Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Gaylord L. Kinsey, was employed by the State of Florida, Department of Natural Resources, as a laborer at HRSP. Respondent, Department, is an employer within the meaning of the Human Rights Act. Petitioner's Complaint and subsequent Petition for Formal Hearing, are timely and the Division of Administrative Hearings, as well as the Commission, has jurisdiction over the matter at issue. Mr. Kinsey came to work with the Department as a laborer at HRSP on March 1, 1985. At that time, he was furnished with a copy of the Department's Employee Handbook which outlines all pertinent personnel rules regarding leave, time off, absenteeism, grievances, and other matters incident to the routine terms of employment. He was hired as a result of the application he filed in response to a Departmental vacancy announcement. On July 7, 1986, Petitioner was orally reprimanded by his supervisor, Stephen A. Yoczik, then Assistant Park Manager, for being absent without leave on July 6, 1986. At that time he was warned that any further failure to comply with the provisions of the Department's directive on absenteeism might result in further disciplinary action. The oral reprimand was confirmed in an interoffice memorandum dated July 12, 1986, a copy of which was placed in the Petitioner's master personnel file. On February 5, 1987, Mr. Kinsey was given an official written reprimand for loafing, defined as continued and deliberate idleness during work hours which results in the employee's failure to perform assigned tasks. Background information provided to the Petitioner at that time indicated that he was observed to be wasting time in idle talk with two other employees at the shop area for a 25 minute period past his lunch hour. Petitioner was advised again in writing that his lunch hour was to be taken between noon and 1 PM unless he received permission from a supervisor to do otherwise. This follows on the heels of another official reprimand which was imposed on Petitioner on January 16, 1987 for loafing the prior day when, at 7:30 PM he was observed watching television at the shop and not being out performing his job duties. Petitioner contends that while he may have taken his lunch hour at the inappropriate time, this was a practice approved by management which permitted employees to finish particular tasks in which they were engaged at the lunch hour and to eat thereafter. Petitioner also contends that in many cases, especially during the period of short days, he would prefer to get his work done early before it got dark by working straight through the duty day and taking his lunch hour at the end of the day. Regardless of how well intentioned or well reasoned Petitioner's approach may be, it is, nonetheless, inconsistent with and in violation of the directives he received which were applicable not only to him, but to other employees as well. Consequently, the reprimands for loafing, as identified, are neither in error nor inappropriate. Petitioner was interviewed by his supervisors about his disciplinary problems on both February 5 and 6, 1987 during which time he became extremely excited and angry and, on one occasion, broke a chair when he got up precipitously. Because of this demonstrated instability and hostility, he was, on February 19, 1987, directed by Mr. Johnson, the District Manager, to use accrued leave with pay during the period February 21 through March 10, 1987. Also on February 19, 1987, Mr. Johnson notified Petitioner by letter of the Department's intent to suspend him without pay for a period of three working days, (March 11 - 13, 1987), for the two incidents of belligerence and one unauthorized absence which took place on February 7 and 8, 1987. Petitioner responds to these allegations by contending at the hearing that he in no way threatened the supervisors either physically or verbally and was merely responding to the stress situation in which he found himself. The unauthorized absence took place when Petitioner experienced automobile difficulties and was unable to get to work on time. When he called in, he was advised it was necessary for him to talk to his supervisor about the problem. This was consistent with the long-standing Department procedure regarding requesting time off. Approximately one-half hour later, Petitioner again called the park office looking for his supervisor and was again advised to get in touch with his supervisor because the park manager, Mr. Smith, just the previous week, had stressed that coordination with a supervisor prior to absence was mandatory. Petitioner indicated he was at a pay phone calling long distance and, according to Ms. Garrison, to whom he spoke, asserted his opinion that the manager's policy was stupid and he did not agree with it. Approximately 45 minutes later, Mr. Smith came in to the park office and Ms. Garrison advised him of Petitioner's calls and auto troubles. At that point, Mr. Smith attempted to call Petitioner back but could not get him. The procedure for requesting leave is contained in a Department interoffice memorandum dated July 21, 1986 and was stressed at various personnel meetings which were attended by the Petitioner. Personnel were notified that either the park manager or his assistant were the only ones who could authorize leave. Memos memorializing the subjects covered at the meetings specifically emphasize that employees are not to call the office to leave work but to call the approval authorities at home if need be. It would appear, therefore, that while Petitioner's basis for his absence may well have been valid, he failed to conform to the publicized requirements regarding the method of obtaining the leave he needed and, therefore, the disciplinary action, the last in a series, was appropriate. During this period, officials became concerned over what appeared to be Petitioner's abnormal behavior. On one occasion, he threatened to put poison in his lunch sandwiches in an effort to punish those individuals responsible for stealing his lunch out of the refrigerator in the camp's work area. Petitioner alleges, and it is accepted, that on several occasions, his lunch was stolen. His response, however, was excessive and though he well may not have intended to follow through on his threat, the fact that it was made was inappropriate. In addition, on at least one occasion, while commenting about a series of news articles concerning a gunman who had shot and killed several people in a fast