WILLIAM T. COOPER,
vs.
Respondent.
) Case No. 06-1506CVL
Pursuant to notice, a final hearing in this case was held on May 26, 2006, in Clearwater, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: William T. Cooper, pro se
For Respondent: Clifford A. Taylor, Esquire
Michael J. Barry, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public
interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the
"Department").
By letter dated April 6, 2006, the Department notified Petitioner, William T. Cooper, of its intent to place him on the convicted vendor list. By letter dated April 17, 2006, Petitioner timely contested the Department's proposed action.
On April 25, 2006, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing and prepare a final order.
At hearing, Petitioner testified on his own behalf and offered Petitioner's Exhibits 1 through 6, which were admitted into evidence. The Department presented no testimony. The Department's Exhibits 1 through 4 were admitted into evidence.
The Transcript of the proceeding was filed on June 9, 2006. The Department filed its proposed final order on June 15, 2006. On June 18, 2006, Petitioner filed a request for extension of the time to file a proposed final order, citing the fact that he was never notified of the filing of the Transcript, and became aware of its filing only when served with the Department's proposed final order. Petitioner's motion was granted by order dated June 20, 2006. In compliance with the order granting
extension, Petitioner filed his proposed final order on July 3, 2006.
On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial.
On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge."
Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following:
WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . .
Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440
and 36210-3441 on Interstate 75 in Marion County, Florida, and
relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998.
At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day.
It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes.
Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations.
Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement.
Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit.
However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction.
In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to
transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision."
The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction.
In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime.
Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case
No. 02-3167PL. The complaint was filed with the Board of
Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered.
In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner.
On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542.
Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment.
By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that
Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT.
The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on
September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction.
At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7,
2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information.
At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department.
By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it.
For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address.
Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent.
Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime.
Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period."
At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following:
Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . .
Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000.
On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Sections 120.569 and 120.57, Florida Statutes (2006), and Subsection 287.133(3), Florida Statutes (2000).
Section 287.133, Florida Statutes (2000), sets forth a process by which persons or their affiliates, who have been convicted of public entity crimes, may be placed on a convicted vendor list and thereby prohibited from participating in the public contracting and purchasing processes of any state agency or political subdivision of the state for a period of 36 months from the date of placement.
Subsection 287.133(3)(e)4., Florida Statutes (2000), provides, in relevant part:
4. In any proceeding under this section, the department shall be required to prove that it is in the public interest for the person to whom it has given notice under this section to be placed on the convicted vendor list. Proof of a conviction of the person or that one is an affiliate of such person shall constitute a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the convicted vendor list. Prompt payment of damages or posting of a bond, cooperation with investigation, and termination of the employment or other relationship with the employee or other natural person responsible for the public entity crime shall create a
rebuttable presumption that it is not in the public interest to place a person or affiliate on the convicted vendor
list. . . .
As found above, the Department proved that Petitioner was convicted of two counts of first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, and that such conviction constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes.
Subsection 287.133(3)(e)3., Florida Statutes (2000), provides:
In determining whether it is in the public interest to place a person or affiliate on the convicted vendor list, the administrative law judge shall consider the following factors:
Whether the person or affiliate committed a public entity crime.
The nature and details of the public entity crime.
The degree of culpability of the person or affiliate proposed to be placed on the convicted vendor list.
Prompt or voluntary payment of any damages or penalty as a result of the conviction.
Cooperation with state or federal investigation or prosecution of any public entity crime, provided that a good faith exercise of any constitutional, statutory, or other right during any portion of the investigation or prosecution of any public entity crime shall not be considered a lack of cooperation.
Disassociation from any other persons or affiliates convicted of the public entity crime.
Prior or future self-policing by the person or affiliate to prevent public entity crimes.
Reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding.
Compliance by the person or affiliate with the notification provisions of paragraph (b) [the requirement that the person notify the Department within 30 days of his conviction].
The needs of public entities for additional competition in the procurement of goods and services in their respective markets.
Mitigation based upon any demonstration of good citizenship by the person or affiliate. (emphasis added)
Though it is not listed among the public interest factors to be considered in determining whether it is in the public interest to place Petitioner on the convicted vendor list, the extreme dilatoriness of FDOT in reporting Petitioner's conviction demands discussion. Petitioner has argued that the case should be dismissed because the FDOT (not to mention that Office of the Statewide Prosecution and the Board of Professional Engineers) did not comply with Subsection 287.133(3)(b), Florida Statutes (2000), which states, in relevant part: "Any public entity which receives information that a person has been convicted of a public entity crime shall transmit that information to the department in writing within 10 days."
In Department of Business Regulation v. Hyman, 417 So. 2d 671, 673 (Fla. 1982), the court held that where an agency has failed to comply with a statutorily mandated time limit for which that statute provides no express sanction, the "harmless error" rule of Subsection 120.68(8), Florida Statutes (2000), should be applied. See also Carter v. Department of
Professional Regulation, 633 So. 2d 3 (Fla. 1994). It is inconceivable that a delay of more than five years in seeking to place Petitioner on the convicted vendor list could be construed as harmless error. If nothing else, had the FDOT promptly reported Petitioner's conviction, and the Department timely placed Petitioner on the convicted vendor list, Petitioner would have long since completed his 36 months on the list and now be eligible to contract with public entities.
However, the undersigned hesitates to order dismissal for FDOT's failure to report Petitioner's conviction because FDOT is not a party to this proceeding, and the Department was not responsible for FDOT's failure to comply with Subsection 287.133(3)(b), Florida Statutes (2000). The statute does not grant the Department discretion to ignore a reported conviction on the ground of inexcusable delay or laches, or give the Department authority to discipline a recalcitrant reporting agency.
In any event, consideration of the mitigating factors of Subsection 287.133(3)(e)3., Florida Statutes (2000), emphasized above, leads to the conclusion that it would not be in the public interest to place Petitioner on the convicted vendor list. Petitioner credibly denied that he "committed a public entity crime," though he pled guilty for reasons other than actual guilt. At the very least, Petitioner's degree of culpability was virtually nonexistent. He performed cost evaluations and calculated cost damages based on information provided to him by others that he was not required or even allowed to test for accuracy, and he did not submit the fraudulent claims to the state. The early termination of his probation indicated that Petitioner cooperated fully with the continuing investigation and prosecution of White Construction Company and its principals. Petitioner disassociated himself from White Construction Company and its principals, and has done no business with any public entity since the time of the indictment. Petitioner was reinstated to eligibility to participate in federally funded programs by the Federal Highway Administration in April 2005. Petitioner credibly explained his failure to self-report through his testimony that he did not believe he had been "convicted" by virtue of his plea agreement.
ORDERED that Petitioner shall not be placed on the convicted vendor list.
DONE AND ORDERED this 6th day of September, 2006, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2006.
1/ The Administrative Law Judge in DOAH Case No. 02-3167PL found that FDOT in fact approved the plea agreement in August 2000. Florida Engineers Management Corporation v.
Cooper, Case No. 02-3167PL (DOAH January 6, 2003), Finding of Fact 23.
William T. Cooper 2889 LaConcha Drive
Clifford A. Taylor, Esquire Michael J. Barry, Esquire Department of Management Services 4050 Esplanade Way, Suite 160D Tallahassee, Florida 32399-0950
Steven Ferst, General Counsel Department of Management Services 4050 Esplanade Way
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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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.
