The Issue Whether Petitioner, Moncrief Bail Bonds, Inc., conducted business operations in the State of Florida without obtaining workers' compensation coverage, meeting the requirements of Chapter 440, Florida Statutes (2005), in violation of Subsection 440.107(2), Florida Statutes (2002 through 2005). If so, what penalty should be assessed by Respondent, Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes (2005),1 and Florida Administrative Code Rule, Chapter 69L.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Petitioner is a corporation domiciled in Florida, and engaged in the business of issuing bail bonds. On August 3, 2005, Respondent's investigator, Robert Cerrone, visited Petitioner's office location at 3910 South John Young Parkway, Orlando, Florida, on a referral from his supervisor. He interviewed a number of persons at the office site. Cerrone documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Respondent determined that the workers were employed by Petitioner. Cerrone contacted Petitioner's president, Russell Bruce Moncrief, and inquired whether Petitioner had secured the payment of workers' compensation, to which Moncrief responded that he had never secured the payment of workers' compensation for his business. Subsequent to the site visit, it was determined that Petitioner did not have a State of Florida workers' compensation insurance policy to provide workers' compensation coverage for any of its workers. Florida law requires that an employer who has four or more employees, engaged in non-construction work in Florida, obtain a Florida workers' compensation policy. Petitioner was an employer, with four or more employees, all of whom were paid remuneration, during all times material to the instant case. Florida Administrative Code Rule 69L-6.019(2) requires that in order for an employer to comply with Subsections 440.10(1)(g) and 440.38(7), Florida Statutes, any policy or endorsement used by an employer to prove coverage of workers' compensation for employees engaged in Florida work, must be issued by an insurer that holds a valid certificate of authority in the State of Florida. Chapter 440, Florida Statutes, allows an individual to apply for an election to be exempt from workers' compensation benefits. Only the named individual on the application is exempt from carrying workers' compensation insurance coverage. During the relevant time period, there were no current, valid exemptions for Petitioner. 11. Subsections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize Respondent to issue Stop-Work Orders to employers unable to provide proof of workers' compensation coverage. Failure to provide such proof is deemed "an immediate serious danger to public health, safety, or welfare " On August 3, 2005, Respondent issued and served on Petitioner a SWO and Order of Penalty Assessment for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statutes, and the Insurance Code, Chapter 624, Florida Statutes. Also at that time, Cerrone issued a Request for Production of Business Records for Penalty Assessment to Petitioner, seeking business records for the period August 3, 2002, through August 3, 2005. Employers conducting business in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Petitioner complied with the records request and provided Respondent with the requested payroll records for the time period between August 3, 2002, and August 3, 2005. Utilizing the records provided, and applying the statutorily mandated penalty calculation methodology, the penalty for Respondent was calculated by assigning a class code to the type of work conducted by the employees, utilizing the manual approved by rule. The approved manual rate was multiplied by the wages paid to the employee per one hundred dollars, and the product therof was then multiplying by 1.5. The Amended Order, which assessed a penalty of $51,499.34, was personally served on Petitioner on August 4, 2005. On August 12, 2005, Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty, and was issued an Order of Conditional Release from the SWO by Respondent. Petitioner made a down payment of ten percent of the assessed penalty, provided proof of compliance with Chapter 440, Florida Statutes, by obtaining six exemptions for officers of the corporation, and agreed to pay the remaining penalty in 60 equal monthly installments. The entities listed on the Amended Order penalty worksheet were Petitioner's employees, during the relevant period, and none had valid workers' compensation exemptions or workers' compensation coverage. At the hearing, Petitioner attempted to provide an alternative class code for the calculation of the penalty that significantly reduced his penalty. Petitioner alleged that his workers were misclassified by Respondent as Class Code 7720, police officers and drivers, when in fact they should have been classified under Class Code 8810, clerical office employees. Petitioner contends that the calculation of the penalty imposed is inaccurate. Specifically, six of Respondent's employees, although these individuals held bail bonds licenses, performed only clerical duties and did not go into the field to apprehend persons in violation of their bail bond or court order. Their rate of compensation was based on their experience and knowledge, rather than their job descriptions. Petitioner introduced evidence that the current workers' compensation policy, which exempts six employees, is less than the premium calculated by Respondent. Class Code 7720, utilized by Respondent, is the most appropriate code for bail bondsmen regardless of whether their duties were mostly performed in the office. Furthermore, all of the individuals on the penalty worksheet classified under Class Code 7720 possess surety agent (bail bond) licenses, and are thus able to function as bail bondsmen in their full capacity, including, but not limited to apprehending individuals. At the final hearing, Petitioner provided information that six of its employees had obtained workers' compensation exemptions, four of which listed the employee's duties as "bail bondsman" and two as "clerical." Petitioner also alleged that his workers were independent contractors, but did not provide evidence to support that assertion.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a Final Order, as follows: Petitioner failed to secure worker's compensation coverage for its employees, as required by statute; and Petitioner be assessed a penalty of $51,499.34. DONE AND ENTERED this 16th day of February, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 16th day of February, 2007.