food restaurant, Petitioner stated that he had a gun and that, "While Gaylord Kinsey, the preacher, would not hurt anyone, Gaylord Kinsey, the man, might shoot someone" but that his friends would be safe. Mr. Kinsey denies having threatened to shoot anyone but admits having indicated he had a gun. This incident took place about the time Mr. Kinsey was having domestic difficulties involving suspected infidelity on the part of his wife and that stress, coupled with the disciplinary difficulties in which he found himself, created a pressure situation he was incapable of handling. When Mr. Kinsey was approached by park officials concerning the weapon, he permitted a search of his vehicle. No weapon was found. He voluntarily agreed to accompany a sheriff's deputy to the local crisis intervention center but declined to voluntarily admit himself and turned up at the Assistant Park Manager's house that evening. At that time, he advised the Assistant Manager he did not have a weapon and at no time, it might be added, did Mr. Kinsey either directly or indirectly threaten any park employee. His comments now appear to be no more than attempts to frighten his associates and there is no indication he would have committed any violence against any employee or park patron. In any event, park authorities requested he be evaluated by a psychiatrist at Department expense to which he agreed. The doctor concluded that though Petitioner is overly sensitive and appears to react to adversity in an hysterical fashion, he does not appear to have any abnormal thought processes and his judgement is not impaired. He suffers from a poor self concept and reacts to rejection in a violent fashion. He appears to have poor impulse control when under stress. The doctor concluded that Petitioner should continue to seek ongoing psychiatric help. An additional psychiatric evaluation rendered on Petitioner several months later by another psychiatrist was totally consistent with the former diagnosis. The second doctor indicated there was no suicidal or homicidal ideation but that Petitioner had a low ability to handle stress, rules, and regulations. After considering all the above information, Mr. Smith, the Park Manager, communicated with the District Manager, Mr. Johnson, regarding his concerns about Mr. Kinsey's stability and his further concerns for the safety of park employees and patrons. Mr. Johnson in turn communicated with Park Service officials in Tallahassee and a collective decision was made to reassign Mr. Kinsey from HRSP to another Park Service facility several miles away. Notwithstanding Petitioner's allegations, there is no evidence this action was taken in an attempt to discipline or in any way punish him. To the contrary, a thorough evaluation of all the communication relating to this decision, which appears in the Petitioner's personnel filed, clearly indicates that the action was taken in a sincere effort to rehabilitate Petitioner's situation and give him an opportunity for a fresh start at another installation where he was not known and from which his problems were somewhat removed. Recognizing, however, that Petitioner would most likely misconstrue the departmental actions and feeling that the best way to handle the situation would be to immediately remove the Petitioner from the park pending resolution, and in light of the fact that Petitioner had at that point failed to provide his supervisor with documentation confirming his continuing psychiatric care, Mr. Johnson, on February 19, 1987, placed Petitioner on the aforementioned administrative leave which required him to use accrued paid leave for a period of 18 days. Petitioner acknowledged receipt of this directive on February 20, 1987. This is an authorized and approved personnel action in an appropriate case. It was followed up by the three day suspension without pay also previously mentioned. On March 16, 1987, Petitioner was permanently reassigned to Honeymoon Island as a park attendant. Under Department rules a "reassignment" is considered to be a move from one location to another less than fifty miles away. A "transfer" is a move of over fifty miles. Under the rules of the Department and the collective bargaining agreement covering Park Service employees, reassignments cannot be the subject of a grievance procedure or appeal. Honeymoon Island is exactly forty-two miles, gate to gate, from HRSP, by the most direct route. Petitioner claims that all or most of the actions taken against him by park management in this case are the result of a pervasive prejudice against black people in general and against him in particular and that the actions were the result of racial prejudice and discrimination rather than sound management. There is evidence that the former Assistant Park Manager, Mr. Yoczik, made disparaging remarks about blacks in general and about Petitioner in particular. However, only the first disciplinary action taken against Petitioner involved that individual. Departmental policies regarding disciplinary punishment are designed to allow employees to correct a problem at an early stage. They are progressive in nature, and call for a reprimand for the first offense and successively more severe punishments leading up to dismissal as early as the third. It is clear that Petitioner was afforded more than ample opportunity to correct his performance. His first incident resulted in an oral reprimand. The second and third, which could have resulted in suspension without pay and dismissal respectively, resulted in written reprimands. It was only when his conduct gave cause for concern for employee and patron safety, that a suspension without pay was implemented and efforts undertaken to reassign him from the facility, not dismiss him as could have been done. Consequently, it is clear that by no reasonable characterization, could the Department's actions here be considered discriminatory based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying Gaylord L. Kinsey the relief sought and dismissing the Petition for Relief. RECOMMENDED this 10th day of January, 1989, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. COPIES FURNISHED: Gaylord L. Kinsey Ken Plante, General Counsel Post Office Box 222 Dept. of Natural Resources Dade City, FL 34279-0222 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000
The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2012.
