Findings Of Fact On March 25, 1992, the School Board of Collier County ("School Board") issued an invitation to bid ("ITB") on the construction of an elementary school in Naples, Florida, identified as Elementary School "D", Bid #84-3/92. Pursuant to School Board Rule No. R-03/89, potential bidders for proposed projects with a construction cost in excess of $50,000 must be prequalified by the School Board. The prequalification procedure is designed to provide the School Board with a responsible successful bidder. The School Board considers prequalification applications at regularly scheduled board meetings. Contractors are required to submit applications at least two weeks prior to the board meeting at which the application receives consideration. By application dated April 13, 1992, and filed April 14, 1992, G. H. Johnson Construction Company ("GHJ") applied to be prequalified by the School Board. The application contains the signed statement by Reza Yazdani, president of GHJ that all statements contained in the application are true and accurate. Question #19 in the prequalification application states "[w]hat are the three largest contracts (dollar amount) ever performed by your organization?" The April 13 application filed by GHJ indicates that the company's three largest contracts were University of Chicago Replacement Hospital ($7,353,000), V. A. Medical Center, Loma Linda, California ($3,810,000), and Cape Canaveral Hospital Phase I, II, & III (($6,000,000). In relevant part, section 6 of School Board Rule No. R-03/89 states: Unless specified exceptions are made by the Board, the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him. The Board may qualify contractors for projects the value of which does not exceed that of the largest project previously constructed if the experience record, size and qualifications of staff and other pertinent data regarding the contractor justify such action in the discretion of the Board. However, in no event shall a contractor that has not previously performed work for the Board be granted a Certificate of Qualification which exceeds the smaller of the contractor's largest previous project or 10 times the contractor's net quick assets. In the event use of the largest project to establish the pre-qualified amount for the Certificate of Qualification would preclude the contractor from bidding or negotiating because its work in progress exceeds the dollar amount of the largest project, the criterion of ten times the net quick assets may be used if it would yield a larger face amount for the Certificate of Qualification. (emphasis supplied) The copy of School Board Rule No. R-03/89 provided to GHJ prior to the School Board's consideration of the GHJ prequalification application omitted the portion underlined in the preceding excerpt. Although the result of the error was to garble the meaning of the particular sentence, the first sentence of the referenced excerpt provides that, absent specific exception by the School Board, "the contractor shall be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed by him." Clearly, the value of the largest completed project was of importance in determining a contractor's prequalification amount. There is no evidence that the typographical error caused GHJ to provide incorrect information in the April 13 prequalification application to the School Board. There is no evidence that any GHJ representative read the referenced section until two days before the bid submission deadline. On April 22, 1992, a mandatory prebid conference was held. A representative of GHJ was present at the conference. At the conference, School Board representatives stated that a contractor's bid cost could not exceed the bidder's prequalification amount minus the contractor's work in progress. Contractors were invited to inquire as to prequalification amounts. There is no evidence that the GHJ representative sought any information related to prequalification. The standard bid instructions provided to GHJ state that the School Board "will consider base bid and deduct alternates as may produce a net amount which is acceptable" to the Board. The instructions further state that bid documents include any addenda issued prior to the bid submission deadline. On April 27, 1992, the School Board issued Addendum #2 to the ITB. Addendum #2 defines "alternate" as "an amount proposed by Bidders and stated on the Bid form that will be added to or deducted from Base Bid amount if the Owner (School Board) decides to accept a corresponding change in either scope of work or in products, materials, equipment, systems or installation methods described in Contract Documents." The addendum states "[b]asis for selection of Alternate shall not be limited to price". Addendum #2 instructs bidders to add "removal of exotics" as "Alternate No. 1" to the bid proposal. The alternate identifies the "exotics" as melaleuca trees to be removed from approximately 10.5 acres at the site of middle school "BB". The removal of the exotics is required by an Army Corps of Engineers permit issued to the School Board for middle school site work. The general bid instructions require that, not less than seven days prior to the bid deadline, bidder's must submit written requests for clarification of any error, ambiguity or inconsistency in the bid proposal. Prior to submission of their bid, GHJ representatives discussed whether the add alternate #1 would be considered by the School Board in making the bid award, and, relying solely on the initial bid instructions, determined for themselves that it would not. At no time did GHJ inquire of any School Board representative as to the effect of addendum #2 or the "add alternate #1" on the Board's bid consideration. Based on the information provided in GHJ's April 13 application, the School Board on May 7, 1992, prequalified GHJ for projects not in excess of $7,353,000. The figure is derived directly from GHJ's identification of the three largest jobs completed. The University of Chicago Replacement Hospital's cost of $7,353,000 is the largest of the three jobs cited in the GHJ application for prequalification. There is no evidence that the approved prequalification amount was calculated incorrectly or contrary to the School Board's rule. By "Certificate of Prequalification" and letter of May 8, 1992, the School Board notified GHJ of the prequalification amount of $7,353,000. GHJ had not received the letter prior the May 12, 1992 bid deadline. On or about May 10, 1992, two days prior to the bid opening, the president of GHJ contacted the School Board to ascertain the approved prequalification amount. The prequalification amount was orally provided to him. At no time prior to the bid opening did GHJ question, challenge or seek to amend the prequalification amount. On May 12, 1992, GHJ timely submitted a bid on the project, with a base bid of $7,146,000 and an alternate #1 bid of $50,850. GHJ's base bid was the lowest base bid submitted. The total GHJ bid, including alternate #1, was $7,196,850, the second lowest total bid submitted. The