Findings Of Fact On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home. At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13. Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet. Because of the topography and insects this area is not popular for picnicking. Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye. While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some 500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating. Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply. When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33). The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician. Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing. After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith. Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith. The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign. Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974, and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred. A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so. The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police. Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars. Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report. Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced. Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct. Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
Findings Of Fact Respondent Francis J. Sortino has been employed by the School Board of Broward County at Deerfield Beach High School in Deerfield Beach, Florida, since 1970 when the school opened. For ten years, he served as the school's planetarium director. In 1979 or 1980, he returned to teaching science in the classroom. In the fall of 1981, he taught a third-hour science class in which Thomas Bates, Debbie Landoskey, Lonnie McKever, Ricky Huntley, Steve Santiago, and Joe Sawyer, among others, were enrolled. On October 28, 1981, Joe Sawyer took the seat near the back of the class to which he had been assigned at the beginning of the school year, even though he had been subsequently reassigned to a seat in the front of the class. When Joe Sawyer and Steven Santiago began talking to each other, Mr. Sortino directed Joe Sawyer to take the seat at the front of the class. Joe Sawyer, who stood five feet one inch, weighed 97 or 98 pounds, and was 15 years old at the time of the hearing, complied with this request, but soon struck up a conversation with Thomas Bates. Thereupon Mr. Sortino told Joe Sawyer to move again, over near Debbie Peck. Joe Sawyer stood up, began moving in the direction Mr. Sortino had indicated (T. 293), and asked, "Where do you want me to move?" at least once. Mr. Sortino then picked up an empty desk, threw it so that it slid some ten feet across the floor and stopped against the wall, grabbed Joe Sawyer by the nape of the neck, forcibly set him down in the desk, and struck him with his open hand, using first his palm and then the back of his hand. These cuffs, no more than four in all, were not administered with Mr. Sortino's full strength; they fell on Joe Sawyer's shoulder or on the back of his neck. All this occurred in the presence of some 30 classmates, a few of whom called out urging Joe Sawyer to go to the school office to report the incident. Joe Sawyer did not cry, call out or resist. His face reddened and he laid his head down on his desk, but he was not seriously hurt. He did not require medical assistance or sustain any permanent injury. Aside from Mr. Sortino, no adult was present when respondent struck Sawyer. Mr. Sortino made no effort during third-hour science class on October 28, 1981, to secure the presence of another adult. The school principal, Rosa J. Lawson, had not delegated to respondent or any other teacher the authority to administer corporal punishment. On October 28, 1981, the School Board of Broward County had in force the following policy, No. 5301: Discipline - Corporal Punishment The principal, or in his/her absence, the person in charge of the school, shall have the responsibility for maintaining overall disci- pline within the school setting. The principal shall share with the teacher the responsibility for maintaining proper school conduct and morale. Further, he/she may delegate to the teachers such responsibility for control and direction of the students as he/she considers desirable. When and where such responsibility has been delegated the teachers shall be sup- ported in any reasonable action they may take. Each pupil enrolled in a school shall, during the time he/she is being transported to or from school at public expense, during the time he/ she is attending school, and during the time he/she is on the school premises, be under the authority of the principal or teacher in charge of the school, and under the immediate control and direction of the teacher or other member of the instructional staff or of the bus driver to whom such responsibility may be assigned by the principal. The board shall do everything within its legal power to protect and support the principal and teachers in their disciplinary role. This shall include legal support in accordance with Florida Statutes, Section 230.234. In addition, the board shall assist the principal, teacher, bus driver and/or other school staff members in bringing about penalties for the disruption of school functions or assault upon the instruc- tional staff as set forth under Florida Statutes, Section[s] 231.06 and 231.07. Corporal punishment may be administered at the discretion of the principal or his/her designated representative. Normally this should be done only after other corrective measures have been tried without success. A teacher shall not inflict corporal punish- ment except upon approval of the principal and only then in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment. Such punishment may not be degrading or unduly severe in its nature. (For clarification, see Florida Statutes, Section 232.27) All suspensions or expulsions shall be made in accordance with Florida Statutes and board policy 5006. Rules When corporal punishment is administered, the following rules shall be observed: The punishment shall be administered by the principal or by some other member of the professional staff designated by him/ her. Under no circumstances shall a stu- dent be struck about the head or shoulders. The punishment shall be administered poste- riorly by striking the student below the waist and above the knees. The administration of corporal pun- ishment shall be witnessed by at least one (1) other member of the staff. Corporal punishment shall not be administered in the presence of other students. When disciplinary action is taken by the principal and/or his/her designee the teacher referring the disciplinary case will be advised in writing of the action taken. A teacher may not suspend