The Issue Whether Respondent, Department of Environmental Protection's ("Department") intended decision to award a contract to Intervenor, US eDirect, Inc. ("US eDirect"), for a Parks Business System ("PBS"), pursuant to Invitation to Negotiate 2019002 ("the ITN"), is contrary to the Department's governing statutes, rules, or the ITN specifications, and contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is the state agency responsible for managing and preserving Florida's 175 state parks. The Department has been recognized as the nation's only three-time winner of the National Gold Medal Award for Excellence in the management of the state park systems. This achievement makes Florida the only state park system in the nation to win more than one Gold Medal award. The Department is committed to excellence and sustaining its high level of service for its park visitors. Petitioner, RA Outdoors, LLC, d/b/a Aspira, is a limited liability company organized under the laws of the State of Texas. Aspira is registered to do business in the State of Florida. Aspira is the incumbent contractor for the CRS and POS services being requested under the ITN. Aspira has been under contract with the Department to provide a CRS system for the past 19 years and a POS system for the past four years. Intervenor, US eDirect, Inc., is a corporation organized under the laws of the State of New York. The ITN The process for the ITN began many years ago when the Department was in the process of renewing its contract with Aspira for the final renewal period. Knowing that the end of its contract with Aspira was approaching, the Department sought to gain knowledge of the products and solutions available in the industry for CRS and POS systems. The Department issued a Request for Information ("RFI") in 2016, 2017, and 2018. The 2016 RFI sought to obtain industry information related to the Department's acquisition of a POS system. The 2017 RFI sought to obtain industry information about automated park entry technology solutions. The 2018 RFI sought to obtain industry information about park business systems technology. The 2017 and 2018 RFIs expressed the Department's interest in obtaining functionality, including "'[f]ast pass' or quick access lane options for both day use admission as well as for registered campers" and "entry ticket sales in a high-sales environment." The responses to the RFIs indicated there are multiple viable products, which varied significantly in technology, solution, cost model, total cost, integration potential, and requirements. The Department chose to utilize the most flexible comparative procurement process to achieve its goals; specifically, an ITN method of procurement rather than an invitation to bid or request for proposals. The Department chose an ITN because it wanted industry leaders to craft individual and innovative solutions so that the Department could then determine the best value option for the State. Against this backdrop, on March 18, 2019, the Department posted the ITN on the Florida Vendor Bid System ("VBS"), seeking replies from qualified vendors to provide a PBS. The procurement officer designated by the Department for the ITN was Gloriann McInnis. The primary focus ("core services") of the ITN was to procure the CRS and POS business systems. The ITN stated its "[p]urpose and [s]cope" as follows: The Department of Environmental Protection (hereinafter referred to as the "Department" and/or "DEP") is seeking offers from qualified vendors to provide a Park Business System (PBS), that includes both the implementation and ongoing operation, including maintenance and management, of a comprehensive integrated technology solution for park business needs (Solution). This solution should include, at a minimum, a Central Reservation System (CRS) capable of supporting online, in-person, and call center reservations for multiple locations statewide on a 24/7 basis, and a day-use Point of Sale system (POS) capable of supporting over $70 million, with the capacity for growth, in financial transactions on an annual basis.[1] The Department's goals for the ITN included "solutions which can provide the primary functions of a CRS (for camping and cabin reservations) and a day-use POS system (for park admission sales, annual entrance pass sales, equipment rentals, facility rentals, merchandise sales and other park fees) in an integrated, easy-to-use and highly accessible format." In addition to the core CRS and POS systems, the ITN also indicated that the Department "is open to considering outcomes beyond [the] CRS and POS functionality that would make the system more efficient and effective. If a Respondent has additional services to offer, these options should be documented in the response." The potential additional optional services the Department indicated it was open to considering included, but were not limited to, automated entry solutions, mobile ticket applications, self-service kiosks, technology to support fast-past entrance lanes, online merchandise sales, and online park guide or park guide applications. The ITN provided two pricing components: one price proposal for the core solutions based on a mathematical percentage fee of the estimated annual park system revenue of $55 million, and a second price proposal for the value-added or optional services. The Price Sheet attached to the ITN (Section 7.00) provided spacing for the vendors to submit their prices for the core solutions only, based on a projected mathematical percentage fee of the estimated revenue of $55 million. The Price Sheet did not include spacing for value-added services. 