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 16th day of February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact 1. On March 6, 1984, a person named Earl Cole, who is or was also known as Robert E. Cole entered pleas of nolo contendere in the Circuit Court, Fifteenth Judicial Circuit, in and for Palm B3each County, Florida, to the following: Case No. Count(s) Crime 82-4836-CF A02 Check 1 Obtaining Property in Return for Worthless 82-7339-CF A02 Check 2 Obtaining Property in Return for Worthless 82-7745-CF A02 1 Uttering a Forgery
Findings Of Fact On May 25, 1979 NFRH requested a binding letter of determination of a Development of Regional Impact status for a proposed 97-bed addition to the hospital at Gainesville, Florida (Exhibit 1). In this request NFRH suggested that the 97-bed addition was exempted by Section 380.06(15), Florida Statutes, from the other provisions of Section 380.06 and included evidence to show that NFRH was constructed prior to 1973 and had thereby obtained a vested status. Petitioner sought to intervene in that proceeding and requested a formal hearing before the BLID issued. This was denied by Respondent. In response to NFRH request for this binding letter of interpretation, Respondent, on 22 June 1979, issued the letter in the format of a final order as prescribed by Section 120.59, Florida Statutes, containing findings of fact, conclusions of law and an order that the proposed addition of 97 beds to NFRH at Gainesville did not have to comply with the review requirements of Section 380.06, Florida Statutes, applicable to developments of regional impact. Petitioner has appealed the issuance of this final order to the district court of appeal. This action to challenge the BLID as a rule was then filed.
Findings Of Fact Respondent received his registration in 1955 as a civil engineer and as an architect in 1956. Since his registration, the Respondent has been instrumental in the drawings and designs of numerous outstanding structures in and around the Tampa Bay area. (See Respondent's Composite Exhibits 1 and 2.) Prior to the incident involved herein, the Respondent has not been the subject of any disciplinary proceedings involving the Petitioner. Respondent, by and through counsel, takes the position that inasmuch as his conviction of the charges set forth herein- above, to-wit: racketeering, mail fraud and conspiracy, is not a proper basis upon which a suspension or revocation of his registration can properly stand inasmuch as he is in the process of appealing the conviction. Respondent contends that unless and until the judgment of the lower court is affirmed by the appellate court, there is no basis upon which a suspension and/or revocation of his registration can rest. Section 471.26, Florida Statutes, provides in pertinent part that: "(1) The Board shall have the power to revoke or suspend the certificate of registration. . . of a person registered under this chapter. . .should such registrant. . .be found guilty of: . . . (c) any felony or crime involving moral turpitude." Petitioner's Exhibit No. 1 received into evidence reveals that the Respondent was convicted of four separate counts of criminal activity and sentenced to imprisonment for a period of ten years on two counts, to run concurrently, and five years on two counts, to run concurrently with each other and with the ten-year count. Based thereon, it is concluded that sufficient basis exists upon which a finding should be entered recommending that the Respondent's registration be suspended. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the registration of Respondent (No. 5354) as a professional engineer be suspended for a period of two (2) years. In making such a recommendation, the undersigned considered all the mitigating factors introduced by and on behalf of the Respondent. ENTERED this 28th day of February, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact A transcript of the proceeding before the Administrative Law Judge was not filed with the Commission. We adopt the Administrative Law Judge’s findings of fact. FCHR Order No. 05-093 Page 2 Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We note that the Administrative Law Judge concluded, “Mr. Dill, on a single occasion, behaved in a prejudiced, rude and verbally abusive manner to Petitioner. Although he was named in the Petition for Relief, no valid address was provided for him. He has had no notice of this proceeding, and therefore, jurisdiction over him by the Division has not been acquired. To rule with regard to his rights at this time would be a denial of due process...the undersigned is not satisfied that, as a mere employee of the other Respondents, Mr. Dill could bear any liability to Petitioner under the facts of this case...” Recommended Order, {| 29. We note that the Commission has concluded that individuals can bear liability under the Fair Housing Act. See, Thorhill v. Admiral Farragut Condominium Association, et al., FCHR Order No. 01-018 (March 15, 2001); see, also, Sections 760.22(8) and 760.34(1), Florida Statutes (2005). Further, we note that in a case involving findings of the utterance of racially repugnant remarks, a Commission panel has stated, “We note the Hearing Officer’s finding that, ‘The racially repugnant comments of the Respondent, in the absence of any acts infringing on the tenants’ free use of the leasehold, are not a violation of Section 760.23, Florida Statutes.’... We hereby clarify that this finding does not mean that racially-repugnant comments can never amount to a violation of the Fair Housing Act.” Fletcher v. Hatfield, 18 F.A.L.R. 1590, at 1591 (FCHR 1995). Nevertheless, given the Administrative Law Judge’s finding that Mr. Dill had no notice of the proceeding, and the finding that “[bly firing Mr. Dill, Oak Pointe and Flournoy took steps to prevent further bad acts or bad words by him against Petitioner and others (Recommended Order, § 28),” and in the absence of a transcript of the proceeding before the Administrative Law Judge, we adopt the Administrative Law Judge’s conclusions of law, with these clarifying comments. Exceptions Neither party filed exceptions to the Administrative Law Judge’s Recommended Order. Dismissal The Petition for Relief and Housing Discrimination Complaint are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right FCHR Order No. 05-093 Page 3 to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this _9"__ day of September , 2005. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Mario M. Valle, Panel Chairperson; Commissioner Dominique B. Saliba, M.D.; and Commissioner Billy Whitefox Stall Filed this_ 9" day of September 2005, in Tallahassee, Florida. Vit braferd Violet Crawford, Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-7082 Copies furnished to: Karla Maxwell Post Office Box 438 Monticello, FL 32345 Oakpointe Apartments and Flournoy Properties c/o Jack R. Lee Vice President, Flournoy Properties 2673 Mountain Brook Road Canton, GA 30114 Ella Jane P. Davis, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel 1 21S wom ernest FCHR Order No. 05-093 Page 4 THEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this gt day of September , 2005. By: Vite Cumefrsl Clerk of the Commission Florida Commission on Human Relations
The Issue The issue is whether Petitioner may terminate the employment of Respondent for misconduct in office.