a child from school or class. However, in cases where an emergency situation develops, the teacher shall take such steps as are rea- sonably necessary to protect the students. The use of reasonable force necessary to isolate the disruptive student from the classroom shall not constitute corporal punishment as defined in accordance with Section 232.27, Florida Statute[s] , and shall not be used as a basis for the sus- pension of any member of the school staff nor for holding anyone liable for such an act unless the force used is degrading or unduly severe as to its nature. The designated member of the pro- fessional staff or principal who has admin- istered punishment shall provide the pupil's parent or guardian with a written explana- tion of the reason for the punishment and the name of the other adult who was present. Petitioner's Exhibit No. 11. The substance of this policy was fully explicated in the Deerfield Beach High School Teachers' Handbook at pp. 16, et seq., Petitioner's Exhibit No. 9. The policy of the School Board of Broward County with respect to corporal punishment has not changed, in substance, for a decade or more. Respondent was furnished a copy of Petitioner's Exhibit No. 9 at the beginning of the 1981-1982 school year. The Deerfield Beach High School Teachers' Guidebook also contained the following: Referrals to the Administrative Assistants The control of students is not something that can be achieved by so many rules or by the work of a few individuals, but rather by sincere and cooperative effort on the part of the entire faculty and staff to understand pupils and their problems. Teachers are encouraged to handle their own disciplinary problems whenever possible. Adequate lesson planning and consistancy [sic] of discipline are probably the best means of avoiding disciplinary difficulties. However, when a student becomes persistently unmanageable in the classroom to the detriment of the learn- ing situation or when his offense is of such a nature that he should be referred to some- one else, the teacher should write to the Administrative Assistant. This should be done only after the teacher has exhausted every means at his disposal to corre[c]t that student's conduct. In cases of EMERGENCY nature, the teacher should use the BUZZER to summon an Administrative Assistant to accompany the student to the office. When a referral becomes necessary, please use the three-part referral provided by the Administrative Assistant's office. Give as much information as possible about the reason for the referral in order to help the Administrative Assistant determine the measures to be taken. If the referral form is not adequate, please feel free to use an attachment. Petitioner's Exhibit No. 9. Respondent Sortino's own personal approach to discipline problems in the classroom is, he testified, fully consistent with the foregoing: If I have a child that's, you know, a minor infraction, the first thing I do is ask him to write a composition, have him take it home and get it signed by his parents. Then they bring the composition back to me. This way I ask the child to do something on why--let's say, for instance, he's just talking in class, or chewing gum, whatever it is. Whatever the infraction, I ask the student to write me a one page composition as to why they shouldn't do that in school, to take it home and have it signed by the parents, and bring it back to me. If they do it again, they write another composition. Generally, I ask them to write three compo- sitions. Generally, after three compositions, what I do is call home. That is not always successful, but I have made phone calls to parents at home. In many cases they tell me, I can't control him at home, can't you. At that point, then I would give detentions, which is school policy to give a student detentions. If he fails to serve detentions, I would write a referral on that student and send him to an adminis- trative assistant, and then they're supposed to take care of it from there. And that's the policy I've been follow- ing, as far as administering discipline in the classroom. (T. 302-303.) Even though he could not remember ever asking Joe Sawyer to write a composition, and never telephoned his parents, Mr. Sortino thought, at the time of the hearing, that his striking Joe Sawyer on October 28, 1981, "was proper." (T. 282.) This episode "was a second occurrence of this type incident." (T. 221.) Mr. Sortino did not refer Joe Sawyer to the school administration for discipline on October 28, 1981, or at any other time, although he did make several other such referrals of students in the fall of 1981. On October 28, 1981, he referred a student named Donald Evans to Rubin C. Ransaw, Jr., an administrative assistant at Deerfield Beach High School, for disciplinary action after Evans, in the presence of Mr. Sortino and other students, said, "Sortino sucks," twice. Petitioner's closing argument was made in written form and filed on May 11, 1982, Respondent's proposed findings of fact, conclusions of law and recommended order were filed on May 13, 1982. These submissions were considered in preparation of the recommended order. Respondent's proposed findings of fact have been adopted, in substance, for the most part. To the extent they have not been adopted they have been deemed unsupported by the weight of the evidence or immaterial to this cause.
Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held Florida Educator Certificate 477777, covering Physical Education and Social Sciences. Respondent’s certificate is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed by the Palm Beach County School Board and assigned to a classroom at BRHS, where he taught psychology and history. In recent years, Respondent has taught advanced placement classes. The evidence established that Respondent is well-liked by students, parents, and faculty. The present principal of BRHS, who was not at the school during the 1985-86 or 2001-2002 school years, considers Respondent to be an asset to the school. FACTS PERTAINING TO K.P. AND B.K. Prior to the end of the 1985-86 school year, Respondent invited several female senior students to join him for dinner in celebration of their upcoming graduation. Respondent was 33 years old at that time. Each of these females was either 17 or 18-years-of-age. K.P. (now known as K.F.) was 17 and B.K. (now known as B.M.) was 18. K.P. and B.K. were invited to and attended the dinner and subsequent celebration. The dinner invitations were extended by Respondent, who was their teacher, during the school year. There was a conflict in the evidence as to when this dinner engagement occurred.2 That conflict is resolved by finding that the dinner engagement occurred at the Cork and Cleaver restaurant in Boca Raton prior to the graduation ceremonies for the class of 1986. At least four female