Findings Of Fact The Petition herein was filed by the Petitioner with PERC on March 18, 1976. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated May 2, 1976. (Hearing Officer's Exhibit 2). The City of Cocoa, Florida, is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation, Transcript of Record, Page 5, 6). 1/ The Petitioner is an Employee Organization within the meaning of Florida Statutes, Section 447.002(10). (Stipulation, TR 6). The Petitioner has requested recognition as the bargaining agent of the persons described in the petition. (Stipulation, TR 6, 7). There is no contractual bar to holding an election in this case, and there is no collective bargaining history which would effect the issues in this case. (Stipulation, TR 7). PERC has previously determined that the Petitioner is a duly registered Employee Organization. (See: Hearing Officer's Exhibit 3). At the hearing the parties stipulated that the Petitioner is so registered. (TR 7). PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was presented at the hearing to rebut the administrative determination previously made by PERC. Petitioner and the Public Employer stipulated and agreed that employees within the Public Employer's Police Department who hold the positions of Communications Officers; Secretary, Detective Bureau; and Records and Identification Clerk should be included in the collective bargaining unit previously certified by PERC in Case No. 766-2030. The job descriptions of employees who hold the positions of Communications Officer; Secretary, Detective Bureau; and Identification Clerk were received in evidence as Joint Exhibits 1, 2, and 3. The job descriptions accurately describe the duties, responsibilities, and day-to-day activities of the employees who hold those positions. ENTERED this 12 day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether or not Respondent has committed an unlawful employment practice by terminating Petitioner due to the "handicap" of manic depression and/or bipolar disorder.
Findings Of Fact Petitioner suffers from bipolar disorder, a psychiatric disorder manifested by mood swings from elation to depression. When experiencing an episode of mania, the Petitioner is incapable of attending to a task for any length of time. She is also overly excited and exercises poor judgment. Dependent upon how expert medical physicians characterize this condition at various stages, it is either a type of manic depression or a psychiatric condition very similar in symptomatology to classic manic depression. Petitioner began working for Respondent Mark III on March 20, 1985 as a seamstress. Her primary job function was running an industrial grade sewing machine for van conversions. She was a very good employee except for the occasions when she suffered bouts of mania. She was never subject to discipline, and during the periods of mania she experienced, her work-related problems were treated by the employer as a disability. The first episode of mania occurred in April 1986. Prior to her hospitalization for mania, the Petitioner was drinking excessively and staying out from work. She was hospitalized in Monroe Regional Hospital from April 22, 1986 to April 29, 1986. Thereafter, she returned to work, but again began to experience problems and had to be hospitalized again from June 7, 1986 to June 13, 1986. After she came-out of the hospital, Respondent employer permitted her to work part-time (that is, fewer hours) for a period of several months until she was able to resume full-time responsibilities. The employer's providing Petitioner part-time employment in 1986 was prompted by several factors. First, Petitioner was accorded the same accommodation any of Respondent's employees would receive under Respondent's general policy of allowing persons who have left for medical reasons to return to work if work is available. Second, this was also done personally and specifically for Petitioner at this time to accommodate her individual situation at that time. Third, the cyclical nature of Respondent's business of van conversions is such that June and July are a wind-down period toward the month of August when Respondent either closes down or lays off personnel for one to three weeks' duration. Fourth, Petitioner's team position had not been filled because "many girls," in the words of Respondent's representative Joe Krim, "float regularly." Respondent's method of payment of seamstresses in Petitioner's category bears some discussion because it does not equate in every respect with the street definition of "full-time" and "part-time" labor. Petitioner worked as part of a group or team on production work. Teams are paid when each van is completed, and payment for each van is then divided among the whole sewing room, based upon hours individually worked. The entire team is needed to construct each vehicle and in Petitioner's absence, if they did not replace her, the rest of the team had to pick up her slack. Petitioner's rate of pay was determined on a weekly basis depending upon the amount of work produced by the team/group she worked with. During her period of full-time employment just prior to November 1987, Petitioner's weekly net pay, if averaged, would be $534.74. Pursuant to the foregoing arrangement, Petitioner received no pay during any of the periods that she was out of work. The Respondent provided no sick leave or disability benefits and did not have a formal procedure for requesting a leave of absence. After the manic episode(s) in 1986, the Petitioner returned to work full-time on or about July 1986 and experienced no problems for over a year. In November 1987, Petitioner again experienced an episode of mania. She began staying away from her job and disrupting her coworkers with overt