GHJ "Certificate of Current Capacity" submitted as part of the bid proposal identified GHJ's prequalification amount as $7,353,000, total uncompleted work in progress as $1,325,655, and a current capacity (prequalification amount less current uncompleted work) of $6,027,345. Otherwise stated, the GHJ bid of $7,196,850 exceeds the contractor's capacity by $1,169,505. School Board Rule No. R-03/89, Section 2(d), provides as follows: If the bid of any qualified contractor exceeds the difference between the amount stated on the contractor's Certificate of Qualification (as effective on the date of the bid opening) and the contractors work in progress, the bid shall be rejected by the School Board. GHJ asserts that the bid specifications provided only that the award would be made on the basis of the base bid plus "deduct alternates" (of which there were none). Even assuming that the School Board's addendum #2 failed to indicate that factors other than the base bid would be considered, GHJ's base bid of $7,146,000 exceeds GHJ's capacity by $1,118,655. Under the provisions of the rule, the School Board may properly reject the GHJ bid. On May 12, 1992, Carlson Harris General Contractors, Inc., ("CH") timely submitted a bid on the project, with a base bid of $7,163,513 and an alternate #1 bid of $27,115. The total of the CH bid was $7,190,628. The total CH bid was the lowest of the total bids received. The CH "Certificate of Current Capacity" (based on a prequalification amount of $11,201,000), identified total work in progress of $740,830 and a current capacity of $10,460,170. The standard instructions provided to bidders on the project state that the School Board has the "complete and unrestricted right...to reject any and all bids and to waive any informality or irregularity in any bid received." Among other items required by the bidder instructions, each bidder was required to submit a list, signed by the bidder, of subcontractors and major material suppliers. The Petitioner claims that, at the time of submission, and as late as two days after the bid opening, the CH subcontractor list was unsigned. A witness for the Respondent claims that, as of thirty minutes after the bid opening (when he viewed the CH proposal), the list was signed. The School Board official who actually opened and examined the bids did not testify. The testimony of Reza Yazdani is credited and establishes that, at the time of submission, CH's subcontractor list was unsigned. The Petitioner asserts that CH's submission of an unsigned subcontractor list is a material defect which requires that the bid be rejected. The evidence establishes that such is a minor irregularity which does not affect the total cost of the bid or the ability of the School Board to enforce the contract provisions against CH and accordingly may be waived. The instructions also require submission of a bid bond issued by a Florida-licensed surety with a Best's rating of "A" or better who has fulfilled any previous obligation to the School Board. The bond submitted by CH was issued by Employers Reinsurance Corporation and Reliance Insurance Company, and was signed by the surety agents, although not by the CH representatives. Employers had a Best rating of "A+13" and Reliance had a Best rating of "A-11". The Petitioner asserts that CH's submission of a bid bond signed by the surety and not by the contractor is a material defect which requires that the bid be rejected. The Petitioner further asserts that Reliance's Best rating of "A-11" fails to meet the requirement that the surety have a Best rating of "A" or better. The evidence fails to establish that the irregularities in the bid bond are material. Employers Reinsurance had a Best rating of "A+13". The bid bond sufficiently protects the ability of the School Board to enforce the bond against the surety should CH fail to perform under the contract. At hearing, GHJ asserted that the School Board had previously contracted with CH and favored CH based on prior performance. There is no evidence that the School Board has previously contracted with CH for any construction project. Subsequent to the bid opening, GHJ amended it's application for prequalification to indicate that the University of Chicago Replacement Hospital cost was $11,400,000. Although staff has recommended that GHJ's prequalification amount be amended, the School Board has not taken action on the request. There is no evidence that such amended prequalification amount would be or should be applied retroactively to the bid at issue in this case.
Recommendation Based on the foregoing, it is hereby recommended that the School Board of Collier County enter a Final Order DISMISSING the Petition filed by G. H. Johnson Construction Company, Inc. RECOMMENDED this 29th day of June, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3220BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: a. Rejected, irrelevant. Rejected, irrelevant. The prequalification application contains the sworn statement that all statements are true and correct. Absent any indication that the contractor is untruthful, there is no cause for the School Board to independently investigate the contractor's application. Rejected, not supported by the greater weight of credible evidence, which establishes that GHJ representative made no attempt to clarify the garbled language cited. Rejected, not supported by the greater weight of evidence which establishes that the GHJ prequalification amount was based clearly and solely on information supplied by GHJ. Rejected, irrelevant. The rule requires rejection of GHJ's bid. Rejected, not supported by the greater weight of credible and persuasive evidence which establishes that CH's total bid was the lowest of those received. Rejected, not supported by the greater weight of credible and persuasive evidence. Rejected, as argumentative, not finding of fact. Rejected, not supported by the greater weight of evidence which clearly establishes that GHJ was aware of the prequalification amount prior to bid deadline and that the prequalification amount was based on information supplied by GHJ. Rejected. The Petitioner's application for amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. Rejected, irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Rejected, argumentative, irrelevant. The prequalification amount was based on GHJ information. The instructions provided to GHJ clearly indicated that the contractor would be qualified to bid or negotiate on projects of equal value and complexity to the largest project previously constructed. Any mistake in providing information to the School Board was on the contractor's part. The alleged action or lack thereof by the Board related to GHJ's subsequent request to amend the prequalification amount is irrelevant. There is no evidence that the Board used the prequalification process to prevent GHJ from submitting a bid or to restrict competition. Accepted as to proposed award to CH General Contractors. Rejected as to allegation that one of CH's subcontractors has indicated an unwillingness to perform. There is no indication that CH has or will suggest an inability to perform obligations under the bid contract. