The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher based on his conviction of the crime of vehicular homicide.
Findings Of Fact Respondent was hired as a teacher by Miami-Dade County Public Schools in February 2000. On August 13, 1999, Respondent was involved in a motor vehicle accident in Monroe County, Florida. The accident resulted in criminal charges filed against Respondent in December 2000 for vehicular homicide (Section 782.071, Fla. Stat. [sic]). On or about May 2002, Respondent pled no contest and was adjudicated guilty of the offense of vehicular homicide by the Circuit Court for the Sixteenth Judicial Circuit in and for Monroe County, Florida. Respondent was placed on probation for five years, ordered to pay $50.00 court costs per month for his suspension [sic], and ordered to perform 500 hours of community service work. On March 15, 2006, Petitioner took action to suspend and initiate dismissal proceedings against Respondent due to his conviction of a crime involving moral turpitude. School Board Rule 6Gx13-4C-1.021 defines vehicular homicide (Section 782.071, F.S. [sic]) as a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment. DONE AND ENTERED this 11th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 11th day of September, 2007.
The Issue The issues in the case arc whether Respondent, on October 22, 1987, unlawfully and intentionally touched or struck Mary Ann Lanning and Denise Lanning and, if so, whether Respondent violated Sections 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b), Florida Administrative Code, which require that a law enforcement officer have good moral character, and thus failed to maintain the qualifications established in Sections 943.13(4) and (7), Florida Statutes.
Findings Of Fact Petitioner certified Respondent on December 31, 1970. Respondent received Certificate Number GF-1813. At the time of the events in question, Respondent was a trooper employed by the Florida Highway Patrol. On the evening of October 21, 1987, Respondent was at the office where he held a part-time job. At home were Respondent's wife, two young children born of their marriage, and two older daughters born of a prior marriage of Respondent. The two older daughters are Kim, who was then 15 years old, and Chris, who was then 16 years old. Respondent's wife and the two older daughters got into an argument, and the daughters angrily went to a neighbor's home a couple of houses away. The daughters had undergone significant emotional turmoil, largely the result of successive abandonments by their natural mother, who was Respondent's first wife, and then their adoptive mother, who was Respondent's second wife. The neighbor's house was the Lanning residence where Mary Ann Lanning and her daughter Denise lived. Denise was Kim's close friend and had been for several years. Kim and Chris were upset and crying when they arrived at the Lanning's home. Mrs. Lanning and Denise comforted them. In the meantime, Respondent's wife called him at about 6:00 p.m. and informed him of the problem. Respondent was not overly surprised. The two girls had recently been misbehaving, and relations between them and their father had been strained. Respondent and his wife, who were due to go to church that night, agreed, as was customary, that they would drive separately and meet at church. Respondent instructed his wife to lock up the house, which contained valuable personal items, including firearms. When Respondent and his wife returned from church that evening, his daughters were still gone, but a note was attached to the front door. The note informed Respondent that they were okay. The note also began to recite the telephone number at which they could be reached. However, Chris, unknown to Kim, had ripped the number off from the note before posting it on the door. At this point, one of the first of many factual disputes emerges. Although it concerns a matter that is not, in itself, of critical importance, Respondent and Mrs. Lanning advance their varying viewpoints with vehemence. The animosity between Respondent and Mrs. Lanning is incomprehensible as they were barely acquainted prior to the evening in question, and neither of them testified to any prior disagreements. In any event, it has proven impossible to credit the testimony of either of them, when their testimony is in dispute. The excitability of Mrs. Lanning coupled with the impulsiveness and arrogance of Respondent, which probably went a long way toward generating a series of failed communications, also detracted from their credibility as witnesses. Therefore, in the many instances in which their testimony is in dispute, the testimony of Respondent alone has been used to construct the events of the following eighteen hours or so, unless otherwise indicated. As the evening progressed, Chris and Kim, who were accompanied by Denise at least part of the way, went back home to see if they could get into the house to get their clothes. They intentionally went when they knew everyone would be gone at church. However, they found that they could not gain access to the house. The daughters may have visited their house a couple of more times when they knew that no one would be home. The record does not disclose whether they returned to try different means to get into the locked house, to mislead Mrs. Lanning into thinking that they were genuinely trying to contact Respondent and his wife, or to entertain themselves by walking around their neighborhood at night. Mrs. Lanning did not try to telephone Respondent or his wife that evening, although this apparently is due to her justifiable