653 (Fla. 1976) and allowed the personal representative of Mr. SCHRIMSHER's Estate ninety (90) days from the date of their October 25, 1993 Order to substitute in these proceedings.
Thereafter, the Estate of Mr. SCHRIMSHER was opened and LEWIS FRIEND, as a personal representative of the Estate, was issued Letters of Administration, on October 27, 1993, by the Fifteenth Judicial Circuit in and for Palm Beach County, Florida. Yet, a Motion to Substitute was not filed until December 28, 1993, and it was defective as it was filed solely by the Decedent's son and failed to state that the motion sought substitution of the co-personal representatives for the Estate. Petitioners filed an Objection on that basis. On January 10, 1994, an Amended Motion for Substitution was filed, but again it did not clearly indicate that the movants were acting as co- personal representatives for the Estate. Finally, on January 14, 1994, another Amended Motion for Substitution was filed and the BOARD voted, on January 19, 1994, and ordered the substitution of the co-personal representatives of the Estate as Respondents.
Thereafter, the SCHOOL BOARD continued deliberations on January 25 and January 27, 1994, and March 29, 1994. Due to the lengthy delay by the co- personal representatives in filing the Motion for Substitution, in view of the length of the record and the Recommended Order, the BOARD needed extra time to deliberate following the reconvening of meetings in January, 1994. The initial momentum of review, based on a fresh reading of the entire record, followed by intense sentence by sentence review of the Recommended Order was lost, and a lengthy reorientation was necessary. Moreover, scheduling difficulties arose to finalize the Order.
BOARD members have based their decision solely on the entire record, legal arguments, and advice of counsel, Douglas Sands, Esquire, all at the public meetings.
Through the entry of this Final Order, the BOARD after having reviewed Petitioners' Proposed Final Order, has GRANTED Petitioners' March 9, 1994 Motion for Entry of Final Order, as amended at the March 29, 1994 meeting. The BOARD has DENIED, as moot, Respondents' February 24, 1994 Motion for Entry of Final Order pursuant to Fla. Stat. s. 120.59.
The BOARD has GRANTED Petitioners' Motion to Take Official Recognition of Certain Probate Court Filings and has officially recognized from the court files in, In Re: The Estate of Jack Kenneth SCHRIMSHER, File No. 93-3717 CPM, filed in the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida the:
Petition for Administration - filed October 26, 1993;
Order Admitting Will to Probate and Appointing Personal Representative
filed October 27, 1993;
Letters of Administration - filed October 27, 1993; and
Amended Letters of Administration - filed December 1, 1993.
Various legal terms and concepts have been somewhat troublesome to the BOARD and the explanations thereof, by the attorneys properly in attendance, were not always uniform. This BOARD has, therefore, made its own evaluation of the applicable law and does now set forth its views on its legal function herein.
Competent Substantial Evidence
It is our belief that the basic tenets of our review are clearly established by statute.
Fla. Stat. s. 120.57(1)(b)(10) (1993) provides:
The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
(emphasis added).
This BOARD, thus, recognizes the general rule that a Hearing Officer's Findings of Fact should prevail unless "the Findings were not based upon competent substantial evidence," or the proceedings on which the Findings were based failed to "comply with essential requirements of law." Fla. Stat. s.
120.57(1)(b)(10) (1993); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 4th DCA 1984).
It is also our belief that the basic definition of "competent substantial evidence" is universally and consistently cited in the relevant case law. In this regard, "competent substantial evidence is such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be
inferred [or] . . . such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980), (quoting, DeGroot v. Sheffield,
95 So. 2d 912, 916 (Fla. 1957).
The questions of credibility, conflicting evidence, documentary versus testimonial evidence, hearing officer bias, and fact versus conclusory evidence, become much more sophisticated and difficult when used in the specific context of competent and substantial evidence.
At first blush, we must take note of the principle that we are not to act as automatons. As stated by the Court in Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983), a good primer on competent substantial evidence:
In reviewing claims brought under the Social Security Act, our role is a limited one. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for of the Secretary. Even if we find that the evidence preponderates against the Secretary's decision, we must affirm if the decision is supported by substantial evidence. 42 U.S.C. s. 405(g). See, e.g., Allen v. Schweiker, 642 F.2d 799, 880 (5th
Cir. 1981); Warncke v. Harris, 619 F.2d 412,
416 (5th Cir. 1980). Yet, within this narrowly circumscribed role, we do not "act as automatons." Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455 U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982). We must scrutinize the record as a whole, Id.; Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975) to determine if the decision reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979) and supported by substantial evidence, Scharlow v Schweiker, 655 F.2d 645, 648 (5th Cir. 1981).
Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d
842 (1971); Walden v. Schweiker, 672 F.2d
835, 838-40 (11th Cir. 1982); Oldham v.
Schweiker, 660 F.2d 1078, 1083 (5th Cir.
1981); Fruge v. Harris, 631 F.2d 1244, 1245
(5th Cir. 1980).
703 F.2d at 1239 (emphasis supplied).
We are of the conclusion that the framework established by the leading Florida case of McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), is best suited for accomplishing our legally mandated function. McDonald allows a reviewing body to consider the most important variables and then to consider the results of their application, on a continuum.
This approach allows for both mandated deliberation and flexibility necessary to meet the specific problems presented by each case.
We glean and apply the following principles from McDonald and its progeny:
The substantiality of the evidence must take into account whatever in the record fairly detracts from its weight (this is the federal standard adopted by the United States Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456 (1951).)
Finding "substantial evidence," the Court held, is not done by mechanically combing the transcript for words and phrases of testimony that corroborate the Board's questioned finding, but rather by considering the whole record, including the examiner's findings. "The substantiality of evidence," Frankfurter stated, "must take into account whatever in the record fairly detracts from its weight," 340 U.S. at 488, 71 S. Ct. at 464, 95 L. Ed.
at 467.
McDonald, 344 So. 2d at 579 (emphasis supplied).
In Koch, C.H., Administrative Law and Practice, (1985) author relates: Justice Frankfurter in Universal Camera Co.
v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456,
464, 95 L. Ed. 456 (1951), the seminal post- APA case, indisputably established the reasonableness notion for application of the substantial evidence standard as well as reaffirmed the understanding that the APA requires whole record review as opposed to some evidence somewhere in the record. See APA Leg. His. at 214, 279.
Id. at s. 9.1 at 92 n.8. (emphasis supplied).
By adopting the federal standard of review, as promulgated by the United States Supreme Court in Universal Camera, the decisions of the federal appellate courts that interpret this standard should be given due weight.
Florida APA does not require that the reviewing court ignore the hearing officer's findings to the extent they are displaced by agency findings. We are therefore free to reconcile the potentially conflicting statutory demands by adopting Universal Camera's standard of judicial review.
McDonald, 344 So. 2d at 579 (emphasis supplied).
When no competent substantial evidence is found, based on the whole record, to support a finding of fact of the Hearing Officer and he has considered an issue, we are free to make substituted findings of fact - in effect, modifying the findings. These will then be reviewed by the Fourth
District Court of Appeal to determine if they are, in turn, supported by competent substantial evidence.
In consequence, the Department was required to honor the hearing officer's findings of fact unless "not based upon competent substantial evidence," Section 120.57(1)(b)9; Venetian Shores Home and Prop. Own. v.
Ruzakawski, 336 So. 2d 399 (Fla. 3d DCA 1976). Yet we as the reviewing court are required to sustain the Department's findings of fact - those which petitioners urge were wrongfully substituted if they are supported by competent substantial evidence. Section 120.68(10). The result is a conundrum:
bound as we are to honor agency findings of fact supported by competent substantial evidence, how shall we determine whether the agency, as required, accorded similar respect to the hearing officer's findings?
. . . . . . . . .
Reversing, the Supreme Court held that reviewing courts should not become "pinioned between the horns of his [Hand's] dilemma, that they need not choose exclusively between the examiner's findings and the BOARD's substituted findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S. Ct. 456,
467, 95 L. Ed. 456, 470 (1951). Justice
Frankfurter's opinion for the Court conceded the difficulty of completely reconciling the competing principles, but held it is possible and desirable for a reviewing court to give weight to the examiner's discarded findings while determining whether "substantial evidence" supports the BOARD's decision.
McDonald, 344 So. 2d at 378 (emphasis supplied).
The substantiality of evidence supporting substituted findings will be measured by the District Court of Appeals, as against the Hearing Officer's findings, by taking into account numerous variables.
There is nothing in our APA, as there was nothing in the federal Act, which "suggests that reviewing courts should not give to the (hearing officer's) report such probative force as it intrinsically commands," notwithstanding that the agency has substituted contrary findings. 340 U.S. at 495, 71 S. Ct. at 468, 95 L. Ed. at 471.
. . . . . . . . .
Thus, the substantiality of supporting an agency's substituted finding of fact depends on a number of variables: how susceptible is the factual issue to resolution by credible witnesses and other evidence, how
substantially the hearing officer's discarded findings are supported by such evidence, how far the factual issue tends to be one of opinion, how completely agency policy occupies a field otherwise open to different opinion.
McDonald, 344 So. 2d at 579 (emphasis supplied).
In Duval Utility Company v. Florida Public Service Comm., 380 So. 2d 1028 (Fla. 1980), our Supreme Court opined:
Competent substantial evidence is "such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred [or] . . . such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The conclusory statements relied on by the commission do not provide sufficient support for the findings necessary to underpin the commission's action.
380 So. 2d at 1031 (emphasis supplied).
Please see MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986) ("since his [the witness] simple statement is neither explained nor supported by any testimony, we conclude that it is not substantial evidence . . .".)
We are not using the deference rule, because in all instances herein of rejected and substituted (modified) findings, we have done so on the explicit basis that the Hearing Officer's findings (Appendix A hereto) are not based on competent substantial evidence. In addition, we have explicated with particularity why each rejected finding, is not so based - Appendix B hereto.
In each such instance, the reason for rejection supports the finding in the Final Order which is diametrically opposed to such rejected finding, and in addition, each substituted or modified finding is directly referenced to the supporting evidence in the Record.
In Orlando General Hospital v. DHRS., 567 So. 2d 962 (Fla. 5th DCA 1990), the Court held:
We will review later HRS's interpretation of the authority for the deference rule which is contrary to the rule that an agency may not substitute its own factual findings for those of the hearing officer unless it states with particularity in its order that the officer's findings of fact were not based on competent substantial evidence. B.B. v. Department of Health and Rehabilitative Services, 542 So. 2d 1362 (Fla. 3d DCA 1989); see also s.
120.57(1)(b)(10), Fla. Stat. (1987).
567 So. 2d at 963 (emphasis supplied).
Specific Problems of Competent Substantial Evidence Herein
The Hearing Officer rejected virtually all of the Petitioner's evidence, both testimonial and documentary. The rejected testimonial evidence included the testimony of Florida Department of Education Officials: Suzanne Marshall, (Technical Facilities Bureau Chief of the Office of Educational Facilities), Dr.
James Schrooer (Deputy Commissioner for Educational Facilities), and Catherine Lee (Architect/Engineer Supervisor for the Office of Educational Facilities in South Florida), and School BOARD employees: Michael Kirk, Augustin Hernandez, Donald Chenicek, Dr. Henry Boekhoff, William Donald Drake, Daniel Haas, Harold Larid, Robert Skakandy, Russell Smith, Charles Teichner, and James Louwers. Moreover, the Hearing Officer similarly rejected the relevant direct examination testimony of Palm Beach County Fire Inspector Richard Sprague, Palm Beach County Clerk of Courts Dorothy Wilken, attorneys Charles Edgar III and David Justin Niles, and James Howell, an architect with Dow Howell Gilmore Associates, Inc. Portions of the testimony of these witnesses had not even been rebutted.
In addition, the Hearing Officer rejected almost all of Petitioners' documentary evidence, including those that were not subject to objections by Respondent. For instance, Petitioners introduced a chronology (P.E. 578(a)) prepared by Jim Knight which detailed the dates of the Knight's meetings with SCHOOL BOARD employees, including Mr. SCHRIMSHER, concerning the KEI district warehouse property. Jim Knight testified that the chronology was accurate when it was prepared (Tr. at 517). This chronology had not been produced by the Knights pursuant to a subpoena, but, rather, was obtained by outside counsel for the School BOARD from the files of the Japanese investor in KEI (Tr. at 1271).
The chronology showed that Mr. SCHRIMSHER participated in 7 with the Knights concerning the KEI warehouse property before its sale to the School BOARD. Moreover, Petitioners introduced twenty-two written telephone messages (Comp.
P.E. 497), taken by Mr. SCHRIMSHER's secretary, which showed calls from the Knights to Mr. SCHRIMSHER during the same time period. Mr. SCHRIMSHER testified himself that he answered all of his messages. Petitioners also introduced a May 22, 1989 letter from Jim Knight (P.E. 220) stating that Mr. SCHRIMSHER and William Knight had agreed to certain changes to the contract for the property.
The whole of the reasons for rejection of virtually all of this evidence, including the documents, was that it was not "credible and persuasive". The Hearing Officer also expressed this reason for rejecting two formal BOARD Reports which no one disputed as being just what they purported to be.
There are, in addition, numerous errors and omissions in the Recommended Order on matters that were not in dispute.
On the other hand, where the Petitioners' evidence is disputed, it is generally by testimonial evidence which is conclusory, and clearly impeached. By the same token, the Findings of Fact in the Proposed Order are, in many instances, combinations of expressed fact and opinion by the Hearing Officer.
The Hearing Officer's preparation of his Recommended Order did not comply with the essential requirements of the law.
It would clearly appear that this case, after our full review of the Record and the submissions, would seem to fall within the following context:
A court held a hearing not so unfair as to require remand, but said that "the trial examiner's hostility detracts from the weight to be accorded his findings" because he discredited every company witness, ignored company evidence and used contrary speculations unsupported by evidence, ignored evidence which could not be explained with his thesis, and used intemperate and emotion- charged words . . .
Davis, K.C., Administrative Law, Text s. 1203 at 250 (3d Ed 1972) (quoting from
A.O. Smith Corp. v. National Labor Relations BOARD, 343 F.2d 103 (7th Cir. 1965).)
C. Specific Rules to Determine Competent Substantial Evidence
Therefore, after reviewing case law, we specifically have adopted the following as guidelines to determine the existence vel non of competent substantial evidence.
Even though conflicts and credibility determinations are ordinarily left to the Hearing Officer, that is only the basic rule, which serves as a predicate to catalog its refinements. Testimonial evidence, which is impeached, is not to be given the same deference as is unimpeached documentary evidence. This rule is even more strongly applied when there is contemporaneous documentary evidence which conflicts with the testimonial evidence.
In United States v. Gypsum Co., 333 U.S. 364, 68 S. Ct. 525 (1947), the Court stated:
The government relied very largely on documentary exhibits, and called as witnesses many of the authors of the documents. Both on direct and cross-examination counsel were permitted to phrase their questions in extremely leading form, so that the import of the witnesses' testimony was conflicting. On cross-examination most of the witnesses denied that they had acted in concert in securing patent licenses or that they had agreed to do the things which in fact were done. Where such testimony is in conflict with contemporaneous documents we can give it little weight, particularly when the crucial issues involve mixed questions of law and fact. Despite the opportunity of the trial court to appraise the credibility of the witnesses, we cannot under the circumstances of this case rule otherwise than that Finding
118 is clearly erroneous.
304 U.S. at 367 (emphasis supplied).
In Spurlock v. Department of Justice, 894 F.2d 1328 (Fed. Cir. 1990), it was held:
In order to determine whether the board's finding is supported by substantial evidence, it is necessary for the court to "canvas" the entire record, because "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S. Ct.
456, 464, 95 L. Ed. 456 (1951).
Exaggeration, inherent improbability, self- contradiction, omissions in a purportedly complete account, imprecision, and errors detract from the weight to be accorded the evidence upon which an administrative board bases its decision. Sternberger v. United States, 401 F.2d 1012, 1016, 185 Ct. Cl. 528
(1968).
894 F.2d at 1330 (emphasis supplied).
The mere statement by the Hearing Officer, without more, that he finds testimony to be "not credible or persuasive" is not the end of the inquiry as to whether such is a valid statement.
In Aguilera-Cota v. U.S. INS, 914 F.2d 1375 (9th Cir. 1990), it was stated:
The fact that an IJ considers a petitioner not to be credible constitutes the beginning not the end of our inquiry. As we have stated, "When the Immigration Judge provides specific reasons for questioning a witness's credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible." Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988).
This is the case, for example, when the IJ makes an adverse credibility finding based on petitioner's "evasiveness." Turcios, 821 F.2d at 1400. We do not accept blindly an IJ's conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion, and determine whether the reasoning employed by the IJ is fatally flawed. It is not enough that the IJ has arrived at point B from point A, or that others might also; the question we must answer is: was it reasonable to do so. In Damaize-Job v. INS, 787 F.2d. 1332, 1337 (9th
Cir. 1986).
914 F.2d at 1381 (emphasis supplied).
In Turcios v. INS, 821 F.2d 1396 (9th Cir. 1987), the Court held:
The Credibility Findings
This court reviews credibility findings for substantial evidence. Saballo Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir. 1985); see also
Zavala-Bonilla v. INS, 730 F.2d 562, 566 (9th Cir.1984). Although an immigration judge's credibility findings are granted substantial deference by reviewing courts, Sarvia- Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985), a trier of fact who rejects a witness's positive testimony because in his or her judgment it lacks credibility should "offer a specific, cogent reason for his disbelief." Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986) (quoting Lewis v.
Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). We find that the statement of reasons given for rejecting Turcio's detailed testimony inadequate and that substantial evidence does not support the adverse credibility finding.
821 F.2d at 1399 (emphasis supplied).
As stated in Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504:
This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable fact finder would not credit it. Where such factors are present, the court of appeals my well find clear error even in a finding purportedly based on a credibility determination. See, e.g., United States v. United States Gypsum Co., supra, at
396. But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.
470 U.S. at 565 (emphasis supplied).
We are aware of the analogy that is drawn between the court's review of a special master and the agency's review of a Hearing Officer - the "clearly erroneous" standard of review. Kibler v. Department of Professional Regulation,
418 So. 2d 1081, 1083 (Fla. 4th DCA 1982); Borovina v. Florida Construction industry Licensing industry Construction Board, 369 So. 2d 1038 (Fla. 4th DCA 1979).
The problem with this approach is that "clearly erroneous" is ordinarily a different standard than is the "competent substantial evidence" standard.
As stated in one leading treatise on the subject:
The test of substantial evidence, used for reviewing findings of agencies and juries, differs from the "clearly erroneous" test, used for findings of a judge without a jury. The Court made clear in District of Columbia v. Pace, 320 U.S. 698, 701-02(1944), that
"findings of fact by an equity court and the verdict of a jury have from time immemorial been subject to different rules of finality, "that the findings of a judge are accepted unless "clearly wrong," and that the review of a verdict is "much less restricted." The Court has explained the "clearly erroneous" test in language it would not use to explain substantial evidence: "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
. . . . . . . . .
Whether evidence in support of a finding is substantial has to be decided on the basis of evidence on both sides, not just evidence supporting the finding.
Davis, D.C. Administrative Law Treatise s. 29:22 at 437 (2d Ed. 1984) (emphasis supplied).
Yet, the Florida Courts appear to use the terms "clearly erroneous" and "competent substantial evidence" interchangeably. In Frank v. Frank, 75 So. 2d
282 (Fla. 1954), the Florida Supreme Court stated:
We have carefully considered the evidence and have concluded that we must sustain appellant's contention. This court has ofttimes made the pronouncement that if a special master is appointed, by agreement or consent of the parties to a chancery cause, with authority to make findings of fact, conclusions of law and recommendations should be approved and adopted by the chancellor
unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Harmon v. Harmon, Fla. 40 So. 2d 209; McAdow v. Smith, 127 Fla. 29, 172
So. 448; Kent v. Knowles, Fla. 1375, 133 So.
315. And see Slatcoff v. Dezen, Fla., 74 So. 2d 59. Of course, the master's findings of fact would be clearly erroneous if the record should fail to contain evidence in support thereof which is both competent and substantial.
75 So. 2d at 285 (emphasis supplied).
However, the real question is: may an order have substantial evidence and still be clearly erroneous because of the thought to be stricter parameters of the latter standard of review. The language in Kalmutz v. Kalmutz, 299 So. 2d 30, 34 (Fla. 4th DCA 1974) ("where there was competent substantial. . . evidence to support the findings of the master his findings must be sustained") does appear to fully equate the competent substantial evidence test with the clearly erroneous standard.
We do not believe we are an appropriate arbiter of these questions, which we leave to the courts for their resolution. We make it clear that we have used the "competent substantial evidence rule" and not the "clearly erroneous" test in our review of the Recommended Order.
We have still to determine what ultimate parameter is to be used with the competent substantial evidence test. We have had various ones brought to our attention in order to determine if there is not competent substantial evidence. There is, thus no competent substantial evidence when:
Scott v. Brooks, 56 So. 2d 456, 457 (Fla. 1952): Evidence is so manifestly contrary to the findings as to show a palpable abuse of power to determine the controverted facts.
INS v. Elias-Zacarlas, 112 S. Ct. 812 (1992): Evidence presented was so compelling that no reasonable fact finder could have found to the contrary.
City of Miami v. Huttoe, 38 So. 2d 819 (Fla. 1949): Findings are manifestly against the clear preponderance of the evidence.
We do not readily appreciate the difference in the above tests but have used the last of them as our general, guiding parameter. It appears to be the clearest statement. In every instance, however, we would come to the same conclusion using both of the other tests.
The SCHOOL BOARD has not engaged in a process of reweighing the evidence and determining witness credibility. Instead, it has engaged in an exhaustive scrutiny of the entire record, reviewed and discussed in public, the Hearing Officer's findings at deliberation meetings exceeding twenty-five hours in duration, and did reject thereon and modify findings of fact based on the existence vel non of the competent substantial evidence.
D. Law and Recommendation
We have given due consideration to the Hearing Officer's Conclusions of Law and Recommendation and after a thorough review of the Record and applicable law, we firmly disagree with both. We will set forth the specifics of our own Conclusions of Law and our Recommendations hereinafter.
FINDINGS OF FACT
Petitioners filed Exceptions to almost all of the proposed findings of fact contained in the Hearing Officer's Recommended Order. Petitioners further excepted to the failure of the Hearing Officer to adopt its findings of fact in Petitioners' Proposed Recommended Order.
Based on a careful review of the Exceptions and the complete record, the SCHOOL BOARD has made the following determinations regarding the findings of fact:
The SCHOOL BOARD accepts the following findings of fact in the Recommended Order:
Paragraphs: 1, 5, 11, 15, 18-25, 32, 35, 37,
39, 41, 44, 56, 69, 72, 73, 74, 76, 77, 78,
80, 88, 90, 91, 92, 95, 96, 98, 102, 103,
105, 112, 114, 116, 119, 120 and 129.
The SCHOOL BOARD rejects, either in its entirety or in part, the following findings of fact paragraphs in the Recommended Order after a complete review of the record and a determination that the proposed findings of fact are not supported by competent substantial evidence:
Paragraphs: 2, | 3, 4, 6, 7, 8, 9, 10, 12, 13, |
14, 16, 17, 26, | 27, 28, 29, 30, 31, 33, 34, |
36, 38, 40, 42, | 43, 45, 46, 47, 48, 49, 50, |
51, 52, 53, 54, | 55, 57, 58, 59, 60, 61, 62, |
63, 64, 65, 66, | 67, 68, 70, 71, 75, 79, 81, |
82, 83, 84, 85, | 86, 87, 89, 93, 94, 97, 99, |
100, 101, 104, 106, 107, 108, 109, 110, 111,
113, 115, 117, 118, 121, 122, 123, 124, 125,
126, 127, and 128.
The extent to which paragraphs have been accepted or modified or rejected is set forth below in Appendix `A' and `B'.
The SCHOOL BOARD accepts most of Petitioners' Exceptions and adopts most of Petitioners' proposed findings of fact to the extent set forth below.
Based on the lack of competent substantial evidence supporting several of the Hearing Officer's findings of fact and the competent substantial evidence in the record, the SCHOOL BOARD hereby makes the following modified findings of fact:
Background Facts
Respondent, J. KENNETH SCHRIMSHER, was the Associate Superintendent for Planning and Operations and was employed in this position from July 1, 1984, until November, 1991, pursuant to an annual contract of employment. (F.R.A. 9;
Tr. 115). 1/ He had no construction background when appointed. (Tr. 3015.) He also maintained a continuing contract as a principal. (Tr. 1910).
Since August 21, 1991, C. MONICA UHLHORN, has SUPERINTENDENT OF SCHOOLS for the Petitioner, SCHOOL BOARD. (F.R.A. 8; Tr. 1952). Thomas Mills had been Superintendent of Schools from 1978 until his retirement effective June 30, 1991. (Tr. 968).
The organizational charts for the district school system show that the SCHOOL BOARD and the SUPERINTENDENT's staff are accountable to the public. (P.E. 124; Tr. 1603). As Associate Superintendent, Respondent was responsible for the supervision and management of the departments under his authority, including in FY 1989 and 1990 Maintenance/Renovations, Facility Operations, Growth Management, Facility Design, New School Construction, and the Comptroller. (P.E. 124; Tr. 1812-1813).
As stated in his job description (P.E. 106; Tr. 1809- 1810), Respondent was responsible to plan, direct and control the activities of the Division of Planning and Operations. Additionally, Respondent was a chief liaison for the Division in communications with the SCHOOL BOARD, providing the SUPERINTENDENT with planning and implementation information concerning the Division. He supervised the work of the various departments in the Division, and was responsible to provide leadership to improve planning and operations. (P.E. 106; Tr. at 1809-1812).
Mr. SCHRIMSHER was responsible for the management of the $678,000,000 new school construction and renovation program and for providing leadership to accomplish the five year building plan goals. (P.E. 108(a); Tr. 124-128).
As an administrator in the District, Respondent was responsible to insure that his actions and the actions of his employees complied with Florida Statutes, Department of Education regulations, School BOARD policies, and administrative directives (School BOARD policies 1.01(2) and (4); S.R.A. 39; Tr. 1854).
Since the filing in December, 1991 of the original Petition in this action, the position of Associate Superintendent for Planning and Operations was abolished effective July 1, 1992. Respondent had been so notified (S.R.A. 12).
Notification of Charges
Respondent received appropriate notice of his transfer home, attended with his counsel a Weingarten meeting with the SUPERINTENDENT, where he had an opportunity to respond to the charges, and received appropriate notice of his suspension with pay and demotion. (F.R.A. 2, 3, 4, 5; S.R.A. 13; Tr. 1961-1962, 1972-1974; P.E. 88).
The basis of the recommendation for demotion was, in part, a recognition of the responsibility of the leader of the Division for the Division's actions. (Tr. 1958-1960). The SUPERINTENDENT needed to be assured, in view of the lack of funds necessary to finish the schools following the 1986 bond referendum, that if there was ever to be a future bond issue, the public would have to know that the money would be spent as directed. (Tr. 1969). The SUPERINTENDENT had a responsibility to insure that employees complied with their job responsibilities. (Tr. 1986).
Respondent attended the SCHOOL BOARD meeting regarding his demotion and had an opportunity to respond to the SUPERINTENDENT's recommendation; the SCHOOL BOARD voted in favor of the SUPERINTENDENT's recommendation. (S.R.A. 14). Later, based on new information from the ongoing investigation, Respondent was appropriately notified to attend a meeting which could lead to amending the Petition for Demotion. (S.R.A. 1 and 2; Tr. 1963). Respondent attended the meeting and was provided an opportunity to respond. (S.R.A. 15). Respondent received Notice to attend the SCHOOL BOARD meeting on this matter (S.R.A. 3 and 4), and Respondent did attend the SCHOOL BOARD meeting, had an opportunity to present his case, and the SCHOOL BOARD voted in favor of amending the Petition for Demotion. (S.R.A. 16; Tr. 1963).
Acceptance of Gratuities, Favors and Things of Value
From 1985 through 1991, Respondent had engaged in a pattern of accepting gifts, favors, gratuities, and things of value from persons or entities doing business with the SCHOOL BOARD. These included fishing trips on vendors' boats, golf outings, shows, memberships, vacations, and parties. (P.E. 139(a) and (f), 420, 422, 431, 432, 433, 452, 453, 454, 458, 463, 464; Comp. P.E. 497 (2/15/89, 6/3/91 and 6/15/90 messages); Tr. 493, 734-736, 742, 794-795, 825, 827, 829-836, 845-846, 849-852, 857-858, 859-862, 865-870, 882-883, 884- 885, 887-889, 891-895, 1138-1141, 1704, 1706, 2272-2275, 2443, 2778, 2783-2784, 2785- 2786).
