The Issue The issue in this case is whether the termination of Respondent was in accordance with the personnel policy and procedures established by Emerald Coast Utility Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. On September 25, 2006, Respondent was employed by Petitioner as a lead service worker. At the time, Respondent was given a copy of the employee handbook and the Drug Free Work Place Program notice. Receipt of both documents was acknowledged by Respondent. Until the time of the incident described in this order, Respondent was considered an excellent employee with high potential for advancement. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resource Policy Manual. The Human Resource Policy Manual states, in relevant part, as follows: * * * Section F-4 Disciplinary Offenses (29) Use of or Being Under the Influence of any Controlled Substance as Defined in Section 893.03, Florida Statutes or Federal regulation, Not Pursuant to Lawful Prescription While on Duty; or Possession, Sale, ‘Illegal drug’ means any controlled substance as defined in Section 893.03, Florida Statutes or Federal regulation, which is not possessed, sold, distributed, or dispensed in accordance with law. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . Chapter G Drug and Alcohol Abuse Policy It is a condition of employment with the Escambia County Utilities Authority for an employee to refrain from reporting to work or working with the presence of drugs and alcohol in his or her body. If an employee tests positive for alcohol or drugs, his or her employment may be terminated . . . Section G-2 Definitions B. ‘Drug abuse’ means the use of any controlled substance as defined in Section 893.03, Florida Statutes, as amended from time to time, not pursuant to lawful prescription. The term ‘drug abuse’ also includes the commission of any act prohibited by Chapter 893.03, Florida Statutes, as amended from time to time. The use of illegal drugs, or being under the influence of illegal drugs on the job, by ECUA employees is strictly prohibited. Section G-5 Rehabilitative/Corrective Action B. Any employee found to have possessed, used or been under the influence of illegal drugs or alcohol while on duty shall be subject to disciplinary action, up to and including dismissal . . . . E. Any employee who tests positive for alcohol or who tests positive for illegal drugs on a confirmation test shall be subject to disciplinary action, up to and including dismissal . . . . On August 14, 2009, Respondent was driving an ECUA vehicle while performing his job duties for Petitioner. Respondent did not see a low-hanging tree branch and struck the branch with the vehicle, causing minor damage to the vehicle. Respondent contacted his supervisor to report the accident. Respondent’s supervisor met Respondent at the accident site. He did not observe any behavior by Respondent that would indicate he was under the influence of any substance. However, because a vehicle accident had occurred, Respondent was required by ECUA policy to undergo a urine test for drugs and alcohol. That day, Respondent reported to LabCorp, ECUA’s occupational testing services company. LabCorp is a licensed facility under state and federal law to obtain urine samples for drug-testing purposes. Respondent was seen by a LabCorp technician who was well-qualified to obtain and process urine samples. The technician checked Respondent’s identification and had him empty his pockets prior to the test. The technician gave Respondent a sample cup, with a temperature strip on it. The temperature strip helps ensure that the liquid in the cup is close to body temperature indicating the liquid is urine and has not been adulterated. Respondent took both cups in the bathroom and urinated in them. Respondent returned the sample to the technician. In the presence of Respondent, the technician checked the temperature of the sample, which was normal. The technician then split the sample into to two test tubes, sealed each tube, labeled them and had Respondent initial each tube. The technician recorded her activity in processing the sample on a custody and control form which Respondent then signed, acknowledging the sample-taking process. Again in the presence of Respondent, both the custody and control form and the two samples were placed in a sample bag which was sealed with an evidence sticker and placed in a locked specimen box for transport to a licensed testing facility in North Carolina. There was no evidence that appropriate procedures were not followed by LabCorp in processing Respondent’s urine sample. Respondent’s sample arrived at LabCorp’s testing facility at Triangle Park in North Carolina on August 17, 2009. Sample A was used for initial testing and Sample B was frozen to preserve it for later testing if required. The sample was tracked through the test process by number and the name of Respondent is not known to the technician performing the tests. The first test performed on Respondent’s sample A was an immunoassay test. The sample was initially tested with a cut-off level of 15 nanograms per milliliter. The cut-off level is used to limit the possibility of a positive result due to secondhand exposure. Respondent’s sample tested positive for Cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GCMS) confirmation testing. GCMS tests for the presence of THC, the exact metabolite of marijuana. Respondent’s sample produced a positive result for THC. The results were reported to ECUA’s medical review officer and to ECUA. Upon learning of the positive test results, Respondent requested that the second sample be tested by another lab. The sample was sent to another LabCorp testing facility in Houston, Texas. Unfortunately, the second sample tested positive for marijuana. Respondent had no explanation for the positive test results and testified that he had not used marijuana for some 15 years. However, no credible evidence was produced at hearing that demonstrated the samples were adulterated, mixed up or improperly tested. Given these facts, Petitioner has established that Respondent tested positive for marijuana and that such results violate its drug policy.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (29) and (33) and impose such discipline on Respondent as determined appropriate. DONE AND ENTERED this 27th day of May, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Terrance D. Peace 5748 Juergen Way Milton, Florida 32570 Richard C. Anderson, SPHR Director of Human Resources & Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
Findings Of Fact On April 23, 2013, the undersigned entered an Order on Remand requiring Petitioner to submit any documentation, including supporting affidavits, within 20 days of said Order setting forth the amount of attorney’s fees Petitioner seeks in DCA Case No. 1D12-3557. Petitioner filed two Motions for Extension of Time in which to comply with the Order on Remand. The Motions were granted and on June 12, 2013, Petitioner filed Petitioner’s Request for Appellate Attorney’s Fees and Costs with the Division. The Order on Remand required Respondent to file its response to Petitioner’s Request for Attorney’s Fees and Costs within 20 days of Petitioner’s filing. To date, Respondent has not filed any response and has not requested an extension of time in which to file a response. The parties were further ordered to state whether or not either party believed that an evidentiary hearing was necessary. Petitioner requested an evidentiary hearing only in the event that the undersigned was inclined to reduce or deny Petitioner’s request for attorney’s fees or costs. Accordingly, no evidentiary hearing is necessary. Attorney's Fees and Costs Petitioner/Appellee requests attorney’s fees in the total amount of $47,170. This total includes attorney’s fees in the amount of $42,760 attributable to Proctor Appellate Law, PA, and attorney’s fees in the amount of $4,410 attributable to Avera & Smith, LLP. The hourly rate for Sharon H. Proctor of Proctor Appellate Law, PA, is $400 per hour; the hourly rate for Jennifer C. Biewend of Avera & Smith, LLP, is $350 per hour. Detailed billing records are attached to the attorneys’ affidavits as exhibits to the Motion for Attorney’s Fees and Costs. Ms. Proctor, who was retained to represent Petitioner/Appellee in the appeal of this case, served as primary counsel in all matters pertaining to the appeal and incurred 106.9 attorney hours. Ms. Biewend served as counsel of record in the underlying merits case and as co-counsel of record before the First District Court of Appeal and incurred 12.6 attorney hours on the appeal. Petitioner submitted the affidavit of attorney Paul Donnelly, Esquire, as an expert in support of Petitioner’s request for attorney’s fees and costs. The undersigned has read Mr. Donnelly’s affidavit and finds that it supports the number of hours expended and hourly rates charged. The undersigned reviewed the affidavits of the attorneys of record and the billing records, and finds Petitioner/Appellee's requests for attorney's fees to be reasonable. Petitioner requests appellate costs in the amount of $764.36. The undersigned reviewed the cost ledger submitted by Petitioner’s counsel. The appellate costs reflect travel expenses of counsel to attend the oral argument. The amount of costs is reasonable.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact The Petitioner is Barbara Clark and Company, a CPA firm. Barbara Clark owns and operates the company. The Respondent issued a Request for Proposal, RFP Number 7112, for CPA audit services. The Petitioner responded to the RFP along with four other proposers. The award for RFP Number 7112, CPA audit services, was to be made to the two (2) companies who received the highest number of points based on individual evaluations by four (4) people selected for the RFP review committee. The evaluation criteria to be used by the review committee members was specified in Section 1.16 of the RFP and involved review of the management and technical aspects of a given proposal. The committee members for the RFP were instructed by the FAMU Purchasing Director to use the criteria as outlined in Section 1.16 in the process of evaluating the management and technical plans of the respective proposals and that each member should evaluate and score each proposal independent from the other committee members. The evaluations by each member were placed in a sealed envelope. The proposals submitted in response to RFP Number 7112, CPA audit services, were reviewed by the evaluation committee members. After the members completed their review, they met as a group with the Purchasing Director. The sealed envelopes which contained the individual committee members' evaluation sheets for each proposal were opened and the points for each proposer were determined by adding the points for each respective proposal. The evaluation of RFP Number 7112, CPA audit services, occurred pursuant to the evaluation criteria in RFP Number 7112, CPA audit services. No committee member testified. There was absolutely no evidence submitted by Petitioner which demonstrated that the committee members did not follow the specifications of the RFP. Likewise, there was a lack of evidence that the evaluation process established in the RFP was arbitrary or capricious. The two (2) proposers that received the highest number of points were recommended for the award of RFP Number 7112, CPA audit services. Petitioner's proposal was not evaluated as having either of the highest point totals for RFP Number 7112, CPA audit services and therefore did not receive an award of the contract. The FAMU Purchasing Director, Oscar Martinez, sent to each proposer by certified letter, return receipt, notification of the intended award of RFP Number 7112, CPA audit services, to the two proposers with the highest number of points. The FAMU Purchasing Director, Oscar Martinez, discussed the results of RFP Number 7112, CPA audit services, with Barbara Clark after he mailed the intended award notification to the proposers. A mathematical error in the calculation of points for one of the proposers was discovered and corrected. The error had no effect on the rankings of the proposers and was therefore an immaterial discrepancy in the award of the RFP. Petitioner utterly failed to establish that the intended award pursuant to RFP Number 7112, CPA audit services, was not in good faith and not the result of a fair, full and honest exercise of the agency's discretion in making such an award. Likewise Petitioner utterly failed to establish that Respondent acted arbitrarily or capriciously in its intended award of RFP Number 7112, CPA audit services. After a review of the evidence Petitioner's protest of the intended award of RFP Number 7112, CPA audit services, was clearly without merit and lacked factual or legal support and was therefore frivolous and improper. Indeed the barest attempt was made by Petitioner to prepare or pursue evidence for the hearing in this matter. Although Respondent consulted with Petitioner and provided Petitioner information regarding RFP Number 7112, CPA audit services, Petitioner persisted in pursuing its protest of the intended award of the RFP. Petitioner continued its protest of RFP Number 7112, CPA audit services, long after it was or should have been aware that it had no factual or legal grounds for such a protest causing Respondent's attorney to spend 13 hours in preparation for this case. However, Respondent did not submit an affidavit from another attorney who reviewed the file and number of hours spent by Respondent's attorney and attested to the reasonableness of the hours spent or the fee charged. Therefore, Respondent's motion for attorney's fees is denied.