The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent is a multi-county water management district which was created by Chapter 25270, Laws of Florida, 1949, and which operates pursuant to the provisions of Chapter 373, Florida Statutes. The District is the local sponsor for the federally-authorized "Central and Southern Florida Project for Flood Control" and as such, operates and maintains various water control facilities and impoundments in South Florida, as authorized and constructed by the Federal Government. The jurisdiction of the District encompasses 16 counties in southern and central Florida, from Marion County in the north to Monroe County in the south. Water Conservation Area 2A is one of several water conservation areas within Respondent's jurisdiction and is a part of the federally-authorized Central and Southern Florida Project for Flood Control. On April 13, June 2, August 10, September 26, October 19, and October 20, 1978, the Governing Board of the District held public hearings and workshop meetings to receive comments from the District staff and the general public concerning the proposed "draw down" or alteration of water levels in Water Conservation Area 2A. Notice of the September 26, 1978 public hearing was published in the Florida Administrative Weekly, Volume No. 4, No. 36, on September 8, 1978. By the terms of the notice, the purpose of the September 26th public hearing was: To provide interested citizens with an opportunity to express their opinions and hear testimony regarding the District's proposal to lower the water level in Conservation Area 2A, located in western Palm Beach and Broward counties. The purpose of the draw down is to con- solidate the bottom sediments so that a more flexible water schedule can be begun to preserve the natural Everglades ecology . . . . After considering information received from staff and the general public, the Governing Board entered its "Order" No. 78-12 dated October 20, 1978 containing findings of fact and conclusions of law. This "order" provided, in pertinent part: That the staff take appropriate measures to accomplish the following: A draw down from current high water levels will be initiated October 31, 1978, with the goal of reducing water levels in the central portion of the marsh to ground level by December 31 (about 11.2 feet msl). From this point, water levels shall be allowed to continue to recede to a minimum level of 9.5' by the end of May, 1979. Water levels will be allowed to rise to about 12.5' msl by October 31, 1979. That the staff take appropriate measures to regulate water levels in Conservation Area 2A between 12.5' and 9.5' msl as provided in Paragraph 1. until November of 1981. That the regulation of Conservation Area 2A be carried out in a flexible manner to insure maximum environmental benefits and that adjustments in water level fluctuations and stages may be made predicated upon the environmental response of the Conservation Area 2A ecosystem resulting from the previous year's hydroperiod. That the staff pursue such research and data collection as is necessary to fully document the conditions of the marsh throughout the three year duration of the project. No formal hearings pursuant to Section 120.57(1), Florida Statutes, were requested as a result of the aforementioned workshop, public hearings or agency action embodied in the "order" of October 20, 1978. It is undisputed that Respondent did not comply with the requirements of Section 120.54, Florida Statutes, relating to rule making in issuing its Order of October 20, 1978. Petitioner, Joe Burgess, is the owner of Hinckle's Bait and Tackle Shop on State Road 84 in Broward County, approximately 12 miles from Conservation Area 2A. Petitioner Burgess derives approximately 60 to 70 percent of his business from customers who use Conservation Area 2A for hunting, fishing, and other recreational purposes. In addition, Petitioner Burgess personally uses Conservation Area 2A for hunting and fishing. Petitioner, Keith Finlayson, is an environmentalist who uses Conservation Area 2A for recreational purposes, including fishing, bird watching, observing animals in their natural habitats and flora identification. Petitioner Finalyson uses Conservation Area 2A for recreational purposes approximately two to three times per week. Petitioner, Concerned Citizens for the Everglades, Inc., is a not-for- profit Florida corporation, some of whose members presently use Conservation Area 2A for hunting, fishing, and other recreational purposes. Other members of the organization derive their living from businesses supported by revenues obtained from the general public directly attributable to "use" of Conservation Area 2A. One of the effects of the "draw down" will be to make certain portions of Conservation Area 2A inaccessible by boat during some periods of the year, thereby curtailing recreational and other use of the those areas. Water Conservation Area 2A, and other such areas within the jurisdiction of Respondent, is surrounded by levies and various water control structures and is operated independently of other water conservation areas, which are also surrounded by levies and water control structures. All of the water conservation areas within Respondent's jurisdiction are subject to different and independent water regulation schedules. The evidence establishes that it is not feasible to apply the same regulation schedule to all water conservation areas due to differences in topography. In fact, it is anticipated that a different regulation schedule for Water Conservation Area 2A will be developed after the current three-year draw down period is concluded. Although originally scheduled to commence on November 1, 1978, the "draw down" of water levels in Conservation Area 2A was delayed as a result of legal actions taken in state courts. As a result, the District did not actually begin the "draw down" until August, 1980.
Recommendation Accordingly, it is recommended that the Administration Commission enter a final order dismissing the above-captioned proceedings. RECOMMENDED this 14th day of September, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 14th day of September, 1994.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's personal view of the subject premises, the following relevant facts are found: In April or May of 1974, William M. Lyons, as president of Central Development Company, submitted an application for a permit to construct a 20 foot wide, 172 foot long concrete bridge across sovereign land connecting Parker Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot 20, Parker Haven, and Parker Island are owned by Central Development Company. The application contains specific plans for run-off control. In 1975, various studies were performed by representatives of different environmental agencies concerning the proposed project. Representatives from the respondent Department of Environmental Regulation concluded that the bridge should cause no significant direct degradation of or adverse effect upon the water quality of King's Bay. The Director of the Division of Environmental Permitting therefore recommended the issuance of a permit and water quality certification following public notice of the project. In February of 1975, the Chief of Survey and Management of the Department of Natural Resources conducted a biological and hydrographic assessment and found that "the proposed bridge construction would eliminate a limited area of vegetated bottoms but would not, in itself, significantly affect aquatic biological resources," and that "it is improbable that the proposed bridge construction . . . would have significantly adverse hydrographic effects." The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The petitioners herein are citizens and property owners in the area and have requested a hearing on the permit application. The Department of Environmental Regulation forwarded the petition to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearing. Upon the agreement of all parties, the hearing was consolidated with other cases involving permits for projects in the King's Bay area of Crystal River. The prime issue upon which testimony was adduced at the hearing was the effect of the proposed bridge upon navigation. The waters of King's Bay are affected by the ebb and flow of the tide. The bridge is to be approximately four and one-half feet above the mean high water level. The pass between Parker Island and the mainland Lot 20 is approximately 250 feet wide and is relatively shallow, ranging from a low of one foot to a high of approximately four and one- half feet deep, depending upon the tide. Net fishing and gigging in that area are prohibited. Power boats, air boats and small sailboats presently utilize the pass, but large sailboats would not prudently use this pass for safety reasons. Small power boats with windshields and/or covered tops would probably not be able to use