The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue The issue presented is whether Petitioner should be awarded credit for his answers to eleven (11) questions on the September, 1989, Florida Behavior Analysis Certification Examination.
Findings Of Fact Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. He failed to achieve a passing score on that examination. At the final hearing, Petitioner challenged the score he achieved on that examination by raising a general challenge to the vagueness of the examination and by challenging the score given for his answers to questions numbered 11, 12, 16, 27, 42, and 53 on Part II of the examination. Part I, Item 12, is correctly scored as "A" instead of Petitioner's "C" because the question asks about a topographical definition, i.e., the form of the behavior. "A" describes the form of the behavior, while "C" partly refers to form but also includes extraneous information. Therefore, "C" is an incorrect alternative since it is more than a topographical definition. Part I, Item 45, is correctly scored as "A", the most reasonable inference from the two levels of responding. Petitioner's choice of "B" is incorrect because the baseline level of responding has not been established. Part I, Item 72, is correctly scored as "B" instead of Petitioner's "A". The question asked for the least intrusive prompt, and the gestural prompt in "B" is less intrusive than "A", a demonstration prompt. Part I, Item 83, is correctly scored as "C". "C" specifies a loss of candy every time the client hurls the object, which is not only accepted practice in the field but also agrees with the literature in the field that punishment procedures should follow a behavior each time the behavior occurs. Petitioner'S choice of "A" is not acceptable because the problem behavior could escalate and there is currently only a slight decrease in the client's behavior. Part I, Item 85, is correctly scored as "A" rather than Petitioner'S answer of "B". The literature in the field reveals that when a behavior receives intermittent reinforcement, the behavior is more resistant to extinction. Although "B" is sometimes correct, it is sometimes incorrect and, therefore, is a less desirable alternative. Part II, Item 11, is scored correctly as "A" rather than "C" as Petitioner chose because the question asked for a behavioral goal. "A" is a good example of a goal, which is a general statement of the behavior change intended; however, "C" is a good example of a behavioral objective rather than a goal because that alternative specifies particular details. Part II, Item 12, is correctly scored as "C" rather than "B" as Petitioner chose. The question asks for the most appropriate and concise statement of a behavioral objective. "C" has all the information required, but "B" does not state the performance criteria that would be required for the trainer to know when work has been completed, when the objective has been met. Part II, Item 16, is scored correctly as "B" rather than "A" because "B" adequately describes the nature of the environment in which training will occur, while "A" is vague and nonspecific. Part II, Item 27, is correctly scored as "B" rather than "A". "B" specifies the most appropriate example of training for program procedures and is a direct technique of demonstration rather than "A", an indirect training procedure of posting the procedure and announcing there will be a quiz on it. Part II, Item 42, is scored correctly as "B" rather than "A". Answer "B" specifies the particular behaviors that staff should be engaging in so that their monitors or supervisors can observe and mark on a checklist if those behaviors did or did not occur. On the other hand, answer "A" does not specify the particular staff behaviors to be observed, and it uses a rating system which has inherent problems because the meaning of each rating description is subjective. Part II, Item 53, is correctly scored as a wrong answer because Petitioner omitted one of the key parts of the correct answer to the question. The omitted information is a reference to the process which is critical to classical conditioning, i.e., the pairing of the sound of the bell with the monitor's movement toward the shelf. Partial credit is not given for a partially-correct answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the 20 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20 day of September, 1990. LINDA M. RIGOT 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 20 day of September 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2406 Respondent's proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 14 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 15 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law or argument of counsel. COPIES FURNISHED: John W. Hedrick, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Dwight O'Quinn Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024
The Issue The issues in these consolidated cases are: (1) whether the Respondent should award Project/Job No. 15030-2531, RFP No. DOT-90/917002-RA to the Petitioner or to John C. Putnam; (2) whether the Respondent should award Project/Job No. 15010-2540, RFP No. DOT-90/91-7003-RA to the Petitioner or to George A. Cuddeback; and (3) whether the Respondent should award Project/Job No. 26090-2522, RFP No. RFP-DOT-2-90-003, to the Petitioner or to Richard S. Hale.
Findings Of Fact On or about October 19, 1990, the Respondent, the Department of Transportation (DOT or Department), requested proposals for appraisal services in connection with the condemnation of road right of way. Three of the requests for proposals are identified as follows: (1) in District VII, Project/Job No. 15030-2531 (State Road 686, East Bay Drive, Missouri Avenue to East of Highlands, Pinellas County), RFP No. DOT-90/917002-RA, hereafter referred to as RFP 7002 ; (2) also in District VII, Project/Job No. 15010-2540 (State Road 686, West Bay Drive, Missouri to Second Avenue, Pinellas County), RFP No. DOT-90/91- 7003-RA, hereafter referred to as RFP 7003; and (3), in District II, Project/Job No. 26090-2522 (State Road 24, Archer Road, Alachua County), RFP No. RFP-DOT-2- 90-003. The DOT has been decentralized to the extent that each district handles requests for proposals for work within its geographical boundaries. The central office in Tallahassee, establishes general procedures for the districts to follow, provides support services and makes suggestions but does not always require that its suggestions be followed, leaving that for the districts to decide, along with the description of the scope of the work and other aspects of the process. In the requests for proposals (RFPs) in issue in this case, both District VII and District II followed the general procedures of selecting an appraisal service from among the respondents to the RFPs by scoring the respondents on price and other criteria designed to rank the quality of the appraisal service offered. With one exception, the point system and criteria are the same for all three RFPs in issue in this case. In all three cases, evaluation of the responses to the RFPs was done by a three-member committee that included the district appraisal contracts administrator. District VII provided that proposals had to be submitted by November 16, 1990, for evaluation and posting of evaluation results on November 26, 1990. District II provided that proposals had to be submitted by November 19, 1990, for opening on November 20, 1990. The Petitioner, D. J. Leggate Appraisal Service, Inc. (Leggate), submitted responses to all three of the RFPs. All of the contracts were awarded to an RFP respondent other than Leggate. On RFP 7002, Leggate received a score of 37.44 out of a possible maximum score of 60, the third highest score; the successful bidder, John C. Putnam, received a score of 45.33. On RFP 7003, Leggate's score was 39.52 out of 60, again the third highest score; George Cuddeback was awarded this contract with a score of 47.14. On the Alachua County RFP, Leggate's score was 33.01 out of a possible maximum score of 55, only the sixth highest scorer out of eight respondents; Richard S. Hale was the successful bidder with a score of 42.66. The Petitioner made some general claims, and presented some evidence in an attempt to prove, that the criteria and scoring system were too subjective. But the evidence did not prove that the criteria and scoring system were so subjective as to be facially arbitrary. The DOT witnesses adequately explained the criteria and scoring system. Although some of the criteria were not susceptible to completely objective evaluation, even those criteria established specific enough standards to ascertain that the evaluations were not done in a generally arbitrary fashion. Except as referenced in Finding 6, the Petitioner did not attack the scores given to Putnam, Cuddeback or Hale. Instead, the Petitioner attempted to prove that the Petitioner should have received higher scores. One ground argued in support of the Petitioner's case that it should have received higher scores was that higher scores should have been given under some of the criteria pursuant to F.A.C. Rule 14-95.003. But F.A.C. Chapter 14- 95 sets out criteria for the evaluation of appraisers to determine whether they are minimally qualified to do work for the DOT. Appraisers not qualified under Chapter 14-95 to do work for the DOT would be precluded from responding to the RFP. But Chapter 14-95 does not to purport to undertake to rank the relative qualifications of appraisers to determine which appraiser's RFP response should be selected. None of the RFPs state that Chapter 14-95 applies to the evaluation under the RFP criteria. The RFP criteria stand alone and apart from Chapter 14-95. Under the heading "Selection Process," each RFP contains a criterion entitled "Education." The criterion states in part that respondents would be given three points for having a college or university degree with a major related to real estate appraisal and one point for having a degree with any other major. Putnam got one point under this criterion for a B.A. degree in science and engineering; Cuddeback got one point for a B.A. degree in arts; Hale got two points. 