1 The ITN contained attachments that included, among other things, the Requirements Document for the ITN labeled as Attachment G, and the Service Level Agreement and Performance Standards for the ITN labeled as Attachment H. From the time the ITN was posted on VBS, on March 18, 2019, through the Department's intended award decision on July 6, 2020, the Department posted nine Addendums to the ITN on the VBS. No vendors protested the ITN terms, conditions, or specifications, including as amended by the addenda. The Department made clear in the ITN that, with respect to vendor replies as to the core solutions, it "will consider the Respondent's Percentage Fee only, all other pricing requested is 'value added.'" With respect to the value-added services, the Department had no preference as to how a vendor priced its value-added services. The ITN expressly stated: "At the conclusion of negotiations, the Department will request best and final offers (BAFOs) from the remaining respondents and notify them of the selection criteria on which the award will be based."2 The ITN further stated: "After receipt of the BAFOs, the Department may conduct a Public Meeting for the negotiation team to discuss the results of negotiations and formulate their recommendations to the Department as to whether and how to award a Contract pursuant to this solicitation." "The negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." Submission and Evaluation of Replies to the ITN After conducting an initial review of vendor submissions addressing the ITN's Minimum Mandatory System Requirements, the Department identified five vendors with the greatest degree of fit with the requirements of the ITN. On June 5, 2019, the Department posted ITN Addendum No. 3, which identified the following top five vendors that would be allowed to submit full replies to the ITN: Aspira, US eDirect, Sovereign Sportsman Solutions, Conduent, and Mission Critical Solutions of Tampa. A full reply was comprised of a business volume, which included a completed Price Sheet, a technical volume, and an operational volume. The Department established an evaluation team, which evaluated the five replies and identified the three highest scored vendors within the competitive range reasonably susceptible to an award with whom the 2 That selection criteria was not posted on VBS. Department would negotiate. The Price Sheet attached to the ITN was used by the evaluation team to evaluate the replies. On November 5, 2019, the Department posted its decision on VBS, inviting the top three vendors (Aspira, US eDirect, and Conduent) to participate in negotiations with the Department pursuant to Addendum No. 6 of the ITN. The parties agree that Aspira and US eDirect submitted responsive replies to the ITN and are responsible vendors. Site Visit, Demonstrations, Negotiations, and Strategy Sessions Following the evaluation of the replies to the ITN, the Department entered into the negotiation phase. The Department designated Fran Spivey as the lead negotiator and non-voting member of the negotiation team. The voting members of the negotiation team were Sasha Craft, a park manager; Warren Sponholtz, a Department IT specialist; Warren Poplin, a Department bureau chief for District 1, Division of Recreation and Parks; Carla Gaskin, a business expert with the Department; and Jim Brook, a Department business and contract supervisor.3 Prior to beginning negotiations, the Department invited the three vendors to a pre-negotiation site visit at Wekiwa Springs State Park ("Wekiwa") on November 22, 2019. Speed of entry of visitors into state parks is important. The Department chose Wekiwa because it is one of the busier parks in the state park system. The purpose of the site visit was to allow the vendors to observe "pertinent facilities and processes" and ask questions. The ranger station is the "hub" of where point-of-sale and reservation systems occur. Even though Wekiwa is one of the busier parks, only one ranger staffed the ranger station, which was typical. Points of interest to be observed during the site visit included observing traffic patterns and typical 3 Jim Brook was an alternate until May 21, 2020, and Warren Poplin was a subject matter expert until March 7, 2020, but both attended all the solution demonstrations. layout, functionality, and visitor interactions and park processes at the ranger station. During their site visit at Wekiwa, the vendors observed multiple campers waiting in line to make payments and the one ranger using two separate computers while working on multiple tasks, including "ringing up people as they came through the admission window, taking their payment, [and] answering the phone." At hearing, Mara Dombrowski, a planning consultant with the Department's Division of Recreation and Parks, who was involved in the development of the ITN, testified that "this one person has to be so efficient in order to keep things moving smoothly and quickly, getting people through the line, keeping the campers happy, checking them in quickly, really to keep the park running smoothly and operating." Following the site visit, the Department hosted meetings with each of the three vendors selected for negotiations so that the vendors could demonstrate the efficiency and operability of their proposed solutions to the ITN. Aspira demonstrated its solution to the Department at meetings held on March 10 and 17, 2020, and May 7, 2020. US eDirect demonstrated its solution to the Department at meetings held on March 11 and 18, 2020, and May 8, 2020.4 The vendors demonstrated their ability to run transactions to simulate entry into a state park. All devices demonstrated by US eDirect performed without issue. Mr. Poplin attended all the vendors' demonstrations. Mr. Poplin testified that Aspira failed to print a receipt during one of its demonstrations. On the other hand, Mr. Poplin described "US eDirect's printing of a receipt as 'instantaneous.'" Mr. Poplin was so impressed with the speed of US eDirect's printing of a receipt during its demonstration that he retained the receipt. 4 The Department also held demonstration sessions with Conduent, which is not a party to these proceedings. Ms. Craft, the park manager at TopSail Hill Preserve State Park, which contains the State's largest campground, also attended the vendors' demonstrations from her perspective as a park manager. As a park manager, Ms. Craft uses the POS and CRS systems on a daily bais. One of Ms. Craft's considerations as she watched the demonstrations was to observe the speed with which she could get visitors into the park. Ms. Craft observed that US eDirect's solution for check-in and POS items was integrated in an all-in-one system. At hearing, Ms. Craft testified that US eDirect's solution would be an improvement over the current system, which requires her to use two separate computers for POS and CRS transactions. Mr. Poplin and Ms. Craft also noted that Aspira's solution required a separate credit card machine. In addition, Ms. Craft noted and testified that under Aspira's solution, in order to process a credit card transaction, she would still have to manually select the type of credit card (i.e., Mastercard or Visa). On May 26, 2020, the Department revised the Price Sheet, Attachment 5, for the three vendors to resubmit their pricing prior to the beginning of negotiations. The Department revised the Price Sheet to include a separate section for value-added services so that