the pass during high tide if the proposed bridge at a height of four and one-half feet is constructed. A mean high water survey, per se, was not conducted by or on behalf of the applicant. Rather, the applicant relied upon a bulkhead map which establishes a bulkhead line around Parker Island (Exhibit 9). This document describes mean high water as +1.2 elevation and the metes and bounds description of the bulkhead line is followed by the words "all being along the mean high water line." The King's Bay area and the springs located therein provide a winter home for manatee, an endangered species. During high tides, manatees have occasionally been observed in the pass between Parker Island and Lot 20 on the mainland. While further development and degradation of the area could affect the manatee population, the placement of the bridge itself would not affect the navigation of the manatee travelling in that area, though some would balk or be hesitant around the bridge. One of the greatest hazards to the manatee is injury or even fatality from boat propellers and collisions with fast moving power boats. A boat travelling at five miles per hour should present no problem to the manatee. Several residents owning waterfront lots on King's Bay testified that their view of the open water would be obstructed by the existence of the proposed bridge. The purpose of constructing the bridge is obviously to provide a means of access from the mainland to Parker Island. Parker Island is about five and one-half acres in size and is owned by Central Development Company. Preliminary land use plans have been developed for an environmentally oriented low density subdivision on Parker Island. The conceptual plans include the sale of eleven lots, one-third acre each, for residential purposes. Each lot owner would only be permitted to develop 5,000 square feet of the lot, with the remainder of the lot to be retained in an undisturbed state. The preliminary plans call for underground utilities, no seawalls and a centralized dock. It must be emphasized that these are preliminary or conceptual plans for development of the Island, and Central is in no way bound by said plans. On or about April 5, 1977, the Board of County Commissioners of Citrus County passed a resolution declaring that the area known as King's Bay and the islands located therein was an area of critical habitat, and that any man-made changes in the area be subject to public hearings and comply with all Citrus County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned R-1AA which permits single family dwellings, municipally owned or operated parks and playgrounds, golf courses, certain temporary signs and certain conditioned accessory uses. Central Development Company has not appeared before the zoning board to seek a zoning change or exception for Lot 20. Central Development Company has submitted to the Department of Natural Resources an application for an easement for its bridge construction. This is the subject matter of Case No. 77-960, for which a separate recommended order is being entered.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Department of Environmental Regulation issue to Central Development Corporation a permit to construct a concrete bridge between Lot 20, Parkers Haven, and Parker Island subject to the following conditions: The height of the structure above mean high water level be increased from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and Receipt by the applicant and exhibition to the Department of Environmental Regulation of the required easement or other form of consent from the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use of sovereignty lands, as required by Florida Statutes 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya M. Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on May 10, 2005.
Findings Of Fact Petitioner is an African-American male1/ who was employed by Respondent from 1998 until his resignation on May 13, 2004. Respondent, the City of Deland (City), is an employer within the meaning of the Florida Civil Rights Act. At all times while he was employed by Respondent, Petitioner worked in the City's Utilities Department, Water Production Division. Petitioner began his employment as a Maintenance Worker I and was promoted to Maintenance Worker II in 2003. A Maintenance Worker II is responsible for the upkeep of the wells and plants and performs a variety of semi-skilled manual tasks including laying pipe, pouring and forming concrete, installing water meters, mowing, fence maintenance, digging, cleaning, painting, simple maintenance on vehicles and equipment, yard maintenance, routine custodial work, and minor repairs. The Water Production Division is responsible for the care and maintenance of the City's drinking water wells. The City owns 11 wells and seven water production plants. The plants are drinking water class "C" plants. John Stanberry is the Chief Water Plant Operator for the City. He has been in that position since 1999 and has worked for the City for 19 years. At all times material to this proceeding he has been either Petitioner's immediate supervisor or his second-level supervisor. Petitioner received "above standard" ratings from Mr. Stanberry on his 1999, 2000, and 2001 performance appraisals. These ratings were endorsed (given a second-level rating) by Robert Harrison, the Deputy Utilities Director. On each of his performance appraisals, the City encouraged Petitioner to begin a class "C" drinking water course to obtain a drinking water certification or license. Petitioner was also encouraged verbally by his supervisors to obtain this certification. In order to obtain this certification, a person must pass a state examination and obtain one year's experience in actual plant operations. Obtaining this certification would have allowed Petitioner to advance within the Department and become a plant operator. The "well route" is a daily operation that must be performed by a person holding at least a class "C" license. Lloyd Joiner holds such a license and is directly responsible for the well routes. He is required to take daily well readings and note the well pumpage and the chemicals used at each water plant. He is also required to perform daily well functions, such as maintenance, repairs and hauling away hazardous materials. Because of the hazards involved in this work, a second person is required to accompany Mr. Joiner on the well route. If the plant operator is out sick or on vacation, the position is temporarily filled by a maintenance worker. During 2001, the plant operator position which served as the second person on the well route became vacant. The position was advertised, but the City did not receive any applications as there was a shortage of water operators in the state. Petitioner was assigned to temporarily fill-in on the well route. Consequently, Petitioner's primary focus changed from performing regular maintenance work to performing day-to- day well route operations. Petitioner was informed by his supervisors that he would be permitted to study for the class "C" drinking water exam during work hours and that he would not be able to stay on the well route permanently if he did not get the class "C" certificate. In 2002, Petitioner's performance appraisal was completed by Lloyd Joiner, Assistant Chief Plant Operator and was endorsed by John Stanberry. Again, Petitioner received an "above standard" rating. Petitioner was then promoted to Maintenance Worker II in 2003. In 2003, Petitioner had gained the necessary work experience to obtain the drinking water license but had not enrolled in any course to enable him to take the certification examination. Mr. Stanberry removed Petitioner from the well route and returned him to regular maintenance duties. At that time, another Maintenance Worker II, Leo Woulard, had enrolled in a course to obtain his drinking water certificate but needed the necessary work experience to obtain his certificate. The decision was made by Deputy Director Robert Harrison and Mr. Stanberry to replace Petitioner on the well route with Mr. Woulard. Mr. Woulard is an African- American. Petitioner was not pleased that he was taken off the well route and returned to regular maintenance duties. After Petitioner was returned to regular maintenance duties, Mr. Stanberry observed what he believed to be unsatisfactory work by Petitioner. Petitioner's 2003 job performance evaluation was again completed by Mr. Joiner and endorsed by Mr. Stanberry. Mr. Joiner gave Petitioner high scores on the well route work. Mr. Stanberry, however, rated Petitioner's work in performing his regular maintenance duties and gave him low scores in three areas. This was the first time since Petitioner began his employment for the City that Mr. Stanberry gave him below standard scores. Notwithstanding these lower scores, Petitioner received an "above standard" rating on his 2003 performance appraisal