1/ Leggate, in the person of its principal, Donald J. Leggate, does not have a college degree. But, in part, unjustifiably relying on Chapter 14-95, Leggate contends that his years of experience in the field should be considered to be the equivalent of a college degree. But Leggate is not entitled to points under this part of the criterion. He clearly does not have a college or university degree. The RFP does not provide for the substitution of work experience for a college or university degree; to the contrary, the RFPs contain a separate criterion under which scores are given for work experience. Whether or not any particular appraiser with a degree is better than any particular appraiser without one, awarding points separately for a college or university degree is legitimate as part of a rational attempt to differentiate the qualifications of the respondents. Under the heading "Education," respondents also were given points for hours of appraisal training in the past three years--three points for 45 or more hours, two points for 30-44 hours, and one point for 10 to 29 hours. Putnam, Cuddeback and Hale got three points each. Leggate had 35 hours and received two points. He did not and could not prove that he was entitled to more. Whether or not any particular appraiser with 45 or more hours of recent appraisal training is better than any particular appraiser with less recent training, awarding points for recent training is legitimate as part of a rational attempt to differentiate the qualifications of the respondents. Although it would seem to make sense for teachers of appraisal training courses to be able to claim or be awarded "bonus" hours for teaching courses, as the Petitioner seems to argue, the Petitioner's evidence that he has taught appraisal training courses at some unspecified point in the past does not entitle him to more points. It was not clear how much of his teaching, if any, was within three years. Under the criterion entitled "Appraisal Experience (maximum points possible, 15)," RFP respondents were given between 10 and 15 points if they had more than five years experience in either eminent domain or single-family experience. The evaluators in District VII gave Leggate a maximum score of ten, while Cuddeback got only eight, and Putnam got only six; in District II, Leggate got 9.67 (the average of the two tens and one nine given by the three evaluators), and Hale got a ten. The Petitioner did not prove why a score of 9.67 was an inaccurate assessment of his appraisal experience in comparison with Hale and the other respondents to the Alachua County RFP. (Their responses to the RFP are not in evidence.) The Petitioner's argument that its score of ten in the District VII evaluations demanded the same score in the District II evaluation does account for possible differences among the competing respondents and is rejected. Under the "Appraisal Experience" criterion, up to five points also were available for "demonstrated expertise in complex/unusual appraisal problems." Putnam, Cuddeback and Leggate all got three as their score in District VII; in District II, Leggate got 3.67, and Hale got 3.33. Again, Leggate contended that it should have been given the highest possible score based on its principal's experience, but the responses to the RFPs were not in evidence, and the Petitioner did not prove why the scores it got were inaccurate assessments of its appraisal experience in comparison with the other respondents. The next criterion to which the Petitioner objects is entitled "Performance (maximum points possible, 9) . . . Past performance for DOT as indicated by Appraiser Performance Evaluations . . . (An appraiser with no prior DOT evaluation shall be rated 'Acceptable.')" Following the suggestion of a memorandum from DOT's central office in Tallahassee, both District VII and District II scored this criterion on the following scale: Outstanding, 9; Good, 5; Acceptable, 0; Poor, but correctable, -5; and Unacceptable, -9. But then the two districts' methodologies diverged. District VII also followed the central office's suggestion that this criterion be based upon the new statewide performance ratings. Before, districts gave RFP respondents a score based either on the district's own rating system or on the old statewide system. As late as May, 1990, District VII gave Leggate a score of 9 based on its own rating system that only took District VII work into account. 2/ The new statewide rating system was based on work done for the DOT, in any district, but only since October 1, 1989, with a score of zero ("acceptable") given to any respondent with no DOT work since October 1, 1989, unless submission of a demonstration appraisal report warranted a higher (or, presumably, a lower) score. The DOT central office memorandum also suggested that, if the new rating system is used, the RFPs should notify respondents of the change. District VII did not follow that suggestion. Instead, it relied on a mass mailout to appraisers on its mailing list, as well as verbal advice imparted at various conferences, to advise prospective bidders of the new rating system and the demonstration appraisal report option. The evidence was that, at some point in time, probably in the spring of 1990, the Petitioner received notice of the new statewide rating system and the demonstration appraisal report option. Leggate did not have DOT work after October 1, 1989, and did not submit a demonstration appraisal report with his response. Using the new statewide rating system, District VII gave Leggate a zero. Putnam and Cuddeback each got a five. Putnam got his five points by submitting a demonstration appraisal report. Leggate claims that it should have gotten a nine, the same score it got on this criterion in May, 1990. If it had, it would have been the highest scoring respondent on both of the District VII RFPs. On the other hand, District II chose not to follow the DOT central office memorandum's suggestion, believing it not to be fair or accurate to give appraisers who had high ratings in prior years a zero score, for merely "acceptable," just because they did not have DOT work after October 1, 1989. District II felt this was especially unfair because not much DOT appraisal work had been available after October 1, 1989, and many good appraisers who submitted responses to the Alachua County RFP would lose a high rating through nothing reflecting adversely on them or their ability. (District II apparently did not feel the "demonstration appraisal report" option adequately addressed the perceived unfairness.) District II decided to score the respondents to its RFP based on their rating in the out-of-date statewide rating system. Using this system, both Leggate and Hale got a five. 3/ On September 26, 1990, Leggate inquired of DOT's District I office in Bartow as to his performance rating and was told by letter dated September 29 that Leggate had no rating in District I but that his statewide rating was 15. The evidence was that this rating of 15 was on a different scale than the -9 to +9 scale used in the RFPs and would equate to a five on the RFP scale. One can surmise that this rating may have been based on the same out-of-date statewide rating that District II used, but the source and meaning of the rating is not clear from the evidence. It is not inherently illogical or arbitrary for District VII to score respondents differently than District II did on this criterion of the RFPs. Since the work is being procured and contracted by and for the districts, it is "appropriate" for the DOT to allow the districts the discretion to choose whether to use their own rating system or to use the statewide rating system. At the same time, the Petitioner did not prove facts on which the DOT would be compelled to require the districts to follow their own rating systems, rather than the new statewide system. The evidence adequately explicated a rational basis for DOT's suggestion that the districts use the new statewide rating system--the new statewide system is based on recent experience and addresses all of the appraisers' recent experience. To address the possibility that formerly rated appraisers, like Leggate, might not have recent enough experience, the DOT provided for the demonstration appraisal option. While perhaps not the best method for rating performance, the new statewide system has a rational basis and is not arbitrary. The next criterion of which the Petitioner complains is entitled "Understanding of the project (maximum points possible, 10). Under this criterion, the contracting agency is to rate the completeness of the RFP respondent's work plan, together with the respondent's demonstrated understanding of the project complexities and particular appraisal skills, knowledge and ability possessed by the respondent, as described in a maximum of three pages of narrative. District VII gave Leggate a six on RFP 7002 and a seven on RFP 7003; it gave Putnam an eight on RFP 7002, and it gave Cuddeback a nine on RFP 7003. District II gave Leggate a 7.67 to Hale's 6.33. In all cases, the scores were based entirely on the written submission of each RFP respondent describing the respondent's understanding of the project. The evaluators scored the submission based on the perceived relative merits of the appraisal issues raised and possible solutions offered by the RFP respondents. The Petitioner did not place the other responses in evidence, and its response could not be compared with the others. Apparently accepting that his submission was not as complete as it could have been (or as others were), Leggate implied that it relies in part on his credentials and experience to demonstrate his understanding of the project. But the RFPs clearly were designed to score credentials and experience separately, and the Petitioner should have recognized that this criterion was limited to an evaluation of the three-page written submission. Awarding points separately for an RFP respondent's ability to communicate in writing his understanding of the project at hand is legitimate as part of a rational attempt to differentiate the qualifications of the RFP respondents. District VII used one criterion omitted by District II, giving five points for office location 50 miles or less from the Hillsborough County courthouse. Assuming that this criterion was intended to rate the RFP respondents' access to the court records they would have to use during the appraisal work, Leggate pointed out that the appraiser awarded the contracts would have to use the Pinellas County courthouse to access the pertinent court records and that, although the Petitioner got five points for office location, its office actually is more than 50 miles from the Pinellas County courthouse. The Petitioner argued that the criterion is arbitrary. The Department's evidence, however, was that the criterion was added to give an advantage to local appraisers with working knowledge of local conditions and that the 50 mile limitation was used specifically to include Leggate and other appraisers from Lakeland, known to District VII to be good appraisers with local knowledge. The Petitioner did not prove either that the criterion should be invalidated or that five points should be subtracted from its score. As can be seen by the foregoing Findings of Fact, the Petitioner has not proven its entitlement to any additional points on any of the RFP response evaluations in issue in this case. (Besides, as to the Alachua County RFP, even if the Petitioner were given all of the additional points claimed, it still would not be the highest scoring respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order dismissing the bid protests in these cases and awarding the appraisal contracts to John C. Putnam (RFP 7002), George Cuddeback (RFP 7003) and Richard S. Hale (Alachua County RFP). RECOMMENDED this 1st day of February, 1991, 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 1st day of February, 1991.