Based on the overwhelming weight of the clear preponderance of the evidence, Mr. SCHRIMSHER had a sufficient role in the relationship between the vendors and the SCHOOL BOARD such that by the acceptance of these gratuities, favors and things of value, it could be reasonably anticipated that his professional judgment might be influenced and that with the exercise of reasonable care, he should know that such things of value were given to influence his actions in dealing with these vendors, either directly or through other school employees. These vendors included Herff Jones, Balfour Co., Max Davis Associates, Savin Corp., and architectural firms: Frizzell and Associates, Marion, Paluga and Associates, Peacock and Lewis, and Gee and Jensen, all of which did substantial business with the SCHOOL BOARD. (P.E. 132, 419, 434, 453, 523(a); Comp. P.E. 497; Tr. 832-837, 842, 852-854, 859, 864, 884, 888-889, 1080-1081, 979, 1898, 2160-2161, 2524, 2784-2786, 3055-3059; Comp. Tr. 497 (12/8/88 and 2/9/89 messages); Admin. Dir. 6.012).
One of Respondent's arguments in defense of the charges on this issue relates to the need of the Superintendents to meet with the business community and maintain a good relationship to receive their support for the schools and school programs. (Tr. 979, 1074, 1089, 2522, 2904, 2907). This argument misses the mark as to the policy considerations for prohibiting acceptance of things of value by public employees. School District administrators owe a duty to the public to act in the public interest only, and not in their personal self- interest. The prohibition against accepting things of value that might influence one's judgment is not aimed to prevent contacts with the business community or to preclude good working relationships with them. It is aimed, however, at the acceptance from vendors of gifts, vacations, gratuities, golfing, fishing trips, memberships, parties, etc. where the SCHOOL BOARD administrator is not paying for his/her own way, such that the administrator's judgment might be compromised. Whether or not the event is for charity is irrelevant if the recipient public employee is receiving a benefit (enjoying a round of golf or a fishing tournament). An administrator should be "called to the carpet" if the person attempts to exercise influence over decisions affecting a vendor from whom the person received gratuities or things of value.
(Tr. 2524). The SUPERINTENDENT had formed a committee, which included Dr. Henry Boekhoff, Associate Superintendent of Administration (Tr. 2048), and other school administrators, to develop a strategy to obtain a successful vote for the bond referendum. (Tr. 2048-2050). The committee determined that when they sought broader community support, they would stay away from individuals, such as contractors and architects, who could benefit from the bond issue itself. (Tr. 2051). This would, certainly, include William Knight and the other vendors involved herein.
Free Form Five Furniture
Free Form Five is a Canadian manufacturer of higher priced classroom furniture and shelving. (Tr. 2268-2269). From July 1, 1986, through June 30, 1992, the SCHOOL BOARD purchased $2,352,047.94 of furniture from Free Form Five, most of which was bought before FY 1989. (P.E. 132; Tr. 2160-2161).
Respondent visited Free Form Five's furniture manufacturing plant in Toronto, Canada in 1982 with then, Superintendent Mills. (Tr. 818-820).
Whether Mr. SCHRIMSHER's job duties had anything to do with the purchase of furniture for the school system (Tr. 795), and whether he had responsibility for the expenditure of funds (Tr. 841), begs the question as to whether he took any official action related to the purchase of furniture. The overwhelming weight of the clear preponderance of the evidence establishes that the Respondent was involved with the purchase of furniture for the SCHOOL BOARD and was directly involved with decisions regarding the purchase of such furniture from Free Form Five, a vendor, from whom he had accepted favors. In all this regard:
While Respondent was Associate Superintendent (Tr. 2031), at a meeting attended by Donald Chenicek, Ray Verity, and others in the construction department, Mr. SCHRIMSHER directed the employees to use Free Form Five furniture at a new elementary school being constructed - H.L. Johnson. (Tr. 2016-2018). At that time, the school would soon be in need of equipment, and persons in attendance at that meeting had authority to order that furniture. (Tr. 2018, 2030). In fact, the SCHOOL BOARD did purchase furniture for this school from Free Form Five. (Tr. 2020).
Although Respondent was not directly in charge of purchasing furniture, he had a role in the decision-making process affecting its purchase. He had the authority to approve a purchasing request for furniture. (Tr. 2021- 2022, 2031). Moreover, Mr. SCHRIMSHER had spending authority of capital funds; capital budgets for new school construction included funding for furniture. Design phase decisions included issues over which Mr. SCHRIMSHER had authority, including whether furniture would be incorporated into a building. (Tr. 2098- 2101). Furthermore, at the SUPERINTENDENT's staff meetings, participants, including Mr. SCHRIMSHER, had an opportunity to express their opinions. (Tr. 2972).
Moreover, furniture for portable classrooms was funded from the capital budget by requisition orders. (Tr. 2270). Mr. SCHRIMSHER approved a vendor requisition form for the Principal of Conniston Middle School to purchase student lockers from Free Form Five. (P.E. 478; Tr. 809-812).
Furthermore, at a meeting in February, 1988, attended by Harold Laird, the SCHOOL BOARD's furniture buyer in the purchasing department (Tr. 2267-2268), Mr. SCHRIMSHER questioner Mr. Laird about the quality of the furniture being
bought for the classrooms and the need to upgrade. (Tr. 2269-2270, 2290). At that same meeting with Mr. SCHRIMSHER, William Goode, Mr. SCHRIMSHER's immediate subordinate as Assistant Superintendent of Planning and Operations (P.E. 124), suggested that Mr. Laird and Betty Helser, Purchasing Director, be permitted to attend an upcoming convention in Las Vegas in order to evaluate furniture. (Tr. 2271).
As a result, Mr. Laird and Betty Helser attended the convention in Las Vegas in February, 1988. At the convention, he and Betty Helser were invited to a "nice restaurant" for lunch with Hart Sernick (President of Free Form Five), Mr. Goode and Mr. SCHRIMSHER. At the lunch, Mr. Sernick discussed his furniture with them. At the end of the luncheon, Mr. Sernick invited Mr. Laird and Ms. Helser to attend a "toga party" at Caesar's Palace, but they both rejected the invitation. (Tr. 2272-2275).
Mr. SCHRIMSHER, however, accepted Mr. Sernick's invitation, and with Mr. Goode, he attended the "toga party", paid for by Mr. Sernick at Caesar's Palace, and he thanked Mr. Sernick for the invitation and the "back rub." (Tr. 791, 794- 795; P.E. [465 sic] 467)
Moreover, following the Las Vegas convention, starting in May, 1988, Hart Sernick directed several letters to Mr. SCHRIMSHER wherein he expressed concern about the School District's lack of sufficient purchases of Free Form Five furniture. (P.E. 474, 476, 477; Tr. 795-806). Mr. SCHRIMSHER forwarded two of these letters to Mr. Goode for a response. (Tr. 807; P.E. 476, 477).
Mr. Mills' testimony on the Free Form Five issue was impeached and contains numerous inconsistencies. His testimony is mostly vague, and does not refute that which was above found by this BOARD. We, at this juncture, believe it is appropriate to address the entire testimony of Mr. Mills.
THE MILLS TESTIMONY
We take note that the primary thrust of Respondent's defense is the testimony of former Superintendent, Thomas Mills. Were his testimony consistent, unimpeached, non-conclusory, internally consistent and not in conflict with documentary evidence and in conflict with clear, unimpeached, and factually supported other testimony, we would be bound to accept the Hearing Officer's findings based solely upon such verbal testimony. This testimony is, however, just the opposite of such. We specifically find, on this whole record, that the findings of the Hearing Officer based on Mr. Mills' testimony are manifestly against the clearest overwhelming preponderance of the evidence in the record as a whole and evinces a palpable abuse of power to determine the controverted facts. In this regard, the following illustrations are stated for the benefit of the reviewing court:
Free Form Five and Caesar's Palace:
Originally, Mr. Mills testified that he and Mr. SCHRIMSHER were guests of Free Form Five at Caesar's Palace. It was a dinner and he alleged that SCHOOL BOARD members were present.
Q. Mr. Mills, good afternoon.
Is it my understanding that it was all right for Mr. SCHRIMSHER to go to the dinner at Caesar's Palace? You saw nothing wrong in that?
A. No, I didn't see anything wrong with that.
Q. And of course, you saw nothing wrong in your going, did you?
A. No, I didn't.
Q. You both went?
A. Sure, with School Board Members. (Tr. 2942-2943) (emphasis supplied).
However, later in his testimony, after being shown the names of those in attendance, on the vendor's record for that evening, Mr. Mills testified:
Q. Do you actually have a memory of any School Board Members being present at the Caesar's Palace dinner at which the back rubs were given?
A. I do not recall going to dinner at Caesar's Palace.
Q. You do not recall?
A. No, I don't recall going there.
Q. All right, sir, then in terms of whatever it is that you talked--let me ask you this, did you go to Caesar's Palace for dinner?
A. I don't recall that, whether I did or not. It's possible I did, but I don't recall it.
Q. So then you certainly couldn't recall School Board Members being there?
A. I never testified that School Board Members were there.
(Tr. 2948-2949) (emphasis supplied).
He finished this subject by stating:
Q. Sir, I'm not asking you that. I'm just asking you to assume--first of all, let's establish something. Mr. SCHRIMSHER has testified that you were at that particular party. Does that refresh your recollection?
A. I don't recall being there. (Tr. 2954) (emphasis supplied).
Policy on Gifts and Gratuities
Mr. Mills testified that it was proper, if he and Mr. SCHRIMSHER did attend the party at Caesar's Palace.
Q. Okay. Now, if you were at the dinner at Caesar's Palace, which was paid for in full by Free Form Five, do you consider that to have been improper?
A. No.
Q. Now, in terms of vendors to the School Board, then as I understand it, it was the normal course of business essentially for you and Mr. SCHRIMSHER to have lunches and dinners with vendors, is that correct?
A. Yes. Sometimes they took us out, and sometimes I took them out.
(Tr. 2949) (emphasis supplied).
On the other hand, Mr. Mills clearly testified to exactly the opposite before the State's Attorney:
Q. All right, sir. You gave--let me ask you this, did you give a sworn statement in which you were asked, "Would it be a permissible set of circumstances for you to allow a staff member to accept a gift or gratuity from a provider of services?" Answer: "I would not. Other than a business lunch or something like that, I would not want them to do that." Did you give that statement, sir?
A. Yes, I did.
Q. And who did you give it to?
A. The State's Attorney. (Tr. 2950) (emphasis supplied).
Yet again, he contradicted the clear words of his statement to the State's Attorney:
Q. Mr. Mills, in terms of directly Mr. SCHRIMSHER, didn't that violate--excuse me--his attending that party at Caesar's Palace, didn't that directly violate the policy that you stated to the State's Attorney under oath?
A. No.
Q. All right, sir. And why not?
A. I just explained it to you. There is nothing in that policy that says you cannot go to lunch with someone.
Q. I'm sorry. This was dinner at Caesar's Palace.
A. It doesn't say you can't go to dinner. It says, "You can't do any favors for anyone."
(Tr. 2953) (emphasis supplied).
The KEI Property; Mills' Memo; Who Selected It?
The testimony is without refute that the KEI property did not make the short list of three properties from which a warehouse land site might be purchased.
It is also without refute that Mr. Mills thereupon wrote a memo, dated January 11, 1989, which was in large part responsible for placing the Knight site onto the short list. This memorandum stated, in haec verba:
MEMORANDUM
TO: Mr. William Hukill FROM: Thomas J. Mills (T.J.M.)
Superintendent
Bill Knight called me and would still like to submit a bid for the warehouse and offices.
TJM:blg
cc: Mr. J. K. SCHRIMSHER
(Exhibit 186) (emphasis supplied).
However, at the taking of his deposition, Mr. Mills, did not recall writing a memo:
Q. And then continuing along, on Page 28 of that deposition: Question: "So, in this particular document, you are saying that is your signature?" Answer: "Yes, my initials." "Do you recall having sent it to Mr. Hukill?" "I don't recall it.," "Okay, and you don't recall the communication with Mr. Knight?" Answer:
"I don't recall it, no." Do you recall those questions and answers?
A. Since that time, as I began to think about it, I did recall it.
(Tr. 2958) (emphasis supplied).
Having acquired a memory of both the memo and the conversation with Mr.
Knight at the time of trial, he explained that his memo was an ordinary part of the bidding process.
Q. No. I guess I'd better show it to you. To the point that you were the direction to the Knight property, do you recall this memo of January 11, 1989, which is marked as 186 by the Petitioner?
A. Yes.
Q. And did you send this on to Mr. Hukill?
A. I think I sent a copy to Ken. I think this was, going back to the fact again that he wanted to build and lease back to us a warehouse.
Q. Was there anything wrong with Mr. Knight calling you, saying he wants to submit a bid for the warehouse and offices?
A. If I use the word bid, okay, that means anybody in the world can do that. It was advertised--in the bidding process, you advertise. You get all of the bids together and--
(Tr. 2922) (emphasis supplied).
Further in his testimony, on cross-examination, by quibbling over the term "bidding process", he made the critical statement that the property was selected and recommended through Mr. Hukill.
Q. Mr. Mills, you have indicated on direct examination, that as best you understood it, the K.E.I. property went through a bidding process, is that correct?
A. Not a bidding process.
Q. Excuse me. I have written down bidding process. Did you testify that K.E.I. property; that is, the warehouse property
--
A. No, you did not listen to my testimony, sir.
Q. I'm sorry, sir. I thought I had listened to it, but would you correct me then.
A. I told you that in the conversation I had with Mr. Knight, and I used the word bid, was I believe that conversation, as best I can recall it, dealt with him wanting to build a warehouse for us and lease it back to us; and I testified I didn't want to do that.
Q. All right. And did you mention a bidding process in your testimony?
A. I said in the memo, he wanted to bid on it. Okay. All right, in the conversation, I said that he wanted to bid on it. That indicates to me that it was not--it was not--it didn't have anything to do with the property. The property is selected and recommended through Mr. Hukill.
(Tr. 2956) (emphasis supplied).
Was the KEI Property Selected by Mr. Hukill?
Mr. Hukill testified that he did not recommend the Knight property: "Well, the thing that was not normal about it was that I did not recommend it." (Tr.
2738).
The BOARD report on this property clearly indicates that Mr. Hukill did not recommend this property. (P.E. 227).
Mr. Mills even went so far as to repudiate his own testimony:
Did you have any conversations with anyone regarding the other three properties that were on the short list?
I told you, the two people that I would generally talk to about it, would be Mr. SCHRIMSHER and Mr. Hukill. Those are the two people that I deal with. I don't go any lower than that; and I testified, I may have had a conversation with Mr. Hukill, but I don't recall.
. . . . .
Q. In terms of (strike that)
Let me see if I can pick up a thread o thought. In terms of your talking with Mr. Hukill, did Mr. Hukill tell you that he was against the purchase of the Knight property?
A. I don't recall.
(Tr. 2973, 2974) (emphasis supplied).
Finally, after it became evident that the cast of recommenders was being systematically excluded, then and only then did the following admission take place:
Q. All right, sir. Did Mr. Hukill recommend this property to you?
A. He was sitting at the staff meeting when we had the discussion about the property. I don't know whether he recommended it or didn't recommend it. I don't recall that; but he was sitting there.
Q. All right, sir, did Mr. SCHRIMSHER recommend that property to you?
A. Yeah, I guess he did. (Tr. 2968) (emphasis supplied).
KEI and Good Deal
It is apparent, on a close reading of Mr. Mills' testimony, that he had very little expressed knowledge about the specifics of the KEI transaction in order to be able to render an opinion concerning it.
He stated that $185,000 an acre was too high, (Tr. 2969-2973), and yet, the price for the KEI property was about $200,000 an acre, without many on- site and off-site improvements.
He did not know that the Knight property had originally been rejected. (Tr. 2971).
He had few details on zoning. (Tr. 2977).
His total recall of the details of the suitability of the property from his staff was:
At that staff meeting, I recall--I think
I recall asking Doctor Boekhoff, "Are you satisfied with this site?" And he said, "Yes." Okay? And that's what I recall of what happened.
Q. All right, so then as I understand it, then the only one that you asked about this particular property was Doctor Boekhoff?
No. I just testified who all I talked to. I believe I talked to Mr. Hukill as well. Mr. Hukill sits at that staff meeting.
(Tr. 2967) (emphasis supplied). 2/
We now leave Mr. Mills' testimony per se and move back to a step by step process of specific factual analysis of the evidence.
KEI Warehouse Site Purchase
General Findings
The proposition that the KEI transaction was a "good deal" because the property was purchased below appraised value is, at first blush, facially appealing. However, with scrutiny, it is meaningless:
$750,000 for on-site improvement is not figured into the equation. (Tr. 2751).
Expenditures for extensive road laning at Congress Avenue are not considered in the equation. (Tr. 2755).
Reconstruction of the intersection at Grace Road is left out of the calculation. (Tr. 2751).
As the SCHOOL BOARD, in 1988, could not afford $185,000 per acre at Section 6 with improvements (P.E. 679; Tr. 141-143, 2576-2577), it could not afford this property at a higher price per acre, especially 16 acres of it.
The price is not considered in relation to available 16 acre potential sites as no other 16 acre sites were investigated and appraised. (Tr. 1352, 1447, 1519, 1572).
Even Mr. Knight himself believed that the price of the property was not below appraised value (Tr. 504).
The following specific findings are made as to KEI Mr. Knight, which will be supported by subsidiary findings hereinafter, that:
(a) Respondent did not act as a reasonably prudent in like circumstances when, after accepting two fishing trips from Mr. Knight, he did actively participate in the process of purchasing the SCHOOL BOARD property from Mr. Knight.
The decision to purchase the Knight's property (KEI ) was made directly by Mr. SCHRIMSHER and out of the normal course of SCHOOL BOARD procedure.
The selection of the Knight property by Mr. SCHRIMSHER was not done on the basis of need or merit.
The purchase of the KEI property was done by Mr. SCHRIMSHER as a favor to Mr. Knight. It is duly noted that there is absolutely no writing or writings which document the decision to purchase the KEI property, the size of the property, or the rejection of all of the other properties. This is an incompetent procedure in itself; but more importantly, speaks to the lack of propriety of the KEI transaction.
The decision to purchase 16 acres, rather than 10 acres, was made solely as a favor to Mr. Knight by the Respondent. The decision to increase the square footage of the warehouse was made only as a result of the size of the purchase; it did not influence the purchase. Ten acres satisfied any need of the SCHOOL BOARD.
The Respondent clearly violated his duty of loyalty and his fiduciary responsibilities to the SCHOOL BOARD and the citizens of Palm Beach County.
(b) Specific Findings
At the time Mr. SCHRIMSHER accepted invitations to fishing trips in the Caribbean on the boat of real estate developer, William Knight (Tr. 202- 203), he had reason to know that his professional judgment with the SCHOOL BOARD might be influenced by these contacts with Mr. Knight. A reasonably prudent man in Mr. SCHRIMSHER's position would not have gone fishing with Mr. Knight, especially for the second time. In this regard:
On May 1, 1985, the SCHOOL BOARD approved a report which set forth a proposal to develop district center facilities, including a new central warehouse of 150,000 square feet. It was determined that five acres would be sufficient through the year 2005 and that the cost of construction and purchasing the land would total $3.75 million. (P.E. 5; Tr. 374-375, 380-382). 3/
Later that same month, a proposal relating to a purchase or leasing arrangement for a warehouse was received by Mr. SCHRIMSHER on May 29, 1985. This proposal listed the names of William Bowman and William Knight as the persons submitting the proposal. (P.E. 157; Tr. 1091, 1109-1011). Mr. SCHRIMSHER forwarded this proposal to then Director of Facilities Planning, William Hukill.
In 1985, Mr. Mills received a phone call from William Knight about building an administrative complex and warehouse. Mr. Mills sent a memorandum to Mr. SCHRIMSHER about this call. (Tr. 2914).
In September, 1986 (Tr. 2570), a bond referendum for a five year improvement plan was presented to the voters of Palm Beach County for approval. The public was requested to approve a $317 million bond issue as part of a $678 million capital project campaign. (Tr. 115-117, 2148). The project contemplated the construction of numerous new schools and many renovation and remodelling projects of existing schools. (Tr. 2200).
In 1986 Mr. SCHRIMSHER accepted a fishing trip St. Thomas from William Knight. (S.R.A. 78). On that two day trip in August, 1986,
Superintendent Mills and SCHOOL BOARD member Howell accompanied Mr. SCHRIMSHER and William Knight on Mr. Knight's boat on both days. (Tr. 734-376).
In 1987, Mr. SCHRIMSHER received a written in vitation from Mr. Knight to go fishing on his boat, the Knightline. (P.E. 141; Tr. 894-895, 2439). This time, however, Mr. Mills and Mr. SCHRIMSHER flew over on Mr. Knight's helicopter, gratis, and fished for one day with Mr. Knight, in Bimini, on Mr. Knight's boat. They also stayed in his residence. (Tr. 493, 734-735, 742).
During this time, newspaper articles had appeared which described Mr. Knight's fishing trips as attempts to gain influence with public officials. (Tr. 572).
Moreover, during this time, Mr. Knight had reputation of a person who entertained politicians and became friends with persons in public office in order to assist him in doing whatever business he needed to do with the government. (Tr. 564-565, 571, 578-580, 583, 592). 4/
Mr. SCHRIMSHER knew in August, 1986 of the SCHOOL BOARD's needs for land. In the BOARD's May 1, 1985 District Center Project report (P.E. 5 at 1- 2), which Mr. SCHRIMSHER recommended, it was recognized that the District would purchase land for the warehouse and the new administrative complex.
A draft of ancillary educational specifications for a warehouse facility was prepared in March 1988, which shows a mixed use facility for storage and offices of 160,000 square feet. (P.E. 682; Tr. 385-387, 399, 2414).
Linda Howell, a real estate acquisition coordinator at the SCHOOL BOARD (Tr. 1290), started the search for a warehouse site in 1988 for property between 7 and 10 acres. (Tr. 1290- 1291). She had a telephone conversation with Jim Knight (Tr. 1292), the son of William Knight, who was a real estate broker. She had known the Knights as she had worked for them previously, and her father, Robert Howell, was their friend. (Tr. 1292, 1294).
Knight Enterprises, Inc. had submitted a letter to her on August 26, 1988, with three alternative parcels from which to purchase land for the warehouse. None of these was for 16 acres. (P.E. 175; Tr. 183-187, 1291-1292). The Knights forwarded a copy of this letter to Mr. SCHRIMSHER (P.E. 175) and sent an additional letter directed to him and inviting Mr. SCHRIMSHER to join William Knight in St. Thomas for fishing. (P.E. 176; Tr 147-148, 229-230). It is noteworthy that the whole concept of fishing and SCHOOL BOARD business is irrevocably and irretrievably tied together by this letter.
The owner of this property, offered by the Knights, was KEI Palm Beach Centre, Ltd. ("KEI "), and Mr. SCHRIMSHER understood KEI to be an entity of William Knight. (Tr. 131). KEI owned over 26 acres at this site. (Tr. 538). William Knight and Bill Bowman were limited partners in KEI and they added a Japanese investor, Tadao Mitsui of Sansei Corp., as a 50 percent owner, when Mr. Mitsui contributed about four million dollars. (Tr. 204-207, 2413; P.E. 128(a)).
Ms. Howell worked on the site search approximately one month and turned the materials over to the other real estate acquisition coordinator, Robert Skakandy. (Tr. 1292).
Mr. SCHRIMSHER was involved with the KEI site immediately after its submission to the SCHOOL BOARD. Following its submission, Mr. SCHRIMSHER's
phone messages reflect that Kevin Carroll of Mr. Knight's office phoned him on September 21 and 23, 1988. (Comp. P.E. 497; Tr. 900-906). Moreover, the chronology prepared by Jim Knight 5/ reflects that he attended a meeting with William Knight and Mr. SCHRIMSHER on September 21, 1988. (P.E. 578(a); Tr.
521). An additional phone message was left for Mr. SCHRIMSHER from William Knight on October 7, 1988 (Comp. P.E. 497), and Jim Knight spoke to Mr.
SCHRIMSHER about this matter on October 25, 1988 and November 4, 1988. (P.E.
578(a), Chronology; Tr. 516-517, 521).
KEI was pressed to sell the property. During this time, late 1988, KEI was obtaining modifications of its mortgages on this property with Florida National Bank and Citizens and Southern National Bank of Florida ("C&S Bank"). KEI obtained an extension with Florida National Bank of its $2.85 million mortgage until March 3, 1989 (P.E. 498(a); Tr. 2419), and with C&S Bank of $3.5 million until February 14, 1989. (P.E. 498(b); Tr. 2419).
On November 22, 1988 at a meeting attended by Dave Williams (Assistant Director of Growth Management) (Tr. 1321- 1322), William Hukill (Assistant Superintendent of Growth Management) (Tr. 2716), and Mr. SCHRIMSHER, it was discussed that the warehouse site would be centralized, rather than split geographically, and the geographic parameters for the search for land or a building would be from PGA Boulevard to the North and Boynton Beach to the South. Sites were to be reported to Mr. SCHRIMSHER by December 15, 1988. (P.E. 178; Tr. 1464, 1468).
By memorandum dated December 20, 1988 (P.E. 180; Tr. 154), Robert Skakandy summarized ten sites he had found for a warehouse with a 150,000 square foot structure. One of these sites, site number 4, was the KEI site.
Mr. Skakandy submitted this preliminary report on the ten sites and Mr. Hukill, Mr. Williams, Mr. Goode and Mr. SCHRIMSHER met on January 3, 1989 to review the sites. (P.E. 181, 183; Tr. 153, 1114-1115, 1464, 1468, 1512, 1513). At this meeting, sites 2, 6 and 8 were selected for further investigation, which would include a site inspection and obtaining zoning and traffic information. (P.E. 183; Tr. 155). Mr. Knight's KEI site had been excluded from the short list.
Mr. Skakandy's report reveals that of the three properties making the short list, two of them - sites 2 at $3.35 per square foot and site 8 at $3.75 per square foot - were the two least expensive sites. Site 6 at $6.25 per square foot was the least expensive site with an existing building. The KEI site, site 4, was at the high end of the price range for all ten properties at
$7.50 per square foot. (P.E. 180).
Within a few days after the short-list of January 3, 1989 determination, on January 9, 1989, Mr. SCHRIMSHER's influence aided Mr. Knight's property in the site selection process. The overwhelming weight of the clear preponderance of the evidence refutes Mr. SCHRIMSHER's testimony that he had little or nothing to do with the selection or negotiation of the KEI purchase (Tr. 413-414, 1032), and that he may have met only two or three times with William and/or Jim Knight. (Tr. 171- 172). Testimony and overwhelming documentary evidence shows Mr. SCHRIMSHER's substantial involvement. Respondent, out of his ordinary custom and practice of minimal involvement in site selection (Tr. 670-672), did have a great input into the selection of the Knights' property for purchase and did spend crucial time and interaction with the Knights regarding the details of the purchase. Moreover, the KEI site was
receiving preferential treatment over the other three sites still in contention. In this regard:
By January 10, 1989, Mr. SCHRIMSHER determined to further investigate the "fourth site" (KEI ) (P.E. 185; Tr. 156, 1120-1121, 1464-1466), and Mr. Knight's site was again considered.
William Knight had phoned Mr. SCHRIMSHER on January 9, 1989 (P.E. 497(a); Tr. 167-168), and he had spoken to Mr. Mills on January 10, 1989. (P.E. 186; Tr. 162, 165). Mr. Mills notified Mr. Hukill, by memorandum dated January 11, 1989, that Mr. Knight had called and wanted to bid for the warehouse and offices, and Mr. SCHRIMSHER initialed the memo to acknowledge its receipt. (P.E. 186).
Consequently, as a result of the above actions of Mr. SCHRIMSHER and Mr. Mills, the KEI site was added to the short list after it had been excluded. This occurred, not due to the merits of the site, but because of the expressed wishes of Mr. Knight. This militated against the express purpose of short listing an initial list of potential sites. Mr. Knight's site was not placed back into consideration because of the withdrawal of sites 2, 6, or 8, which were all still allegedly being considered (Tr. 178, 1424), and appraisals were being undertaken. (P.E. 189, 195).