and received a merit pay increase. Petitioner did not regard this performance appraisal as discriminatory. On September 9, 2003, which was immediately after the 2003 performance appraisal, Mr. Stanberry wrote a memo to Petitioner as a written backup to verbal counseling he had given to Petitioner: This memo is to inform you of your responsibility when assigned work duties. When I give you a task to do, I expect the job to be done. I want the job completed in a timely manner with good results. I don't want corners to be cut or jobs to be avoided because you don't feel it's your responsibility. If you have questions about a task, you need to ask me and make sure you understand what is expected of you in the assigned job or make sure it's done better than what I expect. I don't feel like you do projects to the best of your abilities and I would like to see improvement. This memo was not considered formal disciplinary action and was, therefore, not placed in Petitioner's personnel file. The September 9, 2003, memo was the first time that Mr. Stanberry had issued a counseling memo to Petitioner and is what Petitioner perceives to be the first incident of discrimination by Mr. Stanberry towards him. Petitioner's allegations regarding discrimination involve only Mr. Stanberry. Petitioner asked Mr. Stanberry to clarify the September 9, 2003, memo. The next day, Mr. Stanberry wrote a follow-up memo which read as follows: This memo is to clarify the previous memo. You were assigned to clean well houses for three days on August 27, 28, and 29 upon my inspection on Sunday, August 31st I found that you had done very little cleaning and had not cleaned three well sites at all. In three days time all of the wells should have been spotless. I have told you time and again what to clean and how, and you failed to do this completely again. It is my opinion that your performance related to this assignment does not meet minimum standards. Mr. Stanberry gave this memo to Petitioner in person at a meeting with Petitioner and Mr. Joiner. At this point, things began to deteriorate between Petitioner and Mr. Stanberry. Mr. Stanberry asked Petitioner to mow the grass at the main water plant but Petitioner refused. Petitioner made reference in this meeting to the Taliban either hiring or looking for fighters. Mr. Stanberry felt threatened by this statement. On the afternoon of September 10, 2003, Petitioner met with Mr. Stanberry, Mr. Joiner, and Mr. Harrison to discuss what happened that morning. Petitioner was belligerent at this meeting and stated that he did not want to work for Mr. Stanberry any longer and would not report back to work until he had been transferred to another department. On September 11, 2003, Petitioner reported to work at 7:00 but refused to work for Mr. Stanberry. Instead, Petitioner waited for Mr. Harrison to arrive. Mr. Harrison allowed Petitioner to complete a Leave of Absence request form for six days of vacation to begin the next day. Petitioner then left the work premises without permission and without clocking out and did not return to work that day. On September 11, 2003, Mr. Stanberry wrote a memo to Jim Ailes, Utility Director, informing him of the events of the past two days regarding Petitioner's evaluation and meeting with supervisors. On September 16, 2003, Mr. Stanberry wrote another memorandum to Mr. Ailes outlining violations of personnel rules committed by Petitioner and requesting a meeting with Mr. Ailes to get recommendations as to what disciplinary actions should be taken against Petitioner. After returning from his vacation on September 23, 2003, Petitioner again refused to perform work assigned to him by Mr. Stanberry. Mr. Stanberry informed Mr. Ailes of this. As a result, Mr. Ailes issued Petitioner a written reprimand for "insubordination by disobeying or refusing to follow a direct order or by refusing to perform assigned work or to comply with an official and legal supervisory directive or by demonstrating an antagonistic, insolent, disrespectful or belligerent attitude toward management." It was Mr. Ailes' decision to issue the written reprimand. Under the City's disciplinary guidelines, insubordination is an offense for which an employee may be discharged upon the first offense. However, Mr. Ailes decided to issue a written reprimand in conformance with the City's step disciplinary action process. Mr. Stanberry's memos to Petitioner were considered written confirmation of oral reprimands. This written reprimand was the next step of discipline. On September 24, 2003, another incident occurred in which Petitioner again refused a work assignment. Mr. Stanberry reported this to Mr. Ailes. As a result, Mr. Ailes suggested that Petitioner receive his work assignments from Mr. Joiner instead of Mr. Stanberry in an attempt to diffuse this situation. However, this did not solve the matter. Petitioner requested a transfer. Mr. Ailes inquired of other department heads as to whether there were any available positions and whether or not the other department heads were willing to take Petitioner as an employee. There were no positions in the other branches in the utilities department to which Mr. Ailes could transfer Petitioner. He also attempted to transfer Petitioner outside the Utilities Department, including Mr. Davenport of the Public Works Department. However, Mr. Davenport was not willing to allow the transfer. Mr. Davenport is an African-American. Further, Mr. Ailes directed Petitioner to visit the City's employee assistance program (EAP) in a memo dated October 1, 2003. A series of incidents happened during the first half of October 2003 in which Petitioner continued to refuse or challenge assignments made to him by his supervisors. On October 13, 2003, Petitioner met with Mr. Stanberry, Mr. Harrison and plant operator Jeff Hunter. The purpose of the meeting was to discuss and resolve allegations of an incident that occurred a year prior to this time. The incident concerned a telephone call made by Petitioner's girlfriend, Jane Wilkinson. According to Ms. Wilkinson, she called Petitioner's workplace for Petitioner, and the phone was answered by Mr. Hunter, who asked her whether or not she and Petitioner were married and would have children. Mr. Hunter had been counseled not to make inappropriate comments to anyone when answering the phone shortly after the incident occurred. However, in this meeting on October 13, 2003, Petitioner told Mr. Hunter that he would "kick his ass" if he ever spoke to his girlfriend again and made other inappropriate comments. Another incident happened on October 14, 2003, when Petitioner dropped a weed-eater spool on Mr. Stanberry's desk. Mr. Stanberry instructed Petitioner to work on something else until a new spool was purchased but Petitioner refused. Petitioner made inappropriate comments to Mr. Stanberry. In response, Mr. Stanberry told Petitioner that he was acting like a "damn fool." Mr. Stanberry received a verbal reprimand from Mr. Ailes for making that statement to Petitioner. Mr. Ailes informed Mr. Stanberry that if any further similar conduct occurred that progressive disciplinary action would be taken. On October 15, 2003, Mr. Ailes issued a Notice of Proposed Discipline to Petitioner in which Mr. Ailes proposed a three-day suspension without pay and a letter of reprimand and warning for violations of the City's personnel rules on October 9, 10, 13, and 14, 2003. The notice listed several offenses, including four which were identified as dismissal offenses, and instructed Petitioner, "[Y]our continuous challenge of every assignment given to you must stop. The disrespectful, belligerent, threatening, and defamation of character of your immediate supervisor must stop." The letter also noted that Petitioner had refused to contact the City's EAP despite having been instructed to do so on three occasions. Petitioner did not contest the proposed disciplinary action and served the three-day suspension. Another incident occurred on October 27, 2003, resulting from a disagreement between Mr. Stanberry and Petitioner concerning an assignment of mowing the grass at a well station. Petitioner told Mr. Stanberry that he was acting "freaked out" and that Petitioner could not understand why. Petitioner said that he would understand Mr. Stanberry being "freaked out" if he got a call about his son being run over by a truck or turning up missing. Mr. Stanberry was alarmed about this comment and believed it to be a threat against his family. Based upon the October 27, 2003, incident, Petitioner was placed on paid administrative leave pending an investigation. Mr. Ailes made an appointment for Petitioner with the EAP that day in an effort to diffuse the situation. Mr. Ailes recommended that Petitioner be terminated from employment in a Notice of Proposed Discipline. A predetermination hearing was held on November 7, 2003, in which Mr. Ailes concluded that Petitioner committed all