The Issue Whether the Petitioner should receive credit for his answers to certain examination questions on the State Officer Certification Examination ("SOCE") administered November 11, 2004.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with the responsibility for administering officer certification examinations and for establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2004). The SOCE is a multiple-choice examination, and there are four answer choices for each question. Mr. Page was a certified police officer in New Jersey for approximately three and one-half years before moving to Florida. Pursuant to Section 943.13(9), Florida Statutes (2004), Mr. Page was not required to attend a full six-months' basic recruit training program because of his background in law enforcement. Mr. Page did, however, attend a two-week, 80-hour state-certified training program in preparation for taking the SOCE, and he was provided a loose-leaf notebook containing written course materials. The course materials reflect the Commission's curriculum, and these materials are provided to the training institution, which is responsible for copying the materials and providing them to the students. According to the Commission, the correct answer to question 47 is "C"; Mr. Page chose answer "A." Question 47 describes the statutory elements of a crime, and the examination candidate must choose the answer that identifies the crime fitting the statutory elements set forth in the body of the question. Question 47 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 55 is "D"; Mr. Page chose answer "A." Question 55 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 55 is clear and unambiguous; the question is statistically valid and classified as a moderately difficult question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 63 is "D"; Mr. Page chose answer "A." Question 63 describes the actions of a person, and the answer choices set forth conclusions a law enforcement officer could draw from these actions. The examination candidate is asked to choose the appropriate conclusion. Question 63 is clear and unambiguous; the question is statistically valid and classified as a difficult question3; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 159 is "B"; Mr. Page chose answer "A." Question 159 requires the examination candidate to fill in the blank in the body of the question. The examination candidate must choose the answer that accurately completes the statement contained in the body of the question. Question 159 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 195 is "A"; Mr. Page chose answer "B." Question 195 describes an activity in which a law enforcement officer might engage, and the examination candidate is asked to choose the answer that best describes the consequences of the officer's engaging in such an activity. Question 195 is clear and unambiguous; the question is statistically valid and classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 248 is "B"; Mr. Page chose answer "C." Question 248 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the answer describing the appropriate action. Question 248 is clear and unambiguous; the question is statistically valid and is classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. According to the Commission, the correct answer to question 251 is "C"; Mr. Page chose answer "A." Question 251 describes a scenario, and the answer choices provide various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 251 is clear and unambiguous; the question is statistically valid and is classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct. The specific curriculum materials referred to by the Commission as supporting what it deemed to be the correct answers to questions numbered 47, 63, 159, and 195, were not included in the loose-leaf notebook provided to Mr. Page as part of the 80-hour training program in which he participated prior to taking the SOCE.4 These omissions are not sufficient of themselves, however, to justify giving Mr. Page credit for his answers to these four questions. Because Mr. Page failed to establish either that the questions were ambiguous or that the answers he gave on the examination questions were correct, he is not entitled to credit for his answers to these questions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the challenge of Jason R. Page to the scoring of his answers on the SOCE administered on November 11, 2004. DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 28th day of June, 2005.
The Issue The issue is whether Petitioner has proved that Respondent failed to meet performance standards so as to justify his termination from employment.
Findings Of Fact Respondent earned a bachelor's degree in social science and a master's degree in communications. At the time of his retirement from the United States Air Force after 21 years' service, Respondent was working as a public affairs director under a wing commander. Following his military retirement, Respondent obtained a public-communications job with Petitioner. During his six and one-half years' employment with Petitioner, Respondent had reached the level of a Public Communications Specialist III when Petitioner fired him effective August 31, 2000. The events that led to Respondent's termination followed a large-scale reorganization that Petitioner implemented on December 31, 1999. Petitioner does not dispute that, prior to the reorganization, Respondent received good evaluations indicating that his work was average or better than average. Prior to the reorganization, Respondent's job responsibilities emphasized direct contact with the public, such as attending environmental events and presenting or arranging public presentations to various community groups. Working in Petitioner's Department of Water Resources, Respondent devoted substantially all of his efforts to public communications for the Indian River Lagoon National Estuary Program, which is administered by Petitioner. Among other things, Respondent headed the Florida Yards and Neighborhoods Program, which is part of the Indian River Lagoon National Estuary Program; provided staff support for related citizens' advisory committees; coordinated public outreach over five counties and part of a sixth; and published Petitioner's Indian River Lagoon Update (Newsletter). Prior to the reorganization, Respondent's direct supervisor was Martin Smithson, who was the program director of the Indian River Lagoon National Estuary Program. Respondent, Mr. Smithson, and other staff in the Indian River Lagoon National Estuary Program worked in Petitioner's Palm Bay office, which is a considerable distance from Petitioner's headquarters in Palatka. Originally funded largely by the United States Environmental Protection Agency, the Indian River Lagoon National Estuary Program lost federal financial support over several years, as annual federal contributions decreased from $1 million to $300,000. At one time, federal funds paid for the salaries of staff, including Respondent, but, in recent years, Petitioner had assumed much of the financial burden of the program. One of the purposes of the reorganization was to centralize public communications within the District by placing all public-communications employees within Petitioner's Office of Communications. Accordingly, Petitioner reassigned Respondent from the Department of Water Resources to the Office of Communications. Although most of the Office of Communications staff work in the Palatka office, Respondent remained in the Palm Bay office. However, after the reorganization, Respondent reported to Beth Hickenlooper, an Office of Communications supervisor in the Palatka office. On November 30, 1999, Ms. Hickenlooper sent Respondent a memorandum concerning the Newsletter. In this memorandum, Ms. Hickenlooper advised Respondent: "As you join the Office of Communications, you will likely have new experiences, and procedures you have used in the past will change. Change will also effect [sic] the Indian River Lagoon Update.” The November 30 memorandum states that Ms. Hickenlooper has prepared a new master template for the Newsletter. She attached a copy of the new template to the memorandum and supplied Respondent with an electronic copy. Advising that "[n]ot much is changing in the new template," the memorandum states that the electronic version of the Newsletter contains a style sheet to assure uniformity of all fonts and text sizes. The memorandum states that the newsletter will conform to other District publications, including its use of color. The memorandum requests an electronic copy of the Newsletter mailing list by December 3, so that Ms. Hickenlooper could submit the list to the Information Resources Department. The November 30 memorandum states that Garrett Wallace would be seeking bids for printing the Newsletter and asks that Respondent give him a copy of the printing specifications by December 3. However, the memorandum advises Respondent that he will still be responsible for coordinating the printing and mailing of the Newsletter and advising the Information Resources Department of updates to the mailing list. The November 30 memorandum states that Petitioner will continue to publish the Newsletter quarterly. The memorandum elaborates: For planning purposes, the [N]ewsletter is to be published on or about the first week in January, April, July and October. To accomplish this goal, you will be responsible for developing a production schedule at the beginning of each quarter. . . . Submit the schedule to me, in writing, the first week of each quarter along with the proposed story list. I will review both and return to you with any comments. The November 30 memorandum contains an "example" production schedule: Jan. 7--Potential story list due to Beth for review. Jan. 14-Feb. 4--Johnnie gathers information for articles, gathers art and/or takes photographs, writes articles. Johnnie obtains source approvals for articles. Feb. 7--All draft text in Word documents due to Beth for review. Beth will pass along text to technical editor for second