seniors were invited to Respondent’s celebration. K.P., B.K., and two other female students attended the dinner. All four of the students consumed alcohol at the restaurant that was purchased by Respondent. Respondent knew that the drinking age was 21 and he knew that each of the girls was under that age. Respondent also consumed alcohol at the restaurant. Following the meal, K.P. and B.K. sat on a bench outside the restaurant and continued to drink alcoholic beverages with Respondent. After approximately five bottles of champagne and/or wine had been consumed, Respondent K.P. and B.K. went from the bench outside the restaurant to Respondent’s house. The three of them were alone in Respondent’s house for several hours. At Respondent’s house they drank four to five additional bottles of wine. The quantity of alcohol consumed by Respondent, B.K., and K.P. that evening impaired their judgment. By all accounts, K.P. was inebriated and incapable of consenting to the acts that followed. Both B.K. and K.P. were excellent students who had little or no experience with alcohol. During the 1985-86 school year, K.P. had been a member of BRHS’s varsity teams in basketball, volleyball, and softball. During that school year, B.K. had been a member of BRHS’s varsity tennis team. After K.P. became inebriated, Respondent and K.P. went to Respondent’s bedroom where Respondent had inappropriate sexual relations with her. There was a conflict in the evidence as to whether Respondent had sexual intercourse with K.P. K.P. testified, credibly, that Respondent had sexual intercourse with her and that she suffered bleeding and discomfort the following day. K.P. also testified, credibly, that she had been a virgin up until that evening. Respondent admitted that K.P. was with him in his darkened bedroom with little or no clothes on, but he denied having sexual intercourse with her. Respondent admitted that he fondled K.P.’s breasts and engaged in what he described as “heavy petting.” The undersigned finds Respondent’s denial that he had sexual intercourse with K.P. also to be credible. In view of conflicting, credible testimony and the absence of corroborating evidence to substantiate the fact of sexual intercourse as opposed to the fact that there was the opportunity for sexual intercourse, the undersigned is constrained to conclude that Petitioner did not prove by clear and convincing evidence that Respondent engaged in sexual intercourse with K.P. Petitioner established by clear and convincing evidence that K.P. did not consent to Respondent’s inappropriate sexual behavior because she was too intoxicated and too young to do so. Respondent knew or should have known that K.P. was incapable of consenting to his behavior. After Respondent and K.P. entered Respondent’s bedroom, B.K. left Respondent’s house and drove around the block in her car for approximately 20 minutes. Because she was concerned about K.P., B.K. returned to Respondent’s house. When she returned to Respondent’s house, B.K. looked for K.P. She stepped into the doorway of Respondent’s bedroom and saw Respondent and K.P. in bed together. K.P. was not fully clothed, and the clothes she had on were in disarray. K.P. told B.K. to come in and get in the bed with them. K.P. grabbed B.K.’s arm and pulled her toward the bed. B.K. entered the bedroom and briefly lay on the bed with Respondent and K.P. Shortly thereafter, B.K. got up and left Respondent’s bedroom. Because she was feeling dizzy, B.K. lay down on a mattress in another bedroom. There was a conflict in the evidence as to what next occurred. It is clear that K.P. either intentionally cut herself or accidentally opened a cut on her hand. Respondent testified that K.P. accidentally opened up a cut on her finger while in his bedroom and then went to the kitchen. K.P. testified that she went from Respondent’s bedroom to the kitchen and intentionally cut herself in reaction to what had happened with Respondent. How the cut occurred is not relevant. It is relevant that Respondent went in the kitchen and helped K.P. stop the bleeding. After leaving the kitchen area, Respondent observed B.K. lying on the mattress in the second bedroom. He lay down on the mattress with B.K. with his body touching hers. He tried to kiss B.K., but she resisted his efforts. Respondent engaged in inappropriate sexual behavior with B.K. by lying next to her with his body in contact with hers and trying to kiss her. Respondent was obviously attempting to sexually arouse B.K. When K.P. saw Respondent and B.K. together in the second bedroom, she yelled at B.K. that they needed to get out of Respondent’s house. B.K. and K.P. then exited Respondent’s house and they returned to their respective homes in B.K.’s car without further incident. The next day, Respondent contacted B.K. and K.P. separately and apologized to them for his conduct. Respondent also apologized to B.K. for his conduct with K.P. Respondent stated that he had been unable to resist their athletic bodies. Respondent gave each of these girls a pair of diamond earrings as a gift. K.P. and B.K. did not report these events to any authority figure until 1993.3 As a result of difficulties K.P. (then known as K.F.) was having with sex in her marriage, she and her husband underwent counseling. It was during a session she and her husband had with their therapist that she revealed the events of the evening in 1986. Her husband, a teacher, felt obliged to report the incident to the Palm Beach County School District, which he did without naming K.P. and B.K. as being the students involved. His wife became upset when she learned of the report. After further reflection, K.P. revealed to the Palm Beach County School District that she and B.K. were the students involved with Respondent on the evening in question. The Palm Beach School District investigated the allegations, but it did not report these allegations to Petitioner. Petitioner learned of these events during its investigation of the facts pertaining to K.S. FACTS PERTAINING TO L.E. L.E., a female, graduated from BRHS in 1986. Respondent met L.E. when she was a freshman at BRHS and he subsequently became attracted to her. During her senior year, Respondent offered tickets to a Miami Dolphins football game to L.E. and other students as a reward for helping him grade papers in the class they took from him. Before she graduated, Respondent told L.E. that after she graduated he wanted to take her to dinner. There was insufficient evidence to establish that Respondent engaged in an inappropriate relationship with L.E. before she graduated. After she graduated, Respondent treated L.E. to dinner,4 gave her a pair of diamond earrings, and told her he wanted to be more than friends. Later during the summer of 1986, Respondent and L.E. went to Marathon, Florida, together and also traveled to San Francisco, California, at