of the offenses outlined in the October 27, 2003, Notice of Proposed Discipline. However, Petitioner was not terminated. Petitioner was required to write a letter of apology to Mr. Stanberry, refrain from making threats to co-workers and supervisors, and report to another supervisor, Mr. Hadley, for his work assignment. Additionally, Petitioner was placed on probation for a 90-day period and warned that if any further occurrence happened during that period, he would be terminated immediately. On May 3, 2004, Mr. Stanberry went to Mr. Hadley, another supervisor, to discuss daily duties. Petitioner was in Mr. Hadley's office at the time. Mr. Stanberry wanted Petitioner to do painting and other tasks within his job description, but Petitioner responded that it was not his job to do so. Mr. Stanberry told Petitioner that these duties were his assignment for the day, and that if he did not want to complete them, he could leave. Petitioner and Mr. Stanberry argued. Petitioner called Mr. Stanberry a "faggot" and a "fucking faggot" and threatened to "whip [Mr. Stanberry's] ass." Mr. Stanberry responded by telling Petitioner that if Petitioner came anywhere near him or his family that Mr. Stanberry would kill him. As a result of this altercation, Mr. Ailes determined that both Petitioner and Mr. Stanberry should be disciplined. As for Mr. Stanberry, Mr. Ailes determined that Mr. Stanberry should receive a three-day suspension without pay. Mr. Stanberry waived his predetermination hearing and wrote a letter of apology. Based upon Mr. Stanberry's apology letter and his years of service to the city, Mr. Ailes reduced the suspension to a two-day suspension and required Mr. Stanberry to attend a conflict management and confrontational skills seminar. He further advised Mr. Stanberry that if further incidents occurred, it could lead to termination. As for Petitioner, Mr. Ailes issued a Notice of Proposed Disciplinary Action on May 6, 2004, in which he recommended that Petitioner be terminated and setting a date of May 14, 2004, for a predetermination hearing. Prior to a final decision on the proposed termination, Petitioner resigned from his employment from the City. He did not request a predetermination hearing. Mr. Stanberry played no role in the decision to discipline Petitioner for either the October 27, 2003, incident for which he was suspended, nor for the May 3, 2004, incident. Those decisions to discipline Petitioner were solely Mr. Ailes'. Mr. Ailes proposed different levels of discipline for Mr. Stanberry and Petitioner because they were at different levels of the progressive discipline process. Petitioner had already received both oral and written reprimands and had been suspended for misconduct. Further, Petitioner had been recommended for termination as a result of the October 27, 2003, incident, but was instead placed on probation and allowed to return to work. In contrast, Mr. Stanberry had received only one previous verbal warning. Although the next step in the progressive discipline process for Mr. Stanberry would have been a written reprimand, Mr. Ailes believed the circumstances warranted an unpaid suspension. There was no evidence presented that establishes or even suggests that Mr. Ailes' decision to impose discipline on Petitioner was based on race. The only disciplinary actions imposed on Petitioner from Mr. Stanberry were the verbal and written counseling memo on September 9, 2003. Mr. Stanberry had written memos of a similar nature on at least two occasions to Caucasian employees. There is no evidence that Mr. Stanberry's actions toward Petitioner were based on race. On August 2, 2004, Petitioner threw a cinder block through the front glass doors of City Hall. Petitioner was charged with Throwing a Deadly Weapon. Petitioner pled nolo contendere to the charge. Adjudication was withheld and the court placed him on probation. He was later charged with violation of his probation. Petitioner ultimately pled guilty to the probation violation and he was adjudicated guilty of throwing a deadly missile at a building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 20th day of March, 2006.
The Issue The narrow issue is whether the City of Daytona Beach's (City's) Petition for Administrative Hearing (Petition) challenging certain special conditions in its water use permit was timely.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Permit Number 2-127-0320 (Permit) was issued by the District on December 14, 1992, and was scheduled to expire on December 14, 1999, seven years later. The Permit authorized the City to withdraw 5,849 million gallons per year of groundwater from the Floridan aquifer for household, water utility, and essential uses. On August 28, 1998, the City filed an application to renew the Permit. In May 2004, the District approved the application, with certain modifications. To place this phase of the controversy in proper perspective, a review of the District's application review process is helpful. After an application for a consumptive water use permit is filed by an applicant, the District's Division of Water Use Regulation (Division) undertakes a preliminary review. If further information is needed to resolve the Division's concerns, the applicant is requested to submit additional information. A determination is then made as to whether the additional information provided by the applicant is deemed to be "sufficient" so as to render the application complete; if not, the Division staff (staff) often collects additional information on its own initiative to resolve any outstanding concerns. Once an application is deemed complete through responses from an applicant, or after additional information is obtained by the staff, the staff prepares and issues a document known as a Technical Staff Report (TSR), which represents the staff recommendation and the District's notice of intent to grant or deny the application. In some cases, however, a draft TSR, which contains the staff's preliminary recommendation, may be issued before the final TSR is prepared. After the TSR is prepared, the Division notifies the District's Division of Permit Data Services (Data Services) that a package of documents (known as the noticing package) consisting of the TSR, Written Notice of Intended Decision, and Notice of Rights should be sent to the applicant and other interested parties. This noticing package is generated through an automated system maintained by Data Services and offers substantially affected persons a point of entry to contest the proposed agency action. More than one TSR can be issued by the District while an application is pending. However, only one noticing package (which includes a point of entry) is sent to the applicant and interested persons. After a point of entry is offered, the TSR is placed on the agenda of the District's Governing Board, which may approve, approve with modification, or deny the application. In the rare case when the Governing Board reaches a decision which "substantially differs from the notice of District decision," a new point of entry is offered. After a TSR is issued, and a point of entry offered, but before the Governing Board considers the matter, an applicant may still submit new information to the staff in an effort to resolve any outstanding issues raised in the TSR. Indeed, in some cases, a "revised" TSR may be prepared, which reflects any changes brought about by the submission of new information, but a new point of entry is not offered (unless the changes in the revised TSR are substantial). When a revised TSR is prepared, it typically contains strike-throughs and underlines to reflect any changes made. In this case, a number of contentious issues arose between the City and the staff during the review process, particularly involving impacts to wetlands. Consequently, between December 1998 and September 2000, at least four requests for additional information were made by the staff. However, this information never fully resolved the issues to the staff's satisfaction. On July 11, 2003, the staff issued a draft TSR containing its preliminary conclusions, including one regarding the wetland impacts issue. Because the TSR was a "draft," it was not accompanied by a Written Notice of Intended Decision or Notice of Rights. At the request of the City, on October 3, 2003, a "primarily technical" meeting was held in Daytona Beach for the purpose of allowing the staff to give a presentation concerning its findings in the draft TSR. Several City staffers attended the meeting. No attorneys for either party were present. Mr. Dennis R. Colby, then the City's Manager of Water and Wastewater Utilities, and the person who signed the City's application, recalled that at the meeting Mr. Dwight T. Jenkins, Division Director and an attendee at the meeting, advised him that the City would "have its day in court" after the Governing Board voted on the permit application. Mr. Colby, who is not an