sexual solicitation and lewd remarks when she was present. Her immediate supervisor, Jon Lanning, requested a meeting with her sometime shortly before December 1, 1987. Petitioner's friend, Mark Wagner, accompanied her to that meeting. At that meeting, Mr. Lanning urged Petitioner to seek hospital treatment for her psychiatric problems. Mr. Lanning was unavailable to testify at formal hearing, having left Respondent's employment in October 1988. Petitioner's impression of Mr. Lanning's representations on behalf of Respondent were that her job would be held for her if she would seek medical help. Mr. Wagner's impression of this so-called "admission" on behalf of Respondent by its agent Lanning was that Lanning was saying Petitioner was a good worker and would be welcome to come back to work when she was able to work. It was obvious to Wagner from this meeting that "if [Petitioner] did not get the situation under control, they would have to let her go." Petitioner was hospitalized from December 1, 1987 to December 6, 1987 at Charter Springs Hospital. Upon her discharge, she continued to take Loxitane, a prescription medication which can cause drowsiness if taken in excess, at the wrong times of day, or with alcohol. The use of alcohol is contraindicated in the presence of Loxitane. Although Respondent established alcohol and drug mixing by Petitioner back in 1986, the uncorroborated hearsay and inconclusive and uncredible repetition by witnesses of so-called "admissions" by Petitioner do not permit or support a finding that Petitioner was abusing alcohol or mixing alcohol with prescription medications in 1987- 1988. Dr. Fred Miley, Petitioner's psychiatrist, signed a release permitting the Respondent to return to work on December 21, 1987. Petitioner returned to work on December 22, 1987 but exhibited signs of drowsiness around the heavy sewing machinery she had to operate and was told by a superior to go home. At formal hearing, Petitioner acknowledged that she "did not need to be on the machine" in that condition. Petitioner stated that after her December 22, 1987 work attempt she had decided that the decision to go back to work was one, "I and I alone would have to make." Petitioner did not report the problem of drowsiness to her psychiatrist at the time she had the Loxitane prescription renewed by him December 30, 1987 or at the time of her next office visit to him on January 12, 1988 except that she did complain to him on that date of being drowsy in the mornings. At formal hearing, Dr. Miley opined that there was really no reason physically or psychiatrically why Petitioner could not have returned to work for Respondent on January 12, 1988; he merely felt pressured by the patient to defer her return-to-work date since she did not want to go back to work then and therefore he felt she could not return to work successfully. Dr. Miley did not know prior to formal hearing in this case that Petitioner's inability to work precluded an award to her of unemployment compensation benefits. On January 12, 1988, Petitioner advised Dr. Miley she wanted to draw unemployment compensation and would receive it until June 1988; that Petitioner did not want to return to work at that time because Respondent had only part- time employment; and that Petitioner was working for herself, sewing free lance. In fact, Petitioner had filed an application for unemployment benefits on December 15, 1987, effective December 13, 1987. She had been denied unemployment benefits on January 4, 1988 because she was deemed by the unemployment compensation reviewer to be unable to work. "Unavailability for work" precludes the award of unemployment compensation benefits pursuant to Chapter 443 F.S. On January 15, 1988, Dr. Miley filled out an unemployment compensation form stating that Petitioner had been unable to work from December 1, 1987 to January 15, 1988 and with the equivocal statement that Petitioner "may possibly be able to return to work in early February 1988" and it should be halftime (20 hours). Petitioner took the January 15 statement by Miley to Jon Lanning because Lanning had advised her he could not hold her job without a statement from her doctor. Sometime in January 1988 Petitioner approached Joe Krim, Mr. Lanning's superior, for help with Mr. Lanning about "getting on up." At some time between the December 1987 hospitalization and February 3, 1988, Petitioner sent her employer a note asking to work night shift instead of day shift. On February 3, 1988, the Petitioner initiated a meeting with Mr. Lanning for the purpose of inquiring whether she could return to work halftime. Mr. Lanning responded that she had been terminated the day before, February 2, 1988. Petitioner had received no prior notice of her impending termination, and Barbara Boos' and Joe Krim's direct testimony confirm Petitioner's understanding that her team position had not yet been filled as of February 3, 1988. At Petitioner's specific request, motivated by her intent at that time to pursue a social security disability claim, Mr. Lanning supplied her with a document dated February 3, 1988 stating: Due to health reasons, [Petitioner] was unable to perform her duties and has not returned to work since late November 1987. Petitioner later abandoned the social security appeal plan. According to Mr. Krim's testimony, Petitioner was actually not rehired because she had not returned to work between November 1987 and February 1988. He was apparently unaware at the time of her termination by Mr. Lanning on February 3, 1988 that she had tried to work for a few hours on December 22, 1987. Nonetheless, he emphasized that although December and January are not heavy production months, February is the month the Respondent must "gear up" for its heaviest