Respondent’s expense. DISCIPLINE PERTAINING TO K.S. K.S., a female, attended BRHS for her freshman through her senior years. She graduated in 2003. Respondent was K.S.’s history teacher in her junior year and her psychology teacher her senior year. During the 2001-2002 school year, K.S. confided certain personal family matters to Respondent. Thereafter, Respondent engaged in inappropriate conduct toward K.S. On at least five occasions toward the end of the 2001-02 school year Respondent came to her place of employment (a Kmart) looking for her. On one occasion he left her a gift of a cheesecake and on another he left a bag of M & M candy as a gift. These visits upset and frightened K.S. At the beginning of the 2002-03 school year, Respondent physically hugged K.S. when he first saw her in his psychology class. On several occasions Respondent put his hands on K.S.’s shoulders and massaged them. On one occasion he rubbed her hair. This type physical contact continued even after K.S. told Respondent not to touch her. On one occasion Respondent referred to K.S. in front of her classmates as being his “baby.” Respondent’s conduct upset and embarrassed K.S. K.S. complained to Robert O’Leath, a dean of students at BRHS, about Respondent’s behavior. Following an investigation of these allegations, the School Board of Palm Beach County suspended Respondent’s employment without pay for a period of ten days and required him to attend diversity and sensitivity training. Respondent did not contest this discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further recommended that the final order permanently revoke Respondent’s educator certificate. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2005.
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of August 1984.
The Issue The issue is whether Respondent's tentative decision to attempt to negotiate with Intervenor a contract for services as a construction manager at risk is contrary to statutes, rules, policies, or the request for qualifications, in violation of Section 120.57(3)(f), Florida Statutes.
Findings Of Fact In 2001, Respondent began to investigate various options for the construction of Jensen Beach High School and reconstruction of Port Salerno Elementary School. The recent, sudden departure of Respondent's Director of Facilities and several of his employees left Respondent with few employees sufficiently experienced to deal with a general contractor constructing substantial projects, such as the construction of these two schools. Respondent thus considered the use of a construction manager and construction manager at risk (CMAR) contract. Under these types of contracts, Respondent would hire a construction manager to serve as its representative in entering into contracts with subcontractors and suppliers. Although not relevant to this case, the CMAR contract imposes upon the construction manager greater risks for increased construction costs. Initially, Superintendent Wilcox and School Board Attorney Griffin investigated the CMAR form of contract. After they had decided to recommend the use of a CMAR, on January 14, 2002, Respondent hired Rodger Osborne as the new Director of Facilities, and Mr. Osborne assumed from them the primary responsibility for investigating and later implementing the CMAR procurement in this case. Immediately prior to his employment with Respondent, Mr. Osborne had been the Director of Maintenance and Operations for the Charlotte County School District. In this capacity, Mr. Osborne managed construction, maintenance, and operations for the school district. Among his duties was the procurement of construction contracts. The Charlotte County School District has used the CMAR form of contract seven or eight times. Managing the process, Mr. Osborne borrowed provisions and procedures from various sources, including state statutes and provisions used by Sarasota County. Four days after Mr. Osborne began employment with Respondent, Mr. Griffin submitted a memorandum to the Martin County School Board in which he recommended that it approve the use of a CMAR for the construction of Jensen Beach High School and Port Salerno Elementary School. Eight days after Mr. Osborne began employment with Respondent, the Martin County School Board approved Mr. Griffin's recommendation and authorized Respondent to advertise for applicants to serve as the CMAR for these projects. Mr. Osborne's first task as Director of Facilities was to prepare the legal advertisement. On January 28, 2002--two weeks after Mr. Osborne had started working for Respondent--a local newspaper published the first of three legal advertisements for submittals from interested parties. The advertisement states: MARTIN COUNTY PUBLIC SCHOOLS will select a qualified Construction Manager at Risk under the Consultants' Competitive Negotiation Act to provide preconstruction and construction services for the Port Salerno Elementary Replacement School and Jensen Beach High School. The School District will award both projects to a single Construction Manager at Risk. Firms interested in being considered are requested to submit a letter of interest, resumes of key personnel who would be used on the project, proof of professional liability insurability as required by Martin County Public Schools and a copy of Florida Registration Certification. Each applicant must submit a completed Professional Qualification Supplement (PQS). Copies of the PQS Format and project information are available through the Facilities Department by calling [telephone number omitted]. All data must be current as of date of submission and received no later than 4 P.M. February 15, 2002. Submissions to be received by: Director of Facilities Martin County Public Schools 500 East Ocean Stuart, Fl. 34994 Anticipated award date is, March 19, 2002, with work to begin immediately. Estimated construction cost of $43,500,000. In accordance with School Board Rule 6Gx43-8.01, the Professional Services Selection Committee will rank the top three (3) firms and submit the ranking of firms to the Superintendent and School Board. MARTIN COUNTY PUBLIC SCHOOLS Dr. Sara Wilcox, Superintendent Fifteen potential applicants timely submitted responses to the advertisement. Mr. Osborne supplied each of these applicants a package consisting of another copy of the advertisement and "Guidelines for Selection of Construction Manager at Risk for Martin County Schools" (Guidelines). The Guidelines state: Complete all items of the Professional Qualifications Statement (PQS) for Construction Manager at Risk. Submit not less than three copies of the PQS along with any supporting information to Director of Facilities, Martin County Public Schools, 500 East Ocean, Stuart, Fl 34994. SHORT LIST Within approximately seven (7) days after the submission date of 4 P.M. February 15, 2002, for the purpose