attorney, says he understood this to mean that the City could request a hearing after the Governing Board voted on the City's application. He did not confirm this understanding with any other person, including anyone at the District or in the City Attorney's Office, nor did he raise the issue again. Another City staffer, Stan R. Lemke, City Public Works Director, attended the same meeting and recalled a slightly different version of events in which Mr. Jenkins allegedly said words to the effect that "if [the City] got to the Governing Board and [the City] didn't like the outcome," that it could then file a petition for a hearing. Mr. Jenkins "very clearly" recalled that he did not offer any procedural advice at that meeting and that all of his comments were directed to technical issues. Another District employee, James Hollingshead, who also attended the meeting, could not recall Mr. Jenkins giving any procedural advice of the type described by Mr. Colby or Mr. Lemke. The testimony of Mr. Jenkins is accepted as being the most credible on this issue because Mr. Jenkins is also an attorney and he "fully underst[ood] the ramifications that are associated with advising somebody regarding their legal rights." On January 26, 2004, the Division finalized its TSR on the City's application and alerted Data Services that a noticing package should be sent to the City and other interested persons. On January 29, 2004, Data Services issued a computer-generated package consisting of the TSR, Notice of Intended District Decision, and Notice of Rights. The TSR recommended approval of Permit Application 8834 subject, however, to twenty-four special conditions, of which nine are opposed by the City. The Notice of Rights specifically advised the City that it was required to file a petition for administrative hearing, or a request for an extension of time to file a petition under Florida Administrative Code Rule 28-106.111(3), by February 26, 2004. The noticing package also indicated that the Governing Board would take final action on the application at a meeting to be held on February 10, 2004. Although the City has in-house counsel, and later hired outside counsel to represent it in this action, on its application filed with the District, the City listed Mr. Colby as its designated representative. (The City never advised the District that notices and other papers should be sent to anyone other than Mr. Colby.) Consistent with its practice of sending all noticing packages to the designated representative on an application, Data Services sent the noticing package to Mr. Colby by certified mail. The receipt (green card) indicates that the Notice of Rights (and other documents) was received by the City on January 30, 2004, as acknowledged by the signature of another City employee, Francis X. Bell, who is authorized by the City to sign the return receipt green cards. It is fair to infer from the evidence that Mr. Colby did not alert the City Attorney about the deadline provided in the Notice of Rights or seek legal advice on what steps the City should take. In fact, the evidence shows that it was not until at least March or more likely April 2004 that an attorney for the City became involved in this matter.1 On February 1, 2004, the District published a notice in The News Journal, a newspaper of general circulation in Volusia County, advising that a notice of intent regarding the City's application had been issued and that all petitions for administrative hearings must be filed within 21 days after publication of the notice, or within 26 days of the District depositing the Notice of Intent in the mail for those persons who receive actual notice. At the City's request, on February 3, 2004, City representatives again met with staff to discuss the pending case. Because the City was aware that the Governing Board intended to take final action on the City's application at its February 10 meeting, on February 4, 2004, Mr. Lemke sent a letter to Mr. Jenkins requesting that the District defer consideration of the application until a later date. More specifically, the letter stated in relevant part that I understand we are on the February 10, 2004 Agenda for discussion of our consumptive use permit. We believe additional discussion is warranted prior to proceeding. Please accept this as a formal request for an extension. * * * Our consultant recently hired a biologist to assist in the review of the wetlands information. His analysis resulted in a report on the wetland condition dated January 28, 2004. A copy of this report is enclosed for your review. It is our opinion following your review of the information presented our respective staffs should meet one more time to resolve our technical differences. Following this meeting, I believe we will be prepared to go before the Board for issuance of our consumptive use permit. We would like to request we be placed on the April Agenda to allow adequate time for comments. The letter did not request a hearing, request an extension of time to file a request for a hearing, or otherwise directly or indirectly respond to the Notice of Rights previously received by the City on January 30, 2004. Although the City suggests otherwise, a fair construction of the letter is that Mr. Lemke was simply asking that the City's application be placed on the April 2004 agenda, so that the staff could review the biologist's report prepared a few days earlier. In accordance with Mr. Lemke's request, Mr. Jenkins asked that the item be removed from the February 10, 2004, agenda and that it be rescheduled to the April 2004 meeting. On February 5, 2004, Mr. Witt, a hydrogeologist employed by the City since August 2003 as an outside consultant, also sent a letter to Mr. Jenkins labeled as a "Time Extension Request" in which, among other things, he requested on behalf of the City that the [District] postpone by two (2) months (i.e., time extension) their submittal of the staff report and permit for the governing board for approval. It is the City's desire to avoid having to file for an administrative hearing in order to have an impartial review. At hearing, Mr. Witt explained that he had been authorized by Mr. Lemke to send the letter. Also, while the letter did not specifically say so, Mr. Witt stated that it was intended to serve as a request for an extension of time to file a request for a hearing, and not simply to request a postponement of a decision by the Governing Board. Before drafting his letter, Mr. Witt did not consult with an attorney or read the Notice of Rights, the District's procedural rules, or the Uniform Rules of Procedure. According to Mr. Colby, Mr. Witt was authorized to "evaluate documents, report back to the [C]ity, and have communications with St. Johns, ask questions from St. Johns, [and] look at documents." It seems unlikely, however, that the City had authorized Mr. Witt, a hydrogeologist, to protect its legal rights, and it never advised the District that Mr. Witt was authorized to seek that type of relief. In any event, because Mr. Witt was in the process of preparing a report on wetlands impacts (which was completed on February 27, 2004), a fair construction of the letter is that Mr. Witt was merely seconding Mr. Lemke's request that the Governing Board take up the City's application at a later date so that the staff could consider the newly-prepared consultants' reports prior to a final decision being made. Mr. Jenkins did not treat either letter as a formal request for an extension of time to file a request for a hearing under Florida Administrative Code Rule 28-106.111(3) and therefore did not forward them to the District's Office of the General Counsel. Instead, he treated them as requests to defer consideration of the application by the Governing Board until a later date. This action was consistent with the language in the two letters. It also comports with testimony by Mr. Colby and Mr. Lemke that they were under the impression, albeit incorrect, that it was not necessary to file a request for a hearing until after the Governing Board voted on the City's application. Finally, although it would seem logical to do so if the two letters were intended to be requests for an extension of time to file a petition, neither Mr. Lemke or Mr. Witt made any follow- up inquiry to determine if their "requests" for an extension of time had been granted, and if so, the new date for filing a petition. On March 3, 2004, Mr. Lemke sent a letter to a District hydrologist, James Hollingshead, in which he indicated that the City agreed with all twenty-four conditions in the Permit except conditions 2, 3, 6, 10, 12-14, 19, and 24. As to those conditions, Mr. Lemke proposed suggested changes. The letter did not request a hearing, but did indicate that the City looked "forward to a meeting with the District staff prior to the April Board meeting." The letter also included Mr. Witt's report completed a few days earlier. After receiving