production of the season and that he had to "get production up" at that time for that reason. Further, the purpose of Respondent's recent move to new quarters had been partly to eliminate a night shift which in 1986 had done little real production work and did mostly clean up and preparation for the day sewing teams. In February 1988, he had put all teams on full-time day work. He did not, therefore, have available part-time work (fewer hours) with which to accommodate Petitioner as he had in 1986. Respondent had full-time work available for Petitioner in January and February of 1988. By February of 1988, the new "season" had commenced, Respondent had moved into a new plant, and Respondent could no longer accommodate halftime or part-time work arrangements. On March 15, 1988 Dr. Miley completed an additional form stating that the Petitioner had been unable to work from December 1, 1987 to February 14, 1988. Petitioner admitted that in February 1988, she wanted to go back to work only part-time but that Respondent had not established a part-time crew, as such. Petitioner also admitted not knowing if there were any part-time work available then. In light of her several conflicting representations under the circumstances related supra., the undersigned is not persuaded by Petitioner's representations at the formal hearing in the instant case that if she had been told by Mr. Banning directly that part-time employment was unavailable, she would have agreed to full-time employment on February 3, 1988. Petitioner eventually received unemployment compensation from approximately March 1988 until September 1988. In November 1988, Petitioner secured employment very similar to that she previously held with Respondent, which employment she has continuously held with no further episodes of mania requiring psychiatric treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0985 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 3, 5, 6, 7, 8, 9 and 10 are accepted. 4 is accepted with the exception of the last sentence, which rejected as not supported by the record. See FOF 7. 11 is rejected. This is legal argument which mischaracterizes both the burden to go forward and the burden of proof in this type of case. Except for sentence 1 of 12 which is rejected as not supported by the record for the reasons set forth in the Findings of Fact and Conclusions of Thaw, 12 and 13 are accepted as modified to more clearly reflect the record evidence as a whole. Respondent' s PFOF: 1, 2, 4, 5, 6, 8, 10, 11, 14, 15, 16, 17 and 18 are accepted. 3 and 9 are rejected as stated as not supported by the record as a whole. 7 is immaterial. See FOF 8. 12 and 13 are subordinate and unnecessary to the facts as found. COPIES FURNISHED: Frank C. Amatea Attorney at Law 500 Northeast Eighth Avenue Ocala, Florida 32670 Carla Franklin Attorney at Law Post Office Box 694 Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.
Findings Of Fact Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact: Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated: Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super imposed trauma, that would be a good way to go. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. APPENDIX Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection NONE The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in Findings 1, 2 2-3 Rejected as irrelevant 4-9 Included in Findings 3-10 Included in Finding 35 Included in Finding 11 Included in Finding 25 Included in Finding 26 Included in Finding 31 15-17 Included in Findings 27-30 Included in Finding 17 Included in Finding 36 Included in Finding 32 21-28 Included in Findings 12-21 29 Included in Finding 22 30-31 Included in Findings 33-34 Included in Finding 22 Included in Findings 15, 17 34-35 Included in Findings 23, 24 COPIES FURNISHED: George Cabany 3905 Garfield Street Hollywood, Florida 33021 James S. Bramnick Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent Suite 3600 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2338 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Broward County and Broward County Board of County Commissioners is a Public Employer within the meaning of Section 447.203(2), F.S. (stipulation of parties). The Teamsters Local Union #769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is an Employee Organization within the meaning of Section 447.203(10), F.S. (stipulation of parties). In January, 1974, thirty three airport security police employees of the Respondent who worked at the Ft. Lauderdale- Hollywood International Airport and North Perry Airport signed cards authorizing Teamsters Local Union #769 (hereinafter "Union") to represent them for the purpose of collective bargaining with the Respondent (Complainant's Exhibit 6, testimony of Mr. Sack). By letter of January 7, 1974, to Mr. Robert R. Kauth, Broward County Administrator, the Union advised that it represented the airport security employees police and requested that the Respondent recognize the Union as the collective-bargaining representative of the employees and enter into negotiations for the purpose of obtaining a collective bargaining agreement. The Union further offered to demonstrate evidence that it represented the aforesaid employees (Complainant's Exhibit 7, testimony of Mr. Sack). Mr. Kauth responded in a letter dated January 28, 1974, and advised the Union that its letter had been referred to the Board of County Commissioners, but in view of "existing state law", the Commission was unable to and could not recognize the Union as the collective bargaining representative of the airport employees in question (Complainant's exhibit 8). The Union responded by a letter of January 30, 1974, requesting that Mr. Kauth identify the "existing state