belief that they knew where the children were. An uneventful evening followed during which Chris and Kim slept at the Lanning's home and generally enjoyed themselves. Although she was good friends with Denise, Chris had never spent an evening at her friend's house. Respondent was a strong disciplinarian. The following morning, which was a school day, Chris and Kim again tried to reenter their house when they knew their stepmother would be taking their stepsister to school. Unable to gain access to their house and without school clothes, Chris and Kim decided to remain at the Lanning's home that day, and Denise stayed home with them. Later that morning, Mrs. Lanning telephoned Respondent at work and left a message for him to call her. As soon as he was able, Respondent returned the call. The time was about 10:00 a.m. Although the conversation was memorable, neither Mrs. Lanning nor Respondent remembers the conversation in the same terms. They agree that Mrs. Lanning told Respondent that his daughters were at her house, they were upset, and Respondent's house was locked. The remainder of the conversation is based on the testimony of Respondent. Frequently calling her "babe" and "darling," notwithstanding Mrs. Lanning's objections to this offensive practice, Respondent informed Mrs. Lanning that the house would remain locked as long as no one was at home. When Mrs. Lanning offered her advice that he should allow the girls to eat eggs, Respondent replied, "Hey, babe, that's none of your business." Mrs. Lanning retorted, "I'm not going to send [the children] down to that bitch [Respondent's third wife]." Respondent then informed Mrs. Lanning that he would pick up his daughters when he returned home from work that afternoon. At this point, Respondent called his wife and related the conversation, omitting the offensive reference to her. Respondent's wife said that she had reported the girls as missing persons when they had not returned from school that afternoon. At about 3:30 p.m., Respondent arrived home still in uniform and in a marked patrol car. When he greeted his wife, he learned that Mrs. Lanning had spoken with an older daughter of Respondent. The older daughter, who lived in St. Cloud, had called Respondent's wife and told her that Mrs. Lanning was crazy and they should get the children as soon as possible. Respondent immediately went to Mrs. Lanning's house, still in uniform and still wearing his gun. He knocked on the door. Mrs. Lanning answered the door by opening it slightly. Chris, Kim, Denise, and a friend, Deanna, were in the vicinity of the patio in the back, not clearly visible from the doorway. When the door opened partially, Respondent stepped into the house, uninvited and obviously unwelcome. When Respondent entered the house, Mrs. Lanning exhorted him loudly to leave. Respondent said that he just wanted his kids and would leave once he had them. Mrs. Lanning tried to push him out the door. He warned her not to. She kept trying to push him out the door. In a raised voice and threatening tone, Respondent insisted, "Hey, babe, I want my kids and I want them now." As Respondent testified, "It took 20 years of training and every fiber of my being not to go over there and strangle her." Resisting this impulse, Respondent instead grabbed the wrist of Mrs. Lanning and informed her, "That's it, darling. You're under arrest." When she asked what was the charge, he told her, "Well, we'll start off with kidnapping." Respondent was aware that Mrs. Lanning was not guilty of kidnapping. Respondent then turned Mrs. Lanning's arm behind her back. The children entered the room. Denise came to the aid of her mother. She tried to grab Respondent, who informed her: "Get your hands off me, toots." Denise then called him and his wife sons of a bitch. Although Respondent denies touching Denise, his daughter, Kim, whose testimony was generally favorable to her father, testified that Respondent took Denise by the wrist and pushed her away. Kim's testimony is credited. In a similar regard, Kim testified that she saw her father remove a telephone from Mrs. Lanning's hand in an attempt to prevent her from calling the police. Kim's testimony is credited on this point as well. After additional heated exchanges, Respondent was unable to persuade his daughters to return home. He instead left the Lanning's home a few minutes before a deputy from the Orange County Sheriff's Office arrived on the scene in response to calls from Mrs. Lanning and Denise. Changing into civilian clothes, Respondent prepared himself to speak with the deputy. The deputy initially treated the call as a neighborhood dispute, which he tried to settle. He spoke first with Mrs. Lanning and found her sensible and composed. She reported nothing of being touched by Respondent, only that he had forced his way into her home. The deputy then went to Respondent's house and found him in a similar state. The atmosphere deteriorated when the deputy brought Respondent back with him to Mrs. Lanning's house to apologize. Mrs. Lanning became irate and hostile. Recognizing that he was involved in a domestic disturbance, the deputy wisely called for supervisory assistance. After a corporal arrived on the scene, the deputy issued Respondent a trespass warning, which ordered him to stay off Mrs. Lanning's property. Notwithstanding the best efforts of both law enforcement officers, they could not mollify Mrs. Lanning. Mrs. Lanning later complained to the Orange County Sheriff's Office about the deputy and corporal. The record discloses no basis whatsoever for such complaint. To the contrary, the