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the protest be dismissed. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER, 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 29th day of May, 1996. APPENDIX CASE NO. 96-1371 1. The facts contained in paragraphs 1-28 of Respondent's proposed findings of fact are adopted, in substance, in so far as material. COPIES FURNISHED: George W. Butler, Esquire Florida Agricultural and Mechanical University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307 Barbara A. Clark Barbara A. Clark and Company 270 First Avenue South, Suite 101 St. Petersburg, Florida 33701 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Bishop Holifield, Esquire Florida Agricultural and Mechanical University 300 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issue in this case is whether Respondent has failed to comply with the personnel policy established by Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In 1995, Respondent was hired by Petitioner as a utility service technician II. The position involved skilled work of average to considerable difficulty in the installation, maintenance, and repair of water and waste service lines. The job also required a significantly strong person with sufficient strength, fitness and mobility to work in a field environment involving all types of weather and temperature conditions and with slippery, uneven or rough surfaces and terrain. Additionally, the job required a person who could walk, stand, and sit for prolonged periods of time; frequently stoop, bend, kneel, crouch, crawl, climb, reach, twist, grasp, and make repetitive hand movements; and lift, carry, push, and/or pull moderate to heavy amounts of weight, which could exceed 50 pounds. Finally, the job required a person to be able to drive commercial vehicles and maintain a commercial driver's license. Around June 28, 2012, Respondent was given a copy of the ECUA’s revised Human Resources Manual and Employee Handbook. The manual is a publication containing all of Petitioner's human resource policies, including discipline and termination of employees. The manual states, in pertinent part, as follows: B-13(10) - Failure to maintain job qualifications: Failure to maintain required licenses, certifications, or other similar requirements such that an employee is no longer qualified for a position or can no longer perform assigned duties. * * * B-13(33) – Violation of ECUA rules or guidelines or state or federal law. The failure to abide by ECUA rules, guidelines, directive, or state or federal statutes. * * * D-16 A.2. - Leave * * * Employees will return to work anytime they are medically able, up to six (6) months from the date of injury. At that point, if unable to return to work the employee must retire, resign, or be terminated. The department head, after consultation with the Human Resources Director, may extend this time based on evaluation of the employee's ability to return to work. On December 18, 2013, while repairing an ECUA line, something snapped in Respondent’s right arm which caused him severe pain in that arm to the extent he could not lift it or perform his job duties. That same day, Respondent reported the injury to ECUA and saw Dr. Bruce Albrecht, M.D., at Sacred Heart Medical Group. Dr. Albrecht initially diagnosed Respondent with a strain of the right shoulder and released Respondent to return to work with light duty conditions, including no lifting, pushing or pulling over 15 pounds with both arms (5 pounds with the right arm), no stooping, kneeling, climbing or crawling, and no commercial driving. Such conditions prevented Respondent from performing the essential requirements of his job. As a result of the injury, Respondent took authorized leave beginning December 19, 2013, and continued to be followed by medical staff over the next several months. He also received physical therapy for his shoulder and arm. Around January 23, 2014, Dr. Albrecht recommended that Respondent be seen by an orthopedic specialist. By that time, Respondent’s diagnosis included rupture of the right biceps tendon. Ultimately, after evaluation by an orthopedic specialist and some unspecified delay due to the approval process used by ECUA’s workers’ compensation coordinator, Respondent was referred to an orthopedic surgeon and scheduled for surgery on March 14, 2014. The surgery was to reconstruct Mr. Billups’s shoulder by performing a biceps tenodesis and revision acromioplasty, as well as debriding a torn labrum (cartilage rim of the shoulder socket). Biceps tenodesis is a procedure that removes part of the biceps tendon and cuts the normal attachment of the biceps tendon on the labrum of the shoulder socket. After detachment, the biceps tendon is reattached to the arm bone, thereby removing the pressure of the biceps attachment off of the shoulder socket labrum. Revision acromioplasty is a surgical reshaping of the acromion, the bone which forms the point of the shoulder blade that covers the shoulder joint. As indicated, Respondent’s surgery was scheduled for March 14, 2014. However, that surgery was delayed due to cardiovascular concerns over Respondent’s ability to undergo surgery. Ultimately, Respondent had surgery on his right shoulder and bicep on April 16, 2014. After the surgery, Respondent’s physician, Dr. Kirby Turnage, M.D., prescribed physical therapy to build up strength and increase range of motion in his shoulder and arm. Additionally, Respondent was not released by his doctor to return to work even at a sedentary level. By May 27, 2014, slightly more than five months after Respondent went on leave, he was released to work but only at a sedentary or light duty level. Respondent’s physician indicated that it would be at least six (6) weeks before Respondent could possibly return to work without restrictions. At the time, ECUA did not have any light duty jobs that Respondent could perform and it was unlikely that such jobs would be available in the future given the nature of the work performed by ECUA and the department in which Respondent was employed. During Respondent’s leave, the Pensacola area experienced a 100-year rain event which placed significant pressure on ECUA’s wastewater system creating a backlog of repairs and wastewater compliance requirements placed on ECUA by the Florida Department of Environmental Protection. At some point, temporary employees were assigned to help in the work Respondent’s section had to perform. However, the temporary employees were insufficient to meet the work loads of that section and a fully trained utility service technician was needed in the department. Due to the utility service department’s needs, Respondent’s supervisor determined that Respondent’s position needed to be filled by a person who could physically perform all of the duties the position required. On June 3, 2014, Respondent’s supervisor advised Respondent that, if he could not return to work by June 18, 2014, six months from the date of his injury, he would be terminated under sections B-13(10), B-13(33) and D-16 of ECUA’s employee handbook. The letter also scheduled a predetermination hearing for June 19, 2014, to provide Respondent the opportunity to demonstrate that he was released for work or demonstrate circumstances for extending Respondent’s inactive work status beyond the six months permitted in the employee handbook. The predetermination hearing was held on June 19, with Respondent in attendance. Up to that date, ECUA had not received a medical clearance for Respondent to return to full duty. Respondent indicated that his physical therapy was proceeding well and he felt that he would be cleared to return to work very soon. In light of Respondent’s representation, he was given until June 20, 2014, to provide medical clearance for work to ECUA. On June 20, Respondent provided a letter from Sacred Heart Occupational Health Strategies, his physical therapy provider. The letter stated that Respondent’s shoulder was improving and that the physical therapist anticipated Respondent could possibly return to work without restrictions following completion of such therapy. However, the physical therapist further stated that a medical release to full duty from Dr. Turnage was required before such return to work. However, his next appointment with Dr. Turnage was not scheduled until July 8, 2014, more than seven months after the date of Respondent’s injury. Further, the evidence did not demonstrate that Respondent was medically cleared by Dr. Turnage to perform full work duties without restriction at the July appointment. Notably, the evidence showed that Respondent was not discharged from physical therapy until August 13, 2014, almost eight months after his injury. These facts demonstrate that Respondent could not perform the essential requirements of his job after six months of inactive status. Additionally, the evidence did not demonstrate a reasonable basis to extend Respondent’s inactive work status beyond the six months already provided. Such inability to perform his work duties caused Respondent not to comply with sections B-13(10), B-13(33) and D-16.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Respondent could not return to work within six months from the date of his injury, did not comply with ECUA’s human resources policy B-13(10), B-13(33) and D-16, and impose such action as determined appropriate under the provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 27th day of October, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2014. COPIES FURNISHED: Roderick E. Billups 6613 Black Oak Place Pensacola, Florida 32526 Cynthia S. Sutherland Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311 John Edmund Griffin, Esquire Carson and Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue The issue in this case is whether Respondent violated personnel policies established by Emerald Coast Utilities Authority.