As early as January 13, 1989, while the three other sites were allegedly still under consideration, Mr. SCHRIMSHER met with William and Jim Knight. (P.E. 578(a), Chronology).
Moreover, Jim Knight left a phone message for Mr. SCHRIMSHER on January 17, 1989 (P.E. 497(b); Tr. 170, 182), and they had a phone conversation on that date. (P.E. 578(a), Chronology).
On January 18, 1989, another meeting was held where Mr. SCHRIMSHER and Mr. Hukill met with Jim Knight and Jim Kahn (from Mr. Knight's office). (P.E. 578(a), Chronology). This meeting is further referenced in Mr. Hukill's January 20, 1989 memorandum to Mr. Mills, which states that Mr. Knight's property was still under consideration. (P.E. 189; Tr. 172, 174).
On January 20, 1989, William Knight left another phone message for Mr. SCHRIMSHER (P.E. 497(c); Comp. P.E. 497; Tr. 409). Mr. SCHRIMSHER would have returned his phone messages. (Tr. 170).
By January 23, 1989, Jim Knight was already speaking with Dave Williams about a site plan for a 140,000 square foot footprint and a 20,000 square foot mezzanine. Jim Knight delivered the site plan on January 24, 1989. (P.E. 578(a), Chronology).
During this time, the three other sites being considered - sites 2, 6, and 8 - were undergoing site evaluation by Growth Management personnel and reports were submitted by Michael Kirk on January 25, 26 and 27, 1989. (P.E. 192, 193, 194; Tr. 177, 181-182, 1163).
No such evaluation was performed on the KEI site, which was contrary to usual practice (Tr. 676-677, 1163-1166, 1582- 1583) and mandates the inference that there was no real purpose in extensively evaluating the other 3 sites.
On January 27, 1989, Robert Skakandy submitted to David Williams his site investigation report, relating only to sites 2, 6, and 8. (P.E. 195; Tr. 673, 1436, 1440-1441). The KEI site was not referenced in this investigation. (Tr. 1437).
Moreover, Michael Kirk did not perform any site evaluation of the KEI site until August, 1989 (after the contract was approved), when he did a boring evaluation. (P.E. 720; Tr. 1185-1186, 1192-1193).
Augustin Hernandez, the planner in the Growth Management department, (Tr. 1202-1208) was not consulted regarding this acquisition until around November, 1991, when renewal of zoning issues arose, and it was too late to properly address them in the contract. (Tr. 1210, 1249-1250).
Although numerical rating evaluations had in the purchase of other properties, such as the Administrative Complex (P.E. 383; Tr. 960-962), no such evaluation occurred for the warehouse sites (Tr. 1441). If no written evaluations were done of the KEI property, and none were, it would be and was a departure from normal procedure. (Tr. 420, 425-428). Mr. SCHRIMSHER is responsible to the extent that there were no set procedures for the selection of property, as his job description mandated his supervisory and planning responsibilities. (P.E. 106).
After Robert Skakandy, on January 30, 1989, had sent letters to appraisers authorizing appraisals be done on 10.65 acres of the KEI property (P.E. 691; Tr. 189, 191), on February 9, 1989, Jim Knight notified Mr. SCHRIMSHER that he was meeting with Dave Williams on that day. (Comp. P.E. 497).
Following Jim Knight's meeting on February 10, 1989, with John Bills 6/ to discuss his dealings with the SCHOOL BOARD, on February 14, 1989, Jim Knight spoke with Mr. SCHRIMSHER (P.E. 578(a), Chronology), and on February 16, 1989, William Knight left a phone message for Mr. SCHRIMSHER. (Comp. P.E. 497). On February 17, 1989, Jim Knight spoke again to John Bills about the SCHOOL BOARD. (P.E. 578(a), Chronology).
As reflected in the February 21, 1989 Site Minutes, the verbal appraisals were due to be given to the SCHOOL BOARD by that Friday; site 2 was dropped since it was sold, and site 6 at Farmer's Market was dropped "per JKS." (P.E. 200, 191; Tr. 1372- 1373, 1464, 1468). Mr. SCHRIMSHER told Mr. Williams that site 6 would not be considered. (Tr. 1372-1373).
The Site Minutes (Tr. 1464, 1468) do not reflect what happened to Site
8 - the Boynton Beach site of 10 acres with an asking price of $1,654,735.00 or
$3.75 per square foot. (P.E. 180). From this time forward, February, 1989, the SCHOOL BOARD documents refer only to the KEI site.
While awaiting the appraisals, which were due by March 7, 1989 (P.E. 204; Tr. 1464, 1468), Mr. SCHRIMSHER received phone messages from Jim Knight on February 24 and 27, 1989 and March 1 and 2, 1989. (Comp. P.E. 497).
On March 8, 1989, Jim Knight spoke to Mr. SCHRIMSHER to set up a meeting for March 14, 1989 (P.E. 578(a), Chronology), and left a message to confirm the appointment. (Comp. P.E. 497).
On March 14, 1989, Mr. SCHRIMSHER met with William Knight regarding the site. (P.E. 578(a), Chronology).
David Williams had conversations with Mr. SCHRIMSHER relating to the change in size of the offered KEI site from 10 to 16 acres. (Tr. 1429, 1571- 1572, 1579). It was clear to Mr. Williams that Mr. SCHRIMSHER was providing the direction in acquiring this site. (Tr. 1341). At a meeting when Mr. Knight was offering to sell the property for $7.50 per square foot and the SCHOOL BOARD had received-appraisals for $4.50 and $5.50 per square foot, Mr. SCHRIMSHER announced that he would discuss the price issue with Mr. Knight. (Tr. 1343). Mr. SCHRIMSHER negotiated the price. (Tr. 2738).
As a consequence of Mr. Knight's March 14, 1989 meeting with Mr. SCHRIMSHER, on March 15, 1989 David Williams instructed Robert Skakandy to obtain reappraisals of the KEI property, this time for 16 acres, that the new appraisals must be completed by March 29, 1989, and that the appraisals be ordered verbally on that day. (P.E. 524; Tr. 1505-1510).
There is no documentation whatever as to why the KEI property increased to
16 acres, why there was a rush to obtain these appraisals on this property, and why no other property was being considered.
Robert Skakandy drafted a letter on March 15, 1989 to obtain a request for a reappraisal of 16.75 acres of the KEI property, but David Williams notified Mr. Skakandy that the reappraisals had to commence that day, and they had to arrive by March 29, 1989. (P.E. 525; Tr. 1505-1511). Thus, there was without question, an unexplained rush to obtain these reappraisals. (Tr. 1363, 1512). The 16.75 acres included the rear 4.7 acres of property. (Tr. 247-248). 7/
While the SCHOOL BOARD was awaiting the March 29, 1989 updates on the two appraisals of the KEI site (P.E. 207, 208; Tr. 1464, 1468), on March 31, 1989 Jim Knight left two messages for Mr. SCHRIMSHER (Comp. P.E. 497). On April 3, 1989, Jim Knight talked with Mr. SCHRIMSHER and set up a meeting for the next day. On April 4, 1989, Mr. SCHRIMSHER met with William and Jim Knight. (P.E. 578(a), Chronology).
By the April 11, 1989 Site meeting, the SCHOOL BOARD had made a verbal offer on the 16.5 acres, and KEI would respond the following week. (P.E. 213; Tr. 1464-1468).
(aa) On April 14, 1989, Jim Knight met with Mr. SCHRIMSHER and made an offer of $5.00 per square foot for 16.5 acres. Another meeting was scheduled for April 17, 1989. (P.E. 578(a), Chronology).
(bb) Mr. SCHRIMSHER and Mr. Hukill met with William and Jim Knight on April 17, 1989, and the proposal was $4.50 per square foot, if the SCHOOL BOARD did the road improvements. (P.E. 578(a), Chronology).
(cc) Mr. Hukill phoned Jim Knight on April 24, 1989, and conveyed that the SCHOOL BOARD would pay $4.50 per square foot, but KEI would pay for the road to the site and rezone first, and the SCHOOL BOARD would pay for the rest of the improvements. (P.E. 578 (a), Chronology).
(dd) On April 28, 1989, David Williams received direction, through Mr.
Hukill from Mr. SCHRIMSHER to prepare a contract for $4.50 per acre for 16-plus acres. (Tr. 1338-1340, 1366).
(ee) By May 9, 1989, Mr. Skakandy was preparing the offer for 16.5 acres, and by May 16, 1989, he was working with Legal Services on the contract language. (P.E. 216, 217; Tr. 1464, 1468).
(ff) Growth Management employees, Mr. Hukill, Mr. Williams and Mr.
Skakandy, did not recommend this site. Mr. SCHRIMSHER selected the Knight site. (Tr. 1351-1353, 1447, 1517-1519, 1521, 2736, 2738, 2740). The overwhelming
weight of the competent substantial evidence reveals that Growth Management staff did not recommend the Knight property, but Mr. SCHRIMSHER did.
(gg) The reason given for having purchased 16 acres, rather than 10 was that there would be access problems to the rear 4.7 acres, if these latter acres were not included as part of the whole. The documentary evidence (P.E. 701) is clearly to the contrary. Mr. Knight's offer to the SCHOOL BOARD of 10.65 acres, included a map of the whole parcel, which showed that Mr. Knight was going to keep over 1 acre as and for a road to the rear 4.7 acres. (P.E. 701). Thus, the alleged reason; access, for the purchase of the 4.7 acres is clearly not true - there was no access problem.
(hh) It is, further, without dispute that the addition of Phase II for warehouse construction on this property was not the precipitator of the 16 acre purchase, but was designed because there was going to be 4.7 acres added to the purchase. (Tr. 704- 708). The SCHOOL BOARD had absolutely no need for Phase II or the additional 4.7 acres.
(ii) The overwhelming weight of the clear preponderance of the evidence shows that only Mr. SCHRIMSHER was in favor of the Knight property and that his interaction pattern with Mr. Knight shows that he played the principal part in its being purchased. Even Mr. Mills' testimony, on close scrutiny directly supports this actuality. The Knight chronology (P.E. 578(a)) and Mr. SCHRIMSHER's phone messages (Comp. P.E. 497) were documentary evidence that were not and could not be impeached.
Mr. SCHRIMSHER was not only actively involved in the selection process of the KEI site but he also played a role during the period of the preparation of the contract, before BOARD approval of the purchase. In this regard:
After Robert Skakandy began preparing the Jim Knight met with Robert Skakandy on May 12, 1989 (P.E. 578(a), Chronology), and left a message for Mr. SCHRIMSHER on that date. (Comp. P.E. 497). On May 17, 1989, Jim Knight called Mr. SCHRIMSHER. (Comp. P.E. 497; P.E. 578(a), Chronology).
On May 18, 1989, Mr. SCHRIMSHER told Jim Knight that he could pick up the contract the next day, and Jim Knight did obtain the contract on May 19, 1989. (P.E. 578(a), Chronology; P.E. 221; Tr. 1464, 1468).
William Knight phoned Mr. SCHRIMSHER on May 19, 1989. (Comp. P.E. 497).
By letter dated May 22, 1989, from Jim Knight to Robert Skakandy, with a copy to Mr. SCHRIMSHER, Jim Knight notified Mr. Skakandy of changes to the contract agreed to on May 19,1989, between Mr. SCHRIMSHER and William Knight. (P.E. 220; Tr. 491, 521-522, 527).
Furthermore, on May 22, 1989, Jim Knight left a phone message for Mr. SCHRIMSHER that he would bring a copy of the contract with the changes noted, and another message that he wanted to update Mr. SCHRIMSHER, and that he and his
dad wanted to meet Mr. SCHRIMSHER for lunch or dinner that evening. (Comp. P.E. 497).
On May 22, 1989, Robert Skakandy also phoned Jim Knight, who explained the changes made to the contract by William Knight and Mr. SCHRIMSHER. (P.E. 578(a), Chronology).
When Mr. SCHRIMSHER recommended the KEI property to the SUPERINTENDENT's staff, he only discussed the evaluation of the Knight site generally and did not discuss any of the other sites. (Tr. 684-685).
The BOARD report dated June 7, 1989, relating to the purchase of the KEI site, shows that the only person recommending this transaction to the SUPERINTENDENT was Mr. SCHRIMSHER. (P.E. 227; Tr. 680-682, 2414). Assistant Superintendent Hukill, who would normally be expected to recommend the purchase of the site, refused to recommend the purchase, since he did not believe that the District should be spending money for a warehouse when its top priority was capacity and constructing schools under the bond program. (Tr. 680-682, 2719- 2720, 2737, 2740-2742). The BOARD report reflected that the SCHOOL BOARD would be purchasing 16.12 acres from KEI for $3,161,000 or $4.50 per square foot. The report failed to state that only $150,000 had been budgeted for the purchase of
5 acres of land for a warehouse. The master plan, which was part of the contract attached to the BOARD report, reflected that Phase I would consist of 140,000 square feet and Phase II would consist of 116,000 square feet of building. This Phase II master plan was adopted only after it was decided to purchase the additional 4.7 acres of the 16 acre KEI property. It increased the square footage to accommodate the increased size of the land. (Tr. 704-708).
The SCHOOL BOARD voted on June 7, 1989 to approve the purchase from KEI . (P.E. 227).
On June 8, 1989, Jim Knight tried to sell the same 4.7 acres already under contract with the SCHOOL BOARD, to the Japanese investor in KEI , Mr. Mitsui. (P.E. 578(f); Tr. 538- 539, 545-546). There was no explanation which Mr. Knight could give for this attempted double sale. The only reasonable inference that can be drawn is that because of the problems with the acreage and the clear lack of need for it by the SCHOOL BOARD, it might not go through closing if close scrutiny was applied.
Moving further into time, Mr. SCHRIMSHER was involved in this transaction between the SCHOOL BOARD's approval of the contract on June 7, 1989, and the closing on October 11, 1989:
Following the SCHOOL BOARD's approval of the KEI purchase, Robert Rosillo, who had been an attorney with the SCHOOL BOARD since April, 1989 (Tr. 2759), met with Mr. SCHRIMSHER in June, 1989, regarding environmental concerns with the site. (P.E. 232; Tr. 1464, 1468).
Mr. Rosillo copied Mr. SCHRIMSHER on documents he wrote. (Tr. 2760, 2768).
Mr. Rosillo copied Mr. SCHRIMSHER with his September 18, 1989 letter to Craig Rogers, KEI 's attorney, expressing concern about the foreclosure suit, and his need to meet with SCHOOL BOARD representatives to determine if the intention to purchase remained. Mr. Rosillo also objected to the lis pendens as creating a cloud on the title and inquired about the status of negotiations concerning the Bevins easement. (P.E. 260; Tr. 726, 729).
Mr. Rosillo also copied Mr. SCHRIMSHER with his cover letter filing the SCHOOL BOARD's answer to the foreclosure complaint (P.E. 261; Tr. 731-732, 2760, 2768), and his letter to Craig Rogers, KEI 's attorney, on October 6, 1989, formally objecting to the legal description and seeking escrow of funds for the roads. (P.E. 267; Tr. 733, 2760, 2768).
On August 3, 1989, Mr. SCHRIMSHER refused to send a drafted letter to Jim Knight to the effect that the SCHOOL BOARD would not close the transaction unless the Bevins easement was removed. (P.E. 245; Tr. 749-750). David Williams discussed the Bevins easement problem with Mr. SCHRIMSHER. (Tr. 1445).
On August 24, 1989, Mr. Knight left a message for Mr. SCHRIMSHER that he had met with Dr. Bevins and was trying to get the easement problem solved. (Comp. P.E. 497). Phone messages were left for Mr. SCHRIMSHER by William or Jim Knight or their offices on September 12, 1989, September 19, 1989, September 27, 1989, October 4, 1989 (twice), October 6, 1989 (Comp. P.E. 497), and October 9, 1989. (P.E. 497(e); Tr. 751-752).
On October 10, 1989, Robert Rosillo left a phone message for Mr. SCHRIMSHER that the closing was scheduled for the next day. (P.E. 497(f); Tr. 752-753).
The closing did occur on October 11, 1989, and the next day, on October 12, 1989, Jim Knight left a phone message for Mr. SCHRIMSHER that read "thanks for all of your help." (P.E. 497(d); Tr. 899-900). On October 16, 1989, William Knight left Mr. SCHRIMSHER a message that he was in the area and wanted to take Mr. SCHRIMSHER to lunch. (Comp. P.E. 497).
Following this transaction, Mr. SCHRIMSHER reported gratuities from William Knight on his financial disclosure form for a house party. (Tr. 1090). Mr. SCHRIMSHER attended a lavish birthday party for Mr. Knight. (P.E. 141(a); Tr. 894, 2438- 2440).
Mr. SCHRIMSHER's involvement, until closing, is significant since this transaction rushed to close, while many problems resulting from deviations from customary practice remained unresolved:
Florida National Bank filed a foreclosure suit against the KEI property in September, 1989 (P.E. 260, 606; Tr. 311, 2452-2453), a Notice of Lis Pendens was filed (Tr. 497), and the SCHOOL BOARD was named as a party to the litigation, since the property it was purchasing was subject to the suit. (P.E. 260; Tr. 726, 729).
This transaction closed while the unsatisfied lis pendens remained on the property and the property was still subject to a mortgage foreclosure action. The SCHOOL BOARD was not dismissed from the lawsuit (Tr. 2324), and no releases or estoppel letters had been obtained from Florida National Bank until mid-1990. (Tr. 311, 497, 726, 729, 2310-2311, 2324, 2326- 2327, 2452-2455). There was a problem obtaining C&S Bank's consent to a partial release, through at least March, 1990. (P.E. 612, 628; Tr. 2413, 2417, 2446).
One of the purchased lots - Lot 77 - still had not been, as of the close of the evidence, conveyed by deed or released from the mortgage lien. (P.E. 273) (Warranty Deed); Tr. 313, 2326).
The Bevins, who were adjoining landowners, had maintained an easement across the KEI property purchased by the SCHOOL BOARD. (P.E. 495). One of their easements was not resolved at the time of closing. (Tr. 2321-2323).
Moreover, on the day of the closing, Mr. Rosillo executed, on behalf of the SCHOOL BOARD, a clarification of the real estate contract with KEI . (P.E. 271; Tr. 470-472, 481, 1214). This agreement added BTCS, for the first time, as a party to the transaction. It was, further, never disclosed to the SCHOOL BOARD that one of the lots being purchased - Lot 79 - was actually owned by BTCS, another Knight-related entity. (P.E. 227). Out of the $3.1 million the SCHOOL BOARD paid for the 16- plus acres, $350,000 was allocated to BTCS for less than a half acre of land, and this property was a liability, rather than an asset. (P.E. 273, 276; Tr. 272, 2418-2419). The intersection of the proposed road realignment went through this parcel (P.E. 495), and the owner was responsible for doing the improvements. (P.E. 717; Tr. 255, 260). It would then be deeded back to the County. (Tr. 260). The SCHOOL BOARD ever approved this, as the amended contract was never presented to it. (P.E. 271; Tr. 2347). This Lot was the only piece of property the SCHOOL BOARD purchased from Mr. Knight which was not subject to a bank encumbrance (P.E. 601), and the $350,000 allocated by Mr. Knight to this Lot was the vehicle to pay himself and William Bowman the proceeds. (P.E. 276). The omission from the original contract (P.E.
227) of BTCS as the owner of Lot 79 and that it would receive $350,000 for less than half an acre was intentionally done by Mr. Knight (P.E. 601). This was disclosed by a letter dated July 12, 1989, to the Bank by Knight's counsel, indicating BTCS was a necessary party to the transaction, but that Mr. Knight did not want to "confuse" the SCHOOL BOARD. (P.E. 601). It is clear, however, that this disclosure would have been a "red flag" to the SCHOOL BOARD as there could be no ready justification for paying $350,000 for a half-acre of land that was a liability and would have to have also been deeded back to the County. It would have made the whole transaction suspect and close scrutiny of the transaction would have revealed its deficiencies - hereinafter set forth in detail.
The SCHOOL BOARD's purchase of the KEI site for the warehouse was fraught with problems, is a detriment to the School District, was the result of deviations from practice, and from the desire of Mr. SCHRIMSHER to aid his friend, Mr. Knight. Mr. Knight testified that Mr. SCHRIMSHER was involved in this transaction because of their friendship. (Tr. 450).
The decision to purchase this property was not prudent since there were insufficient funds in the budget for a warehouse. The original budget for the warehouse was $3.75 million of which $3.6 million was for the building. (P.E. 11). The SCHOOL BOARD had previously spent over $2 million in 1988 when it purchased a northern warehouse in Riviera Beach. (Tr. 382-383, 699). The District spent $3.1 million to purchase the KEI site. At the time of purchase of the KEI property, insufficient funds existed in the budget to construct the warehouse on the KEI site. (Tr. 130, 1124, 2116). The budget had not changed from the original $150,000 budgeted for the purchase of 5 acres of land for the warehouse. Growth Management had estimated $750,000 in on-site improvements to the KEI site. (Tr. 692-693, 2751). The KEI contract was written, however, where the price assumed the property was ready for development. (Tr. 2751).
The funds used to close on the purchase of the KEI site came primarily from special millage monies. (P.E. 501; Tr. 2111- 2113). Under the bond program all special millage monies were supposed to go to the construction, renovation, or remodelling of the schools listed in the newspaper. (Tr. 2114, 2570-2571). Purchasing this property took money away from the schools. (Tr.
2741-2742, 2744, 2750). The SCHOOL BOARD's investigation also found that since the KEI warehouse expenditures were one of the projects not included in the approved bond plan, spending money to finance the site's purchase impacted the bond plan. (Tr. 2200).
Furthermore, money spent on this purchase could have been otherwise used to address life safety concerns for the capital improvements at the new Summit Maintenance/Operations Facility. (Tr. 2583-2586).
Furthermore, there were no immediate plans to build a warehouse. In May 1990, the KEI property was leased to LEAF for $10 for an eighteen month period. (Tr. 1128, 2977, 2980).
Purchasing the 16 acres for the warehouse/office facility was beyond the District's needs. (Tr. 1351-1352). No site search was done for other 16 acre tracts to compare price. (Tr. 1353). During the site search, as recently as January 23, 1989, David Williams submitted a memorandum to William Hukill that proposed a warehouse total floor area of 160,000 square feet, with a building footprint of 130,000 square feet. (P.E. 195 at 4.) When the staff was presented with 16-plus acres for the KEI property, the concept of Phase II was then developed. (Tr. 704, 708). There was never even a discussion by Superintendent's staff or Growth Management as to why such additional space was needed.
No rational explanation was presented for the substantial increase in the size of the proposed warehouse from 150,000 square feet to 256,000 square feet (as shown on the master site plan attached to the contract for purchase). (P.E. 227, Exh. 1). It, in fact contradicted the 1985 BOARD report. (P.E. 5).
Dr. Boekhoff, an Associate Superintendent over purchasing in 1988 and 1989, directly and clearly testified, and it is found, that he was unaware the District was looking at the KEI property, and recalled no meetings discussing two phases of the warehouse or expanding the size of the proposed warehouse center. (Tr. 2053-2054, 2065). Dr. Daniels testified, and it is found, that he was not involved in site acquisition and first became aware of the KEI site when it came to staff in a BOARD report. (Tr. 2531).
The overwhelming weight of the very clear preponderance of the evidence in the record fails to support the testimony that the size of the KEI property increased from 10.65 acres to 16.5 acres since the SCHOOL BOARD could not permit an easement over its property to provide access to the rear 4.7 acres retained by KEI . (Tr. 191-192, 291-295, 703, 708, 711-714, 716-717). No easement was needed to reach the back 4.7 acres. A site map, prepared by Robert Skakandy, which demonstrates the calculation of the 10.65 acres (P.E. 701; Tr. 249, 251, 1514, 1516), shows that a 1.1 acre tract on the easterly section of the property is designated as a roadway to the rear 4.7 acres of KEI 's property, which was not being sold to the SCHOOL BOARD. There was never an easement contemplated as none was necessary. (P.E. 701). Mr. Knight's retained ownership of the off property road was sufficient access.
An important factor in selecting property in a real estate transaction is the cost of improvements to make the property usable. (Tr. 2331). This factor was not considered in determining to contract for the KEI property (Tr. 2751-2752), and was not presented to the BOARD in the BOARD report. (P.E. 227). With the on-site improvements, the SCHOOL BOARD was paying, as acknowledged by William Knight, approximately $5.00 per square foot for the KEI property. (Tr.
504). The off-site improvements necessary for a certificate of occupancy by the County would have increased the cost even further.
Planning problems existed with this site, including the continued use of the Bevins' easement (Tr. 1239-1240), and, as to the additional 4.7 acres, the placement of a warehouse near a canal with the inherent problems of fencing, and potential flooding and theft. (Tr. 1237-1239).
In addition, possible unanticipated on-site costs would be incurred by the SCHOOL BOARD for this site. Lot 79, Mrs. Canada's former lot (P.E. 495; Tr. 2192, 2194), which was purchased by BTCS in December, 1987 (Tr. 257, 262-263), was the parcel upon which a road alignment intersection was placed as part of the Gun Club Road extension. (Tr. 252-253, 433-434, 484). The intersection on Lot 79 was not included in the 10.65 acres which KEI earlier had proposed be sold to the SCHOOL BOARD. (Tr. 254). In fact, Lot 79 was not included in the appraisals of the KEI property. (Tr. 492). Further, pursuant to the terms of the purchase contract, only a portion of Lot 79 was to be conveyed (not the intersection) (P.E. 227), but the warranty deed from BTCS conveyed the entire Lot 79 (P.E. 273), which was a liability. This intersection required development (Tr. 255), and most of it, after construction of the intersection, would be deeded to the County. (Tr. 260). The seller was only obligated for paving of 120 lineal feet of the Gun Club Road extension (Tr. 479, 481-482).
The contract failed to specify the location of these 120 feet between Congress Avenue and the property. (P.E. 227 at Addendum, Paragraph 8). If the SCHOOL BOARD owned Lot 79 (which it did after the closing), KEI 's obligation to construct 120 lineal feet only extended to the border of the SCHOOL BOARD's property and excluded most of the intersection (Tr. 485), which made such the obligation of the SCHOOL BOARD.
In addition, the SCHOOL BOARD may incur possible off- site costs as a result of purchasing this site. Exhibit D to the Clarification Agreement has an item (relating to the Congress Avenue turn lanes) crossed out. (P.E. 271 Exh. D; Tr. 458-459). It would have been important for the SCHOOL BOARD to have known the cost of the intersection on Congress Avenue, as the County had imposed its completion as a condition for issuing certificates of occupancy. (Tr. 478).
The zoning resolution 8/ conditions (P.E 717; Tr. 1213-1217) stated that the Gun Club Road extension and turn lanes on Congress Avenue must be built, which created substantial off-site costs. (Tr. 1226-1234). These costs were not considered in the budgeting for this site. (Tr. 1235).
The numerous deviations from the normal course of closing this kind of transaction leads one to the conclusion that the SCHOOL BOARD was rushed to close before resolving all deficiencies, when it had no legitimate motive for so doing. (Tr. 2310-2316, 2321-2327). KEI , on the other hand, based on its situation with the banks and the benefits it would receive by selling the parcel to the SCHOOL BOARD, was highly motivated to close before October 15, 1989. In this regard:
The newspaper article in evidence (R.E. 1; Tr. 447, 1136-1137), which contemporaneously reported this transaction, contained the following observations:
However, one source familiar with Knight's holdings who asked for anonymity, said the developer `really needed' to unload the West Palm Beach property. Critics have charged that Knight's deals with Broward Sheriff Nick
Navarro, the Florida Department of Transportation, and other agencies have been of the sweetheart kind. Indeed, the source said the school board deal was a `let's help out our friend, Bill' endeavor.
(emphasis added).
The overwhelming weight of the clear preponderance of the evidence mandates the correctness of these above comments.
During this time period, KEI was experiencing financial pressures from its lending institutions.
Four days prior to the SCHOOL BOARD's approval of the contract, KEI 's mortgage on the property with Florida National Bank was in default. (Tr. 302- 303).
Mr. Knight wrote to his Japanese investor to provide funds or they could "lose their entire investment." (Tr. 309- 310).