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, unnecessary and uncorroborated hearsay. Although the permit is referenced in Addendum #2, which indicates that a copy of the Corps permit is attached to the addendum), the addendum admitted into evidence does not contain the copy of the Corps permit. 4. Rejected, unnecessary. 25-26. Rejected, irrelevant. Rejected, irrelevant. The timeliness of the Petitioner's protest is not at issue. Rejected. Although correct, the Petitioner's action in seeking amendment of the prequalification amount is irrelevant to this case. The prequalification amount was based solely on information provided by Petitioner prior to the bid opening. The Petitioner did not seek to challenge the prequalification amount until after the bid opening. There is no evidence that a revised prequalification amount should be applied retroactively. COPIES FURNISHED: Thomas L. Richey Superintendent School Board of Collier County 3710 Estey Avenue Naples, FL 33942 Matias Blanco, Jr. Esq. 701 North Franklin Street Franklin Street Mall Tampa, FL 33602 James H. Siesky, Esq. Siesky & Lehman, P.A. 700 Eleventh Street South, Suite 203 Naples, FL 33940-6777
The Issue Whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times pertinent to this case, Nairn was employed by the School Board as a Materials Acquisition Transportation Specialist, more commonly known as a truck driver. The job is an important one in a large, urban school district such as Miami-Dade County. While truck drivers do not directly participate in the education of the tens of thousands of students served by the school district, they play an essential role in supporting and maintaining a physical environment in which learning can safely and comfortably take place. Each day, Nairn and his colleagues drive district-owned trucks throughout Miami-Dade County to pick up essential supplies from vendors and warehouses, and deliver them to the appropriate schools and School Board offices. Any driving is inherently dangerous, and commercial trucks are sufficiently different from regular automobiles that the state requires drivers to hold a special trucking license, which Nairn does. Nairn and his colleagues are supervised by staff whose job it is to see that drivers fulfill their pick-up and delivery responsibilities in a safe and efficient manner. Toward that end, drivers are properly required to stay in close communication with their supervisors, to follow prescribed routes, and to conduct themselves with civility in their dealings with co-workers and members of the public whom they encounter in the course of the work day. Because of the high degree of independence and responsibility accorded to Petitioner's truck drivers, who spend most of their day on the road and out of the sight of their supervisors, they are reasonably expected to exhibit mature behavior and to be able to follow rules without constant reminders. The tasks assigned to drivers change from day to day and sometimes hour to hour, and thus the job requires extensive contact with supervisors. Drivers also must work cooperatively with school board employees and members of the public with whom the School Board does business to effect efficient pick-ups and deliveries. For all of these reasons, drivers are expected to have at least average communication skills, and to use them appropriately. Nairn reported to Heidi Carlo (Carlo) and Joseph Spear (Spear), among others. Nairn and other truck drivers are provided by Carlo with training regarding work site procedures and policies. Individual training is provided by Carlo when an employee is hired, and thereafter group training is provided on an annual basis. Drivers also receive a handbook setting forth procedures and policies applicable to them. Supervisors are available at all times to address questions or concerns any of the truck drivers may have about a particular assignment, policy, or personal or professional problem encountered on or off the job. Another means of resolving issues which affect job performance is offered in the form of an employee assistance program (EAP), which may be accessed by employees upon a self- referral, or an employer referral. Prior to October 1994, Nairn worked for the School Board as a custodian. In October 1994 he began work as a truck driver, and for the first seven months of that employment, there are no documented disciplinary incidents. There is no evidence that Nairn is unable to understand his job requirements. The evidence and testimony offered at the final hearing, coupled with the undersigned's careful observations of Nairn as he testified, and as he interacted with various hearing participants during the course of the two day hearing, demonstrate that he is articulate and well able to communicate effectively and to conduct himself in a gentlemanly manner. At the final hearing, Nairn testified to his side of the story with regard to some, but not all, of the disciplinary incidents documented in his file. Nairn’s testimony was self- serving, uncorroborated, and unpersuasive. In general, Nairn portrays himself as a victim of poor management. He claims that over the years he was unfairly disciplined by capricious supervisors who constantly changed their instructions. This testimony is not consistent with any other evidence in the record. In addition, Nairn did not attempt to deny or explain the most serious charges, the three occasions on which he used his School Board truck for unauthorized purposes. Nairn's first documented encounter with the School Board's disciplinary machinery occurred on May 24, 1995, at which time he received a written warning for failure to follow procedures and destruction of private property. On September 1, 1995, Nairn received a second written reprimand. The subject of the reprimand related to what would become a source of continuing friction between Nairn and his supervisors and co-workers: Nairn's unwillingness to reliably submit himself to the requirement that drivers stay in close communication with their supervisors, and, more specifically, that drivers contact their dispatcher upon arriving and departing each site; schedule lunch in accordance with School Board policies; and respond promptly to pages. On November 18, 1996, Nairn received a verbal warning for having used his School Board-owned truck to go to his residence for two hours during a workday without authorization. On other occasions, Nairn ignored directives by his supervisors to lock School Board-owned vehicles. Nairn was frequently insubordinate toward supervisors, in ways others than the ones noted above. He often demonstrated that he held co-workers in low esteem by abruptly hanging up the telephone during conversations with them. Some, but not all, of this behavior was documented in an October 29, 1997, memorandum to Nairn. By the time of his termination, Nairn had been the subject of at least five formal disciplinary conferences. On