vendor pricing for the core services and any value added services could be included in one cohesive document for the negotiation team's ease of reference. Throughout the procurement, the Department conducted internal strategy sessions with its negotiators, subject matter experts, and other personnel to discuss the procurement. The Department recorded these strategy sessions. After the demonstrations and initial strategy session meetings, the negotiation team began negotiations with the three vendors. The Department conducted separate negotiations with Aspira on June 9, 12, and 18, 2020, and with US eDirect on June 10, 16, and 18, 2020.5 During the negotiation phase, the negotiation team also conducted strategy sessions to strategize, discuss issues, and analyze the vendors' proposals. During strategy sessions, and as required by the ITN, the negotiation team developed and created the selection criteria to be used in determining "best value." During strategy sessions, the negotiation team also created an internal document titled "Best and Final Offer Guidelines" ("BAFO Guidelines"). Based on the sheer volume of information and time constraints, the negotiation team created the BAFO Guidelines as an internal aide if any individual members of the negotiation team felt they needed a tool to assist them in their individual review of the BAFOs. The BAFO Guidelines set out the selection criteria. Although the BAFO Guidelines contained a scoring matrix, weights, and subparts for the various criteria, negotiators were not required to score the BAFOs. The BAFO Guidelines that were utilized by certain individual negotiators were not collected or shared with any other negotiators.6 During the strategy sessions, including sessions held on June 16 and 17, 2020, the negotiation team decided to modify the Department's May 26, 2020, Price Sheet, Attachment 5, to attach to the Department's request for best and final offer ("RBAFO"). The Price Sheet f attached to the RBAFO was different from the Price Sheet attached to the posted ITN. During negotiations on June 18, 2020, Aspira asked the Department, "[I]s there a preferred path that you can say, you know, that DEP would like 5 The Department also conducted negotiation sessions with Conduent in June 2020. 6 The weights and subparts were created by the negotiation team in two strategy sessions. The Department did not provide the vendors with the BAFO Guidelines and the BAFO Guidelines were not posted on VBS. to have either it's everything--that one base fee is all-inclusive for everything that says it's included in the base fee or you'd like to have that additional hypothetical, if you want to do a kiosk, it's going to be an additional X dollars a month. Is there a proposed path?" The negotiation team stopped negotiation with Aspira and held a sidebar strategy session to discuss how to answer Aspira's question. The negotiation team understood that Aspira proposed to charge the Department the same flat-fee percentage price structure for the core solutions and any value-added services. The negotiation team realized that the revised Price Sheet did not provide spacing for Aspira to list its proposed percentage fee for value-added services. The negotiation team decided to modify the revised Price Sheet prior to BAFO submissions to allow Aspira to present its price for value-added services as a percentage of the transactions processed through individual value-added optional items. After the sidebar strategy session, negotiations resumed between the Department and Aspira. The negotiation team informed Aspira that the Price Sheet would be revised to allow for percentage based pricing for value-added services prior to the BAFO submissions. In response, Aspira asked again, "is there a preference that you can tell us that DEP would like as far as methodology?" In response, Mr. Brook responded, "we're fine with your methodology, we just want to confirm that is your methodology, that is your proposal. We understand that proposal to be, for a lack of a better way to describe it, a flat fee across all methods of revenue collection. And that's great, that's fine, yeah." The negotiation team, however, gave no indication of its preference nor instructions on how Aspira should price its proposed value- added services. During negotiations on June 18, 2020, Mr. Sponholts also explained to U.S. eDirect changes to the layout of the Price Sheet regarding value-added services, stating: So, some of the discussions we had, we were getting questions about, you know, how many of these are you going to need? How important is this? When are you going to need these? And, you know, usually our answers end up being, we're not really sure, it may be in a couple years. And we're gonna need at least some of them. So, I know it was hard for respondents to come up with some good pricing to be able to respond to that and make sure--like was alluded to the other day, make sure the backpack was filled correctly. So we've kind of changed the way we're asking for some of the pricing for additional and value-add items. And moving to more of a monthly service per-unit style approach, more of a--as a service approach. So, it allows us to consume and doesn't have to make any of the respondents kind of go out on a limb and to gamble on how much they think we need. So we've kind of listed everything here as-- into a per unit or a per-package pricing model on monthly fee. And then we would just pay for those items on a monthly basis. So, just want to make sure you understood the reason for that. The only exception for that is at the bottom. There are a couple of things that don't lend themselves to a service model, and that the-- Keep going down. MS. SPIVEY: Annual pass. MR SPONHOLTZ: Yeah, So, like the annual passes and the text messaging for mass communication, I know we've been going back and forth talking to you guys specifically about whether that's included in the base percentage or whether that's something outside of the base percentage. It's--but we'll leave the options in this sheet whether you can include it in your base fee or you can describe or you can present a more a la carte model. But the text messaging and the annual passes, they don't really lend themselves to a per-month model, they lend themselves to a per-month model, they lend themselves to more of a consumption model. So we want to leave that open for you guys to describe. That's it. Joint Ex. 63, pp. 1851-52. Contrary to Aspira's assertion, Mr. Sponholtz's