Findings Of Fact Escambia County Utilities Authority was declared an independent special district with transferred assets and enumerated powers by chapter 2001-324, Laws of Florida. Escambia County Utilities Authority’s name was changed to ECUA by chapter 2004-398. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove, and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Service Rules. Id. Respondent was hired by Petitioner as a Utility Service Technician Trainee on February 14, 2011, and remained in that position until he received the Termination Letter. On the first day of his employment, Respondent acknowledged receipt of a copy of ECUA’s Employee Handbook (Handbook) and ECUA’s Policies and Procedures for ECUA’s South Region, where Respondent was employed. Respondent also acknowledged receipt of revisions to those documents in effect at all pertinent times. The Handbook is a summary of ECUA’s human resources benefits, policies, procedures, and rules found in ECUA’s Human Resource Manual (Manual), a copy of which is available for review by all employees. Both the Handbook and Manual provide for discipline of employees. Policies from the Manual, in effect during all times pertinent to the facts of this case, and referenced in the Termination Letter, include the following numbered paragraphs found under subsection A entitled “Disciplinary Offenses” in Manual section B-13 entitled “Discipline Guidelines”: 4. Conduct unbecoming an ECUA employee: Any act or activity on the job or connected with the job which involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee, or that adversely affects the employee’s ability to continue to perform their job, or which adversely affects ECUA’s ability to carry out its assigned mission. Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. The seriousness of the conduct which constitutes a “conduct unbecoming an ECUA employee” offense determines the appropriate discipline. If an employee repeatedly engages in conduct unbecoming, but the acts or conduct which are unbecoming are dissimilar to each other, cumulative discipline may be imposed. * * * Insubordination: An employee’s unwillingness or deliberate refusal to comply with a direct order, directive, or instruction of the immediate or higher-level supervisor whether in writing or orally communicated. Insubordination also includes an expressed refusal to obey a proper order, as well as, willful or direct failure to do an assigned job or to follow orders. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Insubordination is a serious offense. Leaving work station without authorization: The unauthorized absence by an employee from their work station or duty assignment during the established work period or leaving a work station for a lunch or break period without being properly relieved where that station must be manned during such period. The seriousness of this offense depends upon the employee’s assigned duties. * * * Neglect of duty: Failure to perform an assigned duty. Carelessness or intentional action which results in the violation or nonobservance of ECUA guidelines, procedures, or rules. Negligent operation of ECUA vehicles or equipment: The negligent operation of ECUA vehicles or equipment which may or may not result in personal injury. “Negligent operation” means a failure to operate ECUA vehicles or equipment with proper care. * * * 33. Violation of ECUA rules or guidelines or state or Federal law: The failure to abide by ECUA rules, guidelines, directive, or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of and failure to take corrective action or report rule violations and employee misconduct. The Termination Letter also references paragraph 2 of subsection G entitled “Disciplinary Action” under Manual section B-16 entitled “Drug & Alcohol Abuse.” That paragraph states: Any employee who refuses to submit to drug or alcohol testing provided by this directive shall be subject to disciplinary action, up to and including termination of employment, and shall forfeit eligibility for medical and indemnity benefits under the Florida Workers’ Compensation Act. Invalid test results of an employee who admits tampering with or adulterating their test are treated as a refusal to be tested. In addition, the Manual has the following provisions under section B-13, Discipline Guidelines: Abuse of Leave: This includes: (a) Failure to obtain approval prior to any absence from work, except in the case of an emergency where the employee must be absent prior to receiving supervisor/manager approval for the absence; (b) failure to notify or call in to the office on the first day of an absence; (c) obtaining leave based on a misrepresentation (falsification) or taking unauthorized leave after the employee’s request for leave has been denied; and (d) abandonment of position. * * * 12. Failure to report any on the job accident, injury, or illness within 24 hours. Manual, § B-13, ¶¶ A.2. and A.12. The Manual provisions under section D-9, Leaves of Absence, include the following language under paragraph 2 of subsection I regarding employees’ responsibilities for sick leave: Employee Responsibilities Employees must recognize they have an obligation to their department and employer which requires they give reasonable advance notice of their absence. It is the employee’s responsibility to be certain that information concerning their inability to work because of illness be communicated to their supervisor. Exceptions to this guideline in case of extreme emergency or injury will be evaluated by the department director. In order to be granted sick leave, employees must notify their supervisor of their disability prior to the next scheduled work shift. Employees must notify their supervisor each subsequent day they are absent prior to their next scheduled work shift and inform them of their condition and when they expect to return to work. Department directors may make modifications to this reporting guideline for operational reasons. Manual, § D-9, ¶ I.2.a. Further, the Manual provides for drug testing of an employee when there is “reasonable suspicion” that an employee is using alcohol or drugs at work. “Reasonable suspicion,” as defined in the Manual, includes “[i]nformation that an employee has caused, contributed to, or been involved in an accident while at work.” Manual, § B-16, ¶ B.5.e. ECUA’s South Region has written procedures for operating crew trucks. Paragraph 5 of those procedures states: “Secure all material on the back of the truck.” Respondent signed copies of those procedures in effect during the pertinent time period, acknowledging his awareness of the procedures. In his employment with ECUA as a Utility Service Technician Trainee, Respondent was required to perform semi- skilled work in the installation, maintenance, and repair of water and sewer utility lines and meters under immediate supervision. In order to perform his job, Respondent was required to obtain and maintain a Class 3 Distribution System Operator license (Class 3 license) issued by the Florida Department of Environmental Protection (DEP). Respondent was issued a Class 3 license on October 10, 2012. It is valid until April 30, 2015. In order to maintain a Class 3 license and other water and wastewater treatment licenses, licensees are required to obtain certain continuing education units (CEUs) every two years. ECUA’s division of Regional Services arranged for training for its employees to be held in Panama City on February 18, 2014, in order for them to obtain CEUs to maintain their licenses issued by DEP. The name of the course was “Focus on Change.” ECUA paid for the course and its attending employees received their normal daily pay to attend. Five employees from ECUA’s South Region were signed up for the course, including Respondent. Four of the employees traveled to the course together that day in an ECUA vehicle, but Respondent drove his own vehicle to the course after receiving permission to do so. The course began in Panama City at 8:00 a.m., local time, on February 18, 2014, and lasted until approximately 4:00 p.m. that day. Respondent and the other four ECUA South Region employees arrived prior to the start of the course. That morning, at the beginning of the course, a roster was passed around for all who attended to sign. Approximately 200 people attended the course. Respondent signed the morning roster. There were two or three scheduled breaks in the course that morning. In addition to those breaks, Respondent took two or more bathroom breaks during the morning session. The course recessed for lunch from approximately 12:00 noon until 1:00 p.m. Respondent attended lunch. While in the lunch line, Respondent bumped into a large placard with the lunch menu on it which struck Respondent on the neck or head. He grabbed his neck, but did not seem to be injured. After lunch, the course resumed. Approximately 45 minutes to an hour into the afternoon session, another roster was passed around for attendees to sign. Respondent pushed ahead in line to sign the afternoon roster and was seen leaving the course a short time later, over an hour before the course ended. Although Respondent testified that he stayed until the end, all of the other testifying witnesses that attended the course said that they did not see Respondent return after leaving the course before the end. At the end of the course, a CEU certificate was handed out to the attendees to sign as evidence of completion of the course, with a pink copy to return to ECUA. While the other attendees from the South Region submitted their copies to ECUA upon their return, Respondent did not have one. Respondent insisted that he never received a certificate even though he stayed until the end, but a preponderance of the evidence showed that the reason that he did not receive a certificate is because he left the course over an hour before it was over and never returned. On February 21, 2014, after investigation, the ECUA Director of Regional Services issued a Notice of Predetermination/Liberty Interest {Name Clearing} Hearing (First Predetermination Notice) to Respondent stating that investigation had disclosed that Respondent left the February 18, 2014, training class early without authorization and that the Director intended to recommend that Respondent receive a three-day suspension. The First Predetermination Notice also notified Respondent that a predetermination hearing was scheduled for February 26, 2014, during which Respondent would have the “opportunity to address [his] alleged violations.” Thereafter, on the morning of February 25, 2014, while Respondent was working with a co-worker who was driving an ECUA service truck, a ground-penetrating radar device (GPR) that was in the back of the truck fell out and was damaged. The GPR was about the size of a push lawn mower. The GPR lost its handle and one of its control knobs was damaged when the GPR fell out of the truck. According to the driver, Respondent was the one who placed the GPR into the back of the truck and was responsible for securing it in a lockbox and closing the tailgate while the driver was up front in the driver’s seat filling out paperwork. Respondent, on the other hand, testified that both he and the driver loaded the GPR into the truck. Under either scenario, it is clear that Respondent was at least partly responsible for placing the GPR into the truck and securing the lockbox and tailgate. That morning, prior to the GPR incident, Respondent complained to the driver that he had something wrong with his arm. In 2013, Respondent missed approximately six months from work while on workers’ compensation leave ending in December 2013, as he was recovering from an infection from a mosquito bite. At the time of the GPR incident, Respondent was still experiencing weakness in one of his hands and arm, and his weight-lifting capacity was restricted. Although damaged, the GPR was still operating after falling from the truck. Therefore, Respondent and the driver performed a couple more jobs with the GPR that day. Before returning to the shop, Respondent suggested to the driver that they report that the GPR was damaged because Respondent dropped it as a result of the weakness in his hand. The driver declined to go along with the story. According to