review. Feb. 21--Text is returned to Beth. Any necessary rewrites are done by Johnnie. If rewrites are necessary, draft text is again given to Beth for review before text is put in the layout. Feb. 28-March 10--Johnnie finalizes layout. March 13-24--Beth and technical editor review document layout; any changes needed are returned to Johnnie to make during this time. March 27-31--Linda B[urnette, Director of the Office of Communications] reviews document. April 3--Document sent to printer. The November 30 memorandum supplies a copy of a tracking form for use in obtaining the approval of text in accordance with the review process used by the Office of Communications. The memorandum offers a "few tips" to prevent "overcrowding" the Newsletter. These suggestions include determining the maximum word count for each page and writing articles in Microsoft Word to avoid exceeding the maximum length, refiguring the word count when including art in the article, laying out paragraphs that are no longer than seven lines deep, and leaving specified margins of white space around each art boxes and below the heading at the top of each text box. By separate memorandum, also dated November 30, 1999, Ms. Hickenlooper listed several office procedures of the Office of Communications. These procedures include the submittal of a weekly report of daily activities and projects, which Respondent could submit by e-mail or fax; schedule for the following week; biweekly time sheets, which Respondent must submit by fax; by December 3, a list of leave scheduled for the first quarter of 2000; and, by December 10, a list of organizations in which Respondent, on behalf of Petitioner, is active. The office-procedures memorandum directs Respondent to attend a weekly staff meeting each Tuesday at 9:00 a.m. in Palatka, arrange his schedule to avoid compensatory time, not to attend community or school functions unless approved by his supervisor or other appropriate person, not to disseminate news releases, undertake the general writing assignments given him as a member of the Office of Communications (although "much of your focus will remain with the lagoon"), and attend the "refresher training" that Ms. Hickenlooper and Mr. Wallace will schedule for Respondent over the next several months "to keep you aware of trends in the public relations and publishing fields." The office-procedures memorandum states that Mr. Wallace is obtaining a newer computer for Respondent's work station to "eliviate [sic] any computer-related problems in meeting your work goals." The office-procedures memorandum concludes: With the changes in the District, we will all need to make adjustments to make sure we stay focused on the goal of producing the best possible publications to deliver the District's message in the most effective way. I will do my best to assist you and help you to adjust in any way I can. All you have to do is pick up the phone. Accompanying both November 30 memoranda is a detailed description of Respondent's job responsibilities. By time, Respondent's responsibilities break down as follows: 45 percent--performing research and writing for the Newsletter and other publications, as well as scripts and speaking points; 15 percent--executing layout and design work for the Newsletter and other projects, as assigned; 10 percent--producing and obtaining photographs and graphics for the Newsletter and other projects, as assigned; 10 percent--participating in and setting up booths at outreach events, as assigned; and 5 percent each--coordinating printing of the Newsletter, assisting with outreach programs, responding to public inquiries and forwarding callers to Regional Communications Coordinators, and performing other assigned duties. The job description states that Respondent must have knowledge of the Associated Press style manual and basic layout and design, skill in written communication and basic photography, and ability to organize effectively and "demonstrate good customer service to internal and external customers." Also accompanying the November 30 memoranda is a set of performance standards applicable to Respondent's job. Described as a "critical function," the first standard is: "A complete edition of the [Newsletter]." This task represents 40 percent of Respondent's job. Satisfaction of this standard is a function of: "Accuracy of information, accuracy of following style, timeliness of news content, timeliness of production, quantity. Measurements determined by observations and records of supervisor, project-tracking sheets, employee weekly reports." To earn a "meets expectations" rating, Respondent must accomplish the following items: Product is produced quarterly (4 issues each year to be published in approximately January, April, July, and October). 90-95 percent of the document is error free when printed. 60-75 percent of the articles in the document is [sic] written by the employee. 85 percent of photography is taken by employee and other graphics needs are coordinated by the employee. Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 7 to 10 days for processing. 80-90 percent of the layout and design is consistent with District style. 80 percent of the editions contain eight (8) pages. Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process. Maintains subscription mailing list, forwarding additions or deletions to supervisor at the beginning of each month. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: [Same as 1. above.] 96-100 percent of the document is error free when printed. 76-100 percent of the articles in the document is [sic] written by the employee. 86-100 percent of photography is taken by employee and other graphics needs are coordinated by the employee. Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 11 days or more for processing. 91-100 percent of the layout and design is consistent with District style. 81 percent or more of the editions contain eight (8) pages. Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process. [Same as 9. above.] Produce extra editions, as needed. Add extra pages to an edition, as needed. Described as a "critical function," the second performance standard is: "Written text for a variety of documents or other uses (StreamLines, WaterSpout, speeches, scripts, fact sheets, brochures, etc.)." These tasks represent 30 percent of Respondent's job. Satisfaction of the standard is a function of: "Accuracy of information, accuracy of following style. Measurements determined by observations and records of supervisor, project tracking sheets, employee weekly reports." To earn a "meets expectations" rating, Respondent must accomplish the following items: The text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined. 80 percent of all text written throughout the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style. Text meets the objectives of the client and/or supervisor. Text is written at a reading level appropriate for the intended audience. Employee ensures that all text has been reviewed through the Office of Communications review process. Text assignment is completed no later than the due date assigned with each new assignment in 90 percent of the cases. Provides a total of 6 articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: 80-100 percent of the text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined. 81-100 percent of all text written through the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style. [Same as 3. above.] [Same as 4. above.] [Same as 5. above.] Text assignment is completed on or before the due date assigned with each new assignment in 95-100 percent of cases. Provides 7 or more articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process. Described as a "noncritical function," the third performance standard is: "A written report of the employee's weekly activities." This task represents five percent of Respondent's job. Satisfaction of this standard is a function of: "Quantity, timeliness." To earn a "meets expectations" rating, Respondent must accomplish the following items: For a minimum of 40 weeks during the year, the report is turned in to supervisor by 4 p.m. each Friday (or the last day the employee is in the office before scheduled leave or a holiday). Report lists daily activities. Report lists projects on which the employee is working with a brief description of work accomplished toward completing assigned tasks and assignment due dates. Offers supervisor oral reports, as needed, to supplement the written report. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: For a minimum of 45 weeks during the year, the report is turned in to supervisor by 4 pm. each Friday (or the last day the employee is in the office before scheduled leave or a holiday.) [Same as 2. above.] [Same as 3. above.] [Same as 4. above.] Described as a "critical function," the fourth performance standard is: "Responses to staff and public requests for information." These tasks represent 10 percent of Respondent's job. Satisfaction of these tasks is a function of: "Timeliness, accuracy, records kept by District's complaint tracking program." To earn a "meets expectations" rating, Respondent must accomplish the following items: For printed material requests, responds to inquiries within 5 business days. For verbal requests, determines if information can be supplied by employee or refers questions to the appropriate staff member or other agencies. For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within 24 hours for nonemergency/noncritical requests, and within one hour for time-sensitive requests. In 85 percent of cases, information disseminated is accurate. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: For printed material requests, responds to inquiries within 3 business days. [Same as 2. above.] For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within the same work day for nonemergency/noncritical requests, and within one hour for time-sensitive requests. In 86-100 percent of cases, information disseminated is accurate. Described as a "noncritical function," the fifth performance standard is: "Outreach assistance." This task represents five percent of Respondent's job. Satisfaction of this task is a function of: "Quality." To earn a "meets expectations" rating, Respondent must accomplish the following tasks: Participates in not more than 10 outreach events annually with participation limited to no more than one per day per event (for a total of 10 days spent each year participating in events). Arrives for work assignment no later than 10 minutes after the assigned work starting time. Assists, as needed, with setup, take down and restocking of booths at events at which booths are used. In 80 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: Participates in events other than the predetermined 10 as assigned by the supervisor, production manager or Communications director. Arrives for work assignment 5 minutes before the assigned work starting time. [Same as 3. above.] In 81-100 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events. Described as a "critical function," the sixth performance standard is: "A complete workday." This task represents 10 percent of Respondent's job. Satisfaction of this task is a function of: "Time sheets, leave slips, reports to supervisor, global observations by other Communications and District supervisors." To earn a "meets expectations" rating, Respondent must accomplish the following items: 95 percent of the time, reports to work no more than 10 minutes after work begins at 8 a.m. daily. Reports to work unless late arrival has been previously approved or employee is on approved annual leave. Calls supervisor at least 15 minutes before starting time to alert supervisor of need to be away from work due to illness or other emergency. For annual, regular medical appointments or other such absences, arranges absences with supervisor at least one week before scheduled absence. Works a full 8-hour day, with the exception of District-allowed 15-minute break in the morning and 15-minute break in the afternoon and one-hour lunch break. 95 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: 96-100 percent of the time, reports to work no more than 5 minutes after work begins at 8 a.m. daily. [Same as 2. above.] [Same as 3. above, except for omission of "or other emergency."] [Same as 4. above, except substitutes "more than" for "at least."] [Same as 5. above.] 96-100 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time. Petitioner's Policy 79-18, as last revised on February 10, 1999, establishes the procedures for performance evaluations of Petitioner's employees. Section II.F requires the employee's immediate supervisor to prepare the performance evaluation. Section VII.B requires the supervisor to provide each employee with the applicable performance standards and evaluate each employee in accordance with these standards. Policy 79-18, Section IV.C requires the preparation of a performance evaluation for each employee by January 15 of each year. Section IV.D authorizes the preparation of a special performance evaluation "any time there is a significant change in job performance or where warranted to document exceptional achievements." Policy 79-18, Section V.B.2 requires a corrective action plan to accompany any special evaluation determining that an employee's "overall job performance does not meet performance standards." Section II.B defines a "corrective action plan" as a written document "detailing what the employee must do and how the supervisor will assist the employee to improve job performance so that he/she is meeting the performance standards of the position." Policy 79-18, Section V.B.3 requires the supervisor to reevaluate the employee not more than 60 days after the effective date of the initial unsatisfactory evaluation. If the supervisor determines that the employee's performance still fails to meet performance standards, the supervisor "may" give the employee not more than 60 additional days within which "to improve his/her job performance." If, at the end of the second period, the employee's job performance still does not meet performance standards, Petitioner "shall" start proceedings to terminate the employee. Under Respondent and Mr. Smithson, Petitioner published only two editions of the Newsletter in 1999. Arguably, Petitioner published three editions in 1999 because the third edition--Winter 1999--came out one month early, in December 1998, due to surgery that Respondent had scheduled. Three editions of the "quarterly" Newsletter were acceptable to Mr. Smithson, who was ultimately responsible for the publication prior to the reorganization. Mr. Smithson found that time demands permitted only three editions annually, and this schedule coordinated well with the budget cycle and the three annual meetings of the Indian River Lagoon citizens' advisory committee. Mr. Smithson also supported flexible publication deadlines because they better accommodated updates of recent developments. In any event, Respondent's work on the Newsletter was satisfactory to Mr. Smithson. Having served as Respondent's supervisor for all but two weeks of the evaluation period ending in mid-January 2000, Mr. Smithson provided considerable input into the 1999 performance evaluation of Respondent, who received a satisfactory evaluation. Mr. Smithson probably did not anticipate that the reorganization would substantially change Respondent's relationship to the Indian River Lagoon National Estuary Program. In the fall of 1999, Ms. Burnette had assured Mr. Smithson that the reorganization would not substantially change Respondent's job responsibilities, even though she did not yet know all of the details of the reorganization. In several respects, the reorganization did not dramatically change Respondent's job. Respondent continued to work in the Palm Bay office, receive suggestions from Ms. Hickenlooper on the Newsletter as he had since 1997, and work in the same office as Mr. Smithson and other staff in the Indian River Lagoon National Estuary Program. In other respects, though, the reorganization dramatically changed Respondent's job. After becoming Respondent's supervisor, Ms. Hickenlooper insisted on close contact with Respondent, emphasized Respondent's writing responsibilities, and imposed high standards in written communication and internal organization. Respondent's new supervisors, Ms. Hickenlooper and Ms. Burnette, have considerable experience in journalism, as contrasted to Respondent's primary experience in public relations. As Respondent candidly admitted at the hearing, the reorganization moved him from a stronger area--setting up and giving presentations and working personally with members of the public--to a weaker area--publications. The change was also abrupt. There was no transition period after December 31, 1999. The only transition took place prior to the reorganization, when Ms. Hickenlooper began to involve herself in Respondent's work in the late fall of 1999. Respondent remained responsible for his pre-reorganization duties during this time, and Ms. Hickenlooper's pre- reorganization tasks did not facilitate Respondent's adjustment to the reorganization. Another factor complicating the transition was Ms. Hickenlooper's insistence on the immediate publication of the Winter 2000 edition. Ninety days are required to publish the Newsletter. Prior to the reorganization, Respondent had targeted a January publication of the Winter 2000 edition, but, in accordance with Mr. Smithson's practice, the publication date was flexible. By insisting on a firm January publication date, Ms. Hickenlooper effectively accelerated the previously soft publication deadline. At the same time, Respondent was trying to assimilate other substantial changes resulting from the reorganization. Many procedural changes followed from the simple fact that Respondent's direct supervisor no longer worked in the same office, or even the same part of the state. Making the transition more difficult, as Ms. Hickenlooper acknowledged in a January 2000 e-mail, computers in the Palm Bay and Palatka offices were unable to meet the demands of the publishing software, resulting in frequent computer crashes, lost work, and lost time. After Respondent submitted his draft of the laid-out Winter 2000 Newsletter, Ms. Hickenlooper admitted, by e-mail to Respondent dated January 28, 2000, that "[t]his first edition as an official part of Communications will be a learning experience in how we expect things to be done." Ms. Hickenlooper also attached to the e-mail a detailed set of comments to the newsletter text that Respondent had submitted. Almost without exception, Ms. Hickenlooper's comments identify significant flaws in Respondent's writing and analytic processes and offer good, concrete solutions. Prior to the reorganization, Respondent's writing was undermined by occasional instances of inconsistent usage, unclear references, awkward word order, poor organization, and poor word choice. These writing problems occasionally surfaced in the pre- reorganization Newsletter, which also suffered at times from poor layout and design. At the time of the reorganization, Respondent's writing was inadequate, primarily due to excessive instances of inapt word choice and inept organization. By memorandum dated February 7, 2000, Ms. Hickenlooper comprehensively expressed her dissatisfaction with Respondent's work and attached a marked-up draft of the laid-out newsletter. Focusing on Respondent's deviation from District style, Ms. Hickenlooper's memorandum, revealing evident frustration with Respondent's past dealings with the Office of Communications, notes that she and Ms. Burnette had made similar requests of him in memoranda in August and November 1998 and June 1999, as well as in numerous e-mails and the November 30, 1999, documents detailed above. The February 7 memorandum contains a detailed discussion of Respondent's style errors and concludes with the warning: "If you continue to fail to follow directions, procedures and policies of this office and of the District, your behavior will result in disciplinary action being taken." Ms. Hickenlooper's style comments are detailed and entirely