law" referred to in his letter and advised that the International Union's Constitution specified that the Union did not assert the right to strike amoung employees in the public sector. It also informed Mr. Kauth that the Florida Constitution and statutes guarantee public employees the right to organize and to bargain collectively through a representative of their choice (Complainant's Exhibit 9). Receiving no further response from the Respondent, the Union filed a complaint for declaratory relief and mandatory injunction in the Circuit Court of the Seventeenth Judicial Circuit for Broward County requesting the Court declare that the Union be recognized by the Respondent as the collective bargaining representative for the airport security police employees who had designated the union to represent them, and directing and requiring the Respondent to enter into collective bargaining with the Union as required by Art. 1, Section 6 of the Florida Constitution, and Section 839.221(2), F.S. On July 29, 1974, the Court entered a final decree requiring Respondent to grant recognition to the Union pursuant to Art. 1 Section 6 of the Florida Constitution "as the collective bargaining representative or agent of those airport security police officers employed by the Defendants at the Ft. Lauderdale-Hollywood Airport and North Perry Airport, who, are members and who remain members of the Plaintiff or who have freely and expressly given their consent to the Plaintiff labor organization to act as their collective bargaining agent" (Complainant's Composite Exhibit 11). As a result of the court order, the parties began bargaining, and proposals and counter-proposals were exchanged during the period commencing August, 1974 (Complainant's Exhibit 13, testimony of Mr. Sacks). At one of the negotiating sessions in October, the Respondent gave the Union its proposal for a recognition clause in the eventual agreement, which provided that the Respondent recognized the Union as the collective bargaining representative for those employees who were and would remain members of the Union, and that it would continue recognition after January 1, 1975 for the term of the agreement provided that the Union complied with all state requirements pertaining to recognition as contained in Chapter 447, F.S., and that otherwise recognition and the agreement would cease forthwith (Complainant's Exhibit 14, testimony of Mr. Elster). The Union thereupon filed a motion in the Broward County Circuit Court to hold the Respondent in contempt for violation of the previous final decree. The court, on October 30, 1974, citing Sections 447.009 and .022, F.S., found that the Respondent's proposal as to recognition was not a proper subject of collective bargaining at that time and ordered that it be stricken as a proposal (Complainant's Exhibit 15). At the twelfth negotiation session held on January 8, 1975, the parties reached a proposed collective bargaining agreement, with representatives placing their initials on a rough-draft (Complainant's exhibit 16). Counsel for Respondent agreed to provide a final draft in one week which thereafter was to be submitted to the county commission and the Union membership for approval and ratification. On January 17, the employees in the unit voted to accept the, agreement and new authorization cards were executed by the employees. At this time there were 49 employees in the unit and 46 authorization cards were signed at this time (Complainant's Exhibit 18). Further correspondence and discussions ensued, resulting in agreement on a final draft of the proposed agreement (Complainant's Exhibits 17-21). Article 1 of the proposed agreement concerning recognition provided that the county recognized the Union as the collective bargaining representative of all airport security officers employed by the county at the airports in question "who are members and who remain members of the union, or who have freely and expressly given their consent to the Union to act as their collective bargaining agent". The draft was approved by telegram from the Union's Counsel on February 20th, A except for failure to put the effective date of the agreement, i.e., January 8, 1975 in the draft (Complainant's Exhibit 22). Upon request of the Union, the matter was placed on the agenda of the Board of County Commissioners for its March 4th meeting. By letter to the County Administrator, dated February 28, Respondent's counsel advised that the original recognition had been by court order to recognize the Union "for members only"; that new state labor legislation required that a labor organization register with and be certified by the Public Employees Relations Commission as the majority representative of employees in an appropriate bargaining unit before a legal obligation by a public employer to recognize and bargain with the Union is established; that the Union had not met the registration and certification requirements and that the County was currently appealing in the Fourth District Court of Appeals the order of the lower court which had stricken one of the Respondent's contract proposals during negotiations. He therefore stated that it would be appropriate for the County Commission to consider the appeal before rendering a decision on the proposed agreement (Complainant's exhibit 23). The County Commission, at its meeting, deferred action on the agreement because the Union had not been registered nor certified under current law, and directed its counsel to request an advisory opinion from PERC on the status of the Union in reference to the state statute (Respondent's Exhibit 2). By letter, dated March 12, counsel for the Respondent sought such an advisory opinion from PERC (Respondent's Exhibit 13). Notwithstanding the lack of action