of reducing the number of applicants qualifying for interviews to no more than six (6), a short list committee will be formed. The Short List Committee will include one School Board Member, one Superintendent's designee, one representative from Operation Services, one Program Staff Member, the Director of Facilities and Supervisor of Construction. The Director of Facilities will serve as chairperson. The following criteria and point values will be used to determine a number rating for each applicant: Letter of Interest 0 points [PQS] 0 points Certified Minority Business 5 points Location 1-5 points Current Work Load 0-10 points Capability 0-10 points Professional Accomplishments 0-10 points Up to six (6) firms with the highest rankings will be interviewed by the Professional Services Selection (Ranking) Committee. The package supplied to potential applicants contained blank scoring sheets with specific points assigned to different factual scenarios. The package also contained a fact sheet describing each of the schools to be constructed and a set of forms seeking specific information; the forms were part of the Professional Qualification Statement for Construction Manager At Risk (PQS). PQS Paragraph E states: RELATED EXPERIENCE List the three (3) projects in the last five (5) years for which your firm has provided/is providing construction management and/or general contracting services which are most similar in scope to this project. In determining which projects are more related, consider: related size and complexity; how many members of the proposed team worked on the listed project; and how recently the project was completed. List the projects in priority order, with the most related project listed first. The PQS form provides one box that asks for specific information about the three listed projects, such as the size, type of construction, and construction cost. The PQS form supplies another box for a "detailed description of projects." PQS Paragraph F requires the disclosure, for each of the three projects, the owner budget, final budget, schedule status, and impact of firm on the final results. PQS Paragraph G states: PROPOSED TEAM Describe your proposed organization structure for this program indicating key personnel and their relationship to this project and other team members. Give brief resumes of key persons to be assigned to the program. The PQS form provides one box for office staff and one box for onsite staff. Each box asks for specific information about the listed key personnel, such as the percentage of time they will be assigned fulltime to the subject projects; their experience in terms of "types of projects, size of projects, [and] project responsibilities"; and "other experience and qualifications relevant to this project." Mentioned in the legal advertisement, although not included in the package, Respondent's Rule 6Gx43-8.01 provides: FACILITIES AND OPERATIONS 6Gx43-8.01 Professional Services Professional Service Contracts between the Board and architects, engineers and surveyors shall follow the following procedures if the basic construction cost for the project is estimated to be greater than $120,000 or if the fee for professional service for planning or study is estimated to exceed $8,500 (except valid emergencies so certified by the Superintendent of Schools): Publicly announce each project indicating: general project description how interested parties can apply Certify firms or individuals wishing to provide professional services while considering: General Services Administration Forms 254 and 255. Past performance Willingness to meet requirements of: time budget availability--planning-- construction ability to furnish required service Firm's workload in relation to job under construction. Volume of work previously awarded to the firm. A committee, comprised of the Superintendent of Schools and/or his/her designee, appropriate staff members, and an annually appointed School Board Members [sic] shall recommend to the School Board a minimum of three (3) "certified" firms or individuals which shall be recommended in order of preference 1, 2, and 3, with the object of effecting an equitable distribution of contracts, providing the selection of the most highly qualified firm is not violated. The School Board, or its designee, shall negotiate a contract with the most qualified firm for professional services at compensation which the School Board, or its designee, determines if fair, competitive, and reasonable. In making such determination, a detailed analysis of the cost of professional services shall be conducted in addition to considering the scope and complexity of the services required for the project. Should the School Board, or its designee, be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the School Board, or its designee, determines to be fair, competitive and reasonable, negotiation with that firm shall be formally terminated. Negotiations shall then be undertaken with the second most qualified firm. Failing accord with the second most qualified firm, negotiations shall be undertaken with the third most qualified firm. If unable to negotiate with any of the selected firms, three more firms shall be selected in the order of preference and negotiations will be continued until an agreement is reached. For professional services when the basic construction cost for the project is estimated to be less than $120,000 or planning or study fees estimated to be less than $8,500, the procedure shall be as follows: Follow steps B, C, and D outlined under preceding 1 for purpose of selecting the agency best to accomplish the project. The use of a continuing contract may be approved provided the following provisions are met. A continuing contract is for professional services for projects in which construction costs do not exceed $500,000; or for study activity, the fee for which professional service does not exceed $25,000; or for work of a specified nature as outlined in the contract required by the School Board, or its designee. The contract requires no time limitation but shall provide a termination clause. Footnote: All professional firms are encourage [sic] to submit their statements of qualifications and performance data using Govt. Service Adm. Forms 254 and 255. The submission will be valid for one year beginning July 1. A reminder for this purpose will be made in the form of an annual public announcement. Superintendent Wilcox selected a Short List Committee, whose task was to score the submittals and, based on these scores, select the five applicants that would make presentations to the Professional Services Selection Committee. The Short List Committee comprised Mr. Osborne, chair; Bob Sanborn, Supervisor of Operations; Darrel Miller, Director of Educational Technology; Dr. David Anderson, School Board chair; Tracey Miller, principal