justified; they are also accompanied by specific corrections. In February 2000, Ms. Hickenlooper spoke with Robin Hudson, Petitioner's human relations manager. After describing her dissatisfaction with Respondent's work and noncompliance with office procedures, Ms. Hickenlooper asked for guidance. Ms. Hudson suggested that Ms. Hickenlooper continue to work with Respondent and evaluate his performance over the next 30 to 60 days. If his work remained unsatisfactory, Ms. Hickenlooper could then perform a special evaluation. Thirty days later, Ms. Hickenlooper performed a special performance evaluation of Respondent. The evaluation, which is dated March 14, 2000, reprints the six performance standards previously detailed in the November 30, 1999, memorandum. Ms. Hickenlooper presented Respondent with the evaluation, as well as the below-described corrective action plan, on March 21, 2000. As for the first standard, which is publishing the Newsletter, the performance evaluation is unreasonable and substantially unfounded. This part of the evaluation focuses on Respondent's failure to meet various deadlines for the Winter 2000 edition. As already noted, Ms. Hickenlooper's assumption of ultimate responsibility for the Newsletter was too late in the then-pending publication cycle to impose the new procedures for that edition, especially while effectively accelerating the publication date. One comment at the end of this section of the performance evaluation is misleading. Without offering supporting authority, Ms. Hickenlooper complains that Respondent "should be skilled in electronic layout." Exacerbating the pressure caused by Ms. Hickenlooper's imposition of a firm publication deadline and demanding internal procedures was Respondent's relative unfamiliarity with electronic publishing. Although, as already noted, the pre- reorganization Newsletter sometimes suffered from poor layout and design, it never suffered from the glaring mistakes that marked Respondent's early attempts at electronic publishing. Prior to the reorganization, a subcontractor performed the electronic publishing tasks that Ms. Hickenlooper expected Respondent suddenly to perform. The unreasonableness of her expectation was heightened by the computer problems that Respondent was experiencing and Ms. Hickenlooper's refusal to grant Respondent's request to send him to an external seminar on electronic publishing software, such as Quark or Photoshop. As for the second standard, which is writing text for a variety of purposes, the performance evaluation focuses on Respondent's previously described contributions to the Winter 2000 Newsletter, as well as undisclosed contributions to another District publication. At this point, Ms. Hickenlooper's criticisms of Respondent's writing are justified; nothing in the reorganization should have surprised Respondent in terms of the expectations imposed upon him with respect to clear, effective written communication. As for the third standard, which is weekly activity reports, the performance evaluation asserts that Respondent reported that he was "coordinating" with the non-District coordinator of the Indian River Celebration, but that Office of Communications staff had received calls from this coordinator asking why she had not heard from Respondent. The coordinator testified at the hearing that Respondent had called her several times during January 2000 regarding the upcoming celebration, and she was "appalled" at Ms. Hickenlooper's assertion that Respondent had not adequately coordinated with her. This part of the performance evaluation also claims that, in one of Respondent's weekly activity reports, he claimed to have processed 90 e-mails over two days when District computer records reflect no more than 20 such e-mails. This discrepancy seems to have arisen from Respondent's practice of counting e-mail messages, including duplicates and copies, as opposed to Petitioner's practice of counting only e-mail messages directly addressed to Respondent. The assertions in this part of the performance evaluation are unfounded and largely immaterial. However, none of the assertions--even if justified--in this part of the performance evaluation would preclude the assignment of the superior rating for this activity-report standard, which is measured by: "Quantity, timeliness"--not contents. As for the fourth standard, which is responses to staff and public requests for information, the performance evaluation complains that Respondent responds to telephoned requests by staff for information by e-mail and apparently attempts to determine if staff need the requested information before supplying it. Somewhat contradictorily, this part of the performance evaluation also asserts that Respondent "often brings in other lagoon staff or consults other District personnel in a manner in which he has not been instructed to do before answering a question." The only detailed complaint under this part of the performance evaluation is that, in response to an inquiry from his supervisor as to whether he had ordered mailing labels for the Winter 2000 newsletter, Respondent called the printer, the post office, and an administrative employee-- unknowingly performing work that his supervisor had already done. However, this complaint only provides additional evidence of a lack of communication between Respondent and his supervisor and not necessarily a failing of Respondent. Again, the assertions contained in this part of the performance evaluation do not correspond to the criteria by which Respondent is to be evaluated under this standard: "Timeliness, accuracy, records kept by District's complaint tracking program." Nothing in the record suggests that Respondent could not earn a superior rating under this standard. As for the fifth standard, which is outreach assistance, the performance evaluation notes no adverse comments from the public or staff. As for the sixth standard, which is a complete workday, the performance evaluation states that, on January 11, 2000, Respondent's supervisor told Respondent to submit his timesheets by 9:00 a.m. on the following day. He failed to do so, but, when called the following morning, he faxed the sheets within one-half hour. However, his projected work for the next two days brought him to 45 hours for the week. His supervisor then called him and told him to take five hours off the rest of the week to avoid compensatory time. This part of the performance evaluation also notes that Respondent's absence on February 11, 2000--a Friday--was communicated to the Office of Communications on the same day by an e-mail from a lagoon employee. The following Sunday night, Respondent e-mailed his supervisor that he would probably be out all week. The supervisor replied with an e-mail stating that Respondent needed to call her to report personally that he would be out ill. When Respondent returned to work on February 21, he then failed to inform his supervisor. The prime problem here is the means of communication: e-mail rather than telephone. The seriousness of this departure from policy is belied by the fact that the notice itself is more important than the means of the notice. Also, this performance standard does not require Respondent to confirm his return to work. The March 14 special performance evaluation concludes in part: Johnnie's supervisor and others in the Office of Communications have made many efforts to make Johnnie feel welcomed in his new office and to provide him verbal and written information to assist him in completing assignments and to adjust to his transfer from the Department of Water Resources. These efforts were made prior to the transfer becoming final on Dec. 31, 1999, and have continued since then. The record does not support these statements in their entirety. Ms. Hickenlooper welcomed Respondent's arrival, but as an opportunity to improve the Newsletter, which had been marred by inconsistent writing, editing, layout, and design. The record does not disclose any effort by Ms. Hickenlooper to make Respondent feel welcomed. Ms. Hickenlooper provided Respondent with considerable verbal and written information. Her criticism of his writing proved helpful, as discussed below. However, a recurrent pattern in much of Ms. Hickenlooper's supervision of Respondent was her establishment of performance standards and documentation of his deviations from these standards in a transparent effort to terminate his employment. Accompanying the March 14 performance evaluation is a corrective action plan. The corrective action plan informs Respondent that he will be re-evaluated in 30 days "to determine if his performance has improved and meets performance standards." The corrective action plan states, in part: Written text Write in the journalistic style, using the inverted pyramid, giving most important facts first, followed by supporting information. The employee is to follow District style and Associated Press style in text unless otherwise instructed by his supervisor. Study the "Associated Press Style and Libel Manual." In 25 days, the employee will be given a written assessment on AP style as prepared by his supervisor to show a proficiency in AP style. Read and study the excerpts provided by the supervisor from the book "The Word" by Rene J. Cappon to strengthen journalistic writing style. Practice journalistic writing by submitting a text file to supervisor by close of business each Friday for four weeks effective immediately. The text file must contain a lead paragraph and one or two supporting paragraphs, written in news style using facts supplied by the supervisor. Employee must adequately demonstrate to supervisor an ability to write in the District's and Office of Communications' preferred style and format. * * * Terms will be used consistently and correctly. Text will be written so that it answers the "who, what, when, where, why and how" of the journalistic style and to be obvious to the reader as to why the information is important to him or her. Text will be written so as to be clear as to the District's involvement in the event or activity being written about. The employee