Findings Of Fact Respondent graduated in 1963 with a degree in accounting. He earned his juris doctor degree in 1967. He has practiced public accounting and also been employed by W. R. Grace & Company and Getty Oil Company. For most of the 1970s, Respondent was employed as head of construction for the City of Baltimore. In this capacity, he assumed significant responsibilities in the construction of a major convention center and aquarium, as well as over 50 schools. For most of the 1980s, Respondent ran a construction management company. From 1988-92, Respondent developed residential homes. From 1992-96, Respondent was the executive director of the Port of Bridgeport. From March 1996 to January 2000, Respondent was employed as the executive director of the Port of Palm Beach. While so employed, Respondent directed a $100 million redevelopment project for the Port. Following the conclusion of his employment with the Port of Palm Beach, Respondent was employed for a short period in Tampa. Wanting to return to West Palm Beach, Respondent applied for the position of Respondent's Chief Operating Officer. Then-Superintendent Ben Marlin hired Respondent in July 2000. Superintendent Marlin was implementing a School Board plan that divided the District into academic and business sections. As Chief Operating Officer, Respondent headed the business section. As Chief Academic Officer, Dr. Arthur Johnson headed the academic section during the last six months of Superintendent Marlin's tenure, which ended in February 2001. Dr. Johnson succeeded Dr. Marlin as the new superintendent and was a member of the School Board when it adopted the plan dividing the District into academic and business sections. The creation of a separate business section within the District facilitated the implementation of efficient business and management practices. The School Board designed the new organizational plan to obtain greater productivity from the business side of the District and to maximize the academic benefit from available revenues. Currently the 14th largest school district in the United States, the Palm Beach County School District administers a $2 billion annual budget in the service of 157,000 students in 150 schools. Half of this $2 billion outlay is devoted to operational expenses; most of the remainder is devoted to capital expenditures and debt service. The District operates the largest food service and bus company in Palm Beach County. At the time of the hearing, the District was constructing three high schools, three middle schools, and ten elementary schools-- with a total construction value of over $250 million. Striving to meet the needs of a large, but still fast-growing community, the District will open twelve schools in August 2002. Just over half of the District's 17,000 employees are noninstructional. Hired shortly before Respondent, on June 1, 2000, William Malone became Chief of Facilities Management Services. Mr. Malone graduated with a degree in civil engineering in 1971. His prior experience consisted of 21 years with the United States Army Corps of Engineers and 13 years with the South Florida Water Management District. For the last five and one- half years with the South Florida Water Management District, Mr. Malone oversaw the district's construction projects. He left the district shortly after trying unsuccessfully in 1999 to be appointed as the executive director of the South Florida Water Management District. Upon assuming the duties of the Chief Operating Officer, Respondent analyzed all of the divisions reporting to him. An immediate problem was maintenance. The District had just fired Service Master, and the maintenance department was leaderless and in some disarray. Respondent decided to split off maintenance from Mr. Malone's responsibilities. Respondent contacted three Port employees who had worked under him when he was Executive Director of the Port of Palm Beach: Martin Mets, Michael Scheiner, and Lauriann Basel. On July 17, 2000, Respondent hired Mr. Mets as the Director of Maintenance and Plant Operations. At about the same time, Respondent hired Mr. Scheiner as a business manager and Ms. Basel as the liaison between the maintenance department and the schools. As evidenced in part from the fact that he continues to serve as Director of Maintenance and Plant Operations, Mr. Mets has done a good job for the District. He previously handled similar duties for 19 years at the Port of Palm Beach. Among Mr. Met's responsibilities as Director of Maintenance and Plant Operations is the duty of approving all invoices to be paid by the District. Mr. Scheiner continues to serve as a business manager for the District, although, at the time of the hearing, he testified that his contract might not be renewed. After serving as capital projects coordinator with the Port of Palm Beach, Mr. Scheiner, who has a degree in accounting, implemented the orders of Mr. Mets and Respondent to document all maintenance invoices before submitting them to accounting for payment. To perform this task, Mr. Scheiner had to design and implement internal controls to ensure, among other things, that vendors were doing the work in a satisfactory manner for which they were to be paid. One of Mr. Scheiner's first discoveries were that the District did not maintain the records he needed to ensure that the District had received the goods and services for which it was being invoiced. Prominent among the missing information were purchase orders showing that the District ordered goods or services and identifying the specific goods and services. Also prominent among the missing information was documentation showing that someone from Maintenance and Plant Operations physically visited the site that had purportedly received the goods and services to confirm that the goods and services were supplied and they were satisfactory. At the same time that Mr. Scheiner was undertaking the substantial task of designing and implementing much-needed