timely decision of the deputy to involve a supervisor in the investigation negates any suggestion that he intended to treat Respondent deferentially because of his status as a law enforcement officer. As a result of the above-described event, Respondent was terminated from the Florida Highway Patrol. Mrs. Lanning claims that she sustained a dislocated shoulder and serious injuries to her arm, back, and neck. She now suffers from bursitis and arthritis as a result of the incident. This testimony is not credited. Mrs. Lanning proved capable of complaining when she felt the need, yet she said nothing of a dislocated shoulder, pain, or even the physical touching when she first spoke with the deputy. The case involves more than Respondent's demonstrated inability to regain custody of his daughters in a prudent and appropriate manner. The case involves more than a lack of "people skills," such as in repeatedly calling a woman "babe" or "darling," especially after she has asked not to be called that, in a transparent effort to intimidate and patronize. The case involves a uniformed, armed law enforcement officer, trembling with rage for perceived but insignificant threats to his authority, allowing fury to overwhelm his reason and ignoring the critical distinctions among his roles as trooper, parent, and neighbor. Under these facts, Petitioner has proven by clear and convincing evidence that Respondent has failed to maintain good moral character. On August 16, 1988, the Office of the State Attorney for the Ninth Judicial Circuit filed a two count information alleging that Respondent committed the offense of battery upon Mrs. Lanning and her daughter. On November 10, 1988, Respondent pled nolo contendere to the charges in Orange County Court. In his twenty-one years with the Florida Highway Patrol, Respondent maintained a good record.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding Respondent guilty of failing to maintain good moral character and suspending his certificate for a period of two years. RECOMMENDED this 19th day of July, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of July, 1990. APPENDIX Treatment Accorded Petitioner's Proposed Findings 1-8: adopted or adopted in substance. 9: rejected as unsupported by the greater weight of the evidence. 10-20: adopted or adopted in substance. 21: rejected as recitation of testimony and subordinate. 22-43: adopted or adopted in substance. Treatment Accorded Respondent's Proposed Findings I, a-c: rejected as not findings of fact. II: adopted in substance except "near-perfect" record rejected as unsupported by the greater weight of the evidence. II, a-b: adopted or adopted in substance. II, c: first sentence rejected as unsupported by the greater weight of the evidence. Remainder adopted in substance. II, d: adopted. II, e: rejected as subordinate. II, f-k: adopted or adopted in substance, although the proposed facts do not adequately describe the incident at Mrs. Lanning's house. II, l: adopted in substance except that complaint filed against Mrs. Lanning is rejected as irrelevant. COPIES FURNISHED: Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Attorney Douglas E. Whitney Maitland Springs Office Park 377 Maitland Avenue, Suite 101 Altamonte Springs, FL 32701 Jeffrey Long Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue Should Petitioner impose discipline on Respondent in association with his auxiliary law enforcement certificate, correctional certificate, and law enforcement certificate?
Findings Of Fact In consideration of the election of rights form, in which Respondent did not dispute the allegations within paragraph 1 to the Administrative Complaint, it is found that Respondent was certified by the Criminal Justice Standards and Training Commission on September 18, 1980, and was issued Auxiliary Law Enforcement Certificate No. 75688, and on April 12, 1983, Correctional Certificate No. 75687, and on December 29, 1983, was issued Law Enforcement Certificate No. 75686. As an off-duty officer for the Jacksonville Sheriff's Office (JSO), Respondent was employed by Kings Ridge Apartment Complex (the apartment complex). In that capacity Respondent over-billed the apartment complex in the amount of $1,134.00 for work he did not perform. In this connection, Respondent submitted paperwork claiming payment from the apartment complex that he was not entitled to receive. Respondent had maintained activity logs indicating that he was engaged in his duties at the apartment complex during times that he was not located on that property. An internal investigation was performed by the integrity unit of the JSO concerning Respondent's conduct. As part of the investigation Respondent was interviewed. After being advised of his constitutional rights, Respondent acknowledged his false claims for payment for work that was not done at the apartment complex. On March 19, 2001, Respondent retired from his position with the JSO. In response to action taken by the State Attorney for the Fourth Judicial Circuit, State of Florida, Respondent participated in a Pre-trial Intervention Program through a Deferred Prosecution Agreement which was approved by the State Attorney and Court, and signed by Respondent and his counsel. Pertinent to that agreement, Respondent was required to make restitution for the $1,134.00 received as compensation not earned. According to the investigative report by the JSO, that money was repaid to the apartment complex. In addition, in accordance with the Deferred Prosecution Agreement, Respondent by executing that agreement on May 8, 2001, had agreed to resign from the JSO and to not seek further employment by the JSO for five years. The period of deferred prosecution was one year, read to mean one year from May 23, 2001, when the presiding judge signed the agreement. The record does not reveal that Respondent failed in any manner to meet the requirements of the Pre-trial Intervention Program through the Deferred Prosecution Agreement.