Mr. Witt's report (and the earlier report by the City's biologist), the staff undertook another review of the application in light of the new information in the reports. On March 25, 2004, Mr. Hollingshead telephoned Mr. Lemke and advised that the staff had conducted an additional field investigation and that its analysis would not be completed for two more weeks. As a consequence, the staff was requesting that the TSR dated January 26, 2004, be taken up at the Governing Board's May 2004 meeting, and not in April, as originally planned. On April 14, 2004, Mr. Hollingshead e-mailed Mr. Lemke and advised him that the staff had completed its review of Mr. Witt's report and that except for certain "date changes" in the permit conditions, it did not intend to change its recommended agency action. At the request of the City, on April 20, 2004, another meeting was held with the staff. Mr. James Thurrott, who is the City's Assistant Manager for Water and Streets, attended the meeting and says he recalled Mr. Jenkins advising that the City could either mediate the dispute or have "an administrative hearing once the governing board took an action." Mr. Witt, who also attended that meeting, recalled that Mr. Jenkins described the point of entry process and that the Governing Board "preferred it be done before the [B]oard meeting, but it could be done after the [B]oard meeting." (Mr. Witt's recollection of this conversation was somewhat confusing, for he first indicated that the meeting occurred in October 2003 and then later stated it was February 2004. More than likely, however, Mr. Witt was referring to the meeting held on April 20, 2004, since Mr. Witt recalled that the City's outside counsel was also present at the meeting.) Again, Mr. Jenkins denied giving procedural, as opposed to technical, advice to the City and says he referred any legal questions to the City's outside counsel, who by then was participating in the case and attended this meeting. This version of the events is accepted as being more credible, particularly since counsel for the City was present. On April 26, 2004, the Division prepared another TSR incorporating certain changes to the conditions suggested by the City. Due to inadvertence and miscommunication, Data Services generated a second noticing package on April 29, 2004, containing not only the new TSR, but also another Notice of Intended Decision (Second Notice) and Notice of Rights. While no changes were made to conditions 2, 3, 6, 10, and 19, certain changes (presumably suggested by the City) were made to the other disputed conditions. These changes, however, were not so substantial as to warrant the issuance of another point of entry (even though one was erroneously sent by Data Services). The second package was sent by certified mail to Mr. Colby and was received by the City on April 30, 2004. The return receipt indicates that Francis X. Bell again signed the green card on behalf of the City. At the City's request, on May 3, 2004, the City and staff held another meeting to discuss the proposed permit conditions and wetlands mitigation projects. On May 5, 2004, Mr. Lemke sent a letter to Mr. Jenkins in which he indicated that, based on discussions at the May 3 meeting, the City was offering additional suggestions regarding conditions 3, 6, and 14. He also discussed several points of agreement that were reached at the meeting on other issues. On May 6, 2004, the Division issued a Revised TSR which incorporated the changes previously made in the April 26, 2004, TSR. (The Revised TSR contains strike-throughs and underlines reflecting the changes made in the April 26, 2004, TSR. Whether further changes were made as a result of Mr. Lemke's letter of May 3 is not of record.) Because the changes were not substantial, a new point of entry was not offered the City. On May 11, 2004, the Governing Board approved the issuance of the Permit, as recommended in the Revised TSR. On May 21, 2004, the City filed its Petition requesting a formal hearing and asking that the District modify the Permit issued on May 11, 2004, "as proposed in [its letters dated] March 3, 2004, and May 5, 2004." Thus, the City was challenging special conditions 2, 3, 6, 10, 12-14, 19, and 24. The Petition indicated that it was being filed in response to the point of entry received by the City on April 30, 2004. Not surprisingly, it made no reference to the first point of entry received by the City on January 30, 2004. After the Petition was referred to DOAH, the District filed its Renewed Motion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order dismissing the City of Daytona Beach's Petition as being untimely. DONE AND RECOMMENDED this 29th day of September, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 29th day of September, 2004.
Findings Of Fact Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years. RECOMMENDED this 23rd day of September, 1993, 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 23rd day of September, 1993. COPIES FURNISHED: Vicki L. Woodward Happy Traveler Campground 2710 Fountain Boulevard Tampa, Florida 33609 Susan Schwartz, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Did the Respondent, State of Florida, Department of Community Affairs, Florida Housing Finance Agency (the Agency), act fraudulently, arbitrarily, illegally or dishonestly in exercising review criteria Nos. 3, 4 and 7 to evaluate Petitioner, Spectra Engineering and Research, Inc. (Spectra), in the Agency's Request For Proposal (RFP) entitled Environmental Review Services for Home Investment Partnership Program, FHFA 96/05?
Findings Of Fact The RFP On February 26, 1996, the Agency mailed the RFP to prospective vendors. The services it sought from the vendors were as follows: SERVICES SOUGHT: Environmental Assessment Review services to be provided on each HOME project shall provide environmental reviews of projects and applicable activities and assist the Agency HOME staff in the identification and evaluation of the likely impacts of the projects on the environment and vice versa. The Environmental Assess- ment Review Agency shall also ensure that requirements of the Florida Statutes, Florida Administrative Code, and the Florida Housing Finance Agency Act are met by all reviews; submitting periodic status reports to the Agency; inspecting the development site; advising the Agency as to the environmental feasibility of development; documentation of required HUD forms submitted and generally providing such assistance and services to the Agency as are generally provided by an Environmental Assessment Review Agent. Reviews shall be completed on HUD Environmental Assessment Format II (see attached Exhibit B). It has been determined by the Agency that the services herein cannot be more specifi- cally defined and, in fact, the Agency contemplates the offerors providing a description of the services that can be rendered as a part of their competitive process. The Agency received responses to the RFP from Spectra; the Florida Planning Group, Inc.; Post, Buckley, Schuh and Jernigan, Inc.; Genesis Group, Inc.; Jim Stidham and Associates; William H. Bishop Engineers, Inc.; and Anderson Columbia Environmental, Inc. The RFP set forth criteria for selection as: The ability of the offeror to provide the services described herein in all relevant parts of the state. The demonstrated technical competence, expertise, innovative ability and experience of the offeror in providing the services described herein. The effect of the selection of the offeror on the Agency's ability to administer its HOME program. The offer or offers that is/are the most advantageous to the Agency and the public, taking into consideration the criteria set forth herein. The availability and ability of a minority-owned business. Qualification of individuals assigned to this account. The individuals who Shall be assigned to this account shall be designated in writing. The Agency's prior experience with the offeror. Any costs to the Agency or the borrower which will be incurred as the result of the offeror's selection. Whenever identical bids are received, preference shall be given to a certified Minority Business Enterprise in the event that its proposal is scored equal to the otherwise highest scoring proposal pursuant to Section 287.057(10), Florida Statutes. The vendors were also provided some insight into the purpose of the program that they would serve in a category in the RFP entitled "Background Information" which stated: The Agency makes mortgage loans to developers of rental and single family housing from funds out of the State of Florida's HOME Investment Partnership Program ("HOME"). The loans are make [sic] at below market interest rates and are secured by mortgages on the properties financed. As required by receiving a federal HOME allocation, the Program requires a HUD Environmental Assessment Review pursuant to guidelines outlined in 24 CFR Part 58 (Environmental