by the County Commission, Respondent's Director of the Division of Airports determined to observe the terms of the proposed contract as to various working conditions (Complainant's Exhibit 24). The Union had made an abortive attempt to register with PERC on June 28, 1974, but this was before PERC had been organized and apparently the request was never received (Complainant's Exhibit 12, testimony of Mr. Sack and Mr. Elster). On March 10, 1975, the Union again submitted registration materials to PERC and, by letter of March 25, 1975, the Commission advised the Union that it had met the registration requirements of the statute (Complainant's Exhibit 28). On April 18, 1975, the Union filed a Recognition - Certification petition with PERC seeking certification of the airport security police personnel (Complainant's Exhibit 30), and on May 8, 1975, the Union filed the unfair labor charge against the Respondent alleging that it had violated Section 447.016(1)(a)(c), F.S., by attempting to withdraw recognition that was previously established between the parties and by refusing to sign a final agreement which had been agreed upon on January 8, 1975, (Complainant's Exhibit 1). On or about May 16, 1975, the Union filed with PERC a Motion to Waive the Posting Requirements of Recognition Acknowledgement and Motion to Expedite Processing of Unfair Labor Practice Charges (Complainant's Exhibit 31). In this motion, the Union requested that the posting requirements of recognition acknowledgement under PERC Rule 8H-200.4 (now 8H-2.04) be waived and certification issued based on the fact that it would be inequitable and against the intent and purposes of the statute to deny certification under Section 447.009(1) because recognition had been obtained by court order and the Union represented a majority of the employees in the unit. However, the petition for Recognition - Certification was withdrawn by the Union on June 3, and by letter of June 10, PERC advised it that the withdrawal request had been approved (Complainant's Exhibit 32). The record does not disclose that PERC took any action on the Union's aforesaid motion to waive the posting requirements of recognition-acknowledgment. In April and early May, the parties met and negotiated over a "wage reopener" provision contained in the proposed collective bargaining agreement. However, on May 19, Respondent's Counsel declined to grant a request for a further meeting stating that since the Union had rejected counter-proposals of the Respondent's negotiating team on April 21, it was felt that further meetings would be unproductive (Complainant's Exhibit 25-27). On July 31, 1975, the Union filed an amended unfair labor practice charge against the Respondent and, on August 8, the Acting General Counsel of PERC issued a Complaint and Notice of Hearing which alleged unfair labor practices in violation of Section 447.501(1)(a) and (c) by reason of Respondent's refusal to execute the agreed upon contract and by unilaterally terminating negotiations with the Union thus having failed and refused to bargain in good faith (Complainant's Exhibit 1). On September 12, 1975, subsequent to the hearing, the Fourth District Court of Appeal rendered an opinion that the points on appeal were moot and that jurisdiction of the issues involved between the parties is in PERC pursuant to Section 447, F.S., and dismissed the appeal of Respondent concerning its proposed recognition clause (Hearing Officer's Exhibit 1).
Recommendation It is recommended that the Public Employees Relations Commission, pursuant to Section 447.503(4)(b) issue an order dismissing the charges. DONE and ENTERED this 7th day of November, 1975, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Elster, Esquire MAMBER, GOPMAN, EPSTEIN & FOOSANER 16870 Northeast 19th Avenue North Miami Beach, Florida 33162 Thomas W. Burke, Esquire 2005 Apalachee Parkway Suite 105 Tallahassee, Florida 32301 Joseph A. Caldwell, Sr., Esquire Suite 600, 100 Biscayne Boulevard North Miami, Florida 33132
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2020.
Findings Of Fact The UBC filed it's petition with PERC on April 16, 1975. (Hearing Officer's Exhibit #1). The HMREBU filed it's petition with PERC on May 7, 1975. (Hearing Officer's Exhibit #9). The Laborers filed it's petition with PERC on June 16, 1975. (Hearing Officer's Exhibit #5). The hearing in these cases was scheduled by separate notices dated July 9, 1975. (Hearing Officer's Exhibits #2, 6, and 10). The Escambia County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (See: transcript of proceedings 1/ at page 7). The UBC, the HMREBU, and the Laborers are Employee Organizations within the meaning of Florida Statutes, Section 447.002(10). (Stipulation TR 8). There is no contractural bar to holding representation elections in these cases. (Stipulation, TR 8, 9). There is no relevant collective bargaining history that affects these cases. (Stipulation, TR 9). The UBC, the HMREBU, and the Laborers are properly registered with PERC. (Hearing Officer's Exhibits #3, 7 and 11; Stipulation TR 10). PERC has previously determined that the UBC, the HMREBU, and the Laborers have filed the requisite showing of interest with their petitions. (Hearing Officer's Exhibits #4, 8, and 12). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties have stipulated that in the event PERC certifies a collective bargaining unit substantially similar to the one proposed by the Laborers, the positions of Transportation Director, Route Supervisor, Garage Foreman, and Assistant Garage Foreman should be excluded from the unit. (Stipulation TR 205, 206). In the event that a collective bargaining unit substantially similar to the one proposed by HMREBU is certified by PERC, the parties have stipulated that the Director of School Food Service, the Assistant Director, and the Lunchroom Managers should be excluded from the unit. (Stipulation TR 208, 209). In the event that a collective bargaining unit substantially similar to the one proposed by the UBC is certified by PERC, the parties have stipulated that the Supervisory Custodian, the Custodian in Charge, and the Custodial Foreman should be included within the unit. (Stipulation TR 210, 211). The Public Employee Relations Commission has previously certified a collective bargaining unit consisting of instructional personnel employed by the School Board of Escambia County. Each of the proposed units described in the petitions of the Employee Organizations in these cases include only non- instructional personnel. There are approximately 1740 persons employed by the Public Employer in non-instructional positions. Approximately 300 of these employees would be included within the unit proposed by the UBC. Approximately 230 would be within the unit proposed by HMREBU. Approximately 190 would be within the unit proposed by the Laborers. A civil service system, created by a special act of the legislature, has been in operation in Escambia County since 1953. See: Laws of Florida, Chapter 74-480 (1974). A Civil Service Board maintains a classification and salary plan, provides a central pool for testing and classifying new employees, and participates in an annual review of the salaries of classified employees. The Civil Service Board provides it's services for tide Public Employer in this case, and for other governmental entities within Escambia County, including the county. The classification system utilized by the School Board is the same as that utilized by the county. An employee of the School Board with a given classification would have the same qualifications, would perform approximately the same duties, and would receive the same salary and benefits as an employee of the county with the same classification. There are frequent transfers of employees covered by the civil service system among the governmental entities in Escambia County. All of the non-instructional personnel employed by the Public Employer, including all of the employees within the proposed collective bargaining units, are covered by the civil service system. All of these employees have salaries as set out in the civil service salary plan. The same sick leave and vacation leave policy, grievance procedure, disciplinary procedure, promotional process, insurance benefits, and retirement plan apply to all of these employees. It would be more time consuming for the Public Employer to engage in collective bargaining with several collective bargaining units than with one unit. During the week prior to the hearing in these cases the Public Employer's negotiating team spent four days in negotiations with the bargaining representatives of instructional personnel. Assuming that the bargaining representatives of several units successfully negotiated dues deductions, it is proper to assume that the existence of several units would place added bookkeeping chores upon the Public Employer. The three units for which certification is being sought include less than 40 percent of the non- instructional personnel employed by the Public Employer. Employees within the three proposed bargaining units are not interchangeable with one another. Custodial employees are not interchangeable with lunchroom employees, nor with bus drivers and mechanics, and so on. Employees within the three units have very little job contact with one another. Custodians perform limited functions in the lunchroom; however, custodians and lunchroom employees are not likely to have any contact with bus drivers or mechanics. Bus drivers and mechanics spend the greater portion of their work day off of the school campuses as distinguished from custodians and lunchroom employees. Custodians and lunchroom employees are supervised by the school principals. Bus drivers and mechanics are supervised by the Board's Director of Transportation, except that bus drivers are supervised by the school principals during the times they are carrying children to and from the schools. The work performed by personnel in the proposed units is very different, and lateral transfers between the proposed units are not likely to ever occur. While there is no collective bargaining history indicating a pattern of dealing with the proposed units separately, there has been a school food services association which performs social functions for food service employees. ENTERED this 6 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
The Issue The issue in this case is whether Petitioner’s employment position was properly reclassified from Career Service to the Select Exempt Service (SES) on July 1, 2001, pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact On May 1, 2001, Petitioner was reassigned from Accountant Supervisor I to Administrative Assistant II. At the time, Petitioner was under the Career Service System and was a probationary status employee. Petitioner’s position as an Administrative Assistant II was a position within the PERC certified collective bargaining unit, entitled the Administrative and Clerical Unit, Certification Number 542 issued on June 25, 1981. For inclusion within such a unit the position was considered to not involve managerial or supervisory functions. In the early part of 2001, the Department’s Bureau of Personnel Services worked with the Department of Management Services to implement the Service First initiative. As part of Service First’s implementation, the Bureau reviewed positions to determine whether they met the criteria set forth in Section 110.205, Florida Statutes. After its review, the Bureau forwarded