internal controls to cover future operations, he also had to address the deficiencies that had arisen during past operations. Noticing a number of invoices for the installation of vinyl flooring in which the vendor had agreed to reductions in the amount due, Mr. Scheiner suggested to Mr. Mets that he ask Lung Chiu, the District Internal Auditor, to conduct an audit of these vendors. In August 2000, Mr. Mets submitted a request to Mr. Chiu that he conduct an audit of the District's two vinyl flooring installers. Mr. Chiu has served as the District Internal Auditor for eight years. He has a master's degree in accounting, and he is a certified public accountant and a certified internal auditor. Typically, Mr. Chiu reports to the School Board through the Audit Committee. His method of reporting is through the presentation of a final audit to the Audit Committee. Pursuant to Mr. Mets' request, Mr. Chiu conducted an audit of the two vinyl flooring installers from August to October 2000. Having completed his field work, in October 2000, Mr. Chiu prepared a draft audit report and submitted it for comment to Mr. Mets, as head of the maintenance department, and his counterpart in charge of the purchasing department. The draft audit report is dated November 17, 2000, and addressed to the School Board, Superintendent Marlin, and the Audit Committee because, if finalized in time, Mr. Chiu intended to present the final report to the Audit Committee at its next meeting, which was November 17, 2000. On November 6, 2000, Mr. Chiu reported by memorandum to Mr. Mets that he had found an error in the earlier version of the draft audit report dated November 17, 2000. After the correction, the draft audit report, as revised through November 1, 2000, found vendor overbillings (and, presumably, District overpayments) by the two vinyl flooring installers. According to the draft audit report, Buy the Square Yard, Inc. (Square Yard), overbilled the District $2.29 million, and Padron Brothers overbilled the District $2000. The earlier draft audit report had found that Square Yard had overbilled the District by $2.932 million. The tentative findings in the draft audit report caused District administrators to ask District legal counsel to consider various legal questions concerning the possible recovery of these apparent overpayments. In a nine-page legal memorandum dated November 10, 2000, to Interim Chief Counsel Bruce Harris marked "UNFINISHED PRELIMINARY AND TENTATIVE DRAFT FOR INITIAL DISCUSSION PURPOSES ONLY," Randall Burks discussed without resolution several legal issues concerning such a potential claim. At this point, Mr. Chiu referred the matter to the District police department for the purpose of a criminal investigation into the overbillings. In the spring of 2001, the District police department concluded that insufficient evidence existed to pursue criminal charges. In the meantime, in December 2000, Mr. Chiu considered the accounting error that had necessitated the amendment of the draft audit report. After more work, he concluded that his audit conclusion for 1995-99 was "questionable" due to incomplete billing and accounting records. This conclusion had a major impact on his earlier audit conclusions concerning Square Yard, which had tentatively found overbillings of $1.719 million in 1995-99. In May 2001, after the police investigation had concluded, Mr. Chiu resumed the audit work. He reduced the overbillings by Square Yard by removing the 1995-99 data and making another, much less important change. In May 2001, Mr. Chiu finalized the draft. As revised through June 8, 2001, the draft audit report found overbillings by Square Yard of about $387,000. According to a memorandum dated November 5, 2001, from Mr. Chiu to the Audit Committee, in May and June 2001, he "briefed" the committee members about ongoing projects, including the audit of the vinyl flooring vendors. District policy requires Mr. Chiu to update the Audit Committee about his audits, but Mr. Chiu ordinarily does not share with the committee any of the details of any audits, unless he has already submitted to the Audit Committee a finalized draft report. The District Internal Audit Charter outlines the responsibilities of the Audit Committee and District Auditor, although the charter, as contained in this record, does not address confidentiality. However, the premature release of a draft audit would impair the ability of the District Auditor to conduct effective audits. Given his background and service as a member of the Audit Committee, Respondent clearly understood the importance of confidentiality to the integrity of an ongoing audit. In early July 2001, Mr. Chiu shared his updated findings with the maintenance department and purchasing department, again for the purpose of obtaining their responses to the proposed audit findings and possibly incorporating these responses into the draft audit report. On August 2, 2001, Mr. Chiu received the responses of the maintenance department, by way of Mr. Mets' memorandum of the same date. This memorandum largely restates his response several months earlier to an earlier draft of the audit report. Mr. Mets' counterpart in charge of the purchasing department submitted her response in September 2001, and Mr. Chiu submitted the final draft of the audit report to the Audit Committee in November 2001. On August 3, 2001, Respondent attended a breakfast meeting at a motel restaurant with Henry Harper, Sr., the principal of Square Yard, and Isaac Robinson, the President of the City Commission of West Palm Beach. Commissioner Robinson had arranged the meeting so Respondent and Mr. Harper could try to resolve the problems that Mr. Harper felt that he was having with Respondent. Respondent's relationship with Superintendent Johnson was not as good as Respondent's relationship had been with Superintendent Marlin, who had announced his resignation in January 2001. In April 2001, Dr. Johnson switched Respondent and Mr. Malone's