Respondent, around 10:30 a.m. that morning, he told the driver that Respondent had just received word from his doctor that there was an appointment opening that afternoon at 2:00 p.m. and that Respondent planned to attend the appointment to have his arm checked. Although, in his testimony, the driver recalled that Respondent had complained about his arm that day, he did not recall Respondent telling him about the alleged doctor’s appointment. That same morning, Respondent sent an email to the ECUA human resources director requesting postponement of his predetermination hearing that was scheduled to occur the next day. The email is dated February 25, 2014, at 11:17 a.m. The evidence is insufficient to determine whether the email was sent before or after the GPR fell out of the truck. It is clear, however, that the email was sent after the time Respondent allegedly told the driver that he had a doctor’s appointment. There is no mention of a doctor’s appointment or any medical problem in the email. Just after 1:00 p.m. that day, February 25, 2014, the driver decided to return to the ECUA Warrington Plant (the shop). In his testimony, the driver recalled that he decided to return to the shop to report the accident involving the GPR to his supervisors. According to Respondent, the decision to return to the shop was so that Respondent could clock-out and attend his doctor’s appointment. When they got back to the shop, the driver and Respondent told their supervisors about what had happened to the GPR. When their supervisors, ECUA South Region Senior Utilities Technician Thomas Taylor, and his boss, ECUA South Region Superintendent Harry J. Shoemore, heard about the incident, they asked Respondent to fill out an accident report and to undergo a drug test. Respondent responded by telling them he had no time to fill out an accident report and that he could not take a drug test because he had to leave for a doctor’s appointment. That was the first time that Respondent mentioned to either of the supervisors that he had a doctor’s appointment. Respondent then left and clocked-out of work at approximately 1:30 that afternoon without permission. The fact that Respondent did not mention his alleged doctor’s appointment to his supervisors until after being asked to fill out an accident report and undergo a drug test casts doubt on Respondent’s contention that he had a doctor’s appointment. Considering that fact, along with the driver’s lack of recall that Respondent had mentioned a doctor’s appointment, and Respondent’s lack of reference to a doctor’s appointment in his email sent to the ECUA human resources director earlier that day, it is found that Respondent did not mention his alleged doctor’s appointment to anyone at ECUA prior to being asked to fill out an accident report and undergo a drug test. And, the evidence does not reasonably suggest that Respondent was experiencing a medical emergency that day. It is further found that it is improbable that Respondent had a scheduled doctor’s appointment that day and that Respondent used his alleged doctor’s appointment as an excuse to ignore the directives of his supervisors to fill out an accident report and undergo a drug test. Later that afternoon, Respondent faxed a doctor’s hand written note naming Christopher Pryor and purportedly signed by Dr. Roy R. Reyes, M.D., stating, “to whom it may concern: Please excuse from work 2/25/14 thru 2/28/14 due to sickness. thanks, [signed] R. Reyes.” Dr. Reyes was not Respondent’s regular doctor who was treating him for his workers’ compensation injury involving the mosquito bite. Respondent never filled out an accident report regarding the GPR incident and never underwent a drug test as directed. Respondent did not attend the pre-determination hearing scheduled for February 26, 2014. Thereafter, ECUA sent Respondent an amended predetermination notice dated February 28, 2014 (Second Predetermination Notice), which added additional grounds for discipline, including Respondent’s early departure from work, failure to fill out an accident report, and failure to submit to a drug test on February 25, 2014, as well as reference to Respondent’s discipline history. The Second Predetermination Notice recommended Respondent’s termination from employment and scheduled another predetermination hearing for Friday, March 7, 2014. Respondent requested postponement of the March 7, 2014, predetermination hearing and it was rescheduled for March 13, 2014. After Respondent failed to attend the rescheduled hearing on March 13, 2014, EUCA sent Respondent the Termination Letter dated March 17, 2014, following which this proceeding was initiated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated those provisions of its ECUA Human Resources Policy Manual and ECUA’s South Region written procedures for operating crew trucks, as concluded above, and impose such discipline on Respondent as determined appropriate under the provisions of said Manual. DONE AND ENTERED this 24th day of September, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2014.
Findings Of Fact The Parties Petitioner is a Florida corporation that provides software development and consulting services to various commercial entities and state agencies. It has its principal place of business in Jacksonville, Florida. Respondent is an agency of the State of Florida charged with the responsibility to regulate various professions and businesses licensed by the State of Florida. In carrying out its responsibilities it engages the services of outside vendors through competitive bidding. Respondent's principal business office is at 1940 North Monroe Street, Tallahassee, Florida. Intervenor is a California corporation that designs, manufactures and services equipment and systems for measurement, computation and communications, together with its consolidated subsidiaries. The RFP In 1993, Respondent was created by legislative action merging the Department of Professional Regulation and Department of Business Regulation. Respondent perceives that the merger was intended to improve the efficiency of the regulatory process and to facilitate accurate and efficient processing of consumer complaints. To further those purposes, on April 12, 1996 Respondent issued RFP 96-006. In the executive summary to the RFP prospective vendors who considered responding to the RFP were informed: This RFP has been developed in support of the merger for the purpose of acquiring contractor consulting service and software development to support the conversion of existing computer application systems for the Division of Florida Land Sales, Condominiums and Mobile Homes, the Division of Hotels and Restaurants, the Division of Pari-Mutual Wagering, and the conversion of regulatory, inspection, investigation and complaint processing for all the Business Regulation divisions, including the Division of Alcoholic Beverages and Tobacco. Through this Outcome Based RFP, the Department intends to contract with a vendor to not only provide analysis, system design, development, conversion, and selective consulting services, but serve as an integrator and primary contractor on this project. Contractor responding to this RFP will be expected to recommend services based on deliverable specified in this RFP. Since this is an Outcome Based RFP (see definition on Page 2), the Department will not be specifying unique contractor products and/or services or how the contractor is to design the system. In the RFP "Outcome Based RFP" was described as: A Request For Proposal in which the contractor's client will specify concepts, technology directions, size/number of things, and required results (primarily standards and system deliverables). The contractor will respond by recommending the design and proposed solutions -- how to get desired results, by what means (hardware, software, process, and contractor services), and for what cost. The purpose of the RFP was further described as: The purpose of this Outcome Based Request for Proposal (RFP) is to contract with a contractor (serving as integrator as well as contractor) to recommend (RFP bid response) and provide consultant services in conjunction with selected Department staff to: conduct an information management analysis study to identify the business functions performed as well as the data and information flows required to support these functions for the Divisions of Hotels and Restaurants, Land Sales and Condominiums, Pari-Mutual Wagering and regulatory, inspection, investigation and complaint management for all the Business Regulation Divisions, including Alcoholic Beverages and Tobacco, develop an integrated, data-driven information systems design that addresses the needs of the Business Regulation divisions and their information requirements, convert the business functions and data into the appropriate agency application system, develop detailed design and program specifications, modify existing applications and develop new applications necessary to support the system design, develop an implementation plan which provides a phased approach for migrating from the current environment to the planned environment, including system testing and training of agency personnel, provide post-implementation support for the resolution of problems. The contractor will be expected to contribute (under contract) a predetermined number of calendar months, not to exceed 26, towards systems analysis and design, specification and application development, conversion, testing, training, implementation and post- implementation support. The contractor will be responsible for designing, in detail, the methodology by which data files are to be converted from the multiple applications and various platforms and loaded into predefined relational data bases. The contractor will be responsible, under contract, for all services meeting the requirements of this RFP. All components proposed by the contractor must be at a turn-key level with 100 percent compatibility as far as integrating with installed hardware and software currently utilized by BPR. The scope of the work contemplated by the RFP through services performed by the contractor was to this effect: The Florida Department of Business and Professional Regulation (BPR) is requesting contractors to propose consulting services for system analysis, design, specification development, application, development, conversion, training, implementation and post- implementation support. The contractor will propose recommendations for products and services required and serve as an integrator/contractor. At minimum, this Business Regulation/Complaint Regulatory Management Conversion solution shall be capable of providing those services outlined within this RFP. The section addresses ten subject areas that must be addressed in contractor's proposal. Section III-A (Contractor Proposal Format) presents the required "Tab" format and refers backs to details in this section for the contractor to use. In the RFP an "Integrator" is defined as: The contractor who has total accountability, under contract, for all products and services being provided to a customer even those supplied by or acquired from other vendors and/or sub-contractors. In the RFP the term "Turn-Key" is defined as: Contractor is solely responsible for delivering a completed system with sign- ificant client involvement. Vendor awarded contract, will be responsible, under bond, for specified deliverables to the department, as well as being the integrator and contractor for the complete system as proposed which will include the roles of the contractor and appropriate involvement of BPR personnel. The RFP provided the vendors with instructions concerning the format for proposals, especially as it related to Tabs 1 through 24 and the need to complete those tabs consistent with the instructions. The vendors were reminded: [A]s required by Tab, the proposal will present specific consulting services that are recommended, and how these services will technically