On June 16, 1989, William Knight wrote to Mr. Mitsui that the Florida National Bank loan was now due and payable, and he was attempting to extend the deadline until after the closing with the SCHOOL BOARD on October 15, 1989. The C&S Bank loan was due August 14, 1989, and he was attempting to negotiate a release. Mr. Knight requested that, due to his expenses, Mr. Mitsui contribute
$200,000. (P.E. 578(a); Tr. 278, 402).
On June 13, 1989, Craig Rogers, an attorney for Knight Enterprises, Inc., wrote to Florida National Bank regarding an extension of the loan on the KEI property and enclosed a copy of the SCHOOL BOARD contract. In this letter, Mr. Rogers their "high success rate with State agencies, due to Bill Knight's various contacts with State governmental entities." (P.E. 599; Tr., 508, 2446).
On July 12, 1989, Mr. Rogers notified Florida National Bank of its unreasonable position by requiring payment of the entire $2.85 million KEI loan upon the sale of a portion of the property to the SCHOOL BOARD. Mr. Rogers notified the bank that a portion of the property which the SCHOOL BOARD was purchasing, the Canada property, Lot 79, had been purchased by Broward Trade Center South ("BTCS") and this property was not subject to the bank's mortgage. (P.E. 601; Tr. 269-270, 2446).
On July 27, 1989, Mr. Knight's attorney wrote to Mr. Mitsui's attorney and discussed attempts to obtain a release of the collateral from C&S Bank, suggested retaining Jack Scarola, Esquire to accomplish this goal, and discussed the conditions Florida National Bank was imposing to extend its mortgage until October 15, 1989. It was requested that Sansei loan $200,000 to fund the rezoning, which was necessary for the sale to the SCHOOL BOARD. If the rezoning were not completed, the bank might then seek to foreclose. If this occurred, "the SCHOOL BOARD closing may be in jeopardy, and if the bank foreclosed, they would both lose their entire investments." (P.E. 578(d); Tr. 312, 1277- 1280).
With the C&S Bank loan payoff due on August 14, 1989 (Tr. 315), on August 29, 1989, Jack Scarola, on behalf of Mr. Knight, wrote to C&S Bank seeking to obtain a release if KEI made a partial payment from the SCHOOL BOARD closing. (P.E. 315(a); Tr. 601-602, 613-614).
Florida National Bank sent a demand letter on August 18, 1989 to KEI and claimed the $2.85 million loan in default. (P.E. 604; Tr. 2450-2452). This resulted in the foreclosure
lawsuit.
A letter dated September 13, 1989 from Knight's attorney to Florida National Bank's attorney, reflects that if the Bank did not cooperate and extend Knight's loan, Knight's negotiations on $38 million of projects would be endangered. (P.E. 606; Tr. 2452-2453).
The evidence further shows, from a letter dated August 5, 1991 from William Knight to First Union Bank (P.E. 638 at 3-4; Tr. 2446), from a letter of June 16, 1989 from William Knight (P.E. 578(a)), and from a 1989 letter from Jack Scarola (P.E.,315(a)), that the sale of the property to the SCHOOL BOARD greatly benefited the value of KEI's remaining 10 acre parcel, where it was expected to be appraised at $12.00 per square foot.
The overwhelming weight of the very clear preponderance of the evidence is that Mr. SCHRIMSHER was actively involved in this land purchase which did not benefit the SCHOOL BOARD, but benefited his friend, William Knight.
Yet, Mr. SCHRIMSHER's position was at the time of the final hearing that he would have had no problem then recommending the site. (Tr. 683). If believed, this constitutes the clearest evidence of incompetency.
The overwhelming weight of the clear preponderance of the evidence is that Mr. SCHRIMSHER's actions relating to the KEI purchase were done as a favor for his friend and donor, William Knight.
A reasonable prudent administrator, such as a person in Mr. SCHRIMSHER's position, would clearly have avoided participation in this transaction. At best, it created the clear appearance of impropriety. At worst, it was impropriety. In all events, it was a purchase that should never have been made, from all the available evidence, and it was incompetent for Mr. SCHRIMSHER, with all of his involvement, to allow such to have taken place. The testimony of Mr. SCHRIMSHER that he normally had little to do with site selection merely highlights the importance of how much involvement and directiveness that he provided in the KEI transaction. His attempt to completely distance himself from this transaction is noteworthy, but not certainly condonable.
West Central Bus Compound Acquisition
In September 1987, John Bills treated Mr. SCHRIMSHER and Dr. Daniels to a golf outing at Jupiter Hills. (P.E. 318; Tr. 766-767, 769-770, 2844). Mr. SCHRIMSHER thanked Mr. Bills with a letter addressed: "Dear Johnny," and stated that Mr. SCHRIMSHER was looking forward to being at Mr. Bills' RCA facility in the near future. (P.E. 318).
Mr. SCHRIMSHER had maintained a friendship with John Bills. (S.R.A. 98).
Mr. Bills was also the landlord at the RCA offices where the SCHOOL BOARD started to lease space for some of its offices in 1987. (Tr. 1329, 2842).
On June 18, 1988, John Bills played golf with Mr. SCHRIMSHER and Dr. Daniels at Bear Lakes. (P.E. 148(b); Tr. 2857-2858).
The overwhelming weight of the very clear preponderance of the evidence mandates a finding that at the time of the West Central Bus Compound transaction in 1988 and 1989, they were friends.
Based on the notes and memorandum of Mr. Skakandy, the BOARD report, and the phone messages, the evidence clearly show that Mr. SCHRIMSHER knew that it was Mr. Bills' property. (P.E. 327, 336, 756 at 1; Comp. P.E. 497).
On October 26, 1988, Real Estate Acquisition Coordinator, Robert Skakandy, received a phone call from Mr. SCHRIMSHER, who was on the speaker phone with Dr. Daniels. Mr. SCHRIMSHER directed Mr. Skakandy to follow the normal procedure for purchases, using the two appraisals (St. John and Appraisal First) and to contact John Bills and find out the amount he was seeking for the property. This clearly shows that Respondent knew the property belonged to Mr. Bills. Mr. SCHRIMSHER asked for a recommendation by the next day. Mr. Skakandy made contemporaneous notes which reflected the content of this conversation. (P.E. 327; Tr. 1469-1470, 1485). This was unusual for Mr. Skakandy to receive direct instructions from Mr. SCHRIMSHER. (Tr. 1472). This direction from Mr. SCHRIMSHER was not an instruction to do a site search or to do other normal procedures for purchases. Rather, this direction was aimed at a specific site and ordered the use of normal procedures only for using the two appraisals and negotiating a deal on this property.
Mr. Skakandy then phoned Mr. Bills who said he would sell the property for $750,000. Mr. Bills said he would obtain his own appraisal within 14 days, if requested. (P.E. 327).
The next day, Mr. Skakandy drafted a written memorandum to Mr. SCHRIMSHER, wherein Mr. Skakandy recommended a site search to find other potential sites, but the recommendation was scratched out and modified before it reached Mr. SCHRIMSHER. (Tr. 1474-1475, 1482-1483). Mr. Skakandy was concerned that there was only one property under consideration and expressed that concern verbally to David Williams. (Tr. 1481-1482).
Mr. Skakandy did, however, by memorandum dated October 27, 1988, respond directly to Mr. SCHRIMSHER's request for a recommendation. (P.E. 756 at 1; Tr. 1474, 1480). In this memorandum he notified Mr. SCHRIMSHER of the appraisal history of the three appraisals on this property and that, pursuant to Mr. SCHRIMSHER's instructions of the previous day, he had contacted Mr. Bills. Mr. Bills was requesting $750,000 and offered to purchase an appraisal. Negotiations for purchase were being held in abeyance pending the new appraisal. (P.E. 756).
Mr. Bills' name was also revealed to Mr. SCHRIMSHER in the February 1989 BOARD report approving the purchase, which Mr. SCHRIMSHER recommended (P.E. 336; Tr. 761-762, 1130-1131). Attached to the BOARD report was the SCHOOL BOARD's contract with Royal Palm Beach industrial Park and John Bills' name appeared. (P.E. 336). Mr. Bills owned 100 percent of the shares of Royal Palm Beach industrial Park, Inc. (Tr. 2861-2862).
During the relevant time period, from October 6, 1988, through April 17, 1989, there were 14 phone messages left for Mr. SCHRIMSHER by John Bills or one of his employees. (Comp. P.E. 497; Tr. 2845, 2851, 2856). Mr. Bills exhibited, in testifying, virtually no memory of any phone calls or of any conversations with SCHOOL BOARD employees relating to this sale. (Tr. 2851-
2856, 2864-2865). This only enhances the importance of the uncontradicted documentary evidence.
The competent substantial evidence further discloses that Mr. SCHRIMSHER directed that the Royal Palm Beach Business Park lots be purchased for the bus compound without any other sites being examined. In this regard:
David Williams, after returning to the Growth Management division in August, 1988 9/ (Tr. 1322), was directed and instructed directly by Mr. SCHRIMSHER that this site was available for the West Central Bus Compound and was probably a good site. (Tr. 347-348, 1327, 1333). This was the only time, while in Growth Management, when Mr. SCHRIMSHER notified Mr. Williams to include a site, when Mr. SCHRIMSHER also commented as to the merit of the site. (Tr.
1350-1351). Mr. Williams told Mr. Hukill about Mr. SCHRIMSHER's directions to focus on this site. (Tr. 1412).
Accordingly, Mr. SCHRIMSHER imposed his influence upon the Growth Management Division to select this site. This occurred even though no site search had been conducted (Tr. 1328, 1342, 1481), and as a result, it was unknown if other sites were available. (Tr. 1332). Mr. SCHRIMSHER acknowledged, and it is found, that if no site search was conducted, the standard operating procedure to look for available sites would have been violated. (Tr. 756-757). The normal purchase process for the West Central Bus Compound, by failing to conduct a site search for this facility, was circumvented and was inconsistent with land acquisition purchasing procedures and violated SCHOOL BOARD policy 7.01(1) as to its meaning in usage.
Moreover, several problems were inherent with these lots, which were a detriment to the SCHOOL BOARD:
Michael Kirk, a Growth Management employee who did site inspections (Tr. 1149), was requested to evaluate this site, and he evaluated no other sites for a West Central Compound facility. (Tr. 1150-1151). He prepared a report on April 24, 1989, about the site, and recommended against its purchase. (P.E. 347; Tr.1151-1152, 1161). The sketch attached to his memorandum revealed that due to drainage and other easements, only 77 percent of the acreage was useable, or 3.86 acres of the 4.9 acre tract. (Tr. 1152-1153).
Furthermore, to assist in his site evaluation, Mr. Kirk had received a proposed site plan from Joe Reed, Assistant Director of Transportation. (Tr. 1154). The site plan shows only 75 parking spaces for buses, but reveals that they "must have 100 bus spaces." (P.E. 762; Tr. 1154-1155). The lots were not large enough to accommodate the bus and employee parking needs for the compound. (Tr. 1155-1156, 1709-1710). It is irrelevant that George Baker, the Director of Transportation, wanted this property since his preference was expressed after the property was selected. (Tr. 1405, 1449-1450). Mr. Baker was anxious to have a new facility operating, and after the purchase, no other monies were available for other sites. (Tr. 1449-1450).
Furthermore, site approval by the Village of Royal Palm Beach was a concern, since the process required finished drawings. The SCHOOL BOARD would be forced to incur substantial design costs in securing these drawings before obtaining approval, and funds were not budgeted. (Tr. 1157, 1334, 1336, 1407). 10/
The site also had a curvature problem which would make maneuvering the buses difficult. (Tr. 1158-1161).
Furthermore, the funding of this purchase from the capital budget (Tr.
128) and the initial and improper use of $358,000 of bond issue funds for this project (Tr. 2127) impacted upon the bond plan. (Tr. 2201). Mr. SCHRIMSHER must share responsibility for the initial improper use of bond funds since he rejected controls recommended by the comptroller which were designed to prevent the expenditure of capital funds from improper fund sources. (P.E. 513, 514; Tr. 2101-2103; 2105-2106, 2130, 2149).
In addition, the West Central Bus Compound did not appear in the SCHOOL BOARD's 1986 educational plant survey or in any of that survey's amendments. (P.E. 152; Boatright depo. at 16-17). To the extent any special millage monies from the capital budget were used for this purchase, since the project was not survey approved, they were violative of Fla. Stat. s. 236.25.
Furthermore, the BOARD report recommended by Mr. SCHRIMSHER to Mr. Mills for presentation to the SCHOOL BOARD was misleading as it related to the appraisals. The BOARD report listed only the appraisals from Appraisal First for $703,000, and the St. John appraisal for $810,000. The SCHOOL BOARD, however, had three appraisals ordered for this property. (Tr. 1409-1410, 1487- 1491). Through the October 27, 1988 memorandum from Mr. Skakandy, however, Mr. SCHRIMSHER had been advised that there was a third appraisal from Calloway and Price of $715,000 (P.E. 756), 11/ and Mr. SCHRIMSHER acknowledged his awareness of this third appraisal. (Tr. 762-764).
Consequently, the BOARD report leaves a misleading impression that the SCHOOL BOARD was paying, at $750,000, slightly under a split of the two appraisals, whereas, if the third appraisal were added, the SCHOOL BOARD would be paying a price higher than a split.
This site remains without site approval (Tr. 1162, 1235), and is awaiting construction. (Tr. 1333).
Throughout his direction of the purchase of this property, Mr. SCHRIMSHER did a favor for his friend, and donor, John Bills, in circumvention of SCHOOL BOARD procedures, this finding being mandated by the overwhelming weight of the very clear preponderance of the evidence. Mr. SCHRIMSHER's denial of his friendship with Mr. Bills and that he was ignorant of Mr. Bills' ownership of the property is clearly refuted by the documentary evidence that was generated contemporaneously to the events. It is uncontroverted that they had gone golfing together, that Mr. SCHRIMSHER referred to Mr. Bills as "Johnny" and that numerous telephone messages were left by Mr. Bills and his employees for Mr. SCHRIMSHER during the relevant time frame of the purchase. It is also uncontroverted, in writing, that Mr. SCHRIMSHER directed Mr. Skakandy to negotiate the property with Mr. Bills, and Mr. Skakandy made a contemporaneous notation of such. These denials by Mr. SCHRIMSHER only served to highlight Mr. SCHRIMSHER's incompetence. A reasonable man would not have created the appearance of impropriety, engaged in impropriety, and also aided and abetted the purchase of unsuitable property.
G-604's and Cost Overruns Relating to New Schools and the Administrative Complex
Mr. SCHRIMSHER acknowledged his responsibility to manage and provide leadership for the $678 million new school construction and renovation program. (P.E. 108(a)).
The September, 1986 bond referendum to build and improve schools was presented to the public as a $317 million bond issue, being a part of a $678 million capital projects plan. (Tr. 115-117, 2148-2149).
To implement the bond program, the 1987 Price Waterhouse/HMTB initial student (Tr. 1999-2001, 2007, 2012-2104), which was authorized by the SCHOOL BOARD, found that as to the construction department within the Division of Facilities and Operations financial procedures and controls, budgeting was done without adequate preparation and adequate project management tools; policies were not in place to contain costs for new construction. (P.E. 520 (Financial Procedures and Controls introduction and items 1, 2, 4, and 17); Tr. 1996, 2006). Mr. SCHRIMSHER expressed displeasure with the study and directed Mr. Chenicek to terminate Price Waterhouse's work on developing these controls. (Tr. 2009-2011).
The following chart demonstrates the cost overruns associated with the original published FY 87 Five Year Plan:
PUBLISHED FY87 FIVE YEAR PLAN | FINAL PROJECTED COSTS | |
MSC PROJECTS | $148,000,000 | $257,754,733 |
UNFUNDED NEW SCHOOLS | 368,400,000 | 426,603,671 |
FUNDED NEW SCHOOLS | 0 | 51,796,906 |
SITE ACQUISITION | 37,600,000 | 58,177,010 |
COUNTRYWIDE IMPROVEMENTS | 124,000,000 | 237,632,967 |
DISTRICT FACILITIES | 0 | 41,240,120 |
TOTAL COSTS | $678,000,000 | $1,073,205,407 |
(P.E. 77 at 16). 12/ Thus, the costs of new schools and countywide improvements have greatly exceeded the original 5 year plan projections. Moreover, district facilities were not a part of the original 5 year plan, but were being funded.
The five year plan construction project left 5 new schools incomplete as well as many other projects. (Tr. 2199- 2200).
An example of how a cost overrun situation developed occurred with Elementary School "D" (P.E. 135, 136; Tr. 1712- 1715):
The design of the architech, Marion, Paluga and Associates on Elementary School "D" ran over budget (Tr. 1714), but it was Mr. SCHRIMSHER's decision to proceed with recommending the bid to the SCHOOL BOARD. Mr. SCHRIMSHER could have directed Russell Smith to reject the bid and compel the architect, under the contract documents, to redesign the project to bring it within budget. (Tr. 1782, 1801).
The BOARD report failed to advise the SCHOOL BOARD that the low bid of
$8.946 million was over the current budget for the project of $7.072 million.
Furthermore, as reported to the SCHOOL BOARD on July 29, 1991, the final costs for Elementary School "D" were $10,798,294. (P.E. 77 at 3).
As Associate Superintendent, Respondent was responsible for the management of the budgeting, design, construction and funding of the new School BOARD Administrative Complex. (S.R.A. 93).
G-604's, which are supplemental authorizations for architectual services not contained in the basic contract between the architect and SCHOOL BOARD (Tr. 1715-1716), were customarily brought before the BOARD for approval (Tr. 2508, 2903), and Mr. SCHRIMSHER would recommend vel non their approval on BOARD reports. (Tr. 1934).
It was discovered that approximately $2 million of G- 604's for amounts of $20,000 or less had not gone to the BOARD for approval. This involved all construction, including the Administrative Complex and new schools. (P.E. 373; Tr. 1716- 1719, 1900-2001; R.E. 64 on the Admin. Complex at 16).
By memorandum, dated August 8, 1986, Mr. SCHRIMSHER had approved a practice that two directors were authorized to approve G-604's in an amount not to exceed $20,000 per occasion, and all such requests would be submitted later to SCHOOL BOARD for review. (P.E. 364; Tr. 1899). The following explains how this occurred.
Based on subsequent memorandum from Dr. Lawrence Mione, which was copied to Mr. SCHRIMSHER (P.E. 365; Tr. 1721-1728), Russell Smith and other directors did not submit G-604's under $20,000 to the BOARD for approval. (Tr. 1786).
Mr. SCHRIMSHER was also aware that G-604's under $20,000 were not going to SCHOOL BOARD for approval. Russell Smith heard him make this statement at a meeting, between February and August 1989, with Schwab, Twitty and Hanser relating to design of elementary schools. (Tr. 1729-1731, 1790, 1792).
Mr. SCHRIMSHER attended some meetings with the architect on the Administrative Complex or was copied with Minutes (R.E. 64 at 9/9/88 Site Minutes); he was aware of re- designs to the Complex and that no G-604's were brought forward during that time period (Tr. 1902-1903); and his name would appear on BOARD reports recommending approval of any G-604's. (Tr. 1934).
Moreover, the State Attorney's investigation report, 13/ dated August 30, 1991 (P.E. 876 or R.E. 61; Tr. 3054, 3062- 3063), found that even the practice set forth in Mr. SCHRIMSHER's August, 1986 memorandum (P.E. 364), was violative of SCHOOL BOARD policy 7.22(2), which policy required change orders over $2,000 have BOARD approval prior to authorization.
Failure to Adequately Supervise Construction and Funding of Improvements at Summit, North ITV and South ITV M&O Facilities
A video prepared by Russell Smith depicted the fire hazard and "death trap" of buildings 2 and 3 at the Summit M&O facility, as well as the North Shop and South Shop, which had been used to house School BOARD employees. (P.E. 95; Tr. 1662- 1685). These were newly constructed capital improvements, which included non-permissible and combustible wood structures. The life/safety of these employees had been jeopardized from the poor construction of the wood structures and other capital improvements at all three facilities by the Maintenance/Renovations ("M&R") and Facility/Operations' ("F&O") employees within Mr. SCHRIMSHER's division.
The scenario which lead to these dangerous conditions and Mr. SCHRIMSHER's involvement are set forth in detailed findings below. Through his decision to hold to the original 1985 budget and not plan within FY 1990, either within an original budget or a budget amendment, to fund needed capital improvements, Mr. SCHRIMSHER, who was responsible for planning and budgeting of departments in his division (P.E. 106; Tr. 1810- 1812), created an atmosphere for the troubles which followed, both as to accounting irregularities and building code violations.
Respondent has made the decision in, approximately, 1986 to hold to the $3.6 million budget for the Summit M&O facility (S.R.A. 66; P.E. 903; Tr. 1815), approved by the SCHOOL BOARD on May 1, 1985 (P.E. 5), even though he knew a future need existed within facility for capital improvements. (Tr. 1815- 1816, 1994-1996). 14/
Subsequently, he failed to fulfill his responsibility to adequately plan and seek an additional budget from the SCHOOL BOARD, for FY 1990, for the construction of the capital improvements at the Summit facility, although he knew the facility would be ready for occupancy in the fall of 1989 and that many of the shop spaces could not be occupied by employees until these improvements were done. (Tr. 1815-1817, 1819-1820, 1994-1996). Some of the employees moved into the completed shell facility at Summit, starting in October, 1989. (S.R.A. 22).
One of the first capital improvements at Summit involved prefabricated mezzanine and modular offices, which was planned by the M&R department employees under Mr. SCHRIMSHER's authority. (Tr. 1645).
Bids were solicited in September 1989, and the November 1, 1989 BOARD report, relating to the award of the bids on these items (P.E. 36; Tr. 1834- 1835), misinformed the SCHOOL BOARD:
the report contained object and function codes for the maintenance operating funds, which were not proper for this capital project under the Uniform Accounting System (Red Book; Tr. 2085, 2090, 2174), and failed to establish, by budget amendment, a proper capital fund source;
the report failed to reveal that the bid specifications for the mezzanines, having plywood floors, did not comply with 6A-2, Part III, Section A, Fla. Admin. Code (Tr. 1643-1645);
the report failed to reveal that the splitting of these bids on one project circumvented DOE regulations 6A-2.011(1) and 6A-2.022 and violated Fla. Stat. s. 235.26(4) (P.E. 149 S. Marshall depo. at 26-31 and Exh. 4; P.E. 151 J.
Schroeer depo. at 4-7, 10); and
the SCHOOL BOARD did not receive any information other than what was contained in the report (Tr. 1838) and, therefore, was not advised that the M&R department in Mr. SCHRIMSHER's division had failed to contact DOE to approve the design of the mezzanine and modular offices. (Tr. 1830, 1837-1838).
The initiating department of this report was the M&R department under Mr. SCHRIMSHER's authority (Tr. 1834-1835, 1947, 2215-2122), and Mr. SCHRIMSHER would have reviewed the report in staff meetings. (Tr. 1838-1839). Mr. SCHRIMSHER's duties as described in the job description show that he shares responsibilities for the planning, which led to this report and its misleading contents.
Only one other BOARD report related to the Summit improvements (Tr. 1838) - the December 13, 1989 BOARD report, which Mr. SCHRIMSHER recommended (P.E. 43; Tr. 1838-1840), concerning architectural services. It also misinformed the SCHOOL BOARD about the improvements by:
inaccurately stating that the current year budget was established to cover the recommended work when no such budget was established. (Tr. 1841). The SCHOOL BOARD's annual notice of tax for school capital outlay failed to list these improvements as a project and, thus, maintenance operating funds, which derived from special millage monies, could not legally be expended. (P.E. 98; Tr. 2054-2058, 2095-2097);
failing to reveal the amount of the budget for the project (Tr. 1842, 1844) or that the employment of day laborers on this project would violate Fla. Stat. s. 235.31 and 6A-2.022 for capital improvements exceeding $200,000 (Tr. 1843); and
failing to notify the SCHOOL BOARD that no plans for these improvements had been or would be submitted to DOE in violation of Fla. Stat. s. 235.26(4) and 6A-2.011. (Tr. 1843). Mr. SCHRIMSHER, who had responsibilities to serve as a liaison between his division and the SCHOOL BOARD (P.E. 106), is responsible for this misleading report.
It was also raised at a SCHOOL BOARD meeting in the fall of 1989 that due to complaints about trucks of M&R and F&O employees temporarily housed at Northshore High School, moving the employees from Northshore became a priority, and Mr. Mills told the SCHOOL BOARD that they would be out by January 1, 1990. 15/ As a result, Mr. SCHRIMSHER had a responsibility to see that this emergency was handled appropriately and that he knew whatever was occurring was being done correctly. (Tr. 2591). It was expected that the improvements be done in compliance with the law. (Tr. 3015). Yet, Mr. SCHRIMSHER did nothing to deal with the situation (Tr. 2712-2713), except to direct employees to use their own funds and keep track of costs. (Tr. 1844, 1847-1848, 1850). His personal involvement was lacking during this crisis.
In the fall of 1989, Respondent instructed the M&R and F&O departments to construct the capital improvements at Summit with their own funds and notified them that he would not seek approval from the SCHOOL BOARD. (Tr. 1844, 1847-1848, 1850). At that time, Respondent knew that the $3.6 million budget for the Summit facility had been spent or was almost entirely spent. (Tr. 1850).
Within the Summit facility, installation of the modular offices and incidental work was done by SCHOOL BOARD employees. (F.R.A. 34).
Employees and day laborers of the M&R and F&O departments constructed the "Plywood Palace" electronics shop from December, 1989 through March, 1990. (F.R.A. 35).
M&R department employees also constructed capital improvements at the North Shop (ITV) and South Shop (ITV) sites. (P.E. 86, 87, 90; Tr. 1696).
By misfeasance and nonfeasance in supervising the construction and funding of capital improvements made at the Summit facility, the North ITV and South ITV sites, Respondent failed to insure compliance with State statutes,
Department of Education Rules, and SCHOOL BOARD policy. (School Board Policy 1.01(2)(4)).
More specifically, Respondent's actions or failure to act concerning the following conduct of employees within his Division, indicates that Respondent was inefficient in carrying out his management duties as Associate Superintendent and that he failed to properly communicate to employees within the departments under his authority, to the extent that the programs for which he was responsible were seriously impaired:
In funding these capital improvements, various improprieties occurred through violations of state statutes, DOE regulations, and SCHOOL BOARD policies and normal practices:
The Price Waterhouse/HMTB initial draft report in early 1987 found that adequate project management tools and policies were not in place to contain costs for the C&R and M&O departments for capital improvements. (P.E. 520; Financial Procedures and Controls, Introduction and Items 4 and 17). Mr. SCHRIMSHER played a major role in terminating the services of Price Waterhouse before recommended procedures could be developed for adoption. (Tr. 2009-2011), and he was responsible for the Division of Planning and Operations, which was the subject of the report.
Mr. SCHRIMSHER had knowledge of the deficiencies within his division. These were specifically brought to his attention by the Price Waterhouse report. (P.E. 520). It was within his responsibilities, especially with a $678 million five year plan to be administered, to rectify the deficiencies which the Hearing Officer described as "pandemic." These financial controls were not adopted; a reasonably prudent administrator would have taken appropriate action and instituted such controls. Mr. SCHRIMSHER was incompetent for failing to do so.
The departments used operating budget funds on an unauthorized capital improvement project and failed to present for approval to the SCHOOL BOARD a budget amendment or budget for these improvements. They performed work using capital improvement work orders for the Summit and North ITV facilities without a fund source approved by the comptroller. By these acts a misappropriation of funds and a violation of Fla. Stat. s. 235.31 occurred (Tr. 1825-1826, 1869-1871, 1885-1887, 2080-2092, 2107-2111, 2121, 2123-2125, 2162- 2175, 2186-2188, 2190-2191, 2241-2243, 2688-2689, 2691-2693, 2887; P.E. 16, 20, 33, 34, 40 at 6, 49(b), 52, 77 at Exh. 4 at 16, 102, 130; P.E. 151 J. Schroeer depo. at 4-9; F.R.A. 45).
One million one hundred thousand dollars of operating funds were expended on Summit and, including the North Shop, 1.3 million dollars in total. (Tr. 2169-2170).
The comptroller was not even aware that these capital improvement projects existed. (Tr. 2080-2081).
Capital improvement work within the Summit facility and all charges for labor and materials should have been charged to a capital budget, but they were paid out of the operating budget. (F.R.A. 45).