jobs. Superintendent Johnson claims to have been concerned about Respondent's interpersonal skills, but evidence of shortcomings in this area are anecdotal and unpersuasive. Superintendent Johnson also claims to have been concerned about Respondent's performance when he failed to produce a requested $50 million reduction from the business side. However, the record fails to establish sufficient details concerning this matter, which Superintendent Johnson did not pursue with Respondent at the time. Mr. Malone had unsuccessfully applied for the Chief Operating Officer position when Superintendent Marlin had selected Respondent. It appears that Respondent and Mr. Malone enjoyed different sources of support, and the replacement of Superintendent Marlin with Superintendent Johnson was an adverse development for Respondent and a favorable development for Mr. Malone. Also, at this time, a member of the School Board, who had strongly supported Mr. Malone's application for the Chief Operating Officer position, had been exploring the possibility of obtaining a position as the administrative assistant to the Chief Operating Officer and preferred to work under Mr. Malone, rather than Respondent. At some point, this factor was mooted when the School Board member secured a position as the director of a newly formed education commission in West Palm Beach. When switching the jobs of the two men, Superintendent Johnson also transferred to Mr. Malone's new position the responsibility for construction that he had previously borne as Chief of Facilities Management Services. At minimum, Superintendent Johnson preferred that this important responsibility remain in a person with whom he was more comfortable. However, Superintendent Johnson was not trying to rid the District of Respondent, as evidenced by his renewal of Respondent's one-year employment contract on June 30, 2001. Sometime after switching jobs with Mr. Malone, Respondent decided to run for the Commission of the Port of Palm Beach. The election is in November 2002, and, although most of the vote campaigning takes place within two weeks of the election, candidates often file early so that they can open campaign accounts and line up support. Campaign expenditures for each seat, which are all at-large, typically range from $30,000 to $40,000. On July 3, 2001, Respondent filed the paperwork to become a candidate for a seat on the Port Commission and advised Mr. Malone of his candidacy for public office. A few days later, Respondent briefly met with Mr. Mets, Mr. Scheiner, and Ms. Basel and informed them of his filing and warned them that they were not to involve themselves with his candidacy while on District time. Shortly after these conversations, Respondent went on a two-week vacation, from which he returned on July 24. Within a few days after returning to work, Respondent presented to Mr. Mets, Mr. Scheiner, and Ms. Basel three identical letters, all dated July 5, 2001. These letters reiterated Respondent's direction not to conduct any campaign business on District time. Each letter had a place for each of the three employees to sign and add the date. As instructed by Respondent, each employee signed his or her name and wrote in the date of July 5, 2001. The evidence does not establish that, in backdating the letters, any of these employees felt intimidated or coerced by Respondent or felt that they were doing anything wrong. None complained about the request at the time. In an abundance of caution, not inconsistent with feelings of blamelessness, Mr. Mets and Ms. Basel later memorialized the backdating of their letters. More likely than not Respondent had these employees backdate the "July 5" letters in late July. Although there is a conflict in the evidence whether the date on which Mr. Mets and Ms. Basel signed their letters was in late July or late August, it appears more likely that Respondent, in acceding to his wife's wishes to get these letters signed, did not delay in performing this task. It also appears less likely, for reasons discussed below, that Ms. Basel would have backdated such a letter in late August after Respondent's difficulties had surfaced. Mr. Scheiner did not testify to any discomfort in backdating the letter, but Mr. Mets and Ms. Basel testified that they felt discomfort at signing their letters. The most obvious objective distinction between Mr. Scheiner, on the one hand, and Mr. Mets and Ms. Basel, on the other hand, is that Mr. Scheiner believes that his continued employment with the District is already in doubt. This distinction is important in evaluating the testimony of Mr. Mets on this point and Ms. Basel on this and other points. Respondent had been the sponsor of all three of these employees, and they may reasonably have felt that their future with the District was tied to Respondent. Mr. Mets is near retirement. He is also understandably irritated at Respondent because Mr. Mets left his former, higher-paying job at the Port in reliance upon Respondent's unfulfilled promise to raise his pay with the District within a reasonable time after the commencement of his employment. Although Mr. Mets proved a credible witness in many regards, his testimony concerning discomfort at backdating the letter was unpersuasive. Ms. Basel suffers obvious anxiety concerning her continued employment with the District. She eagerly treated her obligation to testify as an opportunity to display her fealty to the District, which had already conducted an unsuccessful investigation against her for improperly requesting leave. Ms. Basel never harmonized her decision to join Respondent at the District with her portrayal of him as an easily angered supervisor. It is impossible to credit her proffered justification that Respondent had told her that he had changed; it is unlikely that she would ever work again with the overbearing man whom she describes. Ms. Basel's claims that Respondent intimidated her at work is also impossible to harmonize with her close