meet requirements as stated, and/or requirements developed and/or uncovered by the vendor that have been determined to be necessary for the project to be successful. Respondent provided a questionnaire to the vendors concerning the prospective vendors' commitment to the project. Those questions were to be answered "yes" or "no" with the opportunity for clarifying sentences to accompany the answers. The RFP instructed the vendors concerning the submission of cost information. It reminded the vendors that they should "submit firm costs to provide the state with the required deliverables, found in Section II of the RFP." The RFP described the manner in which the proposals would be evaluated through two separate committees, a "technical subcommittee" and a "vendor evaluation committee." The vendors were also reminded that the proposals would first be reviewed by the purchasing arm of the Respondent to assure that the vendors provided all mandatory documentation required by the RFP. In the instance where required documentation was missing the response would be determined "non-responsive." The evaluation process contemplated the "technical subcommittee" evaluating technology sections in responses to the RFP and providing those results to the "vendor evaluation committee." The latter committee would then evaluate other subject areas in the proposals and consolidate/finalize results from both evaluation processes into an overall rating. The RFP explained the subject areas that were to be considered by the two committees with particularity. The RFP described in detail the assignment of points and set forth the format for carrying out the evaluation process. The successful vendor would be selected upon the basis of the highest points awarded. The maximum points that could be received were 1950. The maximum points that could be received for the vendors' proposed costs were 250. The RFP sets terms and conditions and identifies mandatory requirements as: The state has established certain require- ments with respect to proposals to be submitted by proposers. The use of "are", "shall", "must" or "will" (except to indicate simple futurity) in the RFP indicates a requirement or condition. A deviation is material if the deficient response is not in substantial accord with this [sic] RFP requirements. Moreover, the RFP reminded the vendors that: Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. The RFP gives further instructions involving the rejections of proposals where it is stated: The department reserves the right to either make awards or to reject proposals by individual category, groups of categories, all or none, or a combination thereof. Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. Any proposal that contains material deviations or is conditional or incomplete shall be rejected. The department may waive an immaterial defect, but such waiver shall in no way modify the RFP requirements or excuse the proposer from full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract. The RFP refers to subcontracts where it states: The contractor is fully responsible for all work performed under the contract resulting from this RFP. The contractor may, with the consent of the department, enter into written subcontract(s) for performance of certain of its functions under the contract. The sub- contractors and the amount of the subcontract shall be identified in the contractor's response to this RFP. Subcontracts shall be approved in writing by the department's Executive sponsor, or designee, prior to the effective date of any subcontract. The Sub- contractor shall provide the Executive sponsor documentation in writing, on company letterhead, indicating known responsibilities and deliverables, with timeframes. No sub- contract which the contractor enters into with respect to performance under the contract resulting from this RFP shall in any way relieve the contractor of any respons- ibility for performance of its duties. All payments to sub-contractors shall be made by the contractor. Tabs 16, 17, 19, 20 and 21 require specific information about sub- contractors the vendor might employ in meeting the requirements in the RFP addressed under those tabs. In addition to the specific requirements in the RFP, paragraph 4 to the general conditions reminds the vendor to submit "firm prices." Paragraph 6 to the general conditions states that contract awards are made: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive All awards made as a result of this proposal shall conform to applicable Florida Statutes. The RFP explained the manner in which addenda to the RFP would be provided, in which case the addenda would be in writing with the content and number of pages described and sent to each vendor that received the original RFP. The RFP also contemplated the possibility that Respondent might require the vendors to supplement their responses to the RFP with oral presentations to either of the evaluation committees. The RFP explained that there would be a bidders' conference to discuss the contents of the RFP, in view of any written inquiries from the vendors and recommended changes. On April 30, 1996 the bidders' conference was conducted. In this conference information was presented to the vendors and questions from the vendors were presented to Respondent, both oral and written. On May 10, 1996, addendum number 1 resulting from the bid conference was provided to the vendors. Through addendum number 1, Respondent more specifically informed the vendors concerning its expectations in the vendors' responses to the RFP. Additionally the addendum rescheduled certain events in the bid process. It changed the proposal due date and public opening of the technology portion of the proposal to June 7, 1996. The date for opening of proposals in the cost portion was changed to July 12, 1996. The date for posting of the intended award was changed to July 17, 1996. Two vendors responded to the RFP. Those vendors were Petitioner and Intervenor. In addition to the information provided through responses to the RFP, Respondent propounded written questions to the vendors as attachments A and B. Attachment A constituted common inquiry to the vendors. Attachment B was designed to solicit additional information unique to the respective vendors. Both vendors responded to the questionnaires on July 9, 1996. Both vendors' proposals were found responsive. The two committees performed their respective evaluations. Through this process Petitioner was awarded 1206.46 points. Intervenor was awarded 1321.39 points. As a consequence, on July 16, 1996 Respondent posted notice that it intended to award a contract to Intervenor. Respondent also sent a letter on that date notifying the Petitioner that it intended to contract with Intervenor. As described in the preliminary statement, and incorporated here, Petitioner gave notice and formally challenged the decision to award. In its opposition to the decision to award to the Intervenor, Petitioner does not allege that Respondent failed to implement the procedures for evaluation in scoring the competitor's. Rather, Petitioner challenges the results obtained in that implementation. Where Respondent found Intervenor responsive to certain alleged material requirements in the RFP, Petitioner asserts that Intervenor was not responsive to those material requirements. In performing their duties the committee members who evaluated the proposals had a week to prepare themselves to render their input. During that time they were allowed to review the responses to the RFP. Following that opportunity the evaluators were allowed to seek clarification on any items where there might be uncertainty, to include legal advice from the Respondent agency. In carrying out their assignment the evaluators compared the requirements in the RFP to the responses by the vendors. Through this process no evaluator indicated that either proposal was unresponsive. In their review function the evaluators also considered the answers to the questions that had been provided by the vendors on July 9, 1996. The evaluators had been instructed to review the requirements contemplated by Tabs in the RFP, to read the RFP and the addendum to the RFP. Petitioner specifically challenges Respondent's determination that Intervenor was responsive in meeting the following alleged requirements in the RFP: Did the Intervenor Fail to Submit an Outcome Based Proposal in Response to the RFP? The RFP contemplates the necessity that a vendor will submit a proposal that is Outcome Based as defined in the RFP and explained in other provisions within the RFP. The requirement to submit an Outcome Based Proposal is a material requirement. If a vendor does not meet that requirement, the failure to comply is a material deviation from the requirements in the RFP. If a vendor does not meet the requirement for providing an Outcome Based Proposal and the evaluators ignored that irregularity, their actions would be arbitrary. Tab 3 discusses: Business Regulation/Complaint Management Conversion Project Life Cycle Presentation: This section will present the overall scope of the project and the methodology. This section will need to specifically deal with how the vendor addressed the technical design requirements as spelled out in Project Scope. As described, this Tab was designed to have the vendor identify the overall scope of the proposal and the methodology to be employed in reaching the outcome required by the RFP. As Section 3-1 to its response Intervenor replied: Hewlett-Packard's (HP) approach is to provide BPR with both fixed price and 'time-boxing'. Time-boxing is defined as an allocation of consulting hours (3360) which will be delivered by HP technical consultants or sub- contractors. HP is proposing to fix price the Information Management Analysis Study, Integrated System Design, and Project Management. The remaining sections (Detail Design and Program Specification, Data Conversion Phase, Development, System Testing, Implementation, Training, Post-Implementation Support) will be time-boxed with a total of 3360 hours. HP has made suggestions as to the number of hours to be used for these sections. However the final allocation will be mutually agreed upon by HP's project manager and BPR's project manager. HP Professional Services Methodology Moving from a legacy computing model, to a distributed, open client/server computing environment, requires the organization to rethink the process, people, and technology requirements of the enterprise. Organiza- tional integration and effective evaluation of IT solutions tend to get lost in the rush to develop specific applications. If not lost, there is rarely a structured logical process that is followed in defining, designing, developing, implementing, and operating the solution. The remaining provisions within Section 3 to the Intervenor's response to the RFP detail the overall scope of the project and the methodology to be employed. In other respects the Intervenor's response to the RFP explains the manner in which it would reach the outcome contemplated by the RFP in all phases related to its proposed consulting services in this project. Facts were not presented that proved that the evaluators acted arbitrarily in determining that the Intervenor's proposal was based upon the required outcome in the project. Did the Intervenor Submit a Firm Price Proposal? The RFP creates a material requirement that a vendor complete Attachment "E" to the RFP. Attachment "E" provides cost information from the vendor. In every respect Intervenor has complied with that requirement. The evaluators were not arbitrary in determining that the requirement was met. Notwithstanding the use of "time-boxing" for certain phases in the project, the cost information submitted in Attachment "E" assigns a money amount for those phases. By that assignment the consulting hours that are "time-boxed" have an equivalent dollar figure which constitutes firm costs for those deliverables/phases