Mr. SCHRIMSHER's testimony that when the project ended, a budget amendment would be made (Tr. 1861) reflects the type of incompetent leadership which caused the funding violations associated with this project. In general,
budget amendments cannot be made after the due date for the annual financial report for the year (Fla. Admin. Code s. 6A-1.006(3)). No budget amendments were ever made for this project, and funds were not in the budget for FY 1991. (Tr. 1826, 2091-2092). By failing to include the expenditures for these improvements within a capital outlay budget or having a budgetary amendment, the prohibition against expending these funds, as stated in Fla. Stat. s. 235.18, was violated.
Pursuant to the Red Book, the Uniform Financial and Program Cost Accounting and Reporting for Florida Schools, which is required by Fla. Admin. Code s. 6A-1.001 and Fla. Stat. ss. 237.01 and 237.34, the employees used incorrect fund/object- numbers for these capital improvements at the Summit and North ITV facilities. (Tr. 2082, 2085, 2089-2090, 2172-2175, 2178- 2180, 2214, 2215-2122, 2279-2280, 2688-2699; P.E. 20, 102). As a result, the School District was unable to account for its expenditures in accordance with the Red Book, as required by Fla. Stat. s. 237.34.
To accomplish this necessitated improper funding, and employees used fictitious, unbudgeted department numbers for capital expenditures. (Tr. 2178-2179, 2185-2188, 2214, 2247, 2249; P.E. 20, 33, 34, 102).
The improvements were improperly funded through the use of special millage (2 Mill) monies when:
the project was not included in Petitioners' Notice of Tax for School Capital Outlay and the notice was not amended in violation or Fla. Stat. s. 200.065(9)(a) and (b) (P.E. 98; Tr. 1054-1058, 2091, 2095-2097); and
the size of the project was greater than its description in the educational survey as required by ss. 235.15, 235.16 and 236.25(2)(a). (Tr. 1697-1699; P.E. 134; P.E. 152 Boatright depo. at 4-13 and Exhs. 1 and 2).
Furthermore, the M&R department failed to properly account for day labor hours assigned to a project as to the Summit and North ITV improvements and other projects as required by 6A-2.022(1)(c) (Tr. 1819, 2088, 2092-2093, 2256-2257; P.E. 9, 102; P.E. 149 S. Marshall depo. at 29-33).
Secondly, the design and construction of the Summit, North ITV and South ITV M&O facilities were in serious violation of numerous provisions of the State Uniform Building Code, 6A-2, Part III, and the life/safety of the occupants in the buildings was threatened:
The design and construction of the capital improvements at the Summit facility (buildings 2 and 3), North ITV and South ITV sites, particularly the wood structures, without review by the DOE, was in violation of multiple provisions of Chapter 6A-2, Part III, Section A, Fla. Admin. Code. 16/ (P.E. 124, 125(a)(b) and (d); P.E. 151 J. Schroeer depo. at 4-7, 10; P.E. 149 S. Marshall depo. at 4-18, 34, 46, 55- 59; P.E. 36, 40 at 6, 58(a) and (c), 68, 72(a), 86, 87, 90, 95(Video), 131, 854; Tr. 1299-1305, 1601-1631, 1637-1638, 1641- 1645, 1655-1685, 1686-1697, 1803, 1942, 2094-2095, 2364-2372, 2374-2375).
Failure to have sealed architectural drawings (Tr. 1733, 1794) for a project over $25,000, violated - 6A-2.005 (P.E. 149 S. Marshall depo. at 21-22).
Prior to and during construction of these capital improvements, no Uniform Building Code Inspector ("UBCI") reviews and reports occurred (in
violation of 6A-2.023), and prior to occupancy of the improvements to the facilities, no DOE final occupancy inspections of the improvements occurred or occupancy certificates were issued (in violation of 6A-2.024). (Tr. 1700, 1731- 1733, 1800, 1817-1819, 1881-1885; P.E. 8, 9, 40; P.E. 149 S. Marshall depo. at
19-21, 22-23, 26-31, 33-34, 58-59; P.E. 151 J. Schroeer depo. at 11-20).
The SCHOOL BOARD employees were allowed to move in and work within wood structures without proper life/safety protection in direct violation of Fla. Stat. s. 235.26, (P.E. 149 S. Marshall depo. at 23-24; P.E. 54).
Mr. SCHRIMSHER accepted responsibility and shares the responsibility for exposing his employees to an unsafe work place and a fire hazard for a prolonged period of time. (Tr. 2593-2594).
Following a July, 1990 fire alarm demonstration for DOE, when Russell Smith and others discovered these capital improvements and found building code violations, Mr. SCHRIMSHER recommended the BOARD report requesting the hiring of the Ralph Hahn architectural firm to prepare a code review of the Summit facility. (Tr. 1855-1856; P.E. 62). Mr. SCHRIMSHER's failure to be notified of the findings of the report, wherein numerous code violations were cited (P.E. 58(c)), and giving no consideration as to whether code compliance had been attained (Tr. 1856-1858, 1859), further demonstrates his failure to maintain adequate controls over the departments in his division.
After being aware of the DOE letter from Suzanne Marshalll in January, 1991 (P.E. 68; Tr. 1874), Russell Smith's code review (P.E. 58(a); Tr. 1872), the Fire Marshal's inspection report (P.E. 854), the Ralph Hahn report (P.E. 58(c); Tr. 1873), all of which find Part A to apply and that serious building code violations exist at Summit, Mr. SCHRIMSHER still, at the final hearing, incompetently, maintained that Part B applies. (Tr. 1876-1877).
Part of Mr. SCHRIMSHER's leadership style was to hire the most competent people and provide them a goal. (Tr. 973). Then Superintendent Mills viewed Mr. SCHRIMSHER's responsibility as seeing that an appropriate staff was hired familiar with the building codes and that the processes were in place. (Tr. 3006- 3007)
Yet, at the time of the 1987 reorganization at the SCHOOL BOARD, with the Project Management Group, (which did renovations), being transferred into David Lord's department, Mr. Lord expressed his discomfort to Mr. SCHRIMSHER due to his unfamiliarity with 6A-2. (Tr. 2664, 2669). At the final hearing, on at least two occasions, Mr. Lord testified that Part B applied to renovations and the type of improvements done in Summit. (Tr. 2638-2640, 2670). This testimony demonstrated a further failure in Mr. SCHRIMSHER's leadership and management style which contributed to the construction code violations. Mr. Lord's alleged belief of the applicability of Part B is not reasonable in view of the following 6A-2 provisions:
6A-2.003(1), which provides that Part A applies to all new construction, including remodelling and renovations;
6A-2.003(2), which provides that Part B applies to maintenance, repair or inspection of facilities and references the definitions in Fla. Stat. s. 235.011;
6A-2.045, entitled Section A, New Construction, Remodelling and Renovation and which in (2) references the definitions of "maintenance and repair," "remodelling," and "renovation" in Fla. Stat. s. 235.011; and
Section B, 6A-2.076(1)(a), which specifies that Section A applies to remodelling and renovation. In fact, the following Code violations are not dependent on whether Part A or B applies: 17/
The failure to submit design documents and Phase I, II, or III drawings to DOE for the capital improvements (Tr. 1700), as required by 6A- 2.011, 2.013 and 2.014;
the failure to have approved architectural plans (Tr. 1733), as required by 6A-2.005;
the failure to have Uniform Building Code ("UBCI") inspections of the improvements (Tr. 1731), as required by 6A- 2.023; and
the failure to have a final occupancy inspection prior to occupancy of the facility (Tr. 1733), as required by 6A- 2.024.
Mr. SCHRIMSHER cannot hide behind the "ostrich principle" to escape the consequences of these occurrences. A reporting mechanism did exist for Mr. SCHRIMSHER to be advised of the status of the District's construction, including whether DOE design review and approval had been obtained for the Summit capital improvements. (P.E. 40 at 6; Tr. 1880-1884). The SCHOOL BOARD was misinformed by the November 13, 1989 Capital Budget Workshop report which stated that the F&O project was "done." Mr. SCHRIMSHER had the responsibility to review BOARD reports he recommended, to review the capital budget workshop reports, and to correct any inaccuracies he found. (Tr. 3007). He failed to do so with this report and bears that responsibility.
Mr. SCHRIMSHER would be responsible for the code violations at the Summit facility since he was in charge of new construction and maintenance and operations of facilities. As to construction activities, problems and deviations should have been reported to Mr. SCHRIMSHER. Reports, such as the November 13, 1989 FY 91 Capital Budget Workshop report, are the types of reports for Mr. SCHRIMSHER to determine the status of projects and whether DOE submissions were made. If he knew work was being performed that was not reported, it would be his responsibility to explain. (P.E. 151 J. Schroeer depo. at 11-20 and Exhs. 16). 18/
As a result of Respondent's acts of commission and omission in his management of his Division, DOE and the SCHOOL BOARD have not been properly advised of the true costs of construction of the Summit facility and North ITV site (Tr. 2107- 2111, 2398-2403; P.E. 77 at Exh. 4 at 16; P.E. 84, 123, 491(d) and (e)); the wood structures must be rebuilt or destroyed at an additional cost to the SCHOOL BOARD at all three sites referenced herein (Tr. 1693, 2398-2403;
P.E. 84, 491(d) and (e)); and other scheduled maintenance renovations projects were not completed as scheduled or delayed. (Tr. 2019-2020). As a further result, the SCHOOL BOARD will incur costs to correct the financial statements of the School District so as to comply with Florida Statutes. Since purchase orders and work orders, as set forth above, were not properly funded, construction costs were not recorded in the fixed assets of the School District. (Tr. 2176-2178).
Improper Evaluation of Subordinates
During his employment as Associate Superintendent, Respondent had the responsibility to and did perform the annual evaluations of Assistant Superintendents of Divisions under his authority. (S.R.A. 85).
SCHOOL BOARD personnel policies regarding annual evaluations are set forth in the Palm Beach County School District Instructions for the Administrative Performance Management System ("APMS"). (S.R.A. 86).
These policies state that an "evaluator utilizing the `above expectation' rating with an employee must provide complete written documentation to support the rating" and four specified competencies must also be evaluated as above expectation. (S.R.A. 87; P.E. 108(b) at 23; Tr. 1915).
Respondent evaluated and wrote the annual evaluations at "above expectation" of:
the Assistant Superintendent for Personnel Relations, Calvin Taylor on May 22, 1990;
William Hukill on May 16, 1990; and
the Assistant Superintendent for Facilities, Planning and Management, William Goode on June 1, 1989. Respondent, however, failed to follow, for each of these employees, the required procedures for an "above expectation" evaluation. (P.E. 105(a)(b) and (c); Tr. 1912-1914).
Miscellaneous
Based on all of the above, and his demonstrated attitude at both the final hearing and before that he did nothing wrong, Mr. SCHRIMSHER was not remediable for his position as Associate Superintendent.
Respondent's defenses are without merit and provide no basis for making contrary conclusions or mitigating the remedy.
The overwhelming weight of the competent substantial testimony and documentary evidence demonstrates that Petitioners were not acting in bad faith in disciplining Mr. SCHRIMSHER.
CONCLUSIONS OF LAW
The SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA, has jurisdiction over this proceeding. The parties were duly noticed for the formal hearings.
The SCHOOL BOARD may reject Conclusions of Law "without limitation". Alles v. Department of Professional Regulation, 423 So. 2d 624 (Fla. 5th DCA 1982).
Gifts and Gratuities
F.S.A. s. 231.36(4)(c) provides that charges of discipline against those such as Respondent:
must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or
conviction of a crime involving moral turpitude.
Ibid (emphasis supplied).
The term "incompetency" is not specifically defined by statute or rule as it applies to those who are non-instructional employees such as Mr. SCHRIMSHER.
Even though the issue is not raised by Respondent, it is not necessary for there to be a specific rule or statute defining said term in order to comport with due process. This term, as with other parameters found in F.S.A.
s. 231.36(4)(c), is imbued with specific enough common law and ordinary meaning to serve as requisite notice to those charged with compliance. In Meehan v. Macy, 392 F.2d 822, modified, 425 F.2d 469 (D.C. Cir. 1968), aff'd en banc, 425 F.2d 472 (D.C. Cir. 1969), that Court stated:
Moreover, it is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes "catchall" clauses prohibiting employee "misconduct," "immorality," or "conduct unbecoming." We think it is inherent in the employment relationship as a matter of common sense if not common
law . . .
392 F.2d at 835 (emphasis supplied) (footnotes omitted). Meehan is cited with approval in Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983).
As the definition of "incompetence" is not set forth in specifically applicable statute or regulation, it is permissible, if not mandatory, to draw upon "useful analogues". Smith v. School Board of Leon County, 405 So. 2d 183,
184 (Fla. 1st DCA 1981); Rosario v. Burke [School Board of Hendry County], 605 So. 2d 523 (Fla. 2d DCA 1992). We have spent considerable time attempting to understand the Hearing Officer's rejection of all of the Petitioners' proposed law and the version that he sets forth in the Recommended Order. In this regard we note:
Once the Hearing Officer turns to statutes and administrative regulations that do not directly pertain to Mr. SCHRIMSHER's conduct and uses them as "analogues", he negates the proposition that all agency policy must be reduced to written rules.
An analogue is not a written rule specifically governing specific conduct - it is thought to be a useful analogy - only.
We believe that this agency does not have to define statutory terms which the legislature has used to describe the "seven deadly sins."
We believe it perfectly appropriate to apply general employment contract law, which is deemed to be directly a part of every employment contract, without being required to be set forth therein. This includes the reasonable man standard.
When the legislature declares policy, such as no appearance of impropriety, that is policy binding on the SCHOOL BOARD and its employees - without any further action on the part of an administrative agency.
It would appear with some certainty that one of the basic tests to be applied is that of the "reasonable man." This overall parameter for judging "incompetency" finds overwhelming weight in the case law and other legal sources.
In Video Electronics, Inc. v. Tedder, 470 So. 2d 4 (Fla. 1st DCA 1985), the standard was clearly articulated:
In the absence of an express reservation by the employer, the general rule is that an employee's job performance is to be judged on a "reasonable man" standard. 53 Am. Jur. 2d, Master and Servant, s. 51.
470 So. 2d at 6 (emphasis supplied).
In addition, 53 Am. Jur. 2d, Master and Servant, states:
S. 109 - Basis of liability; lack of skill. With respect to the skill required of a person who engages to render services, it is a well-settled rule that the standard of comparison or test of efficiency is that degree of skill, efficiency and knowledge which is possessed by those of ordinary skill, competency and standing in the particular trade or business for which he is employed. In entering the employment, the employee impliedly agrees that he possess and will exercise this degree of skill. But the employee is not an insurer; he is bound merely to the exercise of reasonable care, skill and judgment.
Id. at 178-79 (emphasis supplied) (footnotes omitted).
Further, 30 C.J.S. Employer - Employee, s. 63 clearly sets forth the rule:
As a general rule, however, failure of a servant dischargeable for cause to perform his work in an absolutely skillful and satisfactory manner does not, in the absence of a special contract, authorize his discharge, but only failure to perform it in a reasonably skillful manner. The employer is not the sole judge of the employee's performance, and performance is judged by a "reasonable man" standard.
Id. at 631 (emphasis supplied) (footnotes omitted).
Once again, a clear statement of the applicability of the "reasonable man" standard is found in Walker v. North Carolina Dept. of Human Resources, 100 N.C. App. 498, 397 S.E.2d 350 (1990).
The standard of employee conduct implied in every contract of employment is one of reasonable care, diligence and attention.
Wilson v. McClenny, 262 N.C. 121, 136 S.E.2d
569 (1964); McKnight v. Simpson's Beauty Supply, Inc., 86 N.C. App. 451, 358 S.E.2d 1007 (1987). We cannot say that a state employee undertakes any greater duty. In attempting to establish that it had just cause to terminate an employee , then, an agency is bound to make a showing that the employee has not performed with reasonable care, diligence and attention.
397 S.E.2d at 355 (emphasis supplied). Please see also: Annotation 479 A.L.R. 472, Negligence or Incompetence as a Ground for Discharge of an Employee; cases collected under 5 U.S.C.A. s. 7501(a) and Purvis v. Dept. of Professional Regulation, 461 So. 2d 134, 136 (Fla. 1st DCA 1984).
In applying the "reasonable man" standard herein to Mr. SCHRIMSHER, there are certain fundamental precepts that must be considered at the threshold
those which serve as guideposts for the reasonable man.
An agent is a fiduciary who has an obligation of complete loyalty and good conduct. This is Hornbook law. In R. Meehan, Outlines of the Law of Agency (1952), the author states:
Agent's duty of loyalty: In general. It is the duty of the agent to conduct himself with the utmost loyalty and fidelity to the interests of his principal, and not to place himself or voluntarily permit himself to be placed in a position where his own interests or those of any other person whom he has undertaken to represent may conflict with the interests of his principal.
When the principal employs an agent, the law presumes that he does so in order to secure himself the benefits of the agent's skill, experience or discretion, and to reap the fruits of the performance of the undertaking. The law presumes that he expects - and it gives him the right to expect - that the agent so employed will endeavor to further the principal's interests, and will use his powers for the principal's benefit. If then, instead of serving the principal, the agent is seeking to serve himself, or some other person - if, instead of promoting his principal's interests, the agent is endeavoring to promote his own or some other person's interest at the expense of the principal's -
the fundamental considerations underlying the existence of the relation will be defeated.
This the law constantly aims to prevent.
Id. at 345 (emphasis supplied)
Another popular Hornbook, W. Seavey, Handbook of the Law of Agency (1964) states:
DUTY OF GOOD CONDUCT
An agent has a duty so to act as not to bring disrepute upon the principal or to make impossible the continuance of friendly relations.
Id. at 238 (emphasis supplied).
The Restatement of Agency (Second) s. 380 (1958) sets forth:
Duty of Good Conduct. Unless otherwise agreed, an agent is subject to a duty not to conduct himself with such impropriety that he brings disrepute upon the principal or upon the business in which he is engaged.
Id. at 181 (emphasis supplied).
S. 387 General Principle. Unless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency.
Id. at 201 (emphasis supplied).
A succinct statement of the rule is found in Union Miniere, S.A. v. Parday Corp., 521 N.E.2d 700 (Ind. App. 1988).
The agency relationship is confidential and fiduciary, binding the agent to the exercise of utmost good faith. Montgomery Ward and Co. v. Tackett (1975), 163 Ind. App. 211,
216-217, 323 N.E.2d 242, 246. "An agent may
not place himself in a position wherein his own interests are potentially antagonistic to those of his principal." Potts v. Review Board (1985), Ind. App. 475 N.E.2d 708, 711.
521 N.E.2d at 703 (emphasis supplied).
Please see also 30 C.J.S. Employer - Employee s. 67. H. Reuschlein and W. Gregory, The Law of Agency and Partnership s. 67 (1990).
There are various statutes, rules and directives which help comprise the milieu of factors that pertain to the exercise of reasonable care under the circumstances herein. It is not important that there be proven that there is a specific violation of them, but rather, that they exist and must be considered by the reasonable man along with other relevant factors. SCHOOL BOARD Rule 1.01 provides:
(2) Personnel of the district. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules.
(4) The district administrative staff is also responsible for insuring that the appropriate district policies, state board of education rules, and state laws are adhered to.
Ibid. (emphasis supplied).
Admin. Dir. D-3.16 and 6B-1.1006, Fla. Admin. Code provide:
Shall accept no gratuity, gift or favor that might influence professional judgment.
Ibid. (emphasis supplied).
F.S.A. 112.313(4) clearly states:
UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employees knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.
Ibid. (emphasis supplied).
It is to be noted that there has been declared to be a paramount public policy applicable to public employees, to wit: maintaining the respect of the public. F.S.A. 112.311(6) provides:
(6) It is declared to be the policy of the state that public officers and employees, state and local, are agents of the people and hold their positions for the benefit of the public. They are bound to uphold the Constitution of the United States and the State Constitution and to perform efficiently and faithfully their duties under the laws of the federal, state, and local governments. Such officers and employees are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal
considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern.
Ibid. (emphasis supplied).
A part of the above public policy is the avoidance of the appearance of impropriety. In Zerweck v. State of Florida Commission of Ethics, 409 So. 2d
57 (Fla. 1st DCA 1982), the Court clearly set forth this consideration:
A primary objective of the Code of Ethics is that government officials avoid recurring situations in which there is a temptation to place personal gain, economic or otherwise, above the discharge of their fiduciary duty to the public. There is nothing new or startling about this concept. The avoidance of the appearance of impropriety is an ethical norm which has governed the conduct of attorneys and judges for decades.
Certainly, there is nothing to prevent the Legislature from extending the application of this norm to all branches of government.
Indeed, this is precisely what the Legislature intended as can be seen from Section 112.311(5), Florida Statutes (1979).
409 So. 2d at 60 (emphasis supplied). See also State v. Gerren, 604 So. 2d 515, 519 (Fla. 4th DCA 1992), rev. denied, 613 So. 2d 4 (Fla. 1993).
The Respondent's acceptance of gifts, gratuities, favors and things of value from Free Form Five and Herff Jones were clear violations of F.S.A. 112.313(4). With the exercise of reasonable care, he should have known that they were given to influence his official actions. In point of fact, by his arranging for a golf outing with school principals and Herff Jones employees, his official judgment was influenced.
The acceptance of these gifts, gratuities, favors, and things of value from these long term vendors certainly compromised his duty of loyalty to deal exclusively for his employer's, the SCHOOL BOARD's, best interests. Contrary to his hearing testimony, it is established fact that Respondent directly ordered the purchase of Free Form Five furniture.
It is also clear that the acceptance of gifts, gratuities, favors, and things of value from these vendors violated Admin. Dir. D-3.16 and Fla. Admin. Code s. 6B-1.1006. They were certainly such as might influence his professional judgment.
Though there is some doubt that Mr. SCHRIMSHER knew who Mr. Knight was when he went fishing with him in 1986 and 1987, the overwhelming weight of the clear preponderance of the evidence is that he did know. Even if he did not know who Mr. Knight was or what his reputation was, at said time, a reasonable prudent employee at Mr. SCHRIMSHER's level of authority, who was about to have hundreds of millions of dollars to impart to vendors, should have so known - certainly by the time of the second fishing trip when the money was already being allocated. Thus, Respondent violated F.S.A. 112.313(4) when he accepted
the fishing trips, as he should have known that they were given to influence his official actions. There was also clear violation of Admin. Div. D-3.16 and Fla. Admin. Code s. 6B-1.1006 as not only might the gifts or favors, influence his professional judgment, they very clearly did.
The KEI transaction was done by Mr. SCHRIMSHER as a favor to Mr. Knight.
It was not in the best interest of the SCHOOL BOARD and was, in fact, a detriment to it, and done in contravention of SCHOOL BOARD land acquisition practices. Having already accepted two fishing trips from Mr. Knight, it was, at the least, the poorest judgment for Respondent to have then influenced or participated in any subsequent transaction between Mr. Knight and the SCHOOL BOARD. In any and all events, this constituted a breach of Mr. SCHRIMSHER's duty of loyalty and good conduct, both a part of his fiduciary duty, to the SCHOOL BOARD. He did not give his undivided loyalty to his employer and brought disrepute upon the SCHOOL BOARD.
Similarly, the West Central Bus Compound transaction was done by Mr. SCHRIMSHER as a favor to John Bills, his friend and from whom he had accepted gratuities. This transaction was not in the best interest of the SCHOOL BOARD and was, in fact, a detriment and done in contravention of SCHOOL BOARD land acquisition practices and School Board policy 7.01(1).
In all, regardless of the specific violations of law, the pattern of accepting gifts, gratuities, favors, and things of value from vendors constituted incompetency on the part of the Respondent. It was not the course of action that a reasonably prudent man would have engaged in.
Faced with the avowed policy of the Legislature that the avoidance of the appearance of impropriety be the norm for public employees, the long established principle of an employees' duty of good conduct and undivided loyalty, faced with his status as a fiduciary, and faced with the specific statutory and administrative prohibitions as reminders of all of this, a reasonable man would not have indulged himself in the gifts, gratuities, and things of value of which Respondent was the recipient.
The SCHOOL BOARD answers the question as to whether a determination of incompetency on this charge as well as the other charges is a question of fact or a conclusion of law infused with policy considerations. If a question of fact, it is determined that no competent substantial evidence exists other than to support a finding of incompetency. A reasonable fact finder applying the law to the subsidiary facts as are found herein would only reach this finding. If the determination is a conclusion of law, the SCHOOL BOARD is authorized to determine whether the actions of Mr. SCHRIMSHER constituted incompetence as his conduct is not directly determinative of the ultimate question of incompetency without the infusion of policy considerations. See generally, Goss v. District School Board of St. Johns County, 601 So. 2d 1232 (Fla. 5th DCA 1992); Johnson
v. School Board of Dade County, 578 So. 2d 387 (Fla. 3d DCA 1991).
Even though the previous administration may have been aware of Mr. SCHRIMSHER's conduct but did not discipline him and gave him at least satisfactory evaluations, Mr. SCHRIMSHER, however, was not absolved. He cannot raise the defenses of estoppel, waiver and ratification where, as here, the persons alleged to have authorized the acts and omissions did not have the power or authority to do so.
In general, estoppel, waiver and ratification do not apply to transactions forbidden by statute or contrary to public policy. Montsdoca v. Highlands Bank
and Trust Co., 85 Fla. 158, 95 So. 666 (1923); State ex rel. Schwartz v. City of Hialeah, 156 So. 2d 675, 676 (Fla. 3d DCA 1963); 22 Fla. Jur. 2d Estoppel and Waiver, s. 6; State Board of Administration v. Pasco County, 156 Fla. 37, 22 So. 2d 387 (1945).
To apply estoppel against the state requires a positive act by a state officer upon which the aggrieved party had a right to rely and did rely to his detriment, but the state will not be estopped by unauthorized acts or representations of a state officer. "Under no circumstances may the state be estopped by the unauthorized acts or representations of its officers." Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So. 2d 517, 524 (Fla. 1st DCA 1971).
Moreover, the instances are rare indeed when the doctrine of equitable estoppel can effectively be applied against state action. It will be invoked only under very exceptional circumstances." North American Co. v. Green, 120 So. 2d 603, 610 (Fla. 1959) (emphasis added). See also, State Department of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981).
B. G-604's and Cost Overruns, Supervision of Construction and Funding of Improvements at Summit, North ITV, and South ITV M&O Facilities and Improper Evaluation of Subordinates
Another useful definition of "incompetency" is found in Horosko v. School District of Mount Pleasant TP., 335 Pa. 369, 6 A.2d 866 (1939):
The term "incompetency" has a "common and approved usage". The context does not limit the meaning of the word to lack of substantive knowledge of the subjects to be taught. Common and approved usage give a much wider meaning. For example, in 31 C.J., with reference to a number of supporting decisions, it is defined: "A relative term without technical meaning. It may be employed as meaning disqualification; inability; incapacity; lack of ability, legal qualifications, or fitness to discharge the required duty." In Black's Law Dictionary, 3rd edition, page 945, and in 1 Bouv. Law Dict., Rawle's Third Revision, p. 1528, it is defined as "Lack of ability of fitness to discharge the required duty." Cases constructing the word to the same effect are found in 4 Words and Phrases, First Series, page 3510, and 2 Words and Phrases, Second Series, page 1013. Webster's New International Dictionary defines it as "want of physical, intellectual, or moral ability; insufficiency; inadequacy; specif., want of legal qualifications or fitness." Funk and Wagnalls Standard Dictionary defines it as "General lack of capacity or fitness, or lack of the special qualities required for a particular purpose."
6 A.2d at 868-69 (emphasis supplied).
Basically the definition of incompetency has not changed over time. Black's Law Dictionary (6th Ed. 1990) defines "incompetency", thusly:
Lack of ability, knowledge, legal qualification, fitness to discharge the required duty or professional obligation.
Ibid.
Relating to G-604's for the new administrative complex and new schools, Respondent's actions and his management and inadequate supervision of the departments of Facility Design and New School Construction led to the circumvention of past practice as well as former School Board policy 7.22 - without proper notice to the SCHOOL BOARD. Respondent's conduct in this regard is incompetent, warranting his demotion.
Respondent's actions and his management and inadequate supervision relating to cost overruns in new schools, without providing the SCHOOL BOARD with adequate information upon which to make informed decisions, contributed to the lack of funds that negatively impacted the $678 million school construction program. Respondent's conduct in this regard was incompetent, warranting his demotion.
Respondent, who was Associate Superintendent over Personnel and was the past Assistant Superintendent of Personnel, violated the SCHOOL BOARD's APMS standards for evaluating employees Hukill, Taylor and Goode at "above- expectation" in 1990 or 1991, and, along with the other conclusions entered herein, has acted incompetently.