of Port Salerno Elementary School; and John Dilworth, Supervisor of Construction. The Short List Committee met on February 21, 2002. After examining the submittals of the applicants in response to the Guidelines, the Short List Committee scored the submittal of each applicant. The highest-ranking applicant received 185 points. Intervenor was ranked third with 160 points, and Petitioner was ranked fourth with 158 points. The Short List Committee selected five applicants to make presentations to the Professional Services Selection Committee. By letter dated February 22, 2002, Mr. Osborne supplied each of the five short-listed applicants with a document entitled, "Interview and Selection for Construction Manager At Risk" (Selection Criteria). The Selection Criteria states that the Professional Services Selection Committee will use the following criteria to "reduc[e] the number of qualified applicants to three . . .": 1. Letter of Interest 0 points 2. Professional Qualification Supplement forms 0 points 3. Certified minority business 5 points 4. Location 0-5 points 5. Current work load 0-10 points 6. Capability 0-10 points 7. Professional accomplishments 0-10 points 8. Schedule & budget 0-10 points 9. Approach and methods 0-10 points 10. Understanding of project 0-10 points 11. Previous work for MCSD 0-10 points 12. Progressive use of technology 0-10 points 13. Warranty period 0-10 points 14. Construction administration 0-10 points The Selection Criteria states: "The Professional Services Selection Committee will present to the Superintendent for approval and presentation to the Board a ranked list of the top three qualifying firms." Separate pages of the Selection Criteria detail the scoring guidelines for each of the scored criteria. For example, the Selection Criteria states under Professional Services Evaluation: "Current and past records of those projects successfully completed which are similar in scope to project(s) under consideration. References listed and check [sic]. Review PQS form." Ratings of 9 and 10 are for "extremely qualified for project"; ratings of 7 and 8 are for "very qualified for project"; ratings of 5 and 6 are for "qualified--experienced with project type"; ratings of 2, 3, and 4 are for "not very qualified--questionable abilities for project"; and ratings of 0 and 1 are for "unqualified--no experience with project type." After sending the February 22 letter, Mr. Osborne called each of the applicants to confirm that each had received the letter. During these conversations, Mr. Osborne informed each applicant that only the applicant ranked first by the Professional Services Selection Committee would make a presentation to the School Board. As Mr. Osborne understood the selection process, the Board would have the final decision whether to accept the top-ranked applicant. If it did so, the School Board would then try to negotiate a CMAR contract with the top-ranked applicant. If the parties could not reach an agreement, the School Board could then try to negotiate a contract with the applicant ranked second by the Professional Services Selection Committee. Superintendent Wilcox, with Mr. Osborne's assistance, selected the Professional Services Selection Committee. The Professional Services Selection Committee comprised Leighton O'Connor, Executive Director of Operations Services and immediate supervisor of Mr. Osborne; Hank Salzler, Assistant Superintendent and designee of Superintendent Wilcox; Ms. Miller; Mr. Dilworth; Dr. Anderson; and Mr. Osborne. On March 5, 2002, Mr. Osborne informed the members of the Professional Services Selection Committee that they would rank the applicants and the top-ranked applicant would make a presentation to the School Board. No member of the committee voiced an objection to the process. After Mr. Osborne had addressed the Professional Services Selection Committee, the representatives of the five short-listed applicants made their presentations. Based on these presentations and the earlier submittals, the Professional Services Selection Committee, on March 5, 2002, ranked Petitioner first with 513 points and Intervenor second with 487 points. Immediately after the meeting of the Professional Services Selection Committee, Assistant Superintendent Salzler visited Superintendent Wilcox and told her that Mr. Osborne had told the committee members that only the top-ranked applicant would make a presentation to the School Board. For professional services contracts, the top three-ranked applicants customarily made presentations to the Board, which would then select the applicant that the Board felt was most qualified. Superintendent Wilcox had thought that the same process would apply to the selection of the applicant with which to negotiate the CMAR contract. Superintendent Wilcox immediately visited Mr. Osborne and informed him that the School Board would want the top three applicants to make presentations. Mr. Osborne replied that he had told the applicants that only the top-ranked applicant would make a presentation to the Board. Superintendent Wilcox told him to telephone the top three applicants and tell them that all of them would be making presentations to the Board, so that the Board could make the final ranking. Later the same day, Mr. Osborne telephoned the top three applicants and informed them of the new procedure. Dr. Anderson had had to leave the meeting of the Professional Services Selection Committee before it was finished, so, later the same day, he telephoned Mr. O'Connor to learn the results of the voting. Mr. O'Connor informed Dr. Anderson of the three top-ranked applicants and expressed his opinion that the key criterion was not the general ranking that resulted from the guidelines and criteria that Mr. Osborne had developed, but the quality of the personnel who would manage the actual construction. Acknowledging that the School Board would not have adequate time to view the applicants' presentations and evaluate their submittals, Mr. O'Connor asked Dr. Anderson if Mr. O'Connor should undertake an analysis for use by the School Board. Dr. Anderson agreed that such an analysis would be helpful and asked him to prepare one. Mr. O'Connor prepared a 24-page document entitled "Construction Manger [sic] at Risk Finalist Comparisons" (O'Connor Finalist Comparisons). Mr. O'Connor provided the O'Connor Finalist Comparisons to each School Board member prior to the March 19 meeting. The O'Connor Finalist Comparisons introduces a new element to the procurement criteria--cost. The document advises the School Board members that the "number of team members and percentage of time devoted to the project may impact the cost of services." The document also relates, in an unspecified manner, "pre-construction services" to "cost saving alternative." The O'Connor Finalist Comparisons emphasizes some published selection