in the project. The evaluators did not act arbitrarily in assigning 234 points to the Intervenor for its cost proposal. Did the Intervenor fail to Submit a List of Sub-contractors Whose Services will be used by the Intervenor? Tab 16, Corporate (vendor) qualifications and commitment; makes it incumbent upon the vendor to indicate the sources committed to the project in terms of personnel and other resources, to include sub-contractors involved with the project. Tab 17, Corporate (vendor) financials; requires the vendor to produce financial information about it and any sub-contractors involved with the project. Tab 19, Individuals proposed to work on contract; requires resumes of individuals who work for the vendor or a sub-contractor and information about key personnel of the vendor and sub-contractors. Tab 20, Contract and support services including post-implementation plan, requires; the vendor to indicate where its services will be provided by the vendor or sub-contractors. Tab 21, Contractor questionnaire; solicits information from the vendor about sub-contractors. As seen, in many provisions the RFP requires a vendor to identify information about sub-contractor whose services would be used by the vendor. These are material requirements. If the evaluators ignored the requirements, their actions would be arbitrary. In addressing intervenor's proposal, the evaluators acted arbitrarily. The problem is that Intervenor in many places in its response has left open the possibility that it would use sub-contractors without naming those sub- contractors and their contribution to the project. Ultimately, the lack of disclosure could provide the Intervenor with an advantage that Petitioner does not enjoy and potentially adversely impact the interests of the Respondent. The following are examples in response to the RFP where Intervenor has maintained its option to use sub-contractors without disclosing information about the sub-contractors: Section 1-3: "The Regulatory Management Conversion solution being proposed is comprised of world-class services from HP and our partners." The reference to partners is seen to include the possibility that sub-contractors might be used. Section 3-1, that has been commented on, referring to time-boxing, describes allocation of the 3360 consulting hours through delivery by the intervenor's technical consultants or sub-contractors. Section 10-2, refers to the implementation of the management plan which follows-up "sub- contractor's work." Section 12-2, refers to Intervenor and its training partners offering "standard and custom instructor led training, computer based training and net work based training." Training partners is taken to mean some persons who reasonably could be considered sub-contractors. Section 13-1, makes reference to third party services involved with the Intervenor's custom solution to the project needs. The reference to third party is equivalent to a sub-contractor. Section 16-9, referring to the flexibility in managing the engagement (project) describes partnering and involvement in sub-contracting. Section 21-2, in responses to the question- naire to Tab 21, Intervenor refers to its time- boxing approach for providing services, in which, according to Section 3-1, Intervenor leaves open the possibility that it would use sub-contractors to deliver the services. It is realized that on occasions in which Intervenor was required to provide contemporaneous and detailed information concerning its intentions to use sub-contractors, answers that it gave in association with Tabs 16, 17, 19 and 20 did not refer to sub-contractors. Consequently, one might assume that Intervenor did not intend to employ sub-contractors in this project notwithstanding references to unnamed sub-contractors found in other places in the response to the RFP. This raises the issue whether the lack of reference and response to the more specific questions about the use of sub-contractors overcomes the implications of the possibility that sub-contractors will be used that is made in response to other requirements in the RFP. That internal inconsistency should not favor an interpretation that creates advantage for Intervenor and potential difficulty for Respondent, which it does. For the evaluators to allow the conflict to remain is an arbitrary act. To seek to resolve the conflict would also constitute an arbitrary act as it would require an amendment to the Intervenor's response. The fact that Respondent must approve subcontracts before their effective dates does not satisfactorily mitigate the need to disclose subcontractor information with the response. Did Intervenor's Proposal Fail to Meet the Requirements in the RFP in the Technical Categories for Tabs 4 through 7, 10, 12, 14, 15 and 21? Petitioner made allegations concerning those issues associated with Intervenor's technical responses in those tabs. However, in the proposed recommended order Petitioner limited its discussion to Tabs 5, 6, 7 and 11. It is assumed that Petitioner abandoned its contentions concerning the remaining tabs described in the interrogatory. Tab 5, Integrated system design, states: In this section the vendor will present the methodology to be used in support of the RFP requirements. The evaluators found that Intervenor had met this requirement. It has not been shown that the evaluators acted arbitrarily in determining that the Intervenor had complied with requirements at Tab 5. Tab 6, Detail design and program specifications, states: In this section the vendor will present the methodology in support of the RFP requirements. Petitioner has failed to prove that the evaluators acted arbitrarily in concluding that the Intervenor met the requirements for Tab 6. Tab 7, Data conversion states: In this section vendor [sic] will provide a description of their approach to the data conversion phase. Petitioner has failed to prove that the evaluators acted arbitrarily in determining that the Intervenor met the requirements for Tab 7. Tab 11, Post-implementation support, states: In this section the vendor [sic] will provide a description of their approach to post-implementation support. Petitioner has failed to show that the evaluators acted arbitrarily in concluding that the Intervenor had met the requirements for Tab 11. Nor has it been shown in any respect that the evaluators acted illegally, fraudulently, or dishonestly. Was the Intervenor a responsible proposer? Petitioner alleged in its petition that the Intervenor was not a responsible proposer. Petitioner did not offer proof to sustain that allegation.
Recommendation Upon consideration of the facts found in the conclusions of law reached it is, RECOMMENDED: That a final order be entered which declares Intervenor to be unresponsive to the RFP and takes such other action as Respondent deems appropriate in pursuing this project. DONE and ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Mary C. Piccard, Esquire Cummings, Lawrence and Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Forida 32399-0792
The Issue Whether the Department of Corrections? action to withdraw its Intent to Award and to reject all replies to ITN 12-DC-8396 is illegal, arbitrary, dishonest, or fraudulent, and if so, whether its Intent to Award is contrary to governing statutes, rules, policies, or the solicitation specifications.
Findings Of Fact The DOC is an agency of the State of Florida that is responsible for the supervisory and protective care, custody, and control of Florida?s inmate population. In carrying out this statutory responsibility, the Department provides access to inmate telephone services. On April 15, 2013, the DOC issued the ITN, entitled “Statewide Inmate Telephone Services, ITN 12-DC-8396,” seeking vendors to provide managed-access inmate telephone service to the DOC. Responses to the ITN were due to be opened on May 21, 2013. The DOC issued Addendum #1 to the ITN on April 23, 2013, revising one page of the ITN. The DOC issued Addendum #2 to the ITN on May 14, 2013, revising a number of pages of the ITN, and including answers to a number of vendor questions. EPSI, GTL, and Securus are providers of inmate telephone systems and services. Securus is the incumbent contractor, and has been providing the Department with services substantially similar to those solicited for over five years. No party filed a notice of protest to the terms, conditions, or specifications contained in the ITN or the Addenda within 72 hours of their posting or a formal written protest within 10 days thereafter. Replies to the ITN were received from EPSI, GTL, Securus, and Telmate, LLC. Telmate?s reply was determined to be not responsive to the ITN. Two-Part ITN As amended by Addendum #2, section 2.4 of the ITN, entitled “ITN Process,” provided that the Invitation to Negotiate process to select qualified vendors would consist of two distinct parts. In Part 1, an interested vendor was to submit a response that described certain Mandatory Responsiveness Requirement elements, as well as a Statement of Qualifications, Technical Response, and Financial Documentation. These responses would then be scored using established evaluation criteria and the scores would be combined with cost points assigned from submitted Cost Proposals. In Part 2, the Department was to select one or more qualified vendors for negotiations. After negotiations, the Department would request a Best and Final Offer from each vendor for final consideration prior to final award decision. The ITN provided that the Department could reject any and all responses at any time. High Commissions and Low Rates Section 2.5 of the ITN, entitled “Initial Cost Response,” provided in part: It is the Department?s intention, through the ITN process, to generate the highest percentage of revenue for the State, while ensuring a quality telephone service with reasonable and justifiable telephone call rate charges for inmate?s family and friends similar to those available to the public-at- large. Section 2.6 of the ITN, entitled “Revenue to be Paid to the Department,” provided in part that the Department intended to enter into a contract to provide inmate telephone service at no cost to the Department. It provided that, “[t]he successful Contractor shall pay to the Department a commission calculated as a percentage of gross revenues.”1/ The commission paid by a vendor is the single largest expense in the industry and is an important aspect of any bid. Contract Term Section 2.8 of the ITN was entitled “Contract Term” and provided: It is anticipated that the initial term of any Contract resulting from this ITN shall be for a five (5) year period. At its sole discretion, the Department may renew the Contract in accordance with Form PUR 1000 #26. The renewal shall be contingent, at a minimum, on satisfactory performance of the Contract by the Contractor as determined by the Department, and subject to the availability of funds. If the Department desires to renew the Contracts resulting from this ITN, it will provide written notice to the Contractor no later than thirty days prior to the Contract expiration date. Own Technology System Section 3.4 of the ITN provided in part: The successful Contractor is required to implement its own technology system to facilitate inmate telephone service. Due to the size and complexity of the anticipated system, the successful Contractor will be allowed a period of transition beginning on the date the contract is executed in which to install and implement the utilization of its own technology system. Transition, implementation and installation are limited to eighty (80) days. The Department realizes that some "down time" will occur during this transition, and Respondents shall propose an implementation plan that reduces this "down time" and allows for a smooth progression to the proposed ITS. GTL emphasizes the language stating that the successful contractor must implement “its own” technology system, and asserts that the technology system which