comments to US eDirect during this negotiation session do not reflect a preference and direction to US eDirect that it should price its value-added solutions through an "a la carte" pricing model rather than a percentage-fee-based pricing model. As a review of the above comments and Mr. Sponholtz's testimony at hearing reflect, Mr. Sponholtz merely explained to both Aspira and US eDirect the Department's goal of moving more towards a service model approach (purchasing equipment as it is needed) and away from an ownership of equipment model approach because the Department did not want to own a lot of equipment it may not ever need. At hearing, Mr. Sponholtz explained that his comments made to both Aspira and US eDirect gave each vendor "flexibility to be able to price things so--to kind of move with our--move with our scale." As testified to by Mr. Sponholtz at hearing, his comments "fit[ ] in with the modification that the negotiation team [made] to the value-added prices on the final Price Sheet with the three columns of compensation." As further explained by Mr. Sponholtz at hearing: A: Right. So after speaking with all the respondents, we want to make sure the price sheet was set up such that it would work for the different pricing models. So we expected--we expected some different pricing models and we just wanted to provide some organization via the pricing sheet so that we could be able to, you know, review those pricing models, so that's why we put that in there. We also told them, though, that if they had aspects of their pricing model that did not match that format, then to go ahead and just add rows and columns and describe their pricing--pricing methodology and we would consider it. T., Vol. IV, p. 568. The second revised Price Sheet (Attachment 5; Joint Exhibit 24, pages 294 through 297) made clear to the vendors, "[i]f your pricing method for any service does not align with the models provided below, please insert rows and/or columns to the appropriate tables and describe your proposed pricing model in detail." Again, the Department did not dictate how the vendors should price value-added services; rather, the ITN and instructions allowed the vendors flexibility to choose how to configure and price any value-added services. The BAFOs and the Negotiation Team's Recommendation On June 19, 2020, the Department sent the three vendors an RBAFO, and the Procurement Officer emailed the three vendors: (1) the selection criteria on which the award would be based; (2) the second revised Price Sheet (Attachment 5); (3) the Department's Standard Contract to be signed and returned by the vendor selected for the ITN services; (4) Supplement Scope of Work Sample; and (5) Contract Certifications. BAFO's were due to the Department by June 26, 2020, at 4:00 p.m. Both Aspira and US eDirect timely filed BAFOs.7 The selection criteria for reviewing the vendors' BAFOs, as provided to the three vendors, provide as follows: F. SELECTION CRITERIA The Department shall make its determination of which solution provides the best value to the state based on the selection criteria below: Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's technical requirements as 7 Attachment 5 of the RBAFO was not posted on the VBS. demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for CRS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for POS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the operational requirements for administrative and reporting web application as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Proposed staff experience (including proposed subcontractors) and respondent's responsibility as demonstrated by the entire response, system demonstrations, and negotiation sessions. Optional solutions: Respondent's articulation, innovation, and demonstrated ability of the proposed for the optional solutions as well as the approach availability and pricing as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Acceptance of standard contract terms and conditions including SLAs and financial consequences as demonstrated by the BAFO. Respondent's pricing as submitted in the BAFO. Joint Ex. 227, p. 7273. US eDirect's BAFO proposed a flat-fee percentage of 4.75% for its core solution during the initial term of the contract and 4.5% for its core solution for the renewal term of the contract. For value-added solutions, US eDirect proposed its proprietary Yodel System, which is comprised of a Yodel App for the public, Yodel Ranger App for park staff, and a Yodel camera and barrier gate. The Yodel system is a completely automated solution which reads license plates to grant park entry. US eDirect proposed a flat-fee transaction of $0.15-$0.40 depending on the equipment the Department chose to employ. This flat-fee would be paid by park visitors as a convenience fee for use of the technology. Additionally, US eDirect proposed other value-added solutions via an "a la carte model," by which the Department could pick and choose to employ other value-added solutions for an additional monthly charge. Aspira's BAFO proposed a flat-fee percentage of 4.95% for its core solution during the initial term of the contract and 4.7% for its core solution for the renewal term of the contract. Similar to US eDirect's proposal, Aspira's BAFO proposed a list of value-added solutions from which the Department could choose. However, Aspira proposed a price model for its value-added solutions based on the same flat-fee percentages as its core solutions (4.95% for the initial term and 4.7% for the renewal term). In addition, Aspira purposefully chose to leave its BAFO section for value-added solutions vague by not listing specific hardware. As Aspira explained to the Department during a negotiation session on June 18, 2020, Aspira wanted "flexibility going forward as to those vendors who introduce new hardware and their features and functions, to be able to substitute that hardware at that kind of standard fee percentage versus us having to do more complicated things or having you do capital expenditures…." Aspira also declined to specify the quantity of value-added solutions it would provide. Instead, Aspira vaguely indicated it would "'work together' [with the Department] to identify appropriate locations" for implementing value-added solutions which are "both financially viable and provide[s] an increase in customer service." On July 6, 2020, the negotiation team held a public meeting (Intent to Award Meeting) to discuss which