relationship with Respondent and his wife and Ms. Basel's frequent expressions of loyalty toward Respondent--prior, of course, to his current difficulties with the District. Ms. Basel's lack of credibility undermines her testimony of intimidation, as well as her unsupported testimony concerning a couple of occasions on which Respondent, in her opinion, asked her to do campaign tasks on District time and property. One of her two recollections of conducting political business on District time and property involved her playing back a message from a District telephone answering machine and finding that someone had called Respondent to confirm a meeting and that a check--presumably a campaign contribution--was in the mail. Petitioner did not offer any evidence that Respondent conducted political business in connection with the call--only that someone, presumably a campaign supporter, had called Respondent at work. From the lack of evidence concerning other such recorded messages, this would appear to have been an isolated incident over which Respondent had no control. In any event, Ms. Basel's testimony on this matter does not suggest that Respondent conducted political business on District time or property. The other incident lacks detail. Ms. Basel testified that Respondent directed Ms. Basel to call a union president to get the union's support and 20 minutes later asked her if she had done so. Ms. Basel's evident desire to assist Petitioner's case inspires no confidence in the existence or details of the brief statements from Respondent or the duration of the interval between the two statements, so as to preclude the possibility of an intervening break, during which Ms. Basel would not be on District time. However, the Administrative Law Judge credits Ms. Basel's emphatic denial that she ever did any political work for Respondent on District time or property. But her testimony fails to establish that Respondent conducted political business on District time or property. To the contrary, given Ms. Basel's obvious motivation to protect her job and her close proximity to Respondent, the absence of testimony from Ms. Basel concerning any substantiated incidents or even more unsubstantiated incidents suggest that Respondent did not conduct political business on District time or property. Respondent's purpose in attending the August 3 breakfast meeting is difficult to characterize, but the meeting did not take place on District time or property. Respondent claims that he viewed Mr. Harper merely as a disgruntled vendor, but this claim accounts for only a small part of Respondent's motivation in meeting with Mr. Harper. Respondent testified that he knew that Mr. Harper was trying to prevent other persons from supporting Respondent's bid for a seat on the Port Commission, so the possibility of a political purpose exists. However, Respondent also testified that he returned from vacation to find that Mr. Malone had settled the District's disputes with Square Yard at a meeting in July during which the District agreed to pay Square Yard about $43,000 on unpaid invoices and to try to give half of all future vinyl flooring work to Square Yard. As noted below, the omission of any mention of the $387,000 in overpayments is probably due to the fact that the District had already decided, or was in the process of deciding, not to pursue any overpayments. In fact, as Mr. Malone testified, he had negotiated this settlement at the direction of Superintendent Johnson, who misrecalled that Superintendent Marlin had decided to pay Square Yard $43,000 (a decision that, if Superintendent Johnson's recollection were accurate, would have inexplicably gone unimplemented until five months into Superintendent Johnson's tenure). Given these circumstances, Respondent, in an abundance of caution, might want to appease a person who had such apparent influence with Mr. Malone and Superintendent Johnson, just in case Respondent were not successful in his Port Commission election. Commissioner Robinson facilitated the August 3 breakfast meeting. He asked Mr. Harper to state his concerns. Mr. Harper blamed Respondent for certain problems of Square Yard with the Port of Palm Beach and the District. Respondent explained what he was doing at the Port and that, while with the District, he was merely following orders. Clearly addressing District business, Respondent also emphasized the internal controls that the District had recently implemented and underscored the importance of vendor compliance with these controls. None of the three men discussed Respondent's political campaign. While dealing with Mr. Harper's concerns about the District, Respondent showed him copies of a draft audit, as revised through October 25, 2000, and June 8, 2001, with Mr. Mets' response dated August 2, 2001. Commissioner Robinson asked Respondent if this was public record, and Respondent replied that it was because it had been brought to the attention of the District. Mr. Harper asked for a copy of these documents, and Respondent gave him one. Respondent did not give Mr. Harper copies of other documents, such as the November 10, 2000, unfinished legal memorandum. Mr. Harper likely obtained a copy of this document at the breakfast meeting from Respondent's files, perhaps due to the inadvertent shuffling of papers in the large stack that Respondent had brought with him to the meeting. The key question in this case is whether Respondent improperly supplied Mr. Harper with copies of the draft audits. Respondent testified that he believed that the audit had been completed because Mr. Malone had settled all pending disputes while Respondent had been on vacation. Respondent testified that he knew that the formal audit had been delayed from last fall, but Respondent testified that he thought that the delay was occasioned by the District's investigation during the first half of 2001 of Mr. Chiu for the possible conducting of a lichee nut business for his brother while on District