its determination regarding those positions to the Department of Management Services (DMS) for reclassification or exemption as appropriate. The Bureau reviewed Petitioner’s duties and consulted with Petitioner’s immediate and indirect supervisors regarding the essential duties assigned to Petitioner’s position. Based on that review, the Bureau determined that Petitioner’s position was confidential. Although the evidence at the hearing did not demonstrate such the Bureau determined that Ms. Wofford and Petitioner had access to confidential collective bargaining material due to their work with the Long-Range Program Plan (LRPP). On July 1, 2001, Petitioner’s position was reclassified from Career Service to SES due to the Service First initiative. Petitioner’s position was reclassified to SES because it was determined to be a confidential position as defined in Section 110.205, Florida Statutes. The title of the position remained the same. A new position description under SES was approved by the Division Director, Ms. Sandy Delopez. The new SES description was essentially the same as Petitioner’s old Career Service position description. In pertinent part, the position description as of July 1, 2001, stated the following: This position is authorized to work independently assisting management in the coordination of tasks and/or assignments, which are complex in nature, broad in objective with diverse functions. Duty [Sic] involves the performance of activities, which involve independent planning and prioritization. Assists in collecting, evaluating and analyzing data and work. Review records and reports that require action and recommend solutions that fully utilize technology. Perform special assignments, research, report preparation, conducting and/or directing special projects or activities as directed. Responsible for performing other related duties as required. Petitioner remained employed under the new classification until his termination on March 12, 2003. As an Administrative Assistant II under SES, Petitioner worked in the Office of Planning and Business Support under the Division of Administrative Services in the Department of Highway Safety and Motor Vehicles. One of the Division’s major responsibilities was to coordinate preparation of the LRPP. The Division provided administrative support functions for the Department, including budgeting, accounting, human resources, purchasing and contracts. Petitioner reported to Stacy Wofford, the Bureau Chief of Purchasing and Contracts, who acted as his immediate supervisor. Ms. Wofford served as the Agency Planning Officer. Petitioner’s chain of command also included Ms. Wofford’s direct supervisor, Mallory Horne, Jr., Chief of Staff, and the Division Director, Ms. Sandy DeLopez. Ms. Wofford had the primary responsibility for preparing the LRPP. The Office of Planning only had two employees, Ms. Wofford and Petitioner. The LRPP is a five-year plan prepared by Respondent each year, pursuant to Section 216.013, Florida Statutes, that lays out the agency’s goals, strategies for reaching those goals, and the performance measures used by the agency in evaluation of its performance. The Governor’s Office directed the items and issues that were to be included in the LRPP. The LRPP addresses Respondent’s plan for reductions in force, and identifies specific positions that could be impacted by such reductions in force. There was no substantive evidence that this information was used in collective bargaining in any substantial way. The LRPP also is used to justify the Department’s legislative budget request. The plan provides the framework and foundation for the Department’s legislative budget request and addresses how the Department is going to meet the Governor’s mandate of a five percent budget and workforce reduction for each year. As a part of the LRPP, the Department provided its plan for reductions in force and identified specifically positions that would be impacted. It has a substantial impact on the preparation of the Department’s budget and legislative consideration of that budget. However, neither Ms. Wofford, nor Petitioner prepared or administered agency budgets. Ms. Wofford had primary responsibility for coordinating the plan’s preparation. In preparing the LRPP, Ms. Wofford had to analyze the goals of the various Divisions in the Department and what positions may be possible for elimination or consolidation. Furthermore, Ms. Wofford consulted with bureau chiefs in staff meetings and briefings to provide information to the Division Director that could be used in determining where job cuts would be made. Based on her job description, Ms. Wofford’s position was not of a routine, clerical or ministerial nature and did require the application of independent judgment, such that she constituted a managerial or supervisory employee. However, the information used in the LRPP was developed by and collected from the various Divisions of the Department. In that regard the evidence demonstrates that Ms. Wofford’s true duties were of a ministerial nature and included faithfully reporting to others the information she obtained from others. Petitioner assisted Ms. Wofford in obtaining the information collected from the various Divisions and putting that information into the correct format for easy inclusion into the LRPP. To accomplish these tasks Petitioner utilized Microsoft Word, Excel and Access and had significant experience in those areas. None of the information gathered in preparing the LRPP was exempt from disclosure under the Public Records Act, Chapter 119, Florida Statutes. The information contained in the LRPP was clearly important and sensitive because of its potential impact. The evidence did not show that such information was secret