March 27, 2000, Nairn again engaged in unauthorized use of his School Board vehicle by taking his truck to Broward County for personal business without permission. When the truck broke down in Broward County, Carlo had to arrange for the it to be towed back to the work site. Nairn exacerbated the seriousness of this breach of trust by using his School Board toll card to pay his tolls for this unauthorized use of time and equipment. Three months after this incident, on June 20, 2000, Respondent once again used a School Board vehicle for personal and unauthorized purposes. The School Board went well beyond what was required of it in allowing Nairn to continue his employment, notwithstanding his inability or unwillingness to follow reasonable rules. In addition to allowing him to keep his job following a number of incidents which, standing alone, would have warranted termination, on November 30, 1999, and April 26, 2000, Carlo referred Nairn to the School Board’s EAP. The EAP offers many kinds of professional services geared to providing confidential assistance for persons who have problems with, for example, submitting to authority; following rules with which they disagree; or getting along with people they dislike. Nairn declined to participate, which is his right, but Carlo's patience was justifiably wearing thin as the disciplinary incidents continued at an accelerating pace. On February 16, 2001, Nairn's 18-year-old son was in a car accident which triggered a series of events resulting in the School Board's decision to terminate Nairn. Under ordinary circumstances, an employee who claimed to have been notified on his cell phone that his son, a new driver, had been in an accident, as Nairn did, would instantly be accorded permission by his immediate supervisor, in this case Spear, to leave the workplace. But Nairn, through his own actions, had marked himself as untrustworthy. Spear was justifiably unwilling to allow Nairn to leave on Spear's authority, when Spear's own supervisor, Carlo, was present in the building. Spear thus directed Nairn to see Carlo about his request to leave. Nairn went to Carlo's office, and an ugly scene ensued. Carlo was busy with other things, and unaware of the accident, and reasonably did not drop what she was doing to attend to an agitated Nairn. Instead, she told him to wait his turn. Nairn was loud, angry, and sufficiently insistent upon getting Carlo's undivided attention that she got up from her desk to close her door so that she could finish a telephone conversation with an outside vendor. As Carlo tried to close her door, Nairn stuck his foot in the doorway and pushed the door open. Spear got in front of Respondent and eased him away so that Carlo would be able to close the door. Carlo was upset by this incident. She prepared a memorandum describing the incident and requesting that Respondent be dismissed. In addition, Carlo requested that staff advise her if Respondent was entering her office area. On May 3, 2001, Koski recommended dismissal of Respondent based on the February 16, 2001, incident and Respondent’s lengthy disciplinary history. The recommendation was supported by the Associate Superintendent, Bureau of Procurement and Materials Management. As a result, on June 20, 2001, Petitioner initiated the current dismissal proceedings against Respondent. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Nairn.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Respondent’s employment and denying Respondent back pay. DONE AND ENTERED this 25th day of February, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2002. COPIES FURNISHED: John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33128 Moneque Walker, Esquire 8260 West Flagler Street, Suite 1E Miami, Florida 33144 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner was employed by Respondent at the commencement of the 1975- 1976 school year as an industrial arts teacher at the B. F. James Adult Education Center. During the first days of the 1975-1976 school year, Petitioner was employed as a substitute teacher. On November 17, 1975, however, Petitioner entered into a written agreement with Respondent entitled "Contract for Part-Time Instruction." Pursuant to the terms of the contract, Petitioner was to be paid an hourly salary of $8.82 per hour. The contract further provided, in pertinent part, that: The number of hours of instruction will be based upon the courses offered for which the instructor is qualified, and assignment to teach such courses will be made by the county superintendent of schools through his designated adminis- trative representative. This appointment is contingent upon minimum enrollment and attendance in the course assigned. This contract may be cancelled at any time by either party upon ten days written notice. . . (Emphasis added.) During the 1975-1976 school year, Petitioner worked at least seven and one-half hours per day, five days per week, 12 months per year. Petitioner worked a regular day schedule with additional but irregular work performed at night. Like full-time teachers on an annual contract, Petitioner received his pay on a monthly basis. However, as indicated above Petitioner was paid an hourly salary, whereas teachers on either annual or continuing contracts were paid according to a salary schedule negotiated between Respondent and the Broward County Classroom Teachers Association, Inc. In addition, as earlier indicated, Petitioner's work hours were on an "as needed" basis, depending upon student enrollment, the nature of courses offered, and funding for particular programs of instruction. Full-time teachers on annual or continuing contracts were employed on the basis of a school year of not less than 196 days. During the course of the 1975-76 school year, Petitioner inquired of his immediate supervisor concerning the possibility of receiving an annual contract. The supervisor, in fact, recommended Petitioner for such a contract, but that recommendation was not acted upon favorably by Respondent. The record in this cause reflects only that there was "some problem" with Petitioner's personnel file which led to Respondent's decision not to offer an annual contract to him during the 1975-1976 school year. Respondent was again recommended, in a subsequent school year, by his immediate supervisor for an annual contract for 70 percent of a full school day, but again that recommendation was not acted upon favorably. Petitioner continued employment with Respondent during the 1976-1977, 1977-1978, and 1978-1979 school years. During each of those years, Petitioner continued to work at least seven and one-half hours per day, five days per week, 12 months per year. After the initial contract between Petitioner and Respondent for the 1975-1976 school year, however, Petitioner never received another written contract. He did, however, inquire on several occasions concerning his right to receive an annual contract. Respondent, however, never offered Petitioner annual contract status. Respondent classifies the contractual status of its instructional