time. Mr. Mets testified that Mr. Chiu told him on August 2, 2001, that Mr. Chiu had discussed the June 8 draft audit with some, but not all, members of the School Board. Evidently based on this discussion, the School Board had decided, according to Mr. Mets' testimony of his conversation with Mr. Chiu, not to pursue the overpayments to Square Yard. This testimony is largely credited. If the School Board could agree not to pursue the overpayments, the discussion with Mr. Chiu must have been more detailed than a mere briefing or updating. On the same day, after his conversation with Mr. Chiu, Mr. Mets told Respondent that Mr. Chiu had explained that the District was not able to pursue any 1995-99 overpayments because of the District's failures in documentation and internal controls and that Mr. Chiu wanted to close the matter promptly. Mr. Mets also told Respondent that Mr. Chiu had told Mr. Mets that Mr. Chiu had discussed the audit in detail with four members of the School Board and intended to discuss the audit in detail with the other three members by the end of the week. Mr. Mets added that the four members had agreed the District could not pursue any overpayments. Two District attorneys have consistently opined that otherwise-confidential audit materials lose their confidential status when distributed to members of the School Board or Audit Committee. One of the attorneys had concluded on June 19, 2001, not to pursue any overpayments for the reasons stated above and had instructed Mr. Chiu to bring the matter to a conclusion. Immediately after obtaining the documents from Respondent, Mr. Harper gave them to his attorney, who promptly returned them to Mr. Harris due to his concern that the release of the documents had been improper. In his cover letter, Mr. Harper's attorney strongly suggested that Respondent's delivery of the materials to Mr. Harper was improper and if the current administration (apparently of Superintendent Johnson) intended to correct the mistakes of the preceding administration, it had better do so quickly, or else its successor would correct those mistakes. On August 15, 2001, Mr. Malone summoned Respondent, falsely telling him that they needed to discuss a school maintenance matter. Mr. Malone prepared the ruse so that Respondent could not prepare untrue responses to the questions that Mr. Malone intended to ask Respondent. At the meeting, when shown some of the documents that Mr. Harper's attorney had sent to the District, Respondent told Mr. Malone that he had met with Mr. Harper, but the meeting had not been political in nature, and that he had given Mr. Harper some of the documents, but not all of them. A later disagreement arose between Mr. Harper and Respondent concerning what Respondent said at the August 15 meeting, but the discrepancies are not material. One week after the meeting, Mr. Malone recommended that the District Department of Professional Standards investigate the entire matter. Mr. Malone suggested that the investigators take testimony under oath because some of the apparent violations were criminal. The Director of the District Department of Professional Standards referred the entire matter to the District police department for investigation. Two District police department detectives interviewed witnesses, including Respondent on August 30, 2001. During his interview, despite being under oath, Respondent three times denied that he had asked Mr. Mets, Mr. Scheiner, and Ms. Basel to backdate their "July 5" letters. Immediately after the conclusion of the interview, Respondent told his attorney, who had accompanied him at the interview, of the misstatements and that he wanted to correct the record immediately. A short delay ensued because Respondent and his attorney had been instructed to go elsewhere immediately after the interview and did so. However, within 20 minutes after the conclusion of the interview, Respondent and his attorney caused the detectives to reconvene the interview, so that Respondent could correct his misstatement about backdating the "July 5" letters. At the reconvened interview, Respondent admitted to asking the three employees to backdate their letters. No evidence suggests that Respondent's 20-minute delay in admitting to the backdating request materially delayed Petitioner's investigation. After examining the facts of the case, the School Board voted on November 20, 2001, to terminate Respondent's contract, effective 15 days later, rather than not renew it when it expired on June 30, 2002. The charges that engendered this case are that Respondent disclosed confidential materials to Mr. Harper and that he did so for personal gain. Respondent gave Mr. Harper copies of two draft audit reports, but they were no longer confidential because Mr. Chiu had already discussed in detail the findings of his audit with a majority of the members of the School Board. The evidence suggests that Mr. Chiu did so to obtain the approval of the School Board to resolve its long- pending overpayment issue with Square Yard. The evidence fails to establish that Respondent gave Mr. Harper a copy of the other materials. As for the November 10, 2000, unfinished legal memorandum, this document was no longer confidential because, in June or no later than July 2001, the District had decided not to pursue possible overpayments to Square Yard. If the materials were no longer confidential, the motivation of Respondent in delivering them, during a breakfast meeting not on District time or property, loses its importance. Undoubtedly, Respondent was dealing with a disgruntled vendor, as Respondent claims. Undoubtedly, Respondent's underlying motivation was a mixture of concern for his political campaign and for his present job situation; mollifying Mr. Harper could help Respondent in both regards. Nor has Petitioner proved misconduct impairing Respondent's effectiveness in his handling of the three "July 5" letters. The record does not sustain the allegation that Respondent