vendor the team believed presented the best value to the State. Each negotiator commented on which vendor he or she believed provides the best value to the state based on the selection criteria. Mr. Sponholtz stated, from his IT perspective, that he liked US eDirect because its solution had a very clean and intuitive design. He also felt US eDirect had a very high rate of configurability, which was "super important" because of the diverse makeup of the parks throughout the State. Mr. Sponholtz further stated that US eDirect had a proven endpoint management software solution in place available to manage all those endpoints throughout the State. He characterized US eDirect as a "market leader in that sense." Mr. Sponholtz further stated that US eDirect "also performed very well during the demonstration," with "[n]o issues popp[ing] up during the demonstrations." Mr. Poplin felt US eDirect provided "really good innovativeness." He explained his rationale from the perspective of the Department's "field operations and the ease of use for our park-level staff and ease of site and use for our visitors as well." Mr. Poplin went on to state that one of the things he had been "pushing hard on for each one of the respondents was the speed of transactions." He thought it was very important to be "able to move our guests into the parks" because "we have several of our busy parks that bottleneck." According to Mr. Poplin, US eDirect demonstrated the faster solution. Ms. Craft, from her perspective as a park manager at Topsail Hill, stated that her "selection came down to the system that I felt was innovative and user friendly." For her, ease of use and speed of transactions for the field staff was important, and US eDirect's "fully innovative system would be perfect for our field operations." Both Ms. Gaskin and Mr. Brook viewed Aspira as the top solution during the preliminary vote. From Ms. Gaskin's perspective, the "main deciding factor" between US eDirect and Aspira was Aspira's "ability to leverage customers that they already have--from a marketing perspective." However, Ms. Gaskin acknowledged she is not "in the field" and "not an IT person," so she would "respect the opinions of those two who would actually be using the system." Mr. Brook also felt Aspira "offered proven customer reservation system and expertise" through its marketing channel ReserveAmerica.com. Thereafter, the negotiation team engaged in a discussion amongst themselves to try and reach a consensus on the vendor who presented the best value, and a second vote was taken. Mr. Sponholtz, Mr. Poplin, Ms. Craft, and Ms. Gaskin voted for US eDirect as the best value to the State. At hearing, Ms. Gaskin testified that she changed her vote after hearing Mr. Poplin's and Ms. Craft's comments related to the functionality and ease of use of US eDirect's system for field staff, which she decided was more important than marketing. Only Mr. Brook voted again for Aspira in the second vote. After the second vote, Mr. Brook said he believed consensus is important, that he and the program will move forward enthusiastically with US eDirect, and the negotiation team unanimously recommended the award to US eDirect.8 8 Aspira failed to prove the allegations in its Amended Petition that "[u]tilizing any website but Reserve-America will result in the loss of 40% of the State's revenue." Indeed, the belief regarding any potential loss of revenue by leaving the ReserveAmerica.com platform is speculative. In any event, Mr. Brook and Ms. Gaskin raised the issue of the revenue generated by Aspira's website and marketing during the award recommendation public meeting; the issue was discussed, and, as detailed herein, it was ultimately determined at the public meeting that other factors were more important in determining best value. At no time during the public meeting were scores discussed with the group. The negotiators did not mention scores or scoring during the public meeting. After the public meeting, the Department posted its Notice of Intent to Award the contract to US eDirect on the VBS. Aspira's Protest Aspira raises numerous issues, none of which warrant rescission of the Department's intended award to US eDirect. Comparison of Pricing Aspira's primary contention is that the negotiation team "failed to properly price the 'core services'" and conduct an "apples-to-apples" comparison of Aspira's and US eDirect's pricing models for the value-added solutions set forth in their BAFOs. The persuasive evidence adduced at hearing demonstrates that the negotiation team properly conducted a mathematical formulaic "apples-to- apples" comparison of the flat-fee percentage prices for the core services, and that the price offered by US eDirect for the core services was lower than the price offered by Aspira. As to the optional value-added services, each vendor was given the freedom to present its best value-added solutions and best price model for the value-added services. Contrary to Aspira's assertions, the extensive negotiations were handled properly and in a collaborative and non-biased manner with no competitive advantage given to US eDirect. The negotiation team properly considered the prices offered by Aspira and US eDirect for value-added services as part of their individual best value determinations, but price was not a determinative factor and was, therefore, given nominal weight. The negotiation team did not do an "apples-to-apples" comparison of the value-added services because each vendor's pricing model was different and, in any event, such an analysis was not required in determining best value. The pricing of value-added services was not the focus of the selection criteria or ITN. The ITN and selection criteria centered on the core services for a POS and CRS system; not the pricing for value-added services. The Department does not even know what value-added services it may purchase in the future. On the other hand, the Department is required to pay the core price upon execution of the contract. Under the facts of this case, it was well within the negotiators' discretion to accord nominal weight to the pricing of value-added services contained in the BAFOs and more weight to the core solution price, superior functionality, ease of use, and innovativeness of the core solutions offered by US eDirect. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiation team's consideration of pricing was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. BAFO Guidelines Aspira also contends that the creation and use of the BAFO Guidelines by the negotiators violated the ITN's specification that "[t]he negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." The persuasive evidence adduced at hearing demonstrates that the negotiation team's best value determination was properly made by a discussion at the public meeting and not based on the use or scoring of the BAFO Guidelines. The negotiators understood that the BAFO Guidelines were merely a "tool" to aide them in their individual deliberations, and not a requirement of scoring the vendors. The negotiators who scored the vendors pursuant to the BAFO Guidelines did not share their individual scores with other negotiators or anyone else, and the scores were not turned into the procurement officer to tally. Instead, the negotiation team met in a public meeting and had a discussion as to whom they each believed represented best value--a discussion that did not include scores or scoring. After an initial vote, the negotiation team further discussed who they believed presented the best value. Notably, based on this discussion, Ms. Gaskin was persuaded to change her vote from Aspira to US eDirect. A second vote was taken and the negotiation team voted four to one in favor of US eDirect. After that, Mr. Brook was persuaded to change his vote and the recommendation of award was unanimous. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiators' creation and use of the BAFO Guidelines was not contrary to the Department's governing statutes, rules, or, the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. Speed of Entry In its Amended Petition, Aspira further alleged that the negotiation team improperly considered speed of park entry as a factor in the award because the ITN does not address "speed of entry." However, the ITN is replete with language showing the Department's desire to increase the speed of entry for park visitors. For example, the ITN stated: (1) the Department is seeking a PBS with proposed solutions that "offer convenience to park visitors, staff, and management, and capabilities with DEP systems for mobile devices and personal computer dashboard, reporting, and management." (2) "To support the Division's mission, it is imperative that the Department have access to tools that are intuitive and efficient to use to ensure visitor satisfaction and stimulate customer-based marketing." (3) "Park Admission transactions are the primary focus of the POS. The POS must be a robust system to allow for fast and efficient park entry." (4) POS and CRS "[s]ystem must provide efficient and intuitive functionality to allow park staff to process transactions in a high-volume environment." (5) "All POS transactions and screen navigations will complete in under .2 seconds as measured at the POS location." In addition, Aspira understood through negotiations that speed of entry into the state parks was very important. During negotiations with Aspira, Mr. Brook told Aspira's representative that, "… and just to reiterate that we have an understanding that speed is of the essence in Florida state parks … speed is of the essence, speed of entry. So our goal is to make that even faster…." In response, Mr. Trivette, Aspira's chief executive officer, stated, "You guys have made it crystal clear, and frankly, if you look at the majority of the new technologies that we positioned in the ITN, they're pretty much all around speed, ease of entry, being consumer friendly and helping get people in the parks faster, which ultimately is a better consumer experience and drives additional revenue." The persuasive and credible evidence adduced at hearing demonstrates that the negotiation team's consideration of speed of entry into the park was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department appropriately determined that the proposed award to US eDirect will provide the best value to the State based on the selection criteria. The Department's intended award to US eDirect is not contrary to the Department's statutes, rules, or the ITN specifications, clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the protest of Petitioner, RA Outdoors, LLC, d/b/a Aspira. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2020. Yodel system. As previously discussed, pursuant to the ITN, Aspira was free to propose whatever pricing method it desired for value-added services. At hearing, Mr. Trivette admitted that Aspira could have bid its proposal other ways, but it chose not to do so. At hearing, Aspira dropped the allegations within sections "H" and "I" of its Amended Petition. COPIES FURNISHED: Kristin Mai Bigham, Esquire Ronald Woodrow Hoenstine, Esquire Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Thomas Porter Crapps, Esquire James Zubko Ross, Esquire Joy Ryan, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 (eServed) Kirsten H. Mathis, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 Richard E. Coates, Esquire Coates Law Firm, PL 115 East Park Avenue, Suite 1 Tallahassee, Florida 32301 (eServed) Marion Drew Parker, Esquire Christopher Brian Lunny, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Dawn Stern, Esquire Richard P. Rector, Esquire DLA Piper, LLP 500 Eighth Street Northwest Washington, DC 20004-2131 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.
Findings Of Fact On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1993. APPENDIX Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact. 3-5: adopted or adopted in substance. 6: rejected as subordinate. 7: adopted or adopted in substance. 8: rejected as subordinate and recitation of evidence. 9-15 (second sentence): adopted or adopted in substance. 15 (third and fourth sentences)-17: rejected as irrelevant. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 J. Ross Macbeth County Attorney Highlands County P.O. Box 1926 Sebring, FL 33871-1926
The Issue This case concerns the action brought by the Petitioner against the Respondent under the alleged authority found in Section 120.56, Florida Statutes, which attacks certain memoranda received by the Petitioner on July 24, 1980, directed to him by officials within the Respondent agency, the text of which purportedly caused the Petitioner's termination or dismissal from employment for reason that the Petitioner had failed to gain the permission of the Respondent to run for public office in the State of Florida. The proceeding is promoted as a rules challenge.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