EPSI offers to install is not owned by it, but by Inmate Calling Solutions, LLC (ICS), its subcontractor. However, EPSI demonstrated that while the inmate telephone platform, dubbed the “Enforcer System,” is owned by ICS now, that EPSI has a Master User Agreement with ICS and that an agreement has already been reached that before the contract would be entered into, a Statement of Work would be executed to create actual ownership in EPSI for purposes of the Florida contract. GTL alleges that in EPSI?s reply, EPSI relied upon the experience, qualifications, and resources of its affiliated entities in other areas as well. For example, GTL asserts that EPSI?s claim that it would be providing 83 percent of the manpower is false, since EPSI has acknowledged that EPSI is only a contracting subsidiary of CenturyLink, Inc., and that EPSI has no employees of its own. While it is clear that EPSI?s reply to the ITN relies upon the resources of its parent to carry out the terms of the contract with respect to experience, presence in the state, and personnel, EPSI demonstrated that this arrangement was common, and well understood by the Department. EPSI demonstrated that all required capabilities would be available to it through the resources of its parent and subcontractors at the time the contract was entered into, and that its reply was in conformance with the provisions of the ITN in all material respects. EPSI has the integrity and reliability to assure good faith performance of the contract. Call Recording Section 3.6 of the ITN, entitled “Inmate Telephone System Functionality (General),” provided in part: The system shall provide the capability to flag any individual telephone number in the inmate?s „Approved Number List? as „Do Not Record.? The default setting for each telephone number will be to record until flagged by Department personnel to the contrary. Securus alleges that section 3.6 of the ITN implements Department regulations2/ and that EPSI?s reply was non-responsive because it stated that recording of calls to specific telephone numbers would be deactivated regardless of who called that number. Securus alleges that this creates a security risk because other inmates calling the same number should still have their calls recorded. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with section 3.6. While EPSI went on to say that this capability was not connected to an inmate?s PIN, the language of section 3.6 does not mention an inmate?s PIN either. Read literally, this section requires only the ability to “flag” any individual telephone number that appears in an inmate?s number list as “do not record” and requires that, by default, calls to a telephone number will be recorded until it is flagged. EPSI?s reply indicated it could meet this requirement. This provision says nothing about continuing to record calls to that same number from other inmates. Whether or not this creates a security risk or is what the Department actually desired are issues which might well be discussed as part of the negotiations, but this does not affect the responsiveness of EPSI?s reply to section 3.6. Furthermore, Mr. Cooper testified at hearing that EPSI does have the capability to mark a number as “do not record” only with respect to an individual inmate, at the option of the Department. EPSI?s reply conformed to the call-recording provisions of section 3.6 of the ITN in all material respects. Call Forwarding Section 3.6.8 of the ITN, entitled “System Restriction, Fraud Control and Notification Requirements,” provided that the provided inmate telephone services have the following security capability: Ability to immediately terminate a call if it detects that a called party?s telephone number is call forwarded to another telephone number. The system shall make a “notation” in the database on the inmate?s call. The system shall make this information available, in a report format, to designated department personnel. In response to an inquiry noting that, as worded, the ITN did not technically require a vendor to have the capability to detect call-forwarded calls in the first place, the Department responded that this functionality was required. Securus alleges that EPSI is unable to comply with this requirement, citing as evidence EPSI?s admission, made some months before in connection with an RFP being conducted by the Kansas Department of Corrections, that it did not yet have this capability. EPSI indicated in its reply to the ITN that it read, agreed, and would comply with this requirement. As for the Kansas solicitation, EPSI showed that it now possesses this capability, and has in fact installed it before. EPSI?s reply conformed to the call-forwarding provisions of section 3.6.8 of the ITN in all material respects. Keefe Commissary Network Section 5.2.1 of the ITN, entitled “Respondents? Business/Corporate Experience,” at paragraph e. directed each vendor to: [P]rovide and identify all entities of or related to the Respondent (including parent company and subsidiaries of the parent company; divisions or subdivisions of parent company or of Respondent), that have ever been convicted of fraud or of deceit or unlawful business dealings whether related to the services contemplated by this ITN or not, or entered into any type of settlement agreement concerning a business practice, including services contemplated by this ITN, in response to a civil or criminal action, or have been the subject of any complaint, action, investigation or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The Respondent shall identify the amount of any payments made as part of any settlement agreement, consent order or conviction. Attachment 6 to the ITN, setting forth Evaluation Criteria, similarly provided guidance regarding the assessment of points for Business/Corporate Experience. Paragraph 1.(f) provided: “If any entities of, or related to, the Respondent were convicted of fraud or of deceit or unlawful business dealings, what were the circumstances that led to the conviction and how was it resolved by the Respondent?” Addendum #2. to the ITN, which included questions and answers, also contained the following: Question 57: In Attachment 6, Article 1.f. regarding respondents “convicted of fraud, deceit, or unlawful business dealing . . .” does this include associated subcontractors proposed in this ITN? Answer 57: Yes, any subcontractors you intend to utilize on this project, would be considered an entity of and related to your firm. As a proposed subcontractor, ICS is an entity of, or related to, EPSI. There is no evidence to indicate that ICS has ever been convicted of fraud or of deceit or unlawful business dealings. There is no evidence to indicate that ICS has entered into any type of settlement agreement concerning a business practice in response to a civil or criminal action. There is no evidence to indicate that ICS has been the subject of any complaint, action, investigation, or suit involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. The only evidence at hearing as to convictions involved “two individuals from the Florida DOC” and “two individuals from a company called AIS, I think that?s American Institutional Services.” No evidence was presented that AIS was “an entity of or related to” EPSI. Conversely, there was no evidence that Keefe Commissary Network (KCN) or anyone employed by it was ever convicted of any crime. There was similarly no evidence that KCN entered into any type of settlement agreement concerning a business practice in response to civil or criminal action. It was shown that KCN “cooperated with the federal government in an investigation” that resulted in criminal convictions, and it is concluded that KCN was therefore itself a subject of an investigation involving any other type of dealings contrary to federal, state, or other regulatory agency regulations. However, KCN is not an entity of, or related to, EPSI. KCN is not a parent company of EPSI, it is not a division, subdivision, or subsidiary of EPSI, and it is not a division, subdivision, or subsidiary of EPSI?s parent company, CenturyLink, Inc. EPSI?s reply conformed to the disclosure requirements of section 5.2.1, Attachment 6, and Addendum #2 of the ITN in all material respects. Phases of the ITN Section 6 describes nine phases of the ITN: Phase 1 – Public Opening and Review of Mandatory Responsiveness Requirements Phase 2 – Review of References and Other Bid Requirements Phase 3 – Evaluations of Statement of Qualifications, Technical Responses, and Managed Access Solutions3/ Phase 4 – CPA Review of Financial Documentation Phase 5 – Review of Initial Cost Sheets Phase 6 – Determination of Final Scores Phase 7 – Negotiations Phase 8 – Best and Final Offers from Respondents Phase 9 – Notice of Intended Decision Evaluation Criteria in the ITN As amended by Addendum #2, the ITN established scoring criteria to evaluate replies in three main categories: Statement of Qualifications (500 points); Technical Response (400 points); and Initial Cost Sheets (100 points). It also provided specific guidance for consideration of the commissions and rates shown on the Initial Cost Sheet that made up the pricing category. Section 6.1.5 of the ITN, entitled “Phase 5 – Review of Initial Cost Sheet,” provided in part: The Initial Cost Proposal with the highest commission (percentage of gross revenue) to be paid to the Department will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other commission percentages will receive points according to the following formula: (X/N) x 50 = Z Where: X = Respondents proposed Commission Percentage to be Paid. N = highest Commission Percentage to be Paid of all responses submitted. Z = points awarded. * * * The Initial Cost Proposal with the lowest telephone rate charge will be awarded 50 points. The price submitted in Table 1 for the Original Contract Term, and the subsequent renewal price pages for Table 1 will be averaged to determine the highest commission submitted. All other cost responses will receive points according to the following formula: (N/X) x 50 = Z Where: N = lowest verified telephone rate charge of all responses submitted. X = Respondent?s proposed lowest telephone rate charge. Z = points awarded. The ITN as amended by Addendum #2 provided instructions that initial costs should be submitted with the most favorable terms the Respondent could offer and that final percentages and rates would be determined through the negotiation process. It included the following chart:4/ COST PROPOSAL INITIAL Contract Term 5 years ONE Year Renewal TWO Year Renewal THREE Year Renewal FOUR Year Renewal FIVE Year Renewal Initial Department Commission % Rate Proposed Initial Blended Telephone Rate for All Calls* (inclusive of surcharges) The ITN, including its Addenda, did not specify selection criteria upon which the determination of best value to the state would be based. Allegation that EPSI Reply was Misleading On the Certification/Attestation Page, each vendor was required to certify that the information contained in its reply was true and sufficiently complete so as not to be misleading. While portions of its reply might have provided more detail, EPSI did not mislead the Department regarding its legal structure, affiliations, and subcontractors, or misrepresent what entity would be providing technology or services if EPSI was awarded the contract. EPSI?s reply explained that EPSI was a wholly owned corporate subsidiary of CenturyLink, Inc., and described many aspects of the contract that would be performed using resources of its parent, as well as aspects that would be performed through ICS as its subcontractor. Department Evaluation of Initial Replies The information on the Cost Proposal table was reviewed and scored by Ms. Hussey, who had been appointed as the procurement manager for the ITN. Attempting to follow the instructions provided in section 6.1.5, she added together the six numbers found in the boxes indicating commission percentages on the Cost