will use the spell check feature provided in the various software programs (Word, QuarkXpress, Lotus Notes) he uses before sending out any correspondent or other documents. Graphics/art work Employee is to supply all graphics, photos and other art work to be used in the "Indian River Lagoon Update" to the Communications photographer for proper scanning, color balancing and technical support as spelled out in the employee's performance standards. The employee will not be involved in other graphics work, such as scanning art work for presentations, posters, flyers, letters, etc. The employee is to direct persons making requests for graphics assistance to the Office of Communications. Layout/design Employee will use the electronic template supplied by the Office of Communications for the production of the "Indian River Lagoon Update." The template will not be altered in such a way as to change the design, format or style. All layouts will follow the review procedures outlined on the Office of Communications tracking sheet. The employee will submit each edition of the lagoon newsletter to his supervisor in electronic form on a zip disk for its final edit/review. All layouts will follow District style. Communication It will be the employee's responsibility to call his supervisor each work day from his work station between 8 a.m. and 8:15 a.m., but no later than 8:15 a.m., to report to his supervisor that he is at work and to discuss his planned day's activities so that the supervisor can prioritize the workload. . . . The employee is to be available to answer telephone calls from the supervisor during normal work hours (8 a.m. to 5 p.m., Monday through Friday), unless the employee is preapproved to be away from the office. The employee will take his one-hour lunch break no earlier than 11:30 a.m. When the lunch hour is taken later than 11:30 a.m., the employee will take his break in time to return to the office no later than 1 p.m. The employee will write his weekly report in such language so as to more accurately reflect what was actually done or accomplished. The employee will add to his weekly report the amount of time it takes to accomplish each task. The employee will communicate by telephone with his supervisor in a timely fashion on matters that need immediate attention. An e-mail message may be sent by the employee for written verification of oral conversations. Professional conduct The employee will communicate with his supervisor, co-workers, District staff and the public in a professional manner at all times. The employee will not use offensive or demeaning language or other language that gives the impression of being uncooperative, intimidating, harassing or otherwise abusive to his supervisor, co-workers, District staff or the public. The assessment of Respondent's response to the March 14 evaluation documents requires identification of his work after March 14. Unfortunately, Paragraphs 24, 27, and 32 of Petitioner's proposed recommended order confuses the order of events because these proposed findings find violations of the March 14 evaluation documents in Petitioner Exhibits 17 and 18, which pertain to the Winter 2000 Newsletter. The Winter 2000 edition generated the most salient criticisms contained in the March 14 evaluation documents; the Winter 2000 edition obviously preceded the March 14 evaluation by several weeks, so Respondent's reliance upon the Winter 2000 edition to prove violations of the March 14 evaluation documents is misplaced. Much of Respondent's work on the Spring 2000 Newsletter also preceded the March 14 evaluation documents. An e-mail to Respondent from Ms. Hickenlooper dated February 14, 2000, accompanies her comments on rough text for the Spring 2000 edition that Respondent had submitted to her on February 8. Another e-mail to Respondent from Ms. Hickenlooper dated March 2 accompanies a second edit that she and a technical person had performed on Respondent's rewritten text. Respondent completed the first laid-out draft, whose text remained substantially unchanged from that time forward, on March 13--one day prior to the March 14 evaluation documents. Although Respondent's work on the text of the Spring 2000 Newsletter precedes the March 14 evaluation documents, some of his layout work on the Spring 2000 Newsletter followed the March 14 evaluation documents. Responding to an early layout of the Spring 2000 Newsletter, Ms. Hickenlooper wrote, in a handwritten note dated April 5: Your efforts to clean up the layout are getting better. There are still things you need to fix before I can forward it on. I could make the corrections myself in a few minutes, but I need you to see what has to be done so you can learn to spot these things. I've made some notes for you on how to fix the problems. You should be able to see all these things on your screen even if you don't have the ability to print out proof copies there. If you have questions, please let me know. Ms. Hickenlooper's acknowledgement of Respondent's inability to print his work-in-progress at his Palm Bay office is important. For substantially all, if not all, of the period in question, Respondent was unable to print out screens displaying laid-out pages of the Newsletter. The programs that he used were not entirely "what you see is what you get," so the inability to print out work, together with his early computer problems and lack of software training, seriously undermined Respondent's ability to produce satisfactory product in terms of design and lay-out. Even so, Respondent's shortcomings in electronic publishing were evidently minor by this time, as Ms. Hickenlooper could fix them "in a few minutes." In any event, all of these factors preclude the inference that Respondent refused or was unreasonably unable to produce satisfactory work in the area of electronic publishing. The best measures of Respondent's response to the portions of the March 14 evaluation documents pertaining to his writing deficiencies are the written exercises that he submitted over the following month. Respondent completed eight written exercises from March 24 through April 21, 2000. Each exercise provides a set of facts from which Respondent must prepare a lead paragraph and at least two supporting paragraphs. Respondent submitted the exercises in pairs at approximately regular intervals during the one-month period. However, rather than supply her comments to each set, shortly after its submission, Ms. Hickenlooper provided her comments to all eight exercises by memorandum dated May 12, 2000. Respondent submitted the first two exercises by e-mail dated March 24. In the first exercise, which addressed the loss by fire of 45,000 acres owned by Petitioner of the 450,000 acres statewide, Ms. Hickenlooper accurately notes that Respondent incorrectly buried the most salient fact in the third paragraph of the seven-paragraph "story." She also corrected a couple of usage mistakes. In the second exercise, which addressed the impact of Petitioner's tax rate on the average property-owner, Ms. Hickenlooper fairly pointed out that Respondent's lead paragraph was primarily fluff, which may have been satisfactory for a story concerning a school outing, but was clearly unsatisfactory for a story concerning a major pocketbook issue. She showed Respondent two points that he buried in his six- paragraph "story," but that should have been in the lead paragraph. Respondent submitted the third and fourth exercises by e-mail dated April 7. Again, Ms. Hickenlooper correctly noted that Respondent buried important information in his third exercise, unnecessarily added "general" to "public," misused a word in the phrase "construction of . . . programs," and misstated the facts. However, the fourth exercise was flawless, except for a fairly minor usage error. The problems contained in the first three exercises betrayed Respondent's occasional difficulty in organizing his material. In his pre-reorganization Newsletters, Respondent sometimes failed to write an effective lead paragraph, seeming at times not to grasp the main theme of his material. Respondent submitted the fifth and sixth exercises by e-mail dated April 14. The fifth exercise was flawless. The sixth exercise is nearly flawless. Although the lead paragraph is adequate, Ms. Hickenlooper correctly notes that Respondent could easily have punched-up the lead, and she correctly deletes "area" after "19-county District." Respondent submitted the seventh and eighth exercises by e-mail dated April 21. The seventh exercise was nearly flawless. Ms. Hickenlooper's criticism of the lead paragraph in the eighth exercise seems strained, both as to her claims of blandness and the unanswered "why" question. Ms. Hickenlooper's final criticism of the eighth exercise is unfair. She states: "Part of the assessment was to determine if Johnnie could spot and correct the error in Spontak's title and office name." This is untrue. The instructions on the cover sheet state: "Use the pertinent information from the following list of facts to write a lead and at least two supporting paragraphs for each article listed. Write in the journalistic format, using Associated Press style and District style." Nothing on the cover sheet or the already- quoted corrective action plan notified Respondent that these exercises also were to test his substantive knowledge of District staff and their titles. As discussed below, Ms. Hickenlooper performed the second evaluation of Respondent on May 19. By returning all of the exercises submitted over the preceding month one week prior to the date of the second evaluation, Ms. Hickenlooper emphasized the evaluative, rather than remedial, role of these exercises. The same distinction between evaluative and remedial purposes characterizes Ms. Hickenlooper's administration of the Associated Press style test, which took place on April 17. Her memorandum to Respondent dated April 17 suggests that the purpose of the test is "to pinpoint some areas in which it would help you to do some further studying of AP style." This is a legitimate objective and reasonable use of the test. However, Petitioner's