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered which revokes the auxiliary law enforcement certificate, correctional officer certificate and law enforcement officer certificate of Respondent. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 11th day of December, 2003. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Wesley Rolack 12439 Teal Run Court Jacksonville, Florida 32258 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact William B. Barker, Jr., is certified as a law enforcement officer in the State of Florida employed by the Walton County Sheriff's Department and stationed at DeFuniak Springs, Florida. On or about 20 June 1981, Diana Marie Preston was driving her automobile west on Interstate Highway 10, in Walton County, Florida, on her way to her grandparents' home in Gulf Breeze, Florida. She had just completed the Law School Admissions Test in Tallahassee that morning and was on her way back home. Due to heavy rain in the area, she was driving carefully and was not exceeding the speed limit. At approximately 3 to 4 p.m., she was hailed by a police officer in a county police car. When she pulled over to the roadside at his request, the officer advised her she had been speeding and requested to see her driver's license. Since her license was in her purse which was in the trunk of her car, she had to get out of her car and open the trunk, at which time the officer noticed a pair of high-heeled shoes she had in there and asked her to take them out, indicating he had been looking at a pair like that for his wife. When Ms. Preston got her license out, the officer requested that she accompany him to his car, get in on the passenger side and close the passenger door. She complied, though she did not close the door completely. During this period, she noticed that though the officer was in uniform, he was not wearing either a name tag or a badge with a number on it. She does not recall whether he was wearing a pistol, but states there was a rifle in the vehicle on which he placed his hand several times while talking to her. The officer took Ms. Preston's driver's license and reached across her to the glove compartment for his ticket book, but at no time did he use his radio to call in either her driver's license number or her car tag number. Before writing out the ticket, the officer indicated he would not issue a ticket to her if she would put on her high heels (she had been driving barefoot) and let him try to guess her shoe size. He stated that for every size he was off in his guess, he would kiss her foot a certain number of times. Ms. Preston repeatedly refused, but because the officer was insistent and she felt she was in a difficult position due to the fact that she was alone on a lightly travelled (at the time) section of highway, she ultimately acquiesced. Though the officer had ample opportunity to see the shoe size when he examined the shoes, he guessed wrong on the size by several sizes. At this time, her left foot was in his lap, and he picked it up and kissed it several times. When he was finished, in the course of conversation, the officer asked her what she had been doing in Tallahassee. She told him she had been taking the LSAT, and his attitude changed immediately. He told her to go on with her trip, but cautioned her not to tell anyone what had happened, as he could get into trouble. Upon being released by the officer, Ms. Preston proceeded on to Gulf Breeze to the home of her grandparents, whom she told about the incident the following day. She did not report the incident to the police nor discuss it until several weeks later when she was contacted by two investigators who showed her a large photograph of individuals who, it was represented to her, were members of the Walton County Sheriff's Department. From this group, she identified the Respondent, Barker, and subsequently again identified him at the hearing as the officer in question, describing him as a heavyset man with a mustache and wearing tinted glasses. Respondent, upon graduation from high school, attended O. W. Junior College and then went on to the University of West Florida where he received his bachelor's degree in criminal justice. He unequivocally denies the allegations against him, stating he had never seen Ms. Preston until the day of the hearing at the hearing room. In fact, his shift was over, and he signed out just prior to 3 p.m. on 20 June 1981. In his opinion and that of his mother, the allegations against him are attributable to his stated position in a political dispute during which he sided against the incumbent sheriff for whom he was working. There is no evidence bearing on this issue other than the testimony of the Respondent and his mother.
Recommendation From the foregoing, it is concluded that the Petitioner failed to prove, by a preponderance of the evidence, that the Respondent is guilty of the allegations contained in this Administrative Complaint. It is RECOMMENDED: That the Criminal Justice Standards and Training Commission issue a final order dismissing the Administrative Complaint. ENTERED this 24th day of January, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.
The Issue Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of August, 2000.