Respondent's malfeasance and nonfeasance relating to the capital improvements at the Summit, North ITV, and South ITV M&O facilitates constitute incompetence, warranting his demotion. In this regard:
the funding of the capital improvements at the Summit and North ITV M&O facilities was done in contravention of several provisions of the Florida Statutes, DOE regulations, and School BOARD policies and practices. These include Fla. Stat. ss. 237.01, 235.15, 235.16, 235.18, 235.26(4), 235.31, 200.065(9)(a) and (b), 237.34, Fla. Admin. Code ss. 6A-1.001, 6A-1.011, 6A- 2.022, and Admin. Dir. D-7.10.
The design and construction of the capital improvements at the Summit, North ITV and South ITV M&O facilities violated numerous provisions of Florida Statutes and various building codes, including DOE regulations contained in Section 6A-2. These provisions include Fla. Stat. ss. 235.26, 235.30 and Fla. Admin. Code ss. 6A-2.005, 6A-2.011, 6A-2.023, 6A-2.024, and various provisions of 6A-2, III Part A, including 6A- 2.045(5)(h)(1), (5)(g), (5)(a), (5)(h)(6), and (5)(h)(7).
Respondent, in his role as Associate Superintendent, failed to act as a reasonably prudent person. He was responsible, under SCHOOL BOARD policy 1.01(2) and (4) and according to his job description, to direct and supervise the activities within his Division which led to the above-noted funding improprieties and construction code violations. He failed to act as a reasonable person to insure compliance with state statutes and DOE regulations.
In paragraphs 159 and 160 of the Recommended Order, the Hearing Officer concluded that Petitioners deviated from fair dismissal procedures for employees under Fla. Admin. Code s. 6B- 4.008 for failure to assist Respondent in correcting any alleged incompetent acts. Paragraphs 159 and 160 of the Conclusions of Law are rejected.
Fla. Admin. Code ch. 6B-4 is captioned as "Criteria-Teaching Personnel." Significantly, in Fla. Admin. Code s. 6B-4.008, which is relied upon in the Recommended Order, the specific statutory authorities cited as the basis for the rule, are a) Fla. Stat. s. 229.053(1), which relates generally to the powers of the State Board of Education; and b) Fla. Stat. s. 231.546(2)(a), relating to the powers and duties of the Education Standards Commission, and which states:
The commission shall develop, through the teaching profession, standards of professional practice in areas including, but not limited to, ethical and professional performance.
Members of the teaching profession shall develop and recommend to the commission codes of ethics and professional performance. Upon adoption of such professional standards by the state board, those who practice in this profession shall be obligated to abide by these standards.
(emphasis added).
Accordingly, the provisions of Fla. Admin. Code s. 6B-4.008 apply to the "teaching profession" and are not applicable to an Associate Superintendent - an administrator.
Even if the provisions of s. 6B-4.008 did apply to Respondent, under the circumstances presented in the record, the seriousness of the charges during an on-going internal investigation of his department were sufficient to warrant his demotion after his Weingarten meeting and opportunity to appear at the SCHOOL BOARD meeting to argue the charges. The SCHOOL BOARD determines that these circumstances were sufficiently egregious that an opportunity for improvement would not have been warranted.
The procedures of notifying Mr. SCHRIMSHER of the charges by letter, the charges being heard by the SCHOOL BOARD, and the filing of the formal Notice of Charges before DOAH for a formal hearing, comported with the requirements of Florida law and constitutional mandates. See, Reddick v. Leon County School Board, 405 So. 2d 757 (Fla. 1st DCA 1981).
Fair procedures through his notice of the charges, Weingarten hearings, and presentations to the SCHOOL BOARD were accorded to Mr. SCHRIMSHER relating to this personnel action.
31-A. The first sentence of Paragraph 147 of H.O.R.O., which reads "Petitioners' disciplinary action again Respondent must be taken pursuant to Chapter 231, Florida Statutes" is adopted. The remainder of Paragraph 147 of
H.O.R.O. is rejected and deleted. Under the provisions of Section 230.03(2), Florida Statutes (1993), a school board has full governmental authority and "may exercise any power except as expressly prohibited by the State Constitution or general law." An amendment in the statute in 1983 by the Florida Legislature
(Ch. 83-324, Laws of Florida) effectively recognized and conferred "home rule" status on school boards, and it is no longer held to be necessary for a school board in Florida to have specific legislative authorization for it to exercise a substantive power and take action, so long as that power or action is not in conflict with a state statute. Sulcer v. McFatter, 497 So. 2d 1349 (Fla. 4th DCA 1986); Op. Atty. Gen. 83-72, October 18, 1983. See also, Op. Atty. Gen. 86- 107, December 31, 1986. It is therefore not necessary that a "reasonable man" test of employee conduct be authorized by statute.
Paragraphs 157 and 158 of the Conclusions of Law must be rejected. Mr. SCHRIMSHER had an annual contract with the SCHOOL BOARD for his position as
Associate Superintendent. He was demoted in November, 1991. Therefore, even if he had not been demoted, his contract would have expired effective July 1, 1992, if he had not been renewed. The position was abolished effective July 1, 1992 and he had been so notified.
Accordingly, he could not have been reinstated to a position that no longer existed. Furthermore, the record contains no evidence as to the treatment of other associate superintendents and whether they received comparable positions or salary. By having an annual contract, Respondent had no reasonable expectation or right to comparable employment when his position was abolished.
Finally, for the sake of completeness, we hold that since he had an annual contract and his position was abolished, any backpay would be limited until July 1, 1992, when his annual contract expired. The cases cited by the Hearing Officer in the Recommended Order, Brooks v. School Board of Brevard County, 419 So. 2d 659 (Fla. 5th DCA 1982) and Krueger v. School District of Hernando County, 540 So. 2d 180 (Fla. 5th DCA 1989) are clearly distinguishable on this point. Both cases involved teachers with "continuing contracts." As stated in Krueger, supra,
Krueger has a right to receive back pay for the time she was entitled to receive a salary, pursuant to her contract with the school board.
540 So. 2d at 182 (emphasis added).
Furthermore, the law is clear that "annual contracts are simply permitted to expire at the end of the school year and teachers subject to such a contract have no right to re- employment". See MacPherson v. School Board of Monroe County, 505 So. 2d 682, 683 n.1 (Fla. 3d DCA 1987).
PENALTY AND FINAL AGENCY ACTION
The SCHOOL BOARD has the authority to reject the Hearing Officer's Recommended Order and to increase the penalty imposed on Respondent as long as it reviews the complete Record and states with particularity its reasons for the increase, by citing the Record. Fla. Stat. s. 120.57(1)(b)10. (1993); Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Criminal Justice Standards v. Bradley, 596 So. 2d 661 (Fla. 1992) (where Criminal Justice Standards and Training Commission was found in compliance with s. 120.57(1)(b)(10) when they rejected the recommended penalty of six month suspension for violation of qualifications requirements for correctional officers and instead revoked officer's certificate).
Based on a review of the complete record, for the reasons set forth above as to the finding of incompetency of Mr. SCHRIMSHER and a determination of the lack of competent substantial evidence to support the Hearing Officer's recommended penalty, the SCHOOL BOARD has made the following determination to increase the penalty.
The SCHOOL BOARD hereby approves the demotion of Respondent, J. KENNETH SCHRIMSHER, from Associate Superintendent of Planning and Operations of the SCHOOL BOARD, pursuant to Fla. Stat. s. 231.36(6)(b), to the position of middle school level principal with a corresponding decrease in pay on the basis of the various acts of incompetency due to his actions as set forth herein. Issues of reinstatement and placing him, pursuant to Fla. Stat. s. 231.36(4)(b), on an annual contract for three years are determined to be moot due to Mr.
SCHRIMSHER's untimely death.
The SCHOOL BOARD would reach this determination based on each act of incompetency alone, irrespective of its finding on the other acts, except for the evaluations of the three employees which standing alone, would not have warranted demotion.
Issues of Petitioners' entitlement to and award of its reasonable attorneys' fees, as sanctions for Respondent's failure to admit certain requests for admissions, shall be remanded to the Division of Administrative Hearings for a determination of entitlement and the amount of reasonable fees.
DONE AND ORDERED this 29th day of March, 1994.
THE SCHOOL BOARD OF PALM BEACH COUNTY, FLORIDA
BY:
Dr. Arthur W. Anderson, Chairman
ENDNOTES
1/ For purposes of this Final Order, the following abbreviations have been used:
TITLE OF DOCUMENT ABBREVIATION
Petitioners' Proposed Recommended Order Petrs. P.R.O. Respondent's Proposed Recommended Order Resps. P.R.O. Hearing Officer's Recommended Order H.O.R.O.
Transcript of final hearing
(November 16 to November 25, 1992) Tr.
Petitioners' Exhibits P.E.
Composite Petitioners' Exhibits Comp. P.E.
Respondent's Exhibits R.E.
Petitioners' First Request for Admissions with Respondent's Answers contained within
P.E. 903 F.R.A.
Petitioners' Second Request for Admissions with Respondent's Answers contained within
P.E. 903 S.R.A.
Depositions are referenced by the person's
name depo at
(page number)
2/ The bias of Mr. Thomas Mills, former Superintendent, in favor of Mr. SCHRIMSHER in this hearing is very apparent. Mr. Mills retired as Superintendent on June 30, 1991 (Tr. 968), and the vast majority, if not all of the charges against Respondent occurred during Mr. Mills' tenure. Although this was Mr. SCHRIMSHER's demotion hearing, significant charges in the proceeding were a reflection on and an attack of Mr. Mills' administration. For whatever reasons, Mr. Mills wanted Mr. SCHRIMSHER to be the next Superintendent. (Tr.
2932). To achieve this goal, two days before he retired, Mr. Mills signed the evaluation of Mr. SCHRIMSHER at the "above expectation" level (Tr. 2931, 2995- 2996; R.E. 105), even though Mr. SCHRIMSHER did not meet the criteria set forth in the SCHOOL BOARD's approved APMS guidelines. (S.R.A. 86; P.E. 108(b)). Mr. Mills' explanation to justify his clear departure from the requirements of an evaluation, that it was his right as the Superintendent and nobody else's right (Tr. 2998-3000), is a further demonstration of his lack of impartiality and his strong prejudice in favor of Respondent. The failure of the SCHOOL BOARD to credit most of his testimony originates, in part, from the finding of bias and the observation that he was clearly attempting to "justify" the Respondent's actions as stated above.
3/ These figures were later restated in a February 9, 1987 internal memorandum which noted $3.6 million was budgeted for construction and site development and only $150,000 was budgeted for land. (P.E. 11; Tr. 383-389, 2053).
4/ Whether this reputation of Mr. Knight is supported by the rejected, but proffered testimony of Michael Kuhle (Tr. 778-787), the late filed and rejected, but proffered deposition testimony of Stephen Corn and Robert Cox, and the rejected, but proffered, newspaper articles relating to Mr. Knight is an unanswered proposition as they are not considered as part of the evidence. (P.E. 316). This BOARD believes that this ruling is erroneous, however, the proffered newspaper articles and related depositions and testimony have been denied admittance into evidence on motion of the Petitioners, herein, for admission.
The problem of a remand is one that we do not wish to face through a contrary ruling. We have not, therefore, considered the rejected exhibits or testimony in our deliberations.
However, public employees, such as Mr. SCHRIMSHER, cannot use the "ostrich principle" to justify their behavior. A public employee, who is about to make important decisions about the expenditure of hundreds of millions of dollars of public funds to vendors, does not, in prudence, go fishing on boats of an allegedly unknown person and then do so again after spending two full days with such person while still, allegedly, not knowing what said person's full occupation consisted of, all of which Mr. SCHRIMSHER has claimed.
5/ When Jim Knight prepared the chronology, he believed the information contained in it was true. (Tr. 517). This document was not provided to Petitioners by Mr. Knight pursuant to rulings in this proceeding, but was obtained by Petitioners from counsel for Mr. Knight's partner in KEI, Mr. Mitsui, a Japanese investor. (Tr. 1271).
6/ John Bills is the individual whose corporate entity Royal Palm Beach Industrial Park, Inc., had contracted with the SCHOOL BOARD on February 1, 1989 for the sale of property for the West Central Bus Compound. (P.E. 336).
7/ Although the SCHOOL BOARD, in February 1989, was considering purchasing only
acres of the KEI property, William Knight was, in mid-February, already representing to Charles Edgar, III, the attorney for Mr. Mitsui of Sansei, the
Japanese investor in KEI, that the SCHOOL BOARD negotiations concerned 16 acres. (P.E. 578(e); Tr. 1268-1274).
8/ The certified copy of the zoning resolutions, sets forth 25 requirements as conditions of approval. This clearly impeached Mr. Knight's testimony that these conditions were crossed out of the October 11, 1989 contract as they were no longer required by the County.
9/ The appraisal for Calloway and Price on this property was dated August 15, 1988. (P.E. 752; Tr. 1498).
10/ This concern eventually has become an even greater problem for the SCHOOL BOARD as site plan approval, at the time of the close of evidence, still had not been obtained from the Village for this site. (Tr. 1235). The planning staff was not consulted prior to purchase in order to report anticipated off-site impacts. (Tr. 1262). The Village is now requiring the SCHOOL BOARD to build a wall on the property (Tr. 1236, 1257-1258), and the Village is seeking that the SCHOOL BOARD pay for a traffic light in addition to road and intersection improvements on State Road 441. (Tr. 1236, 1260-1261, 1709, 1781).
11/ Originally, Calloway and Price had evaluated the property at $570,000, but it re-evaluated the property at $715,000 and brought Robert Skakandy the new pages to replace the original ones. (Tr. 1489). A person looking at the re- evaluation would never know it to be such. The person would have considered it to be an original appraisal.
12/ This report was presented to the SCHOOL BOARD at a capital project workshop on July 29, 1991. (P.E. 77).
13/ Dr. Daniels had testified on Respondent's case in chief, that the State Attorney's investigation had found no wrongdoing by Mr. SCHRIMSHER regarding the G-604's (Tr. 2512, 2572-2573), and Mr. Mills testified that Mr. SCHRIMSHER's department had been frequently investigated, including by the State Attorney, but he investigations came up with "nothing." (Tr. 2932). This exhibit clearly impeaches this testimony and finds that the "administrative staff clearly appears to have violated SCHOOL BOARD policy". This is a prime example of conclusory oral testimony being in conflict with documentary evidence, which is unimpeachable We know of no way to accept the former and reject the latter - unless we totally abused our power.
14/ This figure remained constant in the February 9, 1987 memorandum on District Center projects. (P.E. 11).
15/ (a) Even if this discussion by David Lord occurred, the record reflects that:
there was no BOARD report on this matter (Tr. 1838);
the SCHOOL BOARD took no vote - there was only a "consensus" (Tr. 2884);
the SCHOOL BOARD was not advised of the budget of the project (Tr. 1826, 1829);
the SCHOOL BOARD was not told that Florida Statutes or Department of Education regulations would be violated with this project as to day laborers, funding, or building codes (Tr. 1829-1831);
the violations at Summit occurring before this meeting (the work orders and mezzanine specifications) were not explained;
this meeting does not explain the same type of construction code and funding violations at the North ITV site and similar construction code violations at the South ITV Shop; and
no legal explanation appears in the record to justify the failure to obtain a budget amendment by no later than the filing of the financial statements after the fiscal year to authorize the work (Fla. Admin. Code s. 6A- 1.006(3)).
Thus, the SCHOOL BOARD never officially acted and approved a budget or Budget amendment for this work.
Mr. Mills had testified that he would have expected that the improvements comply with the Florida Statutes and DOE regulations. (Tr. 3015).
In addition, by memorandum dated September 26, 1989, Mr. SCHRIMSHER knew shop offices at Summit would be completed in late December, and certain trades would not be relocated until March, 1990. (P.E. 29; Tr. 1831-1833). In fact, some of the employees, including the electronics trade, did not move into Summit until March, 1990. (Tr. 1833; S.R.A. 29). Furthermore, work orders reflect that maintenance employees commenced work on the Summit internal improvements well before the need to move from Northshore developed, and as early as June, 1989 (P.E. 20, P.E. 102 at Exh. A; Tr. 2685, 2687-2688, 2698- 2702), and the mezzanine and modular office specifications went out to bid on September 27, 1989. (P.E. 36; Tr. 1834-1835, 2683-2685). Furthermore, the same funding and building code problems, which occurred at Summit, also occurred at the North ITV site.
16/ For Mr. SCHRIMSHER or the M&R department employees to believe that they could construct the improvements in the Summit facility under Part B of 6A-2, Fla. Admin. Code, was not a reasonable decision or interpretation. (Fla. Admin. Code ss. 6A- 2.076(c), 6A-2.003(1)(2), 6A-2.045(2); Tr. 1610, 2370-2372; P.E.
149 S. Marshalll depo. at 15-18).
The testimony that the SCHOOL BOARD's general counsel, in reviewing the matter in January, 1991 believed that Part B applied, as expressed in Mr. Mills' letter, responding to Suzanne Marshalll (Tr. 1808, 1880, 1894, 1924, 2497, 2641- 2643), is rejected by the terms of the letter which makes no reference to Part
(P.E. 69). Even if the general counsel took that position in January, 1991, the opinion of the general counsel at that time is irrelevant to the propriety of Mr. SCHRIMSHER's conduct during the construction of these improvements in late 1989 and early 1990. There is no evidence that Ms. Hairston was aware of these improvements and their non-compliance with the Code before or during the time of their construction.
The claim that the employees proceeded to do the improvements under Part B (Tr. 2638-2639, 2670) is an attempt to justify, after-the-fact, their conduct. The April, 1990 profs message, which was sent over two months before the DOE demonstration at the facility, demonstrates a recognition by those employees that the improvements were not in compliance with the building codes. (P.E. 54; Tr. 2672-2675).
17/ As stated in the introductory index to ch. 6A-2 of the Department of Education Rules for Educational Facilities, Section A (Part A) commences at s. 6A-2.045 and continues through s. 6A- 2.072. Section B (Part B) commences at s. 6A-2.076 and continues through s. 6A-2.170.
18/ It is not found that Respondent should have been intimately involved with the details of the project. As a manager and supervisor, however, he had to have adequate reporting mechanisms and controls in place, to be sufficiently apprised of the status of projects in order to be informed and to be able to detect problems and deviations from the norm.
APPEAL OF FINAL ORDER
Any party to this Final Order has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the School Board and a copy of the Notice of Appeal together with the applicable filing fee with the appropriate Florida District Court of Appeal, within thirty (30) days from the date this Final Order is filed with the Clerk of the School Board of Palm Beach County, Florida.
Filed in Official School Board Records with the Clerk of the School Board of Palm Beach County, Florida, this 31st day of March, 1994.
Patricia F. Cobb
Clerk of the School Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to all counsel and parties on the attached Service List, this 4th day of April, 1994.
Alicia M. Hightower Patricia F. Cobb
SERVICE LIST
SCHOOL BOARD v. SCHRIMSHER DOAH CASE NO.: 91-8262 SCHOOL BOARD CASE #91/92-010
CLERK OF ADMINISTRATIVE HEARINGS (2-copies)
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
DONALD FELDMAN, ESQUIRE BRUCE A. HARRIS, ESQUIRE
Weiss and Handler, P.A.
One Boca Place - Suite 218-A 2255 Glades Road
Boca Raton, Florida 33431
JOHN T. CHRISTIANSEN, ESQUIRE NEIL JAGOLINZER, ESQUIRE
Christiansen, Jacknin and Tuthill
Suite 1010 NCNB Tower
1555 Palm Beach Lakes Boulevard
P.O. Box 3346
West Palm Beach, Florida 33401
DR. BERNARD SHULMAN
Deputy Superintendent Wing "C"
3318 Forest Hill Boulevard
West Palm Beach, Florida 33406-5813
CYNTHIA PRETTYMAN, ESQUIRE
General Counsel
Palm Beach County School Board Wing "C"
3318 Forest Hill Boulevard
West Palm Beach, Florida 33406-5813
MARNIE RITCHIE PONCY, ESQUIRE
Nicoletti Block Duffy Poncy and Kohn, P.A.
317 Tenth Street
West Palm Beach, Florida 33401-3317
DOUGLAS K. SANDS, ESQUIRE
Douglas K. Sands, P.A.
300 Colorado Avenue Post Office Box 287 Stuart, Florida 34995
================================================================= DISTRICT COURT ORDER
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACK KENNETH SCHRIMSHER, JR., CASE NO. 94-00781
et al. L.T. CASE NO 91/92-010 PALM BEACH
Petitioner(s), DOAH CASE NO. 91-8262
vs.
SCHOOL BOARD OF PALM BEACH
COUNTY, etc., et al
Respondent(s).
/ April 22, 1994
BY ORDER OF THE COURT:
ORDERED that petitioners' Motion for Immediate Entry of Order Granting Writ of Mandamus and for Attorneys' Fees filed April 19, 1994, is hereby denied.
I hereby certify the foregoing is a true copy of the original court order.
MARILYN BEUTTENMULLER CLERK.
cc: Neil B. Jagolinzer Donald Feldman Douglas K. Sands Cynthia S. Prettyman
Clerk of Administrative Clerk of the School Board Dr. Bernard Shulman Marnie Ritchie Poncy
=================================================================
ORDER ON REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PALM BEACH ) COUNTY, FLORIDA, and DR. C. ) MONICA UHLHORN, SUPERINTENDENT ) OF SCHOOLS, )
)
Petitioners, )
)
vs. ) CASE NO. 91-8262
) JACK KENNETH SCHRIMSHER, JR., ) and LEWIS W. FRIEND, as )
Co-Personal Representatives of ) the Estate of JACK KENNETH )
SCHRIMSHER, Deceased, )
)
Respondents. )
)
ORDER ON REMAND
THIS CAUSE came on for consideration upon the Final Order entered by Petitioner, School Board of Palm Beach County, Florida ("Petitioner"), on March 29, 1994 (the "Final Order"). Paragraph 3, page 121, of the Final Order states:
Issues of Petitioners' entitlement and award of its reasonable attorneys' fees, as sanctions for Respondent's failure to admit certain requests for admissions, shall be remanded to the Division of Administrative Hearings for a determination of entitlement and the amount of reasonable fees.
1. Jurisdiction
Respondents petitioned for judicial review of the Final Order pursuant to Section 120.68(2), Florida Statutes. 1/ A Notice Of Administrative Appeal was filed with the undersigned on April 22, 1994.
Respondents' petition for judicial review does not stay enforcement of the Final Order. Section 120.68(3)(a). A motion for stay, authorized in Section 120.68(3)(a), has not been filed with the undersigned, and the undersigned has received no notice that a motion for stay has been filed with the reviewing court. The automatic stay provided in Rule 9.310(b)(2), Florida Rules of Appellate Procedure, is inapplicable because a "public body" has not petitioned for judicial review. Therefore, the undersigned has jurisdiction to determine:
Issues of Petitioners' entitlement to and award of its reasonable attorneys fees, as sanctions for Respondent's failure to admit certain requests for admissions . . . .
Final Order at para. 3, page 121. 2. Section 120.57(1)(b)5
Petitioner claims attorney fees and costs pursuant to Petitioners' Motion For Award Of Attorneys' Fees And Costs, filed on April 15, 1993, with its proposed recommended order (the "Motion"). Petitioner's Motion asserts the following claim:
. . . Petitioners assert two grounds as the basis for this Motion - Fla. Stat. [Sec.] 120.57(1)(b)(5) (sic) and as a discovery sanction based on Respondent's denials of numerous requests for admissions.
First, based on the overwhelming weight of the evidence Petitioners presented at trial, Respondent has no good faith defense to the Petition and Amended Petition. Respondent's filing of the Answers and other pleadings were not in good faith, and an award of attorney's fees to Petitioners is warranted under Fla. Stat. [Sec.] 120.57(1)(b)(5) (sic).
Secondly, Petitioners had served two (2)
Requests for Admissions to Respondent, and Respondent denied most of the material requests, which mirrored many of the allegations in the Petition and Amended Petition for Demotion. These Requests for Admissions and the Petition for Demotion were filed as Exhibit 903 (Tr. at 1805-09) for purposes of determining liability issues.
To the extent Petitioners were successful in proving, through the Final Hearing, any of these allegations, Petitioners are entitled to an award of attorneys' fees and costs as sanctions against Respondent. . . .
Motion at 1-2.
Petitioner's Motion cites no authority other than Section 120.57(1)(b)5 for the "discovery sanction" and "sanctions" referred to in the Motion. Similarly, the Final Order cites no authority for the "sanction" referred to in the remand.
The purpose of Section 120.57(1)(b)5 is to impose an appropriate "sanction" for a pleading, motion, or other paper interposed for an improper purpose.
Mercedes Lighting And Electrical Supply, Inc. v. State, Department of General Services, 560 So. 2d 272, 279 (Fla. 1st DCA 1990). If Respondent, Jack Kenneth SCHRIMSHER ("Respondent"), denied requests for admissions for an improper purpose, the reference to "Answers and other pleadings" (emphasis supplied) is broad enough to include denials to requests for admissions. If the requirements of Section 120.57(1)(b)5 are otherwise satisfied, the sanctions sought in Petitioner's Motion and in the remand in the Final Order are authorized in Section 120.57(1)(b)5.
2.01 Motion Is Not Timely
Petitioner's claim for sanctions under Section 120.57(1)(b)5 is not timely.
Petitioner has a duty to reduce its expenses by objecting at its earliest opportunity to "Answers and other pleadings" allegedly interposed for an improper purpose within the meaning of Section 120.57(1)(b)5. Mercedes Lighting, 560 So. 2d at 279. Petitioner waited until the conclusion of the formal hearing to seek sanctions against Respondent.
The purpose of the sanctions authorized in Section 120.57(1)(b)5 is to induce compliance with the rules of discovery, not to punish the losing party. Id. That purpose is not well served if an offending pleading is fully litigated and the offending party is not punished until the formal hearing is at an end.
Mercedes Lighting, 560 So. 2d at 277.
2.02. Goals Of The Administrative Proceeding
Petitioner claims that Respondent's "Answers and other pleadings" had no basis in fact. The Motion asserts:
. . . based on the overwhelming weight of the evidence Petitioners presented at trial, Respondent has no good faith defense to the Petition and Amended Petition. Respondent's filing of the Answers and other pleadings were not in good faith, and an award of attorney's fees to Petitioners is warranted under Fla. Stat. [Sec.] 120.57(1)(b)(5) (sic).
See, Motion at 1-2.
The definition of an improper purpose does not reach the issue of whether pleadings, motions, or other papers are well grounded in fact or law. Mercedes Lighting, 560 So. 2d at 278 (reversing hearing officer's finding that a pleading is interposed for an improper purpose if an action is factually and legally without merit). The definition of an improper purpose is not intended to chill a party's enthusiasm or creativity in pursuing factual or legal theories. Cf.
Mercedes Lighting, 560 So. 2d at 276 (discussing the stricter test under the federal rule). Rather, an improper purpose is one that is of little significance or importance to the goal of the administrative proceeding.
Mercedes Lighting, 560 So. 2d at 278.
One goal of a proceeding conducted pursuant to Section 120.57(1) is to give a party an opportunity to "attack the agency's position by appropriate means." Mercedes Lighting, 560 So. 2d at 278 (citing State Department of Health and Rehabilitative Services v. Barr, 359 So. 2d 503 (Fla. 1st DCA 1978)).
Respondent attacked Petitioner's position by appropriate means and, therefore, used the administrative proceeding for a proper purpose.
Contrary to Petitioner's assertion, the determination of whether Respondent participated in this proceeding for an improper purpose is not based on the "evidence Petitioners presented at trial." (emphasis supplied) See, Motion at 1-2. Rather, the relevant determination is based on the evidence presented by Respondent and Respondent's conduct during the proceeding. For example, a party participates in a proceeding for an improper purpose when the party fails to call witnesses in the party's own behalf, nominally attempts to create an issue by cross examining witnesses, or otherwise fails to show facts needed to sustain the pleadings. Cf. Kisling v. Wooldridge, 397 So. 2d 747, 748 (Fla. 5th DCA 1981); White v. The Montebello Corporation, 397 So. 2d 326 (Fla. 5th DCA 1981); Hernandez v. Leiva, 391 So. 2d 292 (Fla. 3d DCA 1980).