employees as either "annual," "continuing," or "part-time." Part-time employees, unlike annual contract and continuing contract employees, have not been given written employment contracts for at least the last five years. Recommendations to employ part-time instructional employees originate with Respondent's school principals, who transmit their recommendations to the Superintendent. The Superintendent, in turn, recommends the employment of part- time employees to the School Board. Part-time employees are recommended by the Superintendent and voted upon by the Board en masse in June of each year for employment during the following school year. As many as 1,200 to 1,500 part- time employees may be recommended for employment at one time. Once the School Board approves the Superintendent's recommendations concerning the hiring of part-time employees, those persons approved are thereafter available to principals to be hired at any time during the ensuing school year. Respondent places no limits on the amount of time part-time employees may work, notwithstanding their part-time designation, so long as students, courses, and course funding are available. When a course offered by Respondent and taught by Petitioner or other instructional employees similarly situated did not generate sufficient enrollment or failed to receive funding, the course was discontinued and the instructional employee's employment ceased. Sometime during the 1978-1979 school year, Petitioner met with his immediate supervisor to discuss his continued employment with Respondent. Ultimately, Petitioner received a letter advising him that his employment would be terminated at the conclusion of the 1978-1979 school year. Prior to his termination, Petitioner had never been advised, in writing, of any deficiencies in his job performance.
The Issue The issue for consideration in this case is whether the Pinellas County School Board can cancel Respondents' Professional Service Contracts and terminate their employment due to their failure to meet certification requirements.
Findings Of Fact At all times pertinent to the issues herein the Pinellas County School Board, (Board), was the agency responsible for the provision of public education from preschool through primary and secondary schooling to vocational and adult technical courses in Pinellas County. Respondent Edwards has taught agricultural subjects including horticultural service, animal service and small and large animal services, among other courses she has taught at Tarpon Springs High School since July, 1990. Respondent Corbin, Edwards' brother, has taught at Countryside High School since 1989 in the fields of horticulture, small and large animal service, and practical skills agriculture for grades 9 - 12. Neither Respondent Edwards or Respondent Corbin has a Bachelor's degree in agriculture or in any other field. Edwards has an Associate of Science degree in veterinary technology and has taken courses in agricultural education for certification at the University of Florida as well as 20 credit hours at the University of South Florida in a course in technical vocational training programs she was required to take. She was certified by the State Department of Education in horticultural science and agricultural production in 1992. Respondent Corbin has between 30 and 40 college credit hours. About 2 years after starting work, when he finished the beginning teacher program and the required technical vocational training courses, he was certified by the state to teach horticulture and agricultural production. This allowed him to teach students in grades 9 - 12, and at the adult technical/vocational level. According to Dr. Brown, the Assistant Superintendent for Personnel, sometime prior to March, 1995 it was reported to him that the School Board had two teachers in the agricultural program who were not properly certified. These teachers are the Respondents herein. By state law, the Respondents are not properly certified at the 9 - 12 grade level, but they can teach at the vocational/technical level. Under the provisions of Department of Education Rule 6A-4.054, teachers must hold a bachelor's degree in agriculture or a master's degree with an undergraduate major in agriculture in order to be certified to teach that subject at the 9 - 12 grade level. Neither Respondent has that qualification. When Dr. Brown found out about the problem, he consulted with his staff and then informed the Superintendent of the situation. Dr. Brown also contacted the State Board of Education to see if these Respondents could stay in their current positions. The response received from the State Board of Education indicated the teachers could be considered "out of field" teachers, in accordance with Rule 6A-1.0503, F.A.C., but would need to take a minimum of 6 semester hours of college credit each year to obtain a bachelor's degree in agriculture. After receiving that information, Dr. Brown met with both Respondents and advised them of the situation and what they had to do. At that time the indication he received from them was that they would not consider going to school for 6 credits each year because, as they indicated, this was not their fault. According to Dr. Brown, neither Respondent had taken the required courses this year, and it is his position that though they may be retained as teachers, they cannot be offered a Personal Services Contract unless they do. All that would be available to them would be a year to year appointment. It is quite evident that the 1989 change to the certification rule which creates the problem in this case, that of requiring a teacher in the field of agriculture to have a degree in that area, was not widely publicized, and even high ranking members of the Board staff in Pinellas County were not actively aware of its existence for several years after it was promulgated. Of the two Respondents, Mr. Corbin was hired prior to 1989, and Respondent Edwards was hired after 1989. Both were offered and received Personal Service Contracts after the rule was changed and, in fact, notwithstanding the Board's letter of March 13, 1995, indicating the intention to remove the Personal Service Contract of each, by letter dated in April, 1995, each Respondent was advised of the issuance of a Personal Service Contract for the 1995-1996 school year. This creates a problem for the Board in that, under Florida law, if a program is not properly staffed with properly certified instructors, the state funding for that program can be reduced, and this could, in this case, amount to a substantial amount of money lost to the Board. Dr. Brown considers both Respondents to be excellent teachers whom the Board would like to keep, and he would like to see them participate in the program which would allow them to remain as certified teachers by taking the 6 credit continuing education courses per year. This would be difficult for both Respondents, however. First, the courses to be taken must be approved by the Board as leading to a degree in the teacher's area of expertise. In this