coerced or intimidated any of the three employees into backdating these letters. The letters themselves are not legally required documents, nor are they even significant documents. These letters are self-, or, if Respondent's testimony were credited, ally-serving documents whose effectiveness is undermined by their transparency. They have the force and effect of birthday cards. Backdating these ineffective documents inspires little confidence in Respondent's mental acuity or at least in his assessment of the mental acuity of those around him. At best, undisclosed backdating is a precarious practice, and Respondent's claim that backdating is prevalent in the District is beside the point. However, the insubstantiality of the letters themselves reduces their backdating to a meaningless self-indulgence. The closest issue in the case is Respondent's dishonest denial, under oath, that he had the three employees backdate the "July 5" letters. The insubstantiality of the letters themselves is irrelevant to this issue, which raises the question of Respondent's honesty. Respondent knew that he had asked the employees to backdate these letters, and he denied under oath doing so. The proper characterization of this incident does not permit consideration of Respondent's intention to protect his employees or Petitioner's failure to advise Respondent that he was under criminal investigation; these factors are entirely irrelevant. However, the proper characterization of this incident requires consideration of Respondent's near-immediate correction of his misstatement. The 20-minute delay arose due to logistics, not any delay on Respondent's part after the conclusion of the interview. Respondent had not expected questions concerning the "July 5" letters, nor, in retrospect, should he reasonably have expected such questions. When asked about the letters, Respondent panicked and denied three times that he had asked the employees to backdate them. The fairer characterization of this incident is that Respondent immediately corrected his admittedly intentional misstatements, rather than made the misstatements and later recanted. Not Respondent's most shining moment, his lapse from honesty, which obviously never impaired Petitioner's investigation, was short-lived to the point of being momentary, was not so serious as to impair Respondent's effectiveness in the school system, and factually did not rise to the level of misconduct constituting just cause for his termination. These findings do not imply acceptance of Respondent's assertion, in his proposed recommended order, that the "only plausible explanation" for Respondent's termination was Superintendent Johnson's desire to remove Respondent. This is a oversimplification and distortion of the facts of this case. Superintendent Johnson renewed Respondent's contract hardly one month prior to the August 3 breakfast meeting. Although Superintendent Johnson clearly wanted Respondent out of the position of Chief Operating Officer, he displayed no desire to terminate Respondent's employment with the District. From Superintendent Johnson's perspective, Respondent's August 3 meeting with Mr. Harper was ill-timed. The District had just worked out the long-pending dispute between it and Square Yard by paying $43,000 to the company and promising it more business. Superintendent Johnson's misrecollection--corrected by Mr. Malone--that Superintendent Marlin had decided on the $43,000 payment suggests the sensitivity of this matter. For nearly nine months, many persons within the District, and probably a number of persons outside of the District, had credited Mr. Chiu's preliminary findings that Square Yard owed the District over $2 million in overpayments-- an attractive receivable in times of tight revenues. This dramatic preliminary finding left a more lasting impression than the more thorough findings that the overpayments were less than $400,000, poor District recordkeeping during the earlier period in question precluded reliable findings of any additional overpayments, and poor District recordkeeping concerning even the $400,000 in claimed overpayments probably precluded their proof in a civil action for damages. The letter from Mr. Harper's attorney exacerbated the situation for Superintendent Johnson, who testified that the matter was serious because the attorney took it seriously and, if the District took no action after receiving such notification from an officer of the court, the District would leave itself vulnerable to later recriminations. The subsequent discovery of Respondent's requests for his employees to backdate the "July 5" letters and, worse, his momentary lying under oath, even though concerning tangential matters, made it much more difficult for Superintendent Johnson to coordinate public perceptions with the reality of the Square Yard matter. On this record, the reality of the Square Yard matter is that poor District recordkeeping and internal controls--since corrected--meant that the Square Yard might have been entitled to $43,000 on past-due invoices and future District business, rather than that the District was owed hundreds of thousands or even millions of dollars in overpayments.
Recommendation It is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing all charges against Respondent and awarding him back pay for the period from the date on which he was suspended without pay through the end of the term of his present contract. DONE AND ENTERED this 5th day of June, 2002, 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 5th day of June, 2002. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Alan M. Aronson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Elaine Johnson James, Esquire Edwards & Angell, LLP 1 North Clematis Street, Suite 1400 West Palm Beach, Florida 31301 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson, P.A. 250 Australian Avenue, Suite 1400 West Palm Beach, Florida 33401
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