Respondent called witnesses and submitted exhibits in his own behalf. Respondent persuasively and successfully cross examined witnesses called by Petitioner. Respondent did not nominally create issues through cross examination. The purpose for which Respondent presented evidence, cross examined witnesses, and contested Petitioner's discovery and evidence was significant and important to the goals of the administrative proceeding as those goals were defined by Petitioner's allegations of incompetency in the Amended Petition For Demotion (the "Amended Petition").
Petitioner asserts that the issue of whether Respondent denied Petitioner's requests for admissions for an improper purpose should be based on the "overwhelming weight of evidence Petitioners presented at trial." (emphasis supplied) See, Motion at 1-2. As previously stated, Petitioner's assertion incorrectly defines an improper purpose. Even if the weight of evidence were a factor to be considered in determining an improper purpose, it would be the
weight of all of the evidence, not just that of Petitioner, as that weight is determined by the hearing officer.
It is the hearing officer's function to determine the proper weight to be accorded evidence presented by the parties, to judge the credibility of witnesses, and to draw permissible inferences. Gordon v. State Commission On Ethics, 609 So. 2d 125, 127-128 (Fla. 4th DCA 1992); Asphalt Pavers, Inc. v.
State, Department Of Transportation, 602 So. 2d 558, 561 (Fla. 1st DCA 1992); Goss v. District School Board Of St. Johns County, 601 So. 2d 1232, 1234 (Fla. 5th DCA 1992); Greseth v. Department Of Health And Rehabilitative Services, 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991); Tuveson v. Florida Governor's Council On Indian Affairs, 495 So. 2d 790, 793 (Fla. 1st DCA 1986); Heifetz v. Department Of Business Regulation, Division Of Alcoholic Beverages and Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Westchester General Hospital v. Department Of Health And Rehabilitative Services, 419 So. 2d 705, 707-708 (Fla. 1st DCA 1982); School Board Of Leon County v. Hargis, 400 So. 2d 103, 107 (Fla. 1st DCA 1981). A hearing officer's determination of the credibility of witnesses and the proper weight to be accorded evidence should not be overturned. Tuveson, 495 So. 2d at 793; Glover v. Sanford Child Care, Inc., 429 So. 2d 91, 92 (Fla. 5th DCA 1983); Wash and Dry Vending Company v. State, Department Of Business Regulation, Division Of Alcoholic Beverages And Tobacco, 429 So. 2d 790, 792 (Fla. 3d DCA 1983); Leapley v. Board Of Regents, Florida State University System, 423 So. 2d 431, 432 (Fla. 1st DCA 1982).
Even if the standard erroneously asserted by Petitioner is applied to the administrative proceeding, including the weight accorded the evidence presented by both parties, the credibility of their witnesses, and any permissible inferences, Respondent showed facts necessary to sustain his answers and pleadings, including his denials of Petitioner's requests for admissions.
Respondent did so by appropriate means that were significant and important to the goals of the administrative proceeding as those goals were defined by Petitioner's allegations of incompetency.
2.03 Reasonably Clear Justification
Petitioner asserts that Respondent's denials of the requests for admissions were not made in good faith. Petitioner argues:
. . . Respondent has no good faith defense to the Petition and Amended Petition.
Respondent's filing of the Answers and other pleadings were not in good faith . . . .
(emphasis supplied) See, Motion at 2.
An analysis of the good faith or bad faith of attorneys or parties is irrelevant to a determination of whether "Answers and other pleadings" are interposed for an improper purpose. Mercedes Lighting, 560 So. 2d at 278. If a reasonably clear legal justification can be shown for Respondent's denials, an improper purpose can not be found, and an award of fees and costs is inappropriate. Mercedes Lighting, 560 So. 2d at 278; Good Samaritan Hospital v. Department Of Health And Rehabilitative Services, 582 So. 2d 722, 724-725 (Fla. 4th DCA 1991) (citing Mercedes Lighting at 724).
In the Petition and Amended Petition, Petitioner charged Respondent with incompetency but not immorality or misconduct ("misconduct"). See, Recommended
Order, paras. 30 and 134-135. Misconduct and incompetency are separate grounds for discipline. Section 231.36(6)(b). A school board can not expand the scope of an administrative hearing to address and determine matters not previously noticed for hearing. MacMillan v. Nassau County School Board, 629 So. 2d 226,
229 (Fla. 1st DCA 1993) (citing Epic Metals Corporation v. Samari Lake East Condominium Association, Inc., 547 So. 2d 198 (Fla. 3d DCA 1989); Conklin Center
v. Williams, 519 So. 2d 38 (Fla. 5th DCA 1987)). Such an expansion of the scope of an administrative proceeding would violate a respondent's due process rights. MacMillan, 629 So. 2d at 229. See also, Good Samaritan Hospital, 582 So. 2d at 724 (upholding dismissal of allegations not included in administrative complaint).
A substantial portion of Petitioner's prehearing discovery and Petitioner's evidence presented during the formal hearing concerned alleged misconduct rather than incompetency. See, e.g., Final Order, Appendix A (in which Petitioner deletes the finding in para. 135 of the Recommended Order that Petitioner did not present evidence of other grounds for disciplinary action). Petitioner's discovery and evidence concerning misconduct was not significant and important to the goals of the administrative proceeding, as those goals were defined by allegations of incompetency in the Amended Petition. Therefore, Respondent had a reasonably clear legal justification for denying any requests for admissions pertaining to misconduct.
Petitioner attempted to circumvent its failure to charge Respondent with misconduct through a legal argument. Petitioner argued that a broad standard of conduct characterized by Petitioner as the "reasonable man" test was the proper test for incompetency. Cf. Forehand v. School Board of Washington County, 481 So. 2d 953, 956-957 (Fla. 1st DCA 1986) (an agency can not claim expert insight in a dismissal proceeding in general and, in particular, not in dismissal proceedings based upon an alleged breach of a "broad standard of conduct"). See also, Cohn v. Department of Professional Regulation, 477 So. 2d 1039, 1046 (Fla. 3d DCA 1985) (cited in Forehand).
Petitioner argued that the "reasonable man" standard is the proper test for incompetency and that the "reasonable man" standard is violated by acts of misconduct. Petitioner engaged in discovery concerning misconduct and submitted extensive evidence during the formal hearing to show Respondent's purported misconduct. If Respondent was guilty of misconduct, Petitioner argued that Respondent violated the "reasonable man" test for incompetency.
By applying the "reasonable man" test, Petitioner attempted to equate evidence of purported misconduct with incompetency and thereby expand allegations of incompetency in the Amended Petition to include alleged acts of misconduct. An expansion of the scope of the administrative proceeding beyond the charges of incompetency for which Respondent was noticed in the Amended Petition would violate Respondent's due process rights. MacMillan, 629 So. 2d at 229; Good Samaritan Hospital, 582 So. 2d at 724.
Petitioner's attempt to apply a broad standard of conduct such as the "reasonable man" test to equate misconduct with incompetency was rejected by the undersigned for the reasons stated in the Recommended Order. See, Recommended Order at paras. 147-155. For the same or similar reasons stated in the Recommended Order, Respondent had a reasonably clear justification for the "Answers and other pleadings" challenged in Petitioner's Motion, including the denials of Petitioner's requests for admissions pertaining to incompetency.
One of the purposes of a proceeding conducted pursuant to Section 120.57(1) is to give persons affected by proposed agency action an opportunity to change the agency's mind. Mercedes Lighting, 560 So. 2d at 278 (citing Groves-Watkins Constructors v. State, Department of Transportation, 511 So. 2d 323, 329 (Fla.
1st DCA 1987) rev. on other grounds, 530 So. 2d 912 (Fla. 1988)). If Petitioner chose in its Final Order to disregard evidence presented by Respondent, to consider purported evidence of misconduct as evidence of incompetency, and to apply a legal standard other than that asserted by Respondent, Petitioner's action does not transform a reasonably clear justification into an improper purpose. The fact that one party's position is adopted over that of the other party is not an appropriate basis for imposing a discovery sanction pursuant to Section 120.57(1)(b)5. Mercedes Lighting, 560 So. 2d at 279.
3. Rule 1.380(c)
Rule 1.380(c), Florida Rules of Civil Procedure, 2/ authorizes Petitioner to apply for an order requiring Respondent to pay reasonable expenses incurred to prove the genuineness of any document or the truth of any matter requested to be admitted pursuant to Rule 1.370. If the requirements of Rule 1.380(c) are otherwise satisfied, the sanctions sought by Petitioner may authorized by Rule 1.380(c).
Facial Invalidity
The purpose of Rule 1.380(c) is to compel discovery. Stokes v. Clark, 390 So. 2d 489, 491 (Fla. 1st DCA 1980). A motion to compel discovery is required in Florida Administrative Code Rule 60Q-2.019(3) 3/ to quote each request for admission verbatim and to include a statement of the ground supporting each specific request for admission. Neither the request for admission nor the supporting ground may be stated generally. Petitioner's Motion fails to comply with the requirements of Rule 60Q-2.019(3) and is invalid on its face.
Good Reason
Rule 1.380(c) requires not only that Petitioner prove the issue denied but also that there was no reasonable ground to believe that Respondent might prevail on the issues included in the requests for admissions. Stokes, 390 So. 2d at 491. See also, Shaw v. State ex rel. Butterworth, 616 So. 2d 1094, 1095- 1096 (Fla. 4th DCA 1993) (reaching a similar result following 1984 amendments to Rule 1.380(c)). For the reasons stated in the discussion concerning Section 120.57(1)(b)5, Respondent had a reasonable ground to believe he might prevail on the issues raised in the requests for admissions. For similar reasons, Respondent had "good reason," within the meaning of Rule 1.380(c), to deny the requests for admissions.
As Petitioner acknowledges in its Motion, the "Requests for Admissions . .
. were filed . . . for purposes of determining liability issues." See, Motion at 2. The fact that Respondent denied admissions requested to prove his liability and Petitioner later found Respondent to be liable does not provide a basis for imposing fees and costs against Respondent. See, Stokes, 390 So. 2d at 491 (holding that defendant's denial of request to admit negligence followed by finding of negligence does not entitle plaintiff to fees and costs under Rule 1.380(c)); See also, Butterworth, 616 So. 2d at 1095-1096. Petitioner is not entitled to attorney fees and costs simply because Respondent refused to admit himself out of the administrative proceeding. Butterworth, 616 So. 2d at 1095- 1096.
The purpose of Rule 1.380(c) is not to establish a foundation for the assessment of attorney fees and costs. Stokes, 390 So. 2d at 491. The purpose of the rule is to compel discovery and to penalize those who fail to comply with those rules. Id. If Petitioner chose in its Final Order to disregard the evidence presented by Respondent, to consider purported evidence of misconduct as evidence of incompetency, and to apply a legal standard other than that asserted by Respondent, it does not transform a reasonable ground to believe Respondent might prevail on his denial of the requests for admissions into a failure to comply with the rules of discovery.
Final Order
Claim Against Agency Under Section 120.57(1)(b)5
An order awarding attorney fees and costs against an agency, pursuant to Section 120.57(1)(b)5, is a final order. Department Of Health and Rehabilitative Services v. S.G., 613 So. 2d 1380, 1384 (Fla. 1st DCA 1993).
Review of such an order is conducted by the appropriate district court of appeal. Id.
Claim By Agency Under Section 120.57(1)(b)5
An order denying an agency's claim for attorney fees and costs is no less final than an order assessing such fees and costs against the agency. It would be "fundamentally unfair to accord [the] agency a final say on the issue" of attorney fees and costs. Cf. S.G, 613 So. 2d at 1384.
Claim By Agency Under Rule 1.380(c)
Considerations that give an order entered pursuant to Section 120.57(1)(b)5 the force and effect of a final order are no less applicable to an order entered pursuant to Rules 1.380(c) and 60Q-2.019(4). It would be "fundamentally unfair to accord [the] agency a final say on the issue" of attorney fees and costs.
Cf. S.G, 613 So. 2d at 1384.
Alternative To Final Order
The issues of whether Respondent denied Petitioner's requests for admissions for an improper purpose or whether Respondent had good reason for his denials are issues of fact. Moreover, they are issues of fact that are susceptible of ordinary means of proof and for which Petitioner does not possess special insight or expertise.
Issues of fact that have been found to be susceptible of ordinary means of proof, and within the province of the hearing officer, can be infused with complexity, opinion, and policy considerations. See, e.g., Dade County Police Benevolent Association v. City of Homestead, 444 So. 2d 465, 472 n. 3 (Fla. 3d DCA 1984) (for cases decided prior to 1984). Compare, Public Relations Commission v. Dade County Police Benevolent Association, 467 So. 2d 987, 989 (Fla. 1985) (holding that proper application of the law of agency is an issue of law and not one of fact). An agency may not reject a finding that is "substantially" one of fact simply by characterizing it as an issue of law.
Gordon, 609 So. 2d at 127); Burke v. Harbor Estates Associates, Inc., 591 So. 2d 1034, 1037 (Fla. 1st DCA 1991); Greseth, 573 So. 2d 1006-1007; Department of Labor and Employment Security v. Little, 588 So. 2d 281, 282 (Fla. 1st DCA 1991); South Florida Water Management District v. Caluwe, 459 So. 2d 390, 395 (Fla. 4th DCA 1984).
The issue of whether a party participates in a proceeding for an improper purpose is an issue of fact. See, Burke, 591 So. 2d at 1037 (involving an improper purpose within the meaning of Section 120.59(6) and citing Mercedes Lighting, involving Section 120.57(1)(b)5, in n.1 at 1037). See also, Dolphins Plus v. Residents Of Key Largo Ocean Shores, 598 So. 2d 324 (Fla. 3d DCA 1992). Similarly, the issue of whether a party has good reason to deny a request for admission is an issue of fact. Stokes, 390 So. 2d at 491 (trial court's finding that defendant had a reasonable ground to believe he might prevail will not be overturned where there is competent and substantial evidence to support the finding and no showing of abuse of discretion). See also, Butterworth, 616 So. 2d at 1095-1096.
Factual issues to which Petitioner does not possess special insight are the prerogative of the hearing officer. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1337 (Fla. 3d DCA 1986); Burke, 591 So. 2d at 1037 (citing Heifetz, 475 So. 2d at 1281; McDonald v.
Department of Banking and Finance, 346 So. 2d 569, 579 (Fla. 1st DCA 1977)). A school board's claim of special insight or expertise is not applicable to dismissal proceedings in general and, in particular, not to dismissal proceedings based upon an alleged breach of a broad standard of conduct such as the "reasonable man" test asserted by Petitioner. Forehand 481 So. 2d at 957. The issue of whether a school board employee deviates from a broad standard of conduct is an issue of fact that is clearly within the realm of the hearing officer's discretion. Holmes v. Turlington, 480 So. 2d 150, 152 (Fla. 1st DCA 1985). Moreover, Petitioner has made no claim of special insight or expertise in determining whether Respondent had good reason to deny Petitioner's requests for admission.
In the absence of special insight or expertise, an agency can not substitute its findings for findings that can be reasonably inferred from competent and substantial evidence. Crawley v. Department Of Highway Safety And Motor Vehicles, 616 So. 2d 1061, 1063 (Fla. 1st DCA 1993); Schumacher v.
Department Of Professional Regulation, Division Of Real Estate, 611 So. 2d 75,
76 (Fla. 4th DCA 1992); Asphalt Pavers, Inc., 602 So. 2d at 561; Goss, 601 So. 2d at 1234; Turlington, 480 So. 2d at 152; Brevard County Sheriff's Department
v. Florida Commission On Human Relations, 429 So. 2d 1235, 1237 (Fla. 5th DCA 1983). If findings of the hearing officer can be reasonably inferred from competent and substantial evidence, the agency can not substitute its findings for those of the hearing officer merely because the agency's findings are also supported by competent and substantial evidence. MacMillan, 629 So. 2d at 228- 229; Asphalt Pavers, 602 So. 2d at 561; Heifetz, 475 So. 2d at 1281; Westchester General Hospital, 419 So. 2d at 708.
Having reviewed the record in this proceeding and considered the premises, it is,
ORDERED that Petitioners' Motion For Award Of Attorneys Fees And Costs, filed on April 15, 1993, is DENIED.
DONE and ORDERED this 29th day of April, 1994, in Tallahassee, Leon County, Florida.
DANIEL MANRY
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 Administrative Hearings this 29th day of April, 1994.
ENDNOTES
1/ All statutory references are to Florida Statutes (1993).
2/ All references to Rule 1.380(c) or Rule 1.370 are to Florida Rules of Civil Procedure (1993).
3/ All references to Rule 60Q-2.019 are to Florida Administrative Code (1993).
COPIES FURNISHED:
Donald Feldman, Esquire Bruce A. Harris, Esquire Weiss and Handler, P.A.
One Boca Place, Suite 218-A Boca Raton, Florida 33431
John T. Christiansen, Esquire Neil Jagolinzer, Esquire Christiansen, Jacknin and Tuthill Suite 1010 NCNB Tower
1555 Palm Beach Lakes Boulevard
P.O. Box 3346
West Palm Beach, Florida 33401
Dr. Monica C. Ulhorn, Superintendent Palm Beach County School Board
3340 Forest Hill Boulevard, Suite C320 West Palm Beach, Florida 33406-5869
Dr. Bernard Shulman Deputy Superintendent Wing "C"
3318 Forest Hill Boulevard
West Palm Beach, Florida 33406-5813
Cynthia Prettyman, Esquire General Counsel
Palm Beach County School Board Wing "C"
3318 Forest Hill Boulevard
West Palm Beach, Florida 33406-5813
Marnie Ritchie Poncy, Esquire
Nicoletti Block Duffy Poncy and Kohn, P.A.
317 Tenth Street
West Palm Beach, Florida 33401-3317
Douglas K. Sands, Esquire Douglas K. Sands, P. A.
300 Colorado Avenue Post Office Box 287 Stuart, Florida 34995
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
================================================================= DISTRICT COURT ORDER
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACK KENNETH SCHRIMSHER, JR., CASE NO. 94-00781
et al. L.T. CASE NO 91/92-010 PALM BEACH
Petitioner(s), DOAH CASE NO. 91-8262
vs.
SCHOOL BOARD OF PALM BEACH
COUNTY, etc., et al
Respondent(s).
/ May 13, 1994
BY ORDER OF THE COURT:
ORDERED that the Petition for Writ of Mandamus filed March 22, 1994, is hereby denied; further,
ORDERED that respondents' Request for Oral Argument filed April 18, 1994, is hereby denied; further,
ORDERED that petitioners' Motion for Attorneys' Fees filed April 28, 1994, is hereby denied.
I hereby certify the foregoing is a true copy of the original court order.
MARILYN BEUTTENMULLER CLERK.
cc: Neil B. Jagolinzer Donald Feldman Bruce A. Harris Douglas K. Sands Cynthia S. Prettyman
Clerk of Administrative Clerk of the School Board Dr. Bernard Shulman Marnie Ritchie Poncy
| Issue Date | Proceedings |
|---|---|
| Dec. 17, 1997 | Supreme Court of Florida Order that the Petition for review is denied filed. |
| Jun. 23, 1997 | Fourth DCA Opinion and Mandate (Affirmed in part, Reversed in part and Remanded) filed. |
| Apr. 03, 1997 | Appellant`s Motion for Rehearing and Motion for Rehearing En Banc; Appellant`s Motion for Certification filed. |
| Mar. 27, 1997 | Opinion from the Fourth DCA with cover letter from Neil B. Jagolinzer, attorney for Jack Kenneth Schrimsher filed. |
| Oct. 31, 1996 | Letter to DSM from T. Daniels Re: Integrity of judicial system; Letter to Sir from L. Daniels Re: Article in the Palm Beach Post filed. |
| Jul. 11, 1995 | Payment in the amount of 14.00 for index preparation fee filed. |
| May 11, 1995 | DOAH file returned to Weiss and Handler, P.A., One Boca Place, No. 218A, 2255 Glades Road, Boca Raton, Fl. 33431. -DH |
| Sep. 16, 1994 | Appellant's Initial Brief filed. |
| Sep. 15, 1994 | Index, Record, Certificate of Record sent out. |
| Sep. 01, 1994 | BY ORDER OF THE COURT filed. |
| Sep. 01, 1994 | BY ORDER OF THE COURT filed. |
| Jul. 15, 1994 | Index & Statement of Service sent out. |
| Jun. 27, 1994 | BY ORDER OF THE COURT (DCA case numbers are consolidated) filed. |
| Jun. 07, 1994 | Directions to the Clerk filed. |
| Jun. 01, 1994 | Certificate of Notice of Appeal sent out. |
| May 27, 1994 | Notice of Administrative Appeal (on attorneys` fees) filed. |
| May 27, 1994 | Ltr. to D. Hartford from B. Harris requesting documents; Notice of Administrative Appeal (appealing Daniel Manry`s 4-29-94 Order on Remand) filed. |
| Apr. 29, 1994 | Order on Remand sent out. |
| Apr. 22, 1994 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Apr. 06, 1994 | Final Order w/Appendix A&B filed. |
| Feb. 28, 1994 | Respondent`s Motion for Entry of Final Order Pursuant to Florida Statute Section 120.59 filed. |
| Jan. 28, 1994 | Respondent) Second Amended Motion for Substitution of Parties filed. |
| Jan. 24, 1994 | Petitioners` Response in Opposition to, and Objection to Respondent`s Amended Motion to Substitute filed. |
| Jan. 13, 1994 | (Respondent) Amended Motion for Substitution of Parties filed. |
| Jan. 10, 1994 | Petitioners` Response in Opposition to, and Objection to Respondent`s Motion to Substitute w/cover ltr filed. |
| Jan. 03, 1994 | Motion for Substitution for Parties filed. (From JoAnn Toohey) |
| Oct. 13, 1993 | Order sent out. (Re: Respondent`s Motion for Rehearing and/or Reconsideration and Amended Motion to Set Formal Hearing) |
| Oct. 08, 1993 | Petitioners` Response Opposing Second Supplement to Respondent`s Request for An award Of Reasonable Attorney Fees and Costs filed. |
| Sep. 24, 1993 | Second Supplement to Respondent`s Motion for Rehearing and/or Reconsideration and Amended Motion to Set Formal Hearing filed. |
| Sep. 07, 1993 | Petitioners` Response in Opposition to Respondent`s Motion for Rehearing and/or Reconsideration and Amended Motion to Set Formal Hearing filed. |
| Sep. 03, 1993 | Letter to DSM from Douglas K. Sands (re: Recommended Order) w/supporting attachment filed. |
| Aug. 31, 1993 | Supplement to Respondent`s Motion for Rehearing and/or Reconsideration and Amended Motion to Set Formal Hearing filed. |
| Aug. 24, 1993 | Respondent`s Motion for Rehearing and/or Reconsideration and Amended Motion to Set Formal Hearing filed. |
| Aug. 13, 1993 | Order sent out. (Respondent`s Motion to set formal hearing for fees & costs denied) |
| Aug. 09, 1993 | Petitioners` Response in Opposition to Respondent`s Motion to Set Formal Hearing on Issue of Respondent`s Entitlement to and Amount of Attorneys` Fees and Costs filed. |
| Aug. 02, 1993 | Letter to Commissioner Gail Bjork from George A. Rotchford filed. |
| Jul. 30, 1993 | Respondent`s Motion to Set Formal Hearing on Issue of Respondent`s Entitlement to and Amount of Attorneys Fees and Costs filed. |
| Jul. 26, 1993 | Corrected Order sent out. (Recommended Order is amended by this Order) |
| Jul. 23, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/16-25/93. |
| Jul. 12, 1993 | CC State of Florida, Office of the Auditor General's Report for (From the Fiscal Year ended June 30, 1992 filed. (From Bruce A Harris) |
| Jul. 07, 1993 | Respondent`s Notice of Objection to Petitioners Motion to Reopen Record for Limited Purpose to Receive Newly Discovered Evidence and to Admit Report As An Exhibit filed. |
| Jul. 06, 1993 | Petitioners` Memorandum in Support of Their Motion to Reopen the Record and Certification of Counsel filed. |
| Jul. 06, 1993 | Petitioners` Motion to Reopen Record for Limited Purposed to Receive Newly Discovered Evidence and to Admit Report as An Exhibit w/Service List filed. |
| Jul. 02, 1993 | Petitioners` Motion to Reopen Record for Limited Purpose to Receive Newly Discovered Evidence and to Admit Report as an Exhibit w/cc Palm Beach County`s Audit Report filed. |
| Apr. 30, 1993 | Petitioners` Brief Response in Opposition to Respondent`s Request for Attorneys` Fees filed. |
| Apr. 29, 1993 | Petitioners` Initial Addition to Petitions` Final List of Exhibits for the 11/16/92 Hearing on the Amended Petition for Demotion filed. |
| Apr. 19, 1993 | Petitioners` Exhibit #601 filed. |
| Apr. 16, 1993 | (1) Floppy Disc Containing our Proposed Recommended Order w/cover letter filed. (From Bruce A Harris) |
| Apr. 15, 1993 | Proposed Recommended Order filed. (From Neil B. Jagolinzer) |
| Apr. 15, 1993 | Petitioners` Notice of Filing Proposed Recommended Order; Petitioners` Proposed Recommended Order; Petitioners Motion for Award of Attorneys` Fees and Costs filed. |
| Mar. 22, 1993 | Order Granting Enlargement of Time sent out. (Motion granted) |
| Mar. 22, 1993 | Order Granting Enlargement of Time sent out. (Motion granted) |
| Mar. 09, 1993 | Notice To The Parties sent out. |
| Mar. 03, 1993 | Petitioners` Agreed Second Motion for Enlargement of Time to File Proposed Recommended Order filed. |
| Feb. 24, 1993 | Transcript (Volumes 1-18) w/Master Index filed. |
| Feb. 19, 1993 | Respondent`s Response to Petitioners` Motion to File Tapes and Admit Them As A Late File Exhibit; Respondent`s Response to Petitioners` Motion to Admit Their Proffer Into Evidence filed. |
| Feb. 17, 1993 | Order Motion To Admit sent out. (Petitioner`s Motion to admit is denied) |
| Feb. 03, 1993 | Petitioners` Motion to File Tapes of Portions of Certain School Board Meetings and Admit Them as a Late Filed Exhibit w/(TAGGED) Video Tape filed. |
| Feb. 02, 1993 | Deposition of Robert O. Cox; Deposition of Stephen Corn; Petitioners` Notice of Filing Depositions and Motion to Admit Their Proffer Into Evidence filed. |
| Jan. 19, 1993 | Petitioners` Agreed Renewed Motion for Enlargement of Time to File Proposed Recommended Order and Motion for Option to File Proposed Recommended Order in Excess of The Page Limitations filed. |