regard, Dr. Brown does not know if any of the courses that would qualify for the Respondents are available within a 100 mile radius of Pinellas County. By the same token, he also does not know if the Board would provide financial or time help to the Respondents in the event the courses were available. Another possibility would be for the Respondents to take courses at the University of Florida on Friday nights and Saturdays over a period of time, or during the summer. In that regard, however, Respondent Edwards' inquiry of the University clearly indicates it is not easy to get the required courses at the time when they are needed and Respondents are available. Someone trying to work toward a degree on such a part time basis could take an unreasonably extended period of time to get all the core and prerequisite courses to those which lead toward the degree in the specialty. Notwithstanding this, Dr. Ross is not aware of any instance where the Board has ever waived the requirement for courses because courses were not available locally. The current situation came as a great surprise, specifically to Mr. Corbin. In March, 1992, he was called in by his Vice-Principal, Mr. Moore, and told he was unqualified to teach horticulture. At that same time, however, he was advised as to what he had to do to come up to certification standards, and he took the required courses. As he understood it, that was all that was necessary. With the courses he took at this point, and all the TVT courses he had taken previously, he believed he was in good standing to receive his Personal Services Contract which, in fact, he did receive in April, 1994. However, he first learned of the instant crisis on March 13, 1995 by a copy of a letter to his Principal from Dr. Brown advising that Mr. Corbin's Personal Service Contract was being cancelled. There was no explanation and no reason given then, and Mr. Corbin got no answer to his questions as to the reason for this action. As a result, he sought the assistance of the union. Approximately 7 to 10 days after receipt of the letter, Mr. Corbin was advised by Dr. Brown that his only alternative, if he wanted to continue teaching at Countryside, was to take the courses that would be required for an "out of field" teacher. At this point, Mr. Corbin inquired about the availability of courses and found that a Bachelor's degree in Agricultural Science is available only at the University of Florida. There are no courses offered locally that would help him. He did not, however, check with the University of Florida to see what the availability of the courses was there. Mr. Corbin works from 6:45 AM to 3:00 PM each day at school. He also has a personal lawn maintenance business and he does a lot of extra volunteer work for the school helping out at school fairs, banquets and other similar functions. He has taught summer school off and on. He claims that if he had been aware of the change in the requirements in 1990 when they first went into effect, he would have chosen another career instead of staying with agriculture. He asserts he might well have gone on to get his undergraduate degree and a law degree, but at this time it is too late for that. Mr. Corbin realizes that if he wishes to continue his Personal Service Contract he must take the required courses as an "out of field" teacher. Otherwise he would be no more than an "appointee" to his position on a year to year basis. This would be a very tenuous and stressful position to be in. Such a person serves at the pleasure of the Principal, and Mr. Corbin does not want to be in that situation. However, even though he checked on the local availability of courses and found there were none to help him, he did not check what courses were available at the University of Florida, and he asserts at this time that if any were available he could take during the summers, he would do this. Ms. Edwards first learned of the certification problem when she was advised by an official at the School Board that in order to teach animal science for grades 9 - 12 she had to take a course at Seminole Education Center. She was also told that she would be teaching "out of field", and in order to continue with a Personal Services Contract "out of field" she had to take the additional 6 credit hours per year. She was not aware of the implementation of the 1989 rule change which requires the bachelor's degree. Had she known at any time up until March, 1995 when she first learned of it, she claims she probably would have worked toward a Bachelor of Science degree so she could teach in veterinary technology. The requirements for this would be 120 more hours which she could get only at the University of Florida. The credit hours she earned working toward her Associate degree will not transfer. After Ms. Edwards received the March 13, 1995 letter, she inquired and found she could not get the 6 credit hours she needed for this year before the end of the school year. The advisor at the University of Florida gave her a list of courses she could possibly take locally, but she was given no guarantee they would be transferable toward a degree program. Ms. Edwards is currently enrolled in a 3 hour math course but does not know if it will go toward certification. She contends Dr. Brown did not tell her anything about teaching without a contract, but she would not agree to doing that as an appointee. She feels it would be tenuous and she wants the security of a contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Pinellas County School Board terminate the professional services contracts of the Respondents, Deborah Edwards and Richard Corbin. RECOMMENDED this 24th day of July, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 16. Accepted and incorporated herein. 17. & 18. Accepted but not relevant to any issue herein. Accepted and incorporated herein. Irrelevant to any issue herein as a Finding of Fact. FOR THE RESPONDENTS: 1. - 16. Accepted and incorporated herein. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools P.O. Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 P.O. Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County 301 Fourth Street S.W. P.O. Box 2942 Largo, Florida 34649-2942