Review Procedures for Title I Community Development Block Grant Programs). The vendors were reminded that the contract award would be based upon the following: This contract shall be awarded to the offeror(s) who is (are) determined in writing to be the most advantageous to the State taking into consideration the criteria set forth in this Request for Proposals. Notification shall be in the form of a written Notice of Award. The Agency reserves the right to reject any and all proposals, to negotiate price and to make such awards as are necessary to best serve the public's interest. To further assist the Agency in deciding the outcome in its competitive bidding process, it established a scoring matrix which set forth the following selection criteria, each criterion having a maximum score of 10 points: CRITERIA FOR SELECTION (10 POINTS MAXIMUM EACH) POINTS Is there a breakdown of support services and assistance to be provided to the Agency? Is it detailed? Does the offeror have experience performing HUD Environmental Assessments? Is Work Schedule reasonable for services sought? Can the offeror provide the services in all relevant parts of the state? Are there copies of Resume's included describing personal qualifications? Is there a list of three previous clients with contact name and telephone numbers used as references? There must be a description of the similar work by the offeror. Is the work similar to that which is requested in the RFP? Does the offeror have prior experience with the Agency? If yes, evaluate the experience. ADDITIONAL POINTS (20 POINTS) Is the offeror a certified Minority Business Enterprise with certification included in RFP? To review the proposals the Agency formed a committee. Shane Acevedo was the Community Assistance Consultant for the HOME program and he coordinated the issuance, receipt and review of the responses to the RFP and served on the committee. Other committee members were Angela Hatcher, HOME Program Administrator; Tom Tinsley, Guarantee Program Administrator within the Agency; Audrey Byrne, Planning Manager; and Wanda Anderson, now Wanda Marie Toote, Planner IV. With the exception of Tom Tinsley, the committee members had immediate familiarity with the HOME program. Each committee member was granted an ample opportunity to review the responses to the RFP. That review process was separately conducted by individual committee members. In that process they were allowed to make notes concerning their impressions about the vendor's responses to the RFP. Following the review performed by the individual committee members, the committee assembled and discussed the responses by the vendors and assigned scores to the individual vendors by using the scoring matrix. In this process the committee arrived at a consensus for scoring, rather than taking the individual impressions by the committee members and arriving at an aggregate score for the respective criteria in the scoring matrix. The outcome of their deliberations awarded the Florida Planning Group 70 points, Post Buckley 65 points, Genesis Group 60 points, Jim Stidham 50 points, William Bishop Engineers 50 points, Spectra 40 points, and Anderson Columbia 35 points. The agency decided to use the three highest scorers as its consultants for the environmental assessments. Through its formal protest on April 29, 1996, Spectra challenges the scores assigned to it under criteria Nos. 3, 4 and 7. It contends that it should have received the maximum 30 points for the criteria. In comparing the respective scores received for criterion No. 3, "Is work schedule reasonable for services sought?", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 10 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 4, "Can the offeror provide the services in all relevant parts of the state?", Genesis Group received 10 points, Jim Stidham received 10 points, William Bishop received 5 points, Anderson Columbia received 5 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 7, "Does the offeror have prior experience with the Agency? If yes, evaluate the experience", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 0 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 5 points. In this category a vendor need not have had specific prior experience in the State of Florida's Home Investment Partnership Program. The vendor could be credited for prior experience with the Agency in its administration of other programs. In the informal discussions between the parties, through correspondence dated June 12, 1996, the Agency offered to award additional points to Spectra for criteria Nos. 4 and 7. In each instance the Agency offered 5 additional points for a total of 10 points bringing the overall score to 50 points. The basis for this overture was to "give Spectra the benefit of the doubt." At hearing the Agency continued to express its commitment to awarding the 10 additional points without further explanation beyond the fact that the agency made this gesture after consulting its counsel. The Agency has arbitrarily assigned the 10 additional points. Nonetheless, Spectra should be credited with those points and allowed to advance its claim that the Agency acted inappropriately in not awarding the balance of available points for those two criteria. To resolve Spectra's claims, a more critical discussion of the Agency's actions in performing the evaluation of Spectra's response to the RFP in the assignment of scores for criteria Nos. 3, 4 and 7 follows. Criterion No. 3 Is work scheduled reasonable for services sought? The basis for determining whether the proposed work schedule by the vendor was a reasonable estimate considering the services to be provided was premised upon the need to meet the requirements of the Florida Statutes, Florida Administrative Code and the Florida Housing Finance Agency Act and the need for the vendor to generally provide assistance and services to the Agency that are generally contemplated as being provided by Environmental Assessment Review Agents. With this in mind, the committee reasonably concluded that estimates for conducting environmental review assessments should be no less than 60 days. Any vendor whose estimate was less than 60 days received no points. As reported, a number of vendors, including Spectra, did not receive points for this criterion. In its response at 2.4.9, Detailed Work Schedule, Spectra stated: We estimate to complete each environmental assessment project within 10 working days from Notice-to-Proceed. However, depending on unforeseeable circumstances and on project complexity, some assessments may take a longer time to complete. The following is our project schedule. Spectra then included a chart with bar graphs. In that chart project tasks were identified as data collection and review, telephone/fax request for additional project information, site visits and site photographs, completion of HUD checklist and report preparation and recommendation. The bar graph portion of the chart for those projects was described as "targeted completion time (in days)". The numbers under the completion times were from 1 to 14. Some of Spectra's estimates for categories of project tasks overlapped. For that reason the data collection and review was described as being involved with the first 3 days. The telephone/fax requests for additional project information took place between day 1 and day 5. The site visits and site photographs took place between day 6 and day 8. The completion of HUD checklist took place from day 3 to day 6 and report preparation and recommendations took place from day 3 to day Alternatively, if the chart was read to describe individual tasks that were separate and apart, the total number of days reflected is approximately 24. Either version of the chart and considering the narrative in the proposal would reasonably lead the committee members to conclude that the estimate for completing the work was less than 60 days. Consequently, it was not inappropriate for the committee to assign 0 points to Spectra for criterion No. 3. Those vendors who received points for criterion No. 3 offered estimates to complete the work between 77 and 115 days. Those vendors received 10 points for their estimates. The other vendors who did not receive points either offered no estimate of days needed to complete the work or between 14 and 21 days to complete the work. Criterion No. 4. Can the offeror provide the services in all relevant parts of the State? The RFP does not describe what is meant by "all relevant parts of the state." In response to criterion No. 3 at 2.2 in its proposal, entitled "Ability of Firm to Provide Required Services in Relevant Part of the State," Spectra indicated: We did, in our past contract with the Agency, demonstrate our ability to provide the required services in relevant parts of the state. Project locations included: Dade County, the Town of Century, Holmes County, Hillsborough County, City of Leesburg, Okaloosa