or confidential information. The testimony of the Division Director that he considered everything in his office to be confidential is insufficient to establish such confidentiality, since clearly the Sunshine laws apply to his office and much of the information he deals with is subject to public scrutiny. Moreover, such testimony is insufficient to establish confidentiality strictures down to Petitioner’s level of employment. At the time, the DMS conducted the collective bargaining negotiations with unions representing State employees. The Department did not conduct such negotiations. However, the Department had several managers on the advisory council that worked with DMS on collective bargaining with unions. These included Ken Wilson, Sandra DeLopez, a chief from the Highway Patrol, and sometimes one of the agency attorneys. Neither Stacy Wofford, nor her supervisor, Mallory Horne, was the bargaining team. Neither Ms. Wofford, nor Petitioner prepared, or assisted anyone in preparing, collective bargaining proposals to be used in collective bargaining negotiations. Moreover, neither was ever asked to do so. According to Petitioner’s testimony, he preformed two general functions in his position as an Administrate Assistant II: writing computer programs and performing ad hoc clerical tasks for Ms. Wofford. Approximately 80 percent of Petitioner’s time was spent on various computer programming tasks; approximately 20 percent was spent in performing clerical tasks. On the other hand, Ms. Wofford described Mr. Snyder as her “right hand person,” and as someone who worked very close with her. The evidence showed that Petitioner’s work in programming consisted of creating various programs that were ultimately used by other administrative units to collect and display data. After creating the programs, Petitioner would turn the application over to the administrative unit for which it was prepared, for its use. He developed programs, to analyze how quickly property was entered into the State property system, customer service surveys, the use of electricity in State buildings and programs for the State childcare facility. These were created, primarily, using Visual Basic for applications and Microsoft Excel. Petitioner’s work on the LRPP was essentially clerical in nature. It consisted of receiving numerous documents from the various Divisions of the Department, and compiling all of the documents into a single document, with consistent formatting. His primary concerns were that the final document used the same typeface, or font, the same margins, and that the various compiled documents fell on the correct page. He had no control over the data; he simply arranged the formatting and entered information into spreadsheet and database programs for use in the LRPP. Petitioner had no policy-making role in the development of the LRPP. Petitioner helped Ms. Wofford in assimilating information and verifying that the information being provided by the various program areas was the most recent and accurate. In addition, he made sure that the information was uploaded electronically in the Legislature’s budget system. Petitioner also created the formulas used to get to the output reflected on the LRPP. However, these formulas were basic mathematical formulas and not formulas that used policy parameters in their creation. The evidence did not show Petitioner’s assistance was independent or required significant amounts of independent judgment. Petitioner, also, along with Ms. Wofford, was involved in meetings related to the preparation of the LRPP. These meetings would have included Mr. Neal Standley, Budget Chief, Ms. Sandy DeLopez, Division Director, Mr. Ken Wilson, former Personnel Chief, Ms. Rene Knight current Personnel Chief, and other managers. Again, the evidence did not demonstrate that Petitioner’s role was other than to explain various processes used to create the LRPP. His role did not involve policy judgments or require independent action or judgment. Petitioner did not supervise any other employee; did not give performance evaluations; did not work on collective bargaining grievances or arbitrations or on Career Service appeals; and did not assist in developing policies or materials to be used in collective bargaining. Petitioner did not regularly handle information that was not subject to public inspection. Although he performed clerical work on the LRPP, he never knowingly viewed information identifying positions the agency intended to eliminate or consolidate due to reductions in force. In particular, Petitioner did not have access to a database of positions to be eliminated due to reductions in force, and did not know of the existence of any such database. In short, the evidence did not demonstrate that Petitioner was either a managerial employee or an employee involved with confidential matters. Therefore his position should not have been reclassified from Career Service to SES.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached it is RECOMMENDED that a final order be entered finding that Petitioner's position of Administrative Assistant II, is that of a Career Service employee, setting aside the classification as Select Exempt Service, and reinstating Petitioner as a person entitled to rights pertaining to Career Service employees as of the time of his improper reclassification. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of December, 2005. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Room A-432, Neil Kirkman Building Tallahassee, Florida 32399-0500 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Melissa Horwitz, Esquire 6840 Highland Park Terrace Tallahassee, Florida 32301 Avery D. McKnight, Esquire Alien, Norton and Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