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact In July of 2006, Respondent advertised an opening for an Accountant II, position #70557, in its revenue and contracts division. The primary responsibility in the position was accounting for and paying or reimbursing expenses in state programs that were funded through federal money by drawing down the accounts in which the federal funds were maintained. Therefore, among other things, the position required accounting experience and a working knowledge of FLAIR. FLAIR is the computerized accounting and records system used by all state agencies in the State of Florida. The vacant position required significant knowledge and experience in both the accounting codes utilized in FLAIR and the computer screens associated with those codes. Additionally, there was a critical need to immediately fill the position with an experienced person because of the involvement with federal funds and due to the fact that another employee, Deborah Schimmel, was performing the work required in her position, as well as, the work required in the vacant position. In 2006, Petitioner, who is Caucasian and 67 years old, applied for the Accountant II position with Respondent. As part of the application process, Petitioner answered a series of qualifying questions relevant to the vacant position. The questions were used by Respondent to help with preliminary screening of the applicants. Some of the questions involved the applicants’ experience with FLAIR, grants and revenue. Petitioner answered the qualifying questions and indicated he had one year of experience with FLAIR, a college degree in accounting and experience with grants. There were four other applicants for the position. Petitioner did not know the race of any of the other applicants for the position and did not offer any evidence regarding the race of these individuals. Salwa Soliman, the Commission’s Revenue and Contracts Manager, was advised that the Accountant II position was vacant and had been advertised. She was also aware that the position needed to be filled as soon as possible with a person who could perform the accounting and billing duties of that position with little or no training. Ms. Soliman reviewed the applications for the vacant position. Based on a review of his application and qualifying questions, Petitioner was granted an interview because he was a veteran, held a bachelor's degree in accounting, had revenue experience and had experience with FLAIR. On October 13, 2006, Petitioner was interviewed for the position by Ms. Soliman and Ms. Schimmel. During Petitioner's interview, it was clear that Petitioner's experience with revenue related to tax returns and not grants. Likewise, Petitioner's experience with grants was only in writing or applying for grants. He had not billed or disbursed federal money from such grants. More importantly, Petitioner's experience with FLAIR was “view only” experience. “View only” experience or authorization meant that Petitioner was only able to view or look at certain screens but not input data or change the screens in FLAIR. Thus, Petitioner did not have experience with data input to FLAIR and/or the pull-down menus associated with such input. In short, Petitioner’s experience and skills did not relate to the work required in the position at issue. Neither tax experience nor grant writing experience was the type of revenue experience required for the vacant position. Additionally, Petitioner did not have sufficient experience or working knowledge of FLAIR to enable him to fill the position with little or no training. Petitioner was not hired for the position. In all likelihood, Petitioner could have been trained for the position. However, due to the nature of the position, Respondent reasonably wanted to hire a person who could immediately fill it. Indeed, none of the applicants for the position were hired because no person had the necessary working knowledge of FLAIR and grant billing to fill the Accountant II position immediately with little or no training required. There was no evidence that Respondent’s reasons for not hiring Petitioner were unreasonable or a pretext for discriminating against Petitioner. When a batch of applicants does not meet Respondent’s needs for a vacant position, Respondent’s policy was to review any applications for other employment opportunities with Respondent submitted within six months of the closing date of the job announcement for the current vacancy. Because of the critical need to fill the Accounting II position, Ms. Soliman asked that other previously submitted applications be forwarded to her by Respondent’s personnel department. In order to transfer an application from one job posting to another job posting, People’s First, the State’s contractor for some personnel matters, must transfer the previously filed application in its database to the file for the current vacancy. Other than requesting the transfer of the application, Respondent is not involved in the actions necessary to transfer an application to another file for a vacant position. In this case, Respondent’s personnel department requested People’s First to transfer applications from an earlier-filled Accountant II position with Respondent. One of the transferred applications was from Debra Shriver who was 23 years old and Caucasian. For unknown reasons, in the computer process of transferring the application, the date on Ms. Shriver’s application was changed. The evidence was clear that Respondent did not ask for or cause the date on Ms. Shriver’s application to change. In fact, the change in the application’s date was immaterial to Respondent’s criteria or requirements in filling the position at issue here and does not demonstrate any fraud, falsification or misrepresentation on the part of Respondent in filling the position. Based on her application, Ms. Soliman interviewed Ms. Shriver for the vacant position. The evidence was clear that Ms. Shriver had the experience and knowledge being sought and required for the position at issue. She was currently working in the grant billing division in another state agency and had significant experience and working knowledge of FLAIR as it relates to grants and billing. Ms. Soliman had worked with the successful candidate before but they were not personal friends. Ms. Soliman knew that Ms. Shriver was a competent employee. Based on these facts, Ms. Shriver was hired for the vacant position and did not require significant training once she began working in that position. There was no evidence that Ms. Shriver’s selection was based on her race or her age. She was selected based on her qualifications to immediately perform in the position for which she was hired. Likewise, there was no evidence that Petitioner was not hired based on his race, which was the same as Ms. Shriver’s, or his age. Petitioner was not hired because he did not have the experience necessary to enable him to immediately begin performing the duties of the position for which he applied. Finally, there was no evidence that Petitioner’s requirements for selecting a person to fill the vacant position or for selecting Ms. Shriver were unreasonable or a pretext for discrimination against Petitioner. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore RECOMMENDED that a final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008. COPIES FURNISHED: Albert H. Beddy 7281 Sycamore Road Quincy, Florida 32351 Stan M. Warden, Esquire Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Ken D. Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's "change of status" application should be denied for the reasons set forth in the Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner has an undergraduate and master's degree in civil engineering from the Georgia Institute of Technology (received in 1962 and 1964, respectively) and a law degree from Emory University (received in 1980). In 1968, Petitioner went into the consulting business, and he has had his own business ever since. Since 1968, Petitioner has been licensed as a professional engineer, at one time or another, in approximately 20 different states, including Florida. He has held his Florida license since 1970. The other states in which he is currently licensed are Georgia, Alabama, New York, and Maryland. Petitioner is licensed to practice law in Georgia, but is on inactive status. Petitioner has been licensed as a real estate broker in Florida since 2001 or 2002. Petitioner has been certified as a general contractor in Florida since 1980. He was the qualifier for McKinney Drilling Company from 1980 until 1994. Since 1994, he has been the qualifier for Pressure Concrete, Inc. (Pressure), which approximately a year ago was purchased by Proshot Concrete, Inc. (Proshot). Petitioner has never received any discipline in connection with any of the professional licenses he has held over the years, including the certification allowing him to engage in general contracting in Florida; nor does he have any criminal record. Petitioner has not undertaken any construction or consulting project that has resulted in a lawsuit, judgment, or lien being filed. Petitioner has not been involved in any project where there has been a default triggering a claim against a payment or performance bond. All of the vendors and suppliers he has used on construction projects have been paid. Petitioner has never filed for bankruptcy. There are no lawsuits now pending against Petitioner. In or around September 2006, Petitioner completed and submitted an application to the Board seeking a "change of status" in his certification to enable him (as a general contractor) to qualify Proshot instead of Pressure. Petitioner used a Board-generated form, DBPR CILB 4363-Change of Status Application From One Business Entity to Another (Form), to apply for such a "change of status." The "Financial Responsibility" section of the Form contained the following questions and accompanying instructions: NOTE: If you answer "Yes" to any of the questions below, you must provide an explanation on DBPR 0060-General Explanatory Description form and attach legal documentation, i.e., satisfaction of lien, judgment, payment schedule, etc. If you have been convicted of a felony, you must submit proof of reinstatement of civil rights. The following persons must answer the financial responsibility questionnaire: Qualifying Agent All Owners/Partners Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an officer or an authorized representative ever: Undertaken construction contracts or work that a third party, such as a bonding or surety company, completed or made financial settlements? Had claims or lawsuits filed for unpaid past-due bills by your creditors as a result of construction operations? Undertaken construction contracts or work which resulted in liens, suits, or judgments being filed? (If yes, you must attach a copy of Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Had a lien filed against you by the U.S. Internal Revenue Service or Florida Corporate Tax Division? Made an assignment of assets in settlement of construction obligations for less than the debts outstanding? Been charged with or convicted of acting as a contractor without a license, or, if licensed as a contractor in this or any other state, been subject to any disciplinary action by a state, county, or municipality? (If yes, you must attach a copy of any state, county, municipal or out- of-state disciplinary order or judgment.) Filed for or been discharged in bankruptcy within the past five years? (If "yes," you must attach a copy of the Discharge Order, Order Confirming Plan, or if a Corporate Chapter 7 case, a copy of the Notice of Commencement.) Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction? Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Petitioner answered "No" to all of these questions, believing, in good faith, that such information was accurate. The final page of the Form contained the following "Attest Statement," which Respondent signed: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought. I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. As part of the application process, Petitioner made the necessary arrangements with Advantage Information Services, LLC (Advantage) to directly provide the Board with a credit report. On or about October 26, 2006, Advantage sent the Board a two-page Transunion credit report (Transunion Report) containing Petitioner's "credit profile," along with a one-page report of the results of a "check[]" of public records at the "local, statewide, and national level" (Records Check Report). The Transunion Report revealed a federal tax lien in the amount of $35,100.00 that had been filed against Petitioner in 1997 for unpaid personal income taxes. Petitioner was aware of this lien at the time he filled out the Form, but did not report it in response to Question 4 of the "Financial Responsibility" section because he did not understand the question to ask about liens such as this one which were unrelated to his business activities. The Internal Revenue Service is withholding 15% of Petitioner's monthly Social Security benefit and applying it to reduce the amount Petitioner owes for his unpaid personal federal income taxes. The Records Check Report read as follows: Public records have been checked on a local, statewide, and national level and are incorporated within the report. Additional records are as follows: Cheatham Register of Deeds, TN - Federal Tax Lien Release, 01/11/2005, Case #74147 - Book/Page 131/552 - $30,908.00 - Not Paid. Plaintiff: IRS Walton County Superior Court GA - County Tax Lien, 03/12/1998, $387.00 - Not Paid. Case Number - B3P253C, Book/Page - 3/253 Plaintiff: County Tax Assessor Dekalb County State Court, GA - Civil Judgment, 05/01/1991, $49,283.00 - Not Paid. Case Number - 814497 Plaintiff: Bank South The 1998 Walton County Tax lien noted in the Records Check Report concerned an assessment made on tangible personal property in the form of an airplane owned, not by Petitioner, but by a corporation of which he was the president. The lien did not arise out of any activities in which Petitioner was engaged as a general contractor. The 1991 Dekalb County civil judgment noted in the Records Check Report required Petitioner to repay a bank loan Petitioner had co-signed for a friend. It too had nothing to do with his activities as a general contractor. It was only after the Board had provided Petitioner with a copy of the Records Check Report that Petitioner first became aware of the existence of the 1998 Walton County Tax lien and the 1991 Dekalb County civil judgment.2 As noted above, on April 18, 2007, the Board issued its Notice of Intent to Deny Petitioner's "change of status" application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board find Petitioner qualified for the "change of status" for which he has applied. DONE AND ENTERED this 1st day of November, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2007.