attempt to use the results of this assessment as quantitative evidence of Respondent's incompetence in written expression distorts the purpose of the test. Nothing in the record supports a performance standard of memorization of the Associated Press style manual. Respondent's job required him to use, not memorize, this style source, and the test, as administered by Ms. Hickenlooper, properly identified for Respondent his forms of usage that did not conform to Associated Press style. The proper role of this test is evident: it is to alert Respondent to his tendency, prior to the reorganization, to display little regard for consistency in style, let alone conformance to an external style authority, such as the Associated Press style manual. On May 19, 2000, Ms. Hickenlooper prepared a second special performance evaluation of Respondent. This evaluation is in the same form as the March 14 performance evaluation, except that it lists the additional performance standards contained in the March 14 corrective action plan. The first substantive criticism concerns the written text for the Spring 2000 Newsletter. For the most part, this criticism is unwarranted because it pertains to text that Respondent prepared prior to March 14. To the extent that this criticism pertains to text that Respondent prepared after March 14, this criticism is unsupported by the record, which clearly reveals little post-March 14 revision of the text of the Spring 2000 Newsletter. The second substantive criticism concerns the layout of the Spring 2000 Newsletter. This criticism is unwarranted due to Respondent's inexperience with electronic publishing programs, Petitioner's refusal to provide the external training that Respondent needed and requested, and Respondent's lack of a suitable computer and any printer to learn and perform electronic publishing. Despite these handicaps, Respondent made meaningful progress in layout and design during the period covered by this performance evaluation. The third substantive criticism reveals an omission from the record. Ms. Hickenlooper found that Respondent repeated many of the same mistakes in his text for the June 2000 Newsletter. Although Petitioner Exhibit 21 bears the title, "Comments on June 2000 Newsletter Articles," in the Administrative Law Judge's index to exhibits, the actual exhibit, as supplied by Petitioner in its notebook of exhibits, consists of Ms. Hickenlooper's detailed comments on Respondent's text for the Spring 2000 Newsletter, as well some minor stories that Respondent had prepared for another District publication. Although the Summer 2000 text bearing Ms. Hickenlooper's revisions is missing from the record, Respondent supplied two documents that partly fill this void. Respondent Exhibit 13 is a first draft of the Summer 2000 text, with an approving comment from Mr. Smithson. Respondent Exhibit 40 is the Summer 2000 Newsletter. The following findings assume that Ms. Hickenlooper dictated all changes between the early draft and the final printed version, even though Respondent himself may have made some of these revisions without prompting. A comparison of Respondent's draft text with the published text does not support Ms. Hickenlooper's assertion in the May 19 performance evaluation that Respondent was repeating the "same type of errors he has made in previous writing assessments," such as "errors in AP style, district style, subject/verb agreement, and use of jargon and unfamiliar terms without explanation." To the contrary, Respondent's draft text contained no subject/verb problems and no jargon or unfamiliar terms. He appears to have misnamed Audubon of Florida and committed a few other style errors, but many fewer than he had committed previously. Ms. Hickenlooper printed several of his articles without substantial editing. Although this was Respondent's most important work product following the March 14 performance evaluation, it earns only two sentences of comment in the May 19 performance evaluation. Much of the remainder of Ms. Hickenlooper's evaluation of Respondent is flawed. Although Respondent's writing skills are the most important area of concern, Ms. Hickenlooper addresses little attention to the Summer 2000 text, as noted above, or the eight written exercises, which are the subject of three sentences in her evaluation. Moreover, the three sentences misstate Respondent's work. He did not miss the major point in half of the exercises, as Ms. Hickenlooper asserts; the last five exercises were entirely satisfactory. Also, Ms. Hickenlooper neglects to mention that Respondent's work improved over the one-month period covered by the exercises. Ms. Hickenlooper's evaluation of Respondent's written work also suffers from a repeated failure to adhere to the quantifiable standards applied to the evaluation of Respondent's work. Of greatest importance here is the standard of 90 percent error-free text, but Ms. Hickenlooper never quantifies the rate of error of Respondent's text. The only attempt by Ms. Hickenlooper to quantify Respondent's error rate in written expression was in the Associated Press style test, but, as already noted, this was a misuse of the test. Some other items cited by Ms. Hickenlooper also suffer from a failure to conform to an applicable standard, such as the vague complaint that Respondent's assistance to staff requests is "not always as prompt" as is his assistance to other persons seeking his assistance. Nothing in the fourth performance standard or the associated supplemental requirements imposed by the corrective action plan, to which this complaint pertains, imposes this obligation upon Respondent. Other items cited by Ms. Hickenlooper appear to be in error, such as the timeliness of Respondent's weekly reports. At points, Ms. Hickenlooper's complaints are petty, as when she faults him for stating in an e-mail to an Office of Communications coworker that an attachment was so large that it would take three minutes to open, so "now's a good time to take a bathroom break." Ms. Hickenlooper claims that she found offensive Respondent's use of the word "bathroom," but it is more likely that the source of her displeasure was Respondent's implied criticism of, specifically, the office equipment and procedures and, generally, the Office of Communications. Ms. Hickenlooper concludes the May 19 performance evaluation by finding that Respondent has not "significantly improved" and recommending that Petitioner give him 60 additional days within which to improve and conform to his performance standards, as supplemented by the corrective action plan. On July 31, 2000, Ms. Hickenlooper prepared a third and final special performance evaluation of Respondent. In this evaluation, Ms. Hickenlooper's criticisms of Respondent's layout and design, which focus on the Summer 2000 Newsletter, are undermined by the same mitigating factors already discussed concerning electronic publishing. Ms. Hickenlooper's criticism of Respondent's writing necessarily pertains to non-Newsletter tasks because Respondent had completed most of the text for the Summer 2000 Newsletter prior to May 19 and evidently had not prepared much, if any, of the text for the Fall 2000 Newsletter prior to July 31. Ms. Hickenlooper's criticism of an indexing project assigned to Respondent seems to reveal bad communications between her and Respondent rather than poor writing by Respondent on this fairly simple assignment. Even so, Ms. Hickenlooper acknowledges that "Johnnie has made some improvement in his writing and work skills. During the last 60 days, he has met all but one of the deadlines to submit his work to his supervisor." Ms. Hickenlooper also acknowledges that Respondent has met other standards, such as submitting timely weekly activity reports and timely preparing timesheets and reports to his supervisor. A couple of problems regarding mailing lists and photographs appear to have resulted from poor communications between Ms. Hickenlooper and Respondent. Respondent rebutted a more-focused criticism concerning his omission of "Indialantic" from a story, with the result of an angry caller. Respondent produced the caller as a witness at the hearing, and she testified to her satisfaction with Respondent's handling of the matter. Another of Ms. Hickenlooper's complaints of Respondent's handling of requests for public appearances appears groundless because Respondent was merely doing what he had previously been told to do by another staff person at the Office of Communications. By letter dated August 14, 2000, Petitioner informed Respondent that, based on his three special performance evaluations in March, May, and July 2000, he had "not made the necessary improvements in [his] performance for [his] work to be considered satisfactory." Thus, pending the outcome of any hearings that Respondent might request, Petitioner intended to terminate Respondent's employment. By letter dated August 31, 2000, Petitioner terminated Respondent's employment. Policy 79-18, Section V.B.3.b applies the provisions of Petitioner's disciplinary policy to the termination of an employee who has completed his or her probationary period, as had Respondent at the time of his termination. Policy 80-10, Section III.D.6 gives such an employee the right to an administrative hearing, pursuant to Chapter 120, Florida Statutes.
Recommendation It is RECOMMENDED that the St. Johns River Water Management District enter a final order reinstating Respondent as a Public Communications Specialist III without back pay. DONE AND ENTERED this 27th day of June, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 27th day of June, 2001. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Management District Post Office Box 1429 Palatka, Florida 32178-1429 John W. Williams Deputy General Counsel St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Johnnie D. Ainsley 1210 Walnut Grove Way Rockledge, Florida 32955-4629
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2020.
Findings Of Fact Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment
The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