criteria at the expense of others--without regard to their relative point value. Admittedly reflecting only Mr. O'Connor's opinion, the O'Connor Finalist Comparisons states that the "key consideration [sic] for this project" are "pre-construction services," "onsite construction service," and "experiences of assigned project staff." The document adds: "Our architect indicated that the Project Superintendent was the most important team member." The O'Connor Finalist Comparisons analyzes the proposals of the three applicants in terms of two criteria-- "credentials" and experience of selected members of the onsite project team in school construction. The emphasis upon school--construction experience also reflects Mr. O'Connor's opinion--this time clearly without the smallest support in the Guidelines or Selection Criteria, which ask for experience of similar scope, not merely school-construction experience. For Intervenor and Petitioner, the O'Connor Finalist Comparisons compares two employees per job site. For the high school, Intervenor's two employees have handled six school- construction projects, and their credentials consist of one bachelor's of arts degree in business administration. For the elementary school, Intervenor's two employees have handled 12 school-construction projects, and their credentials consist of one of them holding a bachelor's of science degree and master's degree in civil engineering. For the high school, Petitioner's two employees have handled one school, and their credentials consist of one bachelor's of science degree in business administration. For the elementary school, Petitioner's two employees have handled 11 school-construction projects, and their credentials consist of no four-year degrees. In this part of his analysis, Mr. O'Connor does not disclose his rationale for excluding from his analysis other key team members assigned 100 percent to the school projects, such as the two assistant project superintendents for the Jensen Beach High School project. These two persons have handled a total of seven school-construction projects. Interestingly, Mr. O'Connor included a third member of the third applicant's high-school team, and this person was an assistant superintendent. Mr. O'Connor fails to explain why he omitted analysis of project engineers assigned fulltime to the sites. From his charts, Intervenor did not assign such a person to either site, Petitioner assigned one to the elementary school and two to the high school, and the third applicant assigned one to each site. Petitioner's project engineer for the elementary school has handled two school-construction projects, and the sole person identified by name as a project engineer for the high school has handled one school-construction project. Again without explanation, Mr. O'Connor identifies Petitioner's project manager for the high school as someone other than the person whom Petitioner named in its proposal. The person identified by Mr. O'Connor has handled only one school-construction project. Although it is possible that Petitioner had had to change assigned personnel in the month since it first named its anticipated key personnel, nothing in the record indicates that such a change in personnel actually took place. Sometime after March 5, Superintendent Wilcox, Dr. Anderson, and Mr. Osborne informed each of the top three applicants that each of them would make a 20-minute presentation to the School Board and that the Board would use the Selection Criteria for ranking the applicants. On March 19, 2002, at a regularly scheduled School Board meeting, each of the top three applicants made its 20-minute presentation, interrupted by few, if any, questions from Board members. Petitioner's presentation covered the 14 criteria stated in the Selection Criteria. Petitioner complains that its presentation occurred at the end of the evening, long after the presentations of Intervenor and the third applicant, but this occurrence did not confer competitive advantage or disadvantage. Equally without meaning is the contention of Respondent and Intervenor that Petitioner never objected to any change in the procurement criteria. Nothing in the record suggests that Petitioner was ever aware, prior to the March 19 meeting, of the O'Connor Finalist Comparisons. Nothing in the record suggests that Respondent gave Petitioner a point of entry to challenge the changes that Respondent made during the course of this procurement. At no time during the March 19 meeting did anyone present the School Board with the rankings of the Professional Services Selection Committee. At no time during the March 19 meeting did anyone move that the School Board try to negotiate a contract with Petitioner. At the end of the meeting, without any public discussion, each School Board member voted his or her first, second, and third preference. Intervenor received three first-place votes, one second-place vote, and one third-place vote. Petitioner received two first-place votes and three second-place votes. Dr. Anderson, who ranked Intervenor first, announced that the vote was a tie, but that Intervenor should be declared the winner because it received more first-place votes. In response, another Board member moved to rank Intervenor first, Petitioner second, and the third applicant third and authorize Respondent to commence negotiations with Intervenor. The School Board unanimously passed the motion. The procurement documents are unambiguous, although they are less then comprehensive in their treatment of the procurement procedure. Rule 6Gx43-8.01.c provides that a committee shall recommend, in order of preference, three applicants to the School Board, which shall negotiate a contract with the most "qualified" applicant. The legal advertisement states only that the Professional Services Selection Committee shall rank the top three applicants and submit them to the Superintendent and School Board. The Selection Criteria states that the Professional Services Selection Committee will present to the Superintendent for approval and presentation to the School Board a ranked list of the top three "qualifying" applicants. Citing past practices--although none involves the procurement of a CMAR--Intervenor and Respondent contend that the School Board was authorized to re-rank the applicants and begin negotiations with any of the three applicants submitted to the Board. Citing the reference in the Selection Criteria that the Professional Services Selection Committee ranks the top three "qualifying" applicants and the language in the other documents requiring the School Board to negotiate first with the most "qualified" applicant, Petitioner contends that the Board has no right to change the ranking of the Professional Services Selection Committee, but must deal first with the top-ranked applicant. Due to the interpretation of