| Jan. 05, 1993 | Letter to M. Poncy from D. Manry (RE: style changes to recommended orders) sent out. |
| Dec. 04, 1992 | Petitioners` Motion to Take Official Recognition of Circuit Court Order Denying Rehearing Motion filed. |
| Dec. 04, 1992 | Petitioners` Notice of Filing Exhibit 717 filed. |
| Dec. 03, 1992 | Exhibit 903 w/cover ltr filed. (From Bruce A Harris) |
| Nov. 30, 1992 | CASE STATUS: Hearing Held. |
| Nov. 30, 1992 | Video Cassette Tape w/cover ltr filed. (From Patti M. Camps) |
| Nov. 17, 1992 | Petitioners` Proposed Order of Proof filed. |
| Nov. 16, 1992 | Final Hearing Held 11/16-25/92; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file. |
| Nov. 16, 1992 | Petitioners` Unilateral Pre-Hearing Statement w/Exhibit-A filed. |
| Nov. 13, 1992 | Petitioners` Notice of Substituting one Hearing Witness for Another filed. |
| Nov. 13, 1992 | Order On Pending Motions sent out. (Petitioner`s Motion to Compel and to Order compliance with subpoenas to Jack Scarola and Searcy, Denney, Scarola, Barhart & Shipley, is denied in part and granted in part) |
| Nov. 12, 1992 | Respondent`s Motion to Strike Petitioners` New Exhibits filed. |
| Nov. 12, 1992 | Respondent`s Unilateral Pre-Hearing Statement; Petitioners` Notice of Dropping Certain Hearing Witnesses and Adding One Witness in Lieu Thereof; Petitioners` Notice of An Additional Set of Exhibits filed. |
| Nov. 12, 1992 | Petitioners Notice of Objection and Claim of Unfair Prejudice and Renewed Motion for A Determination on Knight's Documents and A Motion to Preclude Anyone Other than Petitioners from Introducing at Hearing theNon-Produced Document s or Matters Related The |
| Nov. 12, 1992 | Respondent`s Amended Unilateral Pre-Hearing Statement filed. |
| Nov. 10, 1992 | (Respondent) Third Supplement to Respondent`s Final Exhibit List; Respondent`s Motion for Hearing Officer to Inspect School filed. |
| Nov. 10, 1992 | Respondent`s Notice of Filing Objections to Petitioners` Exhibit List filed. |
| Nov. 10, 1992 | Respondent`s Notice of Filing Objections to Petitioners` Exhibit List filed. |
| Nov. 06, 1992 | (Petitioners) Notice of Filing Transcript of Telephone Hearing; Transcript (original & copy) filed. |
| Oct. 29, 1992 | Letter to DSM from B. Harris (re: request for Motion hearing) filed. |
| Oct. 28, 1992 | (Petitioners) Notice of Filing As Set Forth in The Amended Motion for Official Recognition w/(TAGGED) Book Binder of FL Statutes, Rules etc filed. |
| Oct. 28, 1992 | Petitioners` Final List of Exhibits for the 11/16/92 Hearing on the Amended Petition for Demotion filed. |
| Oct. 28, 1992 | Petitioners` Renewed Motion for Option to Take Depositions of Persons Unavailable for the Hearing or in the Alternative to Take Witness` Testimony out of Turn or to Use Depositions; Petitioners` Final Witness List for the 11/16/92 Hearing on the Amended P |
| Oct. 26, 1992 | Letter to DSM from William R. Goode (re: attending reschedule hearing) filed. |
| Oct. 26, 1992 | Petitioners` Response to Kinght`s Counsel`s Arguments of Waiver of Anin Camera Inspection of Knight`s and First Union Bank`s Documents; Notice of Filing Transcript of Initial Deposition of William Knight of July 22, 1992; Deposition of William L |
| Oct. 23, 1992 | Notice of Hearing filed. (From Bruce A. Harris) |
| Oct. 19, 1992 | (Petitioner) Notice of Hearing filed. |
| Oct. 05, 1992 | Petitioners` Motion for Option to Take Depositions of Persons Unavailable for the Hearing filed. |
| Oct. 05, 1992 | Letter to DSM from Bruce A. Harris (re: request for immediate hearing on Motion); Motion for An Order Declaring Knight in Non-Compliance With Order of 9/21/92 and to Compel Compliance w/Exhibits 1-5 filed. |
| Oct. 01, 1992 | Knight`s Notice of Compliance With Discovery Order; Knight`s Response to Petitioners` Notice filed. |
| Sep. 28, 1992 | Letter to DSM from John T. Christiansen (re: Order of September 21, 1992 Continuing scheduling of the formal hearing) w/Telephonic Hearing (transcript) filed. |
| Sep. 28, 1992 | Petitioners Notice of Filing Limited Deposition of William Knight, Notice That His Answers Do Not Obviate the Need for Production of Documents and Statement of Relevancy for In-Camera Inspection; Continued Deposition of William L. Knight; & Cover Letter t |
| Sep. 21, 1992 | Order Clarifying Order Compelling Discovery and Order Continuing and Rescheduling Formal Hearing sent out. (Hearing set for 11/16-20/92; 8:00am; WPB) |
| Sep. 21, 1992 | Order of Clarification sent out. w/Exhibit A. |
| Sep. 21, 1992 | Subpoena Ad Testificandum w/Return of Service filed. (From JoAnn Toohey) |
| Sep. 21, 1992 | Transcript (Telephonic Hearing Before Hearing Officer Daniel Manry; Notice of Filing Transcript of Telephone Hearing filed. |
| Sep. 16, 1992 | Subpoena Ad Testificandum w/Affidavit (24) w/cover ltr filed. (From JoAnn Toohey) |
| Sep. 15, 1992 | Fifth Addition to Petitioners` Final List of Hearing Exhibits on the Amended Petition for Demotion; Fourth Addition to Petitioners` Final List of Hearing Exhibits on the Amended Petition for Demotion; (Respondent) Second Supplement to Respondent`s Final E |
| Sep. 14, 1992 | Re-Notice of Taking Deposition Duces Tecum; Notice of Taking Limited Deposition Duces Tecum filed. (From Donald Feldman) |
| Sep. 11, 1992 | (Respondent) Supplement to Respondent`s Final Exhibit List filed. |
| Sep. 11, 1992 | CC Letter to Bruce A. Harris from Patricia Lebow (re: Unavailable Hearing Dates); Fourth Addition to Petitioners` Final Witness List for Hearing for the Amended Petition for Demotion filed. |
| Sep. 11, 1992 | Re-Notice of Hearing filed. (From Donald Feldman) |
| Sep. 10, 1992 | (Petitioners) Notice of Hearing filed. |
| Sep. 09, 1992 | Petitioner`s Motion to Strike Respondent`s Amendment to Witness List filed. |
| Sep. 08, 1992 | (Petitioners) Notice of Filing Original Transcripts of Hearing Before Hearing Officer on August 18, 25 and 27. 1992 filed. |
| Sep. 08, 1992 | (Respondent) Motion for Protection filed. |
| Sep. 08, 1992 | (Petitioner) Third Addition to Petitioners Final List of Hearing Exhibits on the Amended Petition for Demotion filed. |
| Sep. 08, 1992 | Amendment to Respondent`s Final Witness List for Hearing filed. |
| Sep. 08, 1992 | (Petitioners) Notice of Taking Telephone Deposition filed. |
| Sep. 08, 1992 | (Petitioner) Notice of Filing Transcript of Circuit Court Hearing; CC: Circuit Court Hearing Transcript from 9/3/92 filed. |
| Sep. 08, 1992 | Petitioners` Motion for Clarification and/or Rehearing or August 27, 1992 Order Compelling Discovery, and Renewed Motion for Extension of Continuance of Hearing & Cover Letter from D. Feldman filed. |
| Sep. 08, 1992 | Letter to DSM from W. Goode (request to reschedule hearing) filed. |
| Sep. 04, 1992 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 9/14-18/92; 8:00am; WPB) |
| Sep. 04, 1992 | Petitioners` Motion for Clarification and/or Rehearing of August 27,1992 Order Compelling Discovery, and Renewed Motion for Extension of Continuance w/Exhibits 1-5 filed. |
| Sep. 03, 1992 | Order Compelling Discovery, Order on Various Other Motions, Protective Order, and Order Clarifying Prior Orders Entered on the Record; Order Granting Protection of Respondent`s Financial Records and Denying Protection of School Board Members` Opinion Tes |
| Sep. 03, 1992 | (Petitioner) Re-Notice of Taking Continued Deposition Duces Tecum filed. |
| Sep. 03, 1992 | Notice of Taking Deposition filed. (from J. Christiansen) |
| Sep. 02, 1992 | CC Letter to Jack Scarola from Donald Feldman (re: bank documents) filed. |
| Sep. 02, 1992 | CC Letter to Bruce A. Harris from Jack Scarola (re: document that are to be delivered) filed. |
| Sep. 01, 1992 | (proposed) Order Rescheduling Hearing (unsigned); Certificate on Non-Appearance filed. (From Bruce A. Harris) |
| Aug. 31, 1992 | Certificate of Non-Appearance filed. |
| Aug. 31, 1992 | (Petitioners) Notice of Non-Compliance and Objection w/Exhibits A-D; Notice of Taking Continued Deposition Duces Tecum filed. |
| Aug. 28, 1992 | Respondent`s Second Amended Answers to Third Set of Interrogatories filed. |
| Aug. 28, 1992 | Petitioners' Supplemented Motion for Continuance; Second Addition to Petitioners' Final List of Hearing Exhibits on the Amended Petition for Demotion; Third Additon to Petitioners' Final Witness List for Hearing for the Amended Petition for Demotion rec'd |
| Aug. 27, 1992 | Notice of Refiling Documents Previously Submitted and Objection to Proposed Trial Agenda (+ att`s) filed. |
| Aug. 27, 1992 | (Petitioner) Re-Notice of Taking Telephone Deposition Duces Tecum filed. |
| Aug. 27, 1992 | List of Document in Petitioners Possession Relating to Knight Enterprises filed. |
| Aug. 27, 1992 | Petitioners` Renewed Motion for Continuance filed. |
| Aug. 25, 1992 | Petitioners` Renewed Motion for Continuance w/Exhibit-A filed. |
| Aug. 25, 1992 | (Respondent) Re-Notice of Taking Deposition; Subpoena Ad Testificandum w/Return of Service filed. |
| Aug. 25, 1992 | Letter to DSM from David J. Sales (re: hearings being conducted w/out Notice); Letter to DSM from David J. Sales (re: filing of proposed Order) filed. |
| Aug. 25, 1992 | (Petitioners) Notice of Refiling Documents Previously Submitted and Objection to Proposed Trial Agenda (unsigned); List of Document in Petitioners` Possession Relating to Knight Enterprises filed. |
| Aug. 24, 1992 | (Respondent) Re-Notice of Taking Deposition (2); Notice of Taking Deposition Duces Tecum; Re-Notice of Taking Deposition filed. |
| Aug. 24, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum filed. |
| Aug. 24, 1992 | (Petitioner) Third Addition to Petitioners` Final Witness List for Hearing for the Amended Petition for Demotion; Notice of Taking Deposition filed. |
| Aug. 24, 1992 | (Respondent) Re-Notice of Taking Deposition filed. |
| Aug. 24, 1992 | (Petitioners` Motion for Continuance; (unsigned) Order on Various Discovery Motions and Motions on Hearing Procedures filed. |
| Aug. 24, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum filed. |
| Aug. 21, 1992 | CC Letter to DSM from Donald Feldman (re: responding to Hearing Officer"s rulings) filed. |
| Aug. 21, 1992 | (fax copy) Letter to DSM from David J. Sales (re: attendance at hearing) filed. |
| Aug. 20, 1992 | CC Letter to DSM from David J. Sales (re: Proposed Order) filed. |
| Aug. 20, 1992 | Subpoena Ad Testificandum w/Affidavit of Service (3) filed. (From JoAnn Toohey) |
| Aug. 20, 1992 | Motion for Protective Order filed. (From Jack Scarola) |
| Aug. 20, 1992 | Petitioners` Motion for Continuance; (unsigned) Order on Various Discovery Motions and Motions on Hearing Procedures filed. |
| Aug. 19, 1992 | Respondent`s Amended Answers to Third Set of Interrogatories filed. |
| Aug. 18, 1992 | Respondent`s Rebuttal Witness List for Final Hearing; Re-Notice of Taking Deposition; Respondent`s Final Exhibit List filed. |
| Aug. 17, 1992 | (5) Subpoena Ad Testificandum w/Affidavit of Service filed. (From JoAnn Toohey) |
| Aug. 17, 1992 | Petitioners` Notice of Serving Answers to Second Set of Interrogatories filed. |
| Aug. 17, 1992 | Notice of Taking Deposition Duces Tecum; Petitioners' Response in Opposition to Respondent's Motion to Disqualify; Petitioners' Response inOpposition to Motion to Preclude Additional Continuing or Enlargementof Final Hearing Time ; Petitioner's Objection |
| Aug. 17, 1992 | Petitioners` Response to Respondent`s Motion for in Camera Inspection and/or Protection; Petitioners` Unilateral Pre-Hearing Statement filed. |
| Aug. 17, 1992 | Second Addition to Petitioners` Final Witness List for Hearing for the Amended Petition for Demotion; Notice of Taking Deposition Duces Tecum; Addition to Petitioners` Final List of Hearing Exhibits on the Amended Petition for Demotion; Petitioners` Motio |
| Aug. 17, 1992 | (Respondent) Motion for Particulation of Charges w/Exhibit-1 filed. |
| Aug. 17, 1992 | Amended Motion to Preclude Additional Continuance or Enlargement of Final Hearing Time w/(TAGGED) Exhibit filed. |
| Aug. 14, 1992 | Motion for Protective Order filed. (From Jack Scarola) |
| Aug. 14, 1992 | Notice of Taking Depositions; Re-Notice of Taking Deposition (3); Subpoena Ad Testificandum (2); Respondent`s Final Witness List for Hearing; Amendment to Respondent`s Final Witness List for Hearing filed. |
| Aug. 14, 1992 | Petitioners` Second Motion to Compel Answers to Third Set of Interrogatories and for Sanctions w/Exhibits 1&2 filed. |
| Aug. 14, 1992 | Notice of Taking Deposition (7) filed. (From JoAnn Toohey) |
| Aug. 13, 1992 | Addition to Petitioners` Final Witness List for Hearing for the Amended Petition for Demotion filed. |
| Aug. 13, 1992 | Petitioners` Final Witness List for Hearing for the Amended Petition for Demotion; Petitioners` Final Lit of Hearing Exhibits filed. |
| Aug. 12, 1992 | (Respondent) Amendment to Respondent`s Preliminary Witness List for Hearing; Re-Notice of Taking Deposition filed. |
| Aug. 12, 1992 | (Respondent) Motion to Preclude Additional Continuance or Enlargement of Final Hearing Time; Motion to Disqualify w/Exhibit-13 filed. |
| Aug. 11, 1992 | Petitioners` Response to First Request for Production Under Amended Petition filed. |
| Aug. 11, 1992 | Petitioners` Motion for Protective Order on the Deposition of Robert Rosilio; Re-Notice of Taking Continued Deposition Duces Tecum filed. |
| Aug. 10, 1992 | (Respondent) Motion for In Camera Inspection and/Or Protection filed. |
| Aug. 10, 1992 | (Petitioners) Notice of Taking Deposition; Re-Notice of Taking Deposition Duces Tecum filed. |
| Aug. 10, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum; Petitioner`s Revised Preliminary List of Hearing Exhibits on the Amended Petition for Demotion w/(2) Subpoena Duces Tecum filed. |
| Aug. 07, 1992 | Respondent`s Preliminary Exhibit List filed. |
| Aug. 07, 1992 | Subpoena Ad Testificandum & Return of Service (10); Subpoena Duces Tecum (1); & Cover Letter from J. Toohey filed. |
| Aug. 07, 1992 | (Respondent) Re-Notice of Taking Deposition (1); Notice of Taking Deposition (3); Subpoena Ad Testificandum & Return of Service (2); & Cover Letter from J. Toohey filed. |
| Aug. 07, 1992 | Respondent`s Preliminary Exhibit List filed. |
| Aug. 06, 1992 | (Respondent) Notice of Taking Deposition filed. |
| Aug. 06, 1992 | Petitioners` Preliminary Witness List for Hearing for the Amended Petition for Demotion filed. |
| Aug. 06, 1992 | Petitioners` Motion for Enlargement of Time to Respond to Respondent`s First Request for Production Under Amended Petition; Petitioners` Second Notice of Intent to Rely on Summaries filed. |
| Aug. 05, 1992 | Petitioners` Motion to Compel Production and to Order Compliance With Subpoenas to Jack Scarola, Esquire and Searcy, Denney, Scarola, Barhart & Shipley, P. A. w/Exhibits A-C filed. |
| Aug. 05, 1992 | Re-Notice of Taking Telephone Deposition Duces Tecum; Re-Notice of Taking Continued Deposition Duces Tecum; Petitioners` Response to Motion to Apportion Final Hearing Time Equally; Re-Notice of Taking Depositions Duces Tecum; Notice of Taking Deposition D |
| Aug. 05, 1992 | Petitioners` Response in Opposition to Respondent`s Motion in Limine w/Exhibits 1-3; Petitioners` Compliance on Experts; Petitioners` Response to Deponent`s Motion for Protective Order on First Union National Bank of Florida filed. |
| Aug. 03, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum filed. |
| Aug. 03, 1992 | (Petitioners) Re-Notice of Taking Continued Deposition filed. |
| Aug. 03, 1992 | Petitioner`s Preliminary List of Hearing Exhibits on the Amended Petition for Demotion filed. |
| Aug. 03, 1992 | (2) Notice of Taking Deposition; Re-Notice of Taking Deposition filed. (From JoAnn Toohey) |
| Jul. 31, 1992 | (Respondent) Motion to Apportion Final Hearing Time Equally w/Respondent`s Motion in Limine filed. |
| Jul. 31, 1992 | Deponents Motion for Protective Order filed. |
| Jul. 30, 1992 | Re-Notice of Taking Deposition Duces Tecum; Re-Notice of Taking Telephone Deposition Duces Tecum filed. (from B. Harris) |
| Jul. 30, 1992 | (FAX) CC: Deponent`s Motion for Protective Order filed. |
| Jul. 30, 1992 | Answer, Affirmative Defenses and Counter-Petition to Petitioner`s Amended Petition filed. |
| Jul. 30, 1992 | Response to Petitioner`s Second Request for Production of Documents from Respondent; Respondent`s Response to Petitioner`s Third Request for Production; Response to Petitioner`s Fourth Request for Production filed. |
| Jul. 30, 1992 | Petitioners` Motion to Compel Better Answers to Expert Interrogatories and Motion to Compel Answers to Second and Third Set of Interrogatories filed. |
| Jul. 30, 1992 | Petitioners` Response to Respondent`s Motion for Protective Order filed. |
| Jul. 28, 1992 | (Respondent) Motion for Protective Order w/Exhibits filed. |
| Jul. 27, 1992 | Notice of Taking Deposition (3) filed. (From Marnie Ritchie Poncy) |
| Jul. 27, 1992 | Respondents Answers to Petitioner`s Second Request for Admissions filed. |
| Jul. 27, 1992 | Petitioner`s Motion for Protective Order; Petitioners` Motion for Protective Order Regarding Certain Depositions filed. |
| Jul. 27, 1992 | Re-Notice of Taking Deposition Duces Tecum (3); Notice of Taking Continued Deposition filed. (From Bruce A. Harris) |
| Jul. 27, 1992 | Notice of Taking Deposition (6) filed. (From JoAnn Toohey) |
| Jul. 27, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum (5); Notice of Taking Deposition Duces Tecum (2); Re-Notice of Taking Telephone Deposition Duces Tecum; Notice of Taking Telephone Depositions Duces Tecum; Notice of Taking Continued Deposition rec` |
| Jul. 27, 1992 | Petitioners` Motion to Compel Production of Documents Pursuant to Second and Third Requests to Produce filed. |
| Jul. 27, 1992 | (Respondent) Notice of Taking Deposition - Duces Tecum filed. |
| Jul. 27, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum filed. |
| Jul. 24, 1992 | (ltr form) Request for Subpoenas filed. (From Terri Golob) |
| Jul. 23, 1992 | Order Compelling Discovery sent out. |
| Jul. 23, 1992 | (Petitioners) Re-Notice of Taking Deposition Duces Tecum filed. |
| Jul. 22, 1992 | (Petitioners) Re-Notice of Taking Deposition w/Exhibit-A; RE-Notice of Taking Depositions Duces Tecum; Petitioners` Amended Motion to Take Official Recognition of Relevant Provisions in the Florida Statutes, Florida Administrative Code and School Board Po |
| Jul. 22, 1992 | Motion for Enlargement of Time w/attached Subpoena filed. (From Timothy P. McCarthy) |
| Jul. 20, 1992 | Notice of Taking Deposition Upon Oral Examination Duces Tecum (3) filed. (From John T. Christiansen) |
| Jul. 20, 1992 | Notice of Service of Second Interrogatories filed. |
| Jul. 20, 1992 | Petitioners` Fourth Request for Production filed. |
| Jul. 17, 1992 | Expanded Answers to Number 18 of Petitioner`s Initial Interrogatories filed. |
| Jul. 17, 1992 | Respondent`s 1st Request for Production Under Amended Petition filed. |
| Jul. 15, 1992 | Subpoena Duces Tecum (17); Petitioners` Response to Respondent`s First Request to Produce; Notice of Taking Deposition Duces Tecum (3); Certification of Counsel on Petitioners` Motion on Hearing Procedures Regarding Witnesses filed. |
| Jul. 14, 1992 | (Petitioner) Notice of Taking Deposition Duces Tecum (2) w/(23) Subpoena Duces Tecum; Notice of Taking Continued Deposition w/(1)Subpoena Duces Tecum; Petitioners` Motion Relating to Exhibit Size filed. |
| Jul. 13, 1992 | Expanded Answers to Numbers 2,3,&4 of Petitioner`s Initial Interrogatories filed. |
| Jul. 13, 1992 | (Petitioner) Re-Notice of Taking Deposition Duces Tecum; Petitioners` Motion on Hearing Procedures Regarding Witnesses filed. |
| Jul. 10, 1992 | (ltr form) Request for Subpoenas filed. (From Bruce A. Harris) |
| Jul. 10, 1992 | (Joint) Agreed Motion to Enter Order Compelling Discovery w/(unsigned) Order Compelling Discovery; Notice of Taking Depositions Duces Tecum w/(8) Subpoena Duces Tecum filed. |
| Jul. 08, 1992 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for August 31, 1992 - September 4, 1992; 9:00am; West Palm Beach) |
| Jul. 08, 1992 | Petitioners` Motion for Protective Order From Depositions of School Board Members filed. |
| Jul. 08, 1992 | Petitioners' Notice of Conflict; Petitioners' Notice of Service of Third Set of Interrogatories to Respondent; Petitioners' Third Request for Production; Notice of Taking Continued Deposition; AmendedPetition for Demotion w/Exhibit 1-5; Petition |
| Jul. 07, 1992 | (Petitioners) Notice of Taking Continued Deposition filed. |
| Jul. 07, 1992 | Cross Notice of Taking Telephone Deposition filed. (From JoAnn Toohey) |
| Jul. 06, 1992 | Notice of Taking Deposition filed. (From John T. Christiansen) |
| Jul. 02, 1992 | Petitioner`s Preliminary List of Hearing Exhibits; Petitioners` Revised Preliminary Witness List for Hearing; Petitioners` Response to Order Requiring Disclosure of Backup Documents and Date of expert Opinions filed. |
| Jul. 02, 1992 | (Respondent) Notice of Serving Answers to Interrogatories w/Interrogatories filed. |
| Jul. 01, 1992 | Petitioners` Notice of Intent to Rely on Summaries filed. |
| Jul. 01, 1992 | Petitioners` Motion in Limine to Preclude Opinion Testimony of School Board Members filed. |
| Jul. 01, 1992 | Respondent`s Preliminary Witness List for Hearing filed. |
| Jul. 01, 1992 | (Petitioners) Notice of Taking Telephone Deposition; Notice of Taking Video Deposition; Notice of Taking Deposition filed. |
| Jul. 01, 1992 | Petitioners` Additional Supplement to their Motion for Continuance; Petitioners` Notice of Compliance on Expert Opinions; Petitioners` Motion to Compel Better Answers to Interrogatories 2,3,4,and 18 w/Notice of Serving Answers to Interrogatories & Interr |
| Jun. 30, 1992 | (Petitioners) Re-Notice of Taking Deposition filed. |
| Jun. 30, 1992 | Renotice of Taking Deposition Upon Oral Examination Duces Tecum filed. |
| Jun. 29, 1992 | (Petitioners) Notice of Taking Deposition Duces Tecum filed. |
| Jun. 26, 1992 | Petitioners` Motion for Leave to File Amended Petition w/Amended Petition for Demotion; Petitioners` Supplement to Their Motion for Continuance filed. |
| Jun. 25, 1992 | Respondent`s Response to Petitioners Request for Admissions filed. |
| Jun. 25, 1992 | (Respondent) Request to Produce; Re-Notice of Taking Deposition; Notice of Service of Interrogatories filed. |
| Jun. 24, 1992 | Petitioners` Second Request for Production of Documents From Respondent filed. |
| Jun. 24, 1992 | Petitioners` Motion for Protective Order From Notice of Taking Deposition of Don Drake filed. |
| Jun. 22, 1992 | Petitioners` Motion to Take Official Recognition of Relevant Provisions in the Florida Statutes, Florida Administrative Code and School Board Policies filed. |
| Jun. 22, 1992 | (Petitioners) Notice of Taking Deposition Duces Tecum filed. |
| Jun. 22, 1992 | Notice of Taking Deposition filed. (From Paul J. Nicoletti) |
| Jun. 22, 1992 | Notice of Appearance filed. (From JoAnn Toohey) |
| Jun. 22, 1992 | Response to Notices of Production and Duces Tecum Subpoenas Directed to School Board Members and Dr. Monica Uhlhorn; Notice of Continued Deposition filed. |
| Jun. 22, 1992 | Petitioners` Notice of Serving Second Set of Interrogatories to Respondent J. Kenneth Schrimsher filed. |
| Jun. 19, 1992 | Response to Petitioners Request for Production of Documents From Respondent filed. |
| Jun. 17, 1992 | Order Compelling Discovery sent out. |
| Jun. 17, 1992 | (unsigned) Order Compelling Discovery filed. (From Bruce A. Harris) |
| Jun. 15, 1992 | Notice of Taking Deposition Upon Oral Examination Duces Tecum (5) filed. (From John T. Christiansen) |
| Jun. 15, 1992 | (Petitioners) Notice of Taking Deposition filed. |
| Jun. 15, 1992 | Petitioners` Renewed Motion for Protective Order From Notice of Taking Depositions Duces Tecum filed. |
| Jun. 08, 1992 | (Petitioners) Request to Produce filed. |
| Jun. 05, 1992 | Ltr to B.A. Harris, J.T. Christiansen and A.G. Hairston from D. Manry (RE: form Order compelling Discovery) filed. |
| Jun. 03, 1992 | Petitioners` Response to Motion for Protection filed. |
| Jun. 03, 1992 | Petitioners` Motion for Continuance of Hearing; Notice of Unavailability filed. |
| Jun. 03, 1992 | (Respondent) Response to Motion for Protection and Motion for Protection; Response to Petition for Demotion filed. |
| Jun. 01, 1992 | Order Denying Motion To Compel Answer sent out. (Motion denied) |
| Jun. 01, 1992 | (Petitioners) Notice of Taking Deposition filed. |
| Jun. 01, 1992 | Notice of Taking Deposition Upon Oral Examination Duces Tecum; Subpoena Duces Tecum & Notice of Service (7) filed. (from J. Christiansen) |
| May 29, 1992 | Petitioners` Motion for Protective Order From Notices of Taking Depositions Duces Tecum w/Exhibits 1&2 filed. |
| May 26, 1992 | Notice of Taking Deposition Upon Oral Examination Duces Tecum filed. (From John T. Christiansen) |
| May 26, 1992 | Petitioners` Request for Admissions to Respondent, J. Kenneth Schrimsher w/Exhibits 1-4 filed. |
| May 26, 1992 | (Petitioners) Notice of Appearance as Co-Counsel for Petitioners; Motion to Compel Answer to Petition for Demotion and Alternatively Motion for Default; Petitioners` Notice of Serving First Set of Interrogatories to Respondent J. Kenneth Schrimsher; Petit |
| Mar. 30, 1992 | Order Denying Continuance sent out. (Motion for continuance denied) |
| Mar. 23, 1992 | (Petitioner) Notice of Conflict filed. |
| Mar. 09, 1992 | Prehearing Order; Order Continuing and Rescheduling Formal Hearing sent out. (hearing set for July 14-17, WPB; 10:30am) |
| Mar. 06, 1992 | Letter to DSM from John T. Christiansen (re: rescheduling hearing) filed. |
| Jan. 15, 1992 | Notice of Hearing sent out. (hearing set for 5/19/92; 9:30am; WPB) |
| Jan. 13, 1992 | Ltr. to DSM from Abbey G. Hairston re: Reply to Initial Order filed. |
| Dec. 31, 1991 | Initial Order issued. |
| Dec. 23, 1991 | Request for Administrative Hearing, letter form; Agency referral letter; Motion to Expedite Issuance of Subpoenas; Petition for Demotion filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 16, 1997 | Upper Tribunal Document Filed | |
| Jun. 04, 1997 | Opinion | |
| Mar. 19, 1997 | Opinion | |
| Mar. 29, 1994 | Agency Final Order | |
| Jul. 23, 1993 | Recommended Order | School board should reinstate associate superintendent to former salary level with back pay and interest where board failed to prove Respondent was inefficient. |
DUVAL COUNTY SCHOOL BOARD vs EMORY TRAWICK, 91-008262 (1991)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs DONALD HOECHERL, 91-008262 (1991)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs CALVIN CHIN, 91-008262 (1991)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs DAVID J. WILLIAMS, 91-008262 (1991)
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION vs JOHN MURPHY, 91-008262 (1991)