County, Leon County, Walton County, Gadsden County, and the City of Palmetto. In implementing the projects, we gathered pertinent project information and also interacted with relevant, environmental regulatory and other offices. We have established practical channels of communi- cation with appropriate regulatory-agency personnel. Therefore, we know feasible approaches to fast information-gathering which will quicken project completion. Moreover, proper planning and effective task-coordination will enable us to prudently allocate our resources and to assign our staff. Our location close to the Agency's Tallahassee office will enable us to promptly attend meetings or to respond to project matters. This will maintain smooth project flow. In addition, we have performed related services for other clients in several Florida counties, including Duval County, Franklin County, Bay County, Liberty County, Citrus County, Washington County, among other areas. These projects are described in detail in Section 2.5: Related Project Experience. Spectra had a HOME contract with the Agency in 1993, as renewed in 1994, and had provided services in projects that are listed in Spectra's response to criterion No. 3. On the face of the response information is provided which would seem to comply with the most expansive reading of the term "in all relevant parts of the State." Rather than credit Spectra for its ability to provide services as described in its response to criterion No. 3, the committee concluded that Spectra should not receive points based upon two considerations. First, the Agency had received complaints from project managers for whom Spectra was responsible to perform environmental assessments under their 1993 and 1994 contract with the Agency at the various locations. The project managers complained that Spectra expected the project managers to take form letters from Spectra seeking information necessary for the environmental assessments. Spectra would then anticipate that the project managers would decide who to contact to get the necessary information to perform the environmental assessments and transmit the form letters from Spectra to the appropriate persons for those persons who had been contacted to provide Spectra the necessary information requested in the form letters. The project managers in Hillsborough County, Gadsden County and Osceola County complained about this practice. They expressed the feeling that Spectra should know the appropriate contact persons to assist Spectra in conducting the environmental assessments or should go to the individual locations and find out who should be contacted. Project managers felt that the task of identifying appropriate persons to assist in carrying out the environmental assessments was as anticipated in the contract between the Agency and Spectra for the years 1993 and 1994. These practices by Spectra were seen by the committee as evidence of the possible inability to make site visits in projects contemplated under the RFP and considered in criterion No. 4. The committee was also concerned that in carrying out the duties under the 1993 and 1994 contracts for environmental assessments Spectra had not always performed site visits required in the projects that they were assigned. On one occasion principals within Spectra, Peter and Christopher Okonkwo, conceded to Robert Ippolito, HOME Program Administrator, that Spectra had not always made the necessary site visits for the projects that it was assigned under the 1993 and 1994 contract with the Agency. By contrast, the Florida Planning Group, another vendor under the 1993 and 1994 HOME contract, in seeking the assistance of others in performing environmental assessments, identified the necessary contacts to provide input concerning the environmental assessments and transmitted form letters to the specific contacts soliciting the needed information. On the other hand, 2.3.5 to the Spectra response to the RFP which graphically represents the persons that would be assigned to conduct the consulting work for the Agency identifies what would appear to be sufficient numbers of employees to conduct the task in places to be served throughout the state. The issue is raised as to whether the prior experience as described between the Agency and Spectra overcomes what on the face of the response to the RFP seems an adequate response to the requirements in criterion No. 3. The prior experience is more persuasive in determining the Agency did not act arbitrarily in assigning 0 points when it made its assessment. Again, Spectra should be allowed to take advantage of the 5 additional points that were assigned to it through the informal process for unspecified reasons. Criterion No. 7 Does the Offeror Have Prior Experience with the Agency? If yes, evaluate the experience. As explained, Spectra had prior experience with the Agency and identified that experience in response to the RFP. The committee determined to award no points for this criterion. Among the reasons for awarding no points was the attempt by Spectra to enroll project managers in the process of gaining necessary information for the environmental assessments that has been discussed in relation to criterion No. 4. As with the circumstance in criterion No. 4, Mr. Ippolito explained that it was common and acceptable to gather information from local project managers or officials related to names and phone numbers of potential contact persons that could assist in performing the environmental assessment. However, according to Mr. Ippolito, that practice should not extend to sending project managers blank form letters and requesting that the project manager identify the persons whom the blank letters should be sent to, have the project managers fill in the names and forward the letters to the contact person for Spectra's benefit. This was the problem the committee saw in its criticisms associated with Spectra's response to criteria Nos. 4 and 7. In association with criterion No. 7, the committee also expressed concern about the past willingness of Spectra to perform functions known as State Clearinghouse Acceptance and legal adds in newspapers, as part of the environmental assessments. This was in association with the 1993 and 1994 contracts. This criticism by the committee was not well-founded. Whether under the terms in the 1993 and 1994 contract to perform environmental assessments for the HOME program Spectra was obligated to provide services related to the State Clearing House Acceptance and legal adds in newspapers was debatable. The Agency eventually convinced Spectra that it should perform those tasks associated with the State Clearing House Acceptance and legal adds in newspapers. To some extent the Agency forgave that requirement to perform. To characterize the nature of the discussions between the Agency and Spectra which led Spectra to perform State Clearing House Acceptance and provide for legal adds in newspapers as an indication that Spectra was reluctant to meet the mandates for performing environmental assessments, or that Spectra could not be counted on or was unwilling to do the two tasks, constitutes an arbitrary act by the Agency. Nonetheless, its other reason for awarding Spectra 0 points for criterion No. 7 when performing the evaluation was sufficient justification. As with criterion No. 4, Spectra is entitled to the five additional points which it was granted through informal settlement discussions.
Recommendation Upon consideration of the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which awards Spectra 10 additional points in total for criteria Nos. 4 and 7 and otherwise denies Spectra relief. DONE and ENTERED this 21st day of October, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1996. COPIES FURNISHED: Mark T. Mustian, Esquire Gregory T. Stewart, Esquire Maureen McCarthy Daughton, Esquire Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. 315 South Calhoun Street, Barnett Bank Building, Suite 800 Post Office Box 11008 Tallahassee, FL 32302 Angela Hatcher, Administrator Florida Housing Finance Agency 227 North Bronough Street, Suite 5000 Tallahassee, FL 32301-1329 Peter Okonkwo, President Spectra Engineering & Research, Inc. 345 South Magnolia Drive, Suite E-25 Tallahassee, FL 32301 Stephanie M. Gehres, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, FL 32399-2100 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, FL 32399-2100 Informational Copies: Florida Planning Group, Inc. 9471 BayMeadows Road, Suite 401 Jacksonville, FL 32256 Genesis Group, Inc. Building 1, Suite 200 820 East Park Avenue Tallahassee, FL 32301 Post, Buckley, Schuh & Jernigan, Inc. 9432 BayMeadows Road, Suite 250 Jacksonville, FL 32256 William H. Bishop Engineers, Inc. 715 North Calhoun Street Tallahassee, FL 32303 Jim Stidham & Associates, Inc. Post Office Box 3547 Tallahassee, FL 32303 Anderson Columbia Environmental, Inc. Post Office Box 1386 Lake City, FL 32056