Mr. Osborne, Respondent's interpretation of its rules and procurement documents is clearly erroneous and arbitrary. Until the telephone calls from Mr. Osborne to the applicants on March 5 after Superintendent Wilcox told Mr. Osborne that all three top-ranked applicants would make presentations to the Board, the applicants perceived correctly that Mr. Osborne was in charge of implementing the procedures for this procurement. And, from the start through his meeting with Superintendent Wilcox on March 5, Mr. Osborne consistently understood that the Professional Services Selection Committee would rank the top three applicants, and a committee member or the Superintendent would present to the School Board only the top-ranked applicant, which would then make a presentation to the Board. As Mr. Osborne envisioned the process, the Board could reject the top-ranked applicant and proceed to the second- ranked applicant, although this was unlikely, but the Board could not re-rank the top three applicants, without ever formally rejecting the applicant ranked first by the Professional Services Selection Committee. Mr. Osborne consistently communicated his understanding of the procurement process to the applicants. Mr. Osborne's understanding of the procurement process is the correct interpretation of the procurement documents. Among other things, Mr. Osborne's interpretation of the procurement documents lends meaning to the task of the Professional Services Selection Committee in ranking the top three applicants. Under Respondent's interpretation, the Professional Services Selection Committee performs a useless act when, in addition to naming the top three applicants, it ranks them. Respondent's departure from this procedure at the moment of decision clearly violates the standards governing this procurement. Exacerbating the situation is the O'Connor Finalist Comparisons. This document distorts the Selection Criteria by omitting many criteria, reassigning weights among other criteria, and adding two criteria--cost and school-construction experience. This document distorts Petitioner's qualifications by its arbitrary selection of personnel for comparison purposes. Presumably, Respondent and Intervenor resist the inference that the O'Connor Finalist Comparisons influenced any of the School Board members. The administrative law judge infers that the document influenced one or more members; given the close outcome of the vote, the administrative law judge infers that the document was a material factor in the selection of Intervenor. These inferences are supported by numerous facts, including the following. The School Board chair, Dr. Anderson, endorsed the preparation of the document. Dr. Anderson preferred Intervenor over Petitioner. The O'Connor Finalist Comparisons appears to be the only document presented to School Board members that was not part of the formal procurement process. The School Board members did not extensively discuss at the meeting the merits of the three applicants before voting. Petitioner tried to elicit testimony from the School Board members, but at Respondent's request, the administrative law judge entered a prehearing order denying Petitioner the opportunity to compel testimony from any of them except Dr. Anderson, who had served on the Professional Services Selection Committee. The inference of materiality is eased by the magnitude of the distortions contained in the O'Connor Finalist Comparisons as to the Selection Criteria and Petitioner's qualifications and the closeness of the Board vote; the extensive distortion contained in the O'Connor Finalist Comparisons means that it was material if it had even the slightest influence on one of the School Board members. Under these facts, Petitioner proved that Respondent's selection of Intervenor was contrary to Respondent's rule, Respondent's policies (as stated by Mr. Osborne), and the other procurement documents. Under these facts, Petitioner proved that the deviations from Respondent's rule, Respondent's policies, and the other procurement documents rendered the selection of Intervenor clearly erroneous, contrary to competition, and arbitrary. As a remedy, Petitioner contends that Respondent should commence negotiations with Petitioner. However, by the time Respondent issues a final order, six months will have passed since each applicant submitted a proposal. The ability of applicants to meet various criteria, such as the availability of key personnel, may have changed dramatically. Also, contrary to Petitioner's contention, this procurement is not fundamentally flawed due to bad faith or favoritism. The change in procurement procedures was indisputably due to an innocent, mutual mistake among Respondent's employees. The newly hired Mr. Osborne intended to handle the procurement his way, and Dr. Anderson, Superintendent Wilcox, and District staff intended Mr. Osborne to handle the procurement their way. Nothing in the record suggests that the O'Connor Finalist Comparisons is anything more than Mr. O'Connor, as Mr. Osborne's supervisor, injecting himself into a process that was not going as smoothly as Mr. O'Connor would have liked. Relying on the advice of an architect, Mr. O'Connor belatedly rewrote the procurement criteria to emphasize school-construction experience and cost; it is easy to indulge the presumption that Mr. O'Connor was motivated by a desire to help Respondent, not an applicant. Absent other evidence in the record, Mr. O'Connor's distortion of Petitioner's qualifications, which was not of the same magnitude as his distortion of the procurement criteria themselves, may presumably be attributed to haste or carelessness, rather than favoritism toward Intervenor.
Recommendation It is RECOMMENDED that the Martin County School Board enter a final order setting aside the proposed decision to enter into negotiations with Intervenor to provide services as a construction manager at risk in the construction of the Jensen Beach High School and Port Salerno Elementary Replacement School and restart the procurement process, if Respondent still seeks to proceed with these projects under this construction method through a competitive procurement. DONE AND ENTERED this 28th 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 28th day of June, 2002. COPIES FURNISHED: Dr. Sara Wilcox, Superintendent Martin County School Board 500 East Ocean Boulevard Stuart, Florida 34994-2578 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Gary M. Dunkel, Esquire Susan Fleischner Kornspan, Esquire Greenburg Traurig, P.A. 777 South Flagler Drive, Suite 300 East West Palm Beach, Florida 33401 Douglas G. Griffin, Esquire School Board of Martin County 500 East Ocean Boulevard Stuart, Florida 34994 Joseph Ianno, Jr., Esquire Michael Winston, Esquire Carlton Fields, P.A. Post Office Box 150 West Palm Beach, Florida 33402-0150