Proposal sheets. One of these boxes contained the commission percentage for the original five-year contract term and each of the other five boxes contained the commission percentage for one of the five renewal years. She then divided this sum by six, the number of boxes in the computation chart (“divide by six”). In other words, she calculated the arithmetic mean of the six numbers provided in each proposal. The Department had not intended for the commission percentages to be averaged in this manner. Instead, they had intended that a weighted mean would be calculated. That is, they intended that five times the commission percentage shown for the initial contract term would be added to the commission percentages for the five renewal years, with that sum then being divided by ten, the total number of years (“divide by ten”). The Department did not clearly express this intent in section 6.1.5. Mr. Viefhaus testified that based upon the language, Securus believed that in Phase 5 the Department would compute the average commission rate the way that Ms. Hussey actually did it, taking the arithmetic mean of the six commission percentages provided by each vendor, and that therefore Securus prepared its submission with that calculation in mind.5/ Mr. Montanaro testified that based upon the language, GTL believed that in Phase 5 the Department would “divide by ten,” that is, compute the weighted mean covering the ten-year period of the contract, and that GTL filled out its Cost Proposal table based upon that understanding. The DOC posted a notice of its intent to negotiate with GTL, Securus, and EPSI on June 3, 2013. Telmate, LLC, was not chosen for negotiations.6/ Following the Notice of Intent to Negotiate was this statement in bold print: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On June 14, 2013, the DOC issued a Request for Best and Final Offers (RBAFO), directing that Best and Final Offers (BAFO) be provided to the DOC by June 18, 2013. Location-Based Services The RBAFO included location-based services of called cell phones as an additional negotiated service, requesting a narrative description of the service that could be provided. The capability to provide location-based services had not been part of the original ITN, but discussions took place as part of the negotiations. Securus contends that EPSI was not a responsible vendor because it misrepresented its ability to provide such location-based services through 3Cinteractive, Inc. (3Ci). EPSI demonstrated that it had indicated to the Department during negotiations that it did not have the capability at that time, but that the capability could easily be added. EPSI showed that due to an earlier call it received from 3Ci, it believed that 3Ci would be able to provide location- based services to it. EPSI was also talking at this time to another company, CTI, which could also provide it that capability. In its BAFO, EPSI indicated it could provide these services, explained that they would require payments to a third- party provider, and showed a corresponding financial change to their offer. No competent evidence showed whether or not 3Ci was actually able to provide that service on behalf of EPSI, either at the time the BAFO was submitted, or earlier. EPSI showed that it believed 3Ci was available to provide that service, however, and there is no basis to conclude that EPSI in any way misrepresented its ability to provide location-based services during negotiations or in its BAFO. Language of the RBAFO The RBAFO provided in part: This RBAFO contains Pricing, Additional Negotiated Services, and Value Added Services as discussed during negotiation and outlined below. The other specifications of the original ITN, unless modified in the RBAFO, remain in effect. Respondents are cautioned to clearly read the entire RBAFO for all revisions and changes to the original ITN and any addenda to specifications, which are incorporated herein and made a part of this RBAFO document. Unless otherwise modified in this Request for Best and Final Offer, the initial requirements as set forth in the Department?s Invitation to Negotiate document and any addenda issued thereto have not been revised and remain as previously indicated. Additionally, to the extent that portions of the ITN have not been revised or changed, the previous reply/initial reply provided to the Department will remain in effect. These two introductory paragraphs of the RBAFO were confusing. It was not clear on the face of the RBAFO whether “other specifications” excluded only the pricing information to be supplied or also the specifications indicating how that pricing information would be calculated or evaluated. It was not clear whether “other specifications” were the same thing as “initial requirements” which had not been revised. It was not clear whether scoring procedures constituted “specifications.” While it was clear that, to the extent not revised or changed by the RBAFO, initial replies that had been submitted -- including Statements of Qualifications, Technical Response, Financial Documentation, and Cost Proposals -- would “remain in effect,” it was not clear how, if at all, these would be considered in determining the best value to the State. In the RBAFO under the heading “PRICING,” vendors were instructed to provide their BAFO for rates on a provided Cost Proposal table which was virtually identical to the table that had been provided earlier in the ITN for the evaluation stage, including a single square within which to indicate a commission rate for the initial five-year contract term, and five squares within which to indicate commission rates for each of five renewal years. The RBAFO stated that the Department was seeking pricing that would provide the “best value to the state.” It included a list of 11 additional services that had been addressed in negotiations and stated that, “in order to provide the best value to the state,” the Department reserved the right to accept or reject any or all of these additional services. It provided that after BAFOs were received, the Negotiation Team would prepare a summary of the negotiations and make a recommendation as to which vendor would provide the “best value to the state.” The RBAFO did not specify selection criteria upon which the determination of best value to the State would be based. In considering commission percentages as part of their determination as to which vendor would receive the contract, the Negotiation Team decided not to consider commissions that had been listed by vendors for the renewal years, concluding that the original five-year contract term was all that was assured, since renewals might or might not occur. On June 25, 2013, the DOC posted its Notice of Agency Decision stating its intent to award a contract to EPSI. Protests and the Decision to Reject All Replies Subsequent to timely filing notices of intent to protest the intended award, Securus and GTL filed Formal Written Protests with the DOC on July 5 and 8, 2013, respectively. The Department considered and compared the protests. It determined that language in the ITN directing that in Phase 5 the highest commission would be determined by averaging the price for the original contract term with the prices for the renewal years was ambiguous and flawed. It determined that use of a table with six squares as the initial cost sheet was a mistake. The Department determined that the language and structure of the RBAFO could be read one way to say that the Department would use the same methodology to evaluate the pricing in the negotiation stage as had been used to evaluate the Initial Cost sheets in Phase 5, or could be read another way to mean that BAFO pricing would not be evaluated that way. It determined that the inclusion in the RBAFO of a table virtually identical to the one used as the initial cost sheet was a mistake. The Department determined that the language and the structure of the RBAFO could be read one way to require further consideration of such factors as the Statement of Qualifications and Technical Response in determining best value to the State, or could be read another way to require no further consideration of these factors. The Department prepared some spreadsheets demonstrating the varying results that would be obtained using “divide by six” and “divide by ten” and also considered a spreadsheet that had been prepared by Securus. The Department considered that its own Contract Manager had interpreted the Phase 5 instructions to mean “divide by six,” while the Department had actually intended the instructions to mean “divide by ten.” The Department had intended that the Negotiation Team give some weight to the renewal-year pricing, and had included the pricing table in the RBAFO for that reason, not simply to comply with statutory requirements regarding renewal pricing. The Department determined that the way the RBAFO was written and the inclusion of the chart required at least some consideration of ten-year pricing, and that vendors had therefore been misled when the Negotiation Team gave no consideration to the commission percentages for the renewal years. Specifically, based upon the Securus protest, the Department determined that the RBAFO language had been interpreted by Securus to require that the Phase 5 calculation of average commission percentage be carried over to evaluation of the pricing in the BAFOs, which Securus had concluded meant “divide by six.” The Department further determined that based upon the GTL protest, the RBAFO language had been interpreted by GTL to require the Department to consider the renewal years in pricing, as well as such things as the Statement of Qualifications and Technical Response in the BAFO stage. The Department determined that had “divide by six” been used in evaluating the BAFOs, Securus would have a computed percentage of 70 percent, higher than any other vendor. The Department concluded that the wording and structure of the ITN and RBAFO did not create a level playing field to evaluate replies because they were confusing and ambiguous and were not understood by everyone in the same way. Vendors naturally had structured their replies to maximize their chances of being awarded the contract based upon their understanding of how the replies would be evaluated. The Department concluded that vendor pricing might have been different but for the misleading language and structure of the ITN and RBAFO. The Department did not compute what the final award would have been had it applied the scoring procedures for the initial cost sheets set forth in section 6.1.5 to the cost elements of the BAFOs. The Department did not compute what the final award would have been had it applied the scoring procedures for the Statement of Qualifications and Technical Response set forth in section 6.1.3 to the BAFOs. Ms. Bailey testified that while she had originally approved the ITN, she was unaware of any problems, and that it was only later, after the protests to the Notice of Intended Award had been filed and she had reviewed the specifications again, that she had come to the conclusion that the ITN and RBAFO were flawed. Following the protests of the intended award by GTL and Securus, on July 23, 2013, the DOC posted to the Vendor Bid System a Notice of Revised Agency Decision stating the DOC?s intent to reject all replies and reissue the ITN. On August 5, 2013, EPSI, GTL, and Securus filed formal written protests challenging DOC?s intended decision to reject all replies. Securus subsequently withdrew its protest to DOC?s rejection of all replies. As the vendor initially notified that it would receive the contract, EPSI?s substantial interests were affected by the Department's subsequent decision to reject all replies. GTL alleged the contract had wrongly been awarded to EPSI and that it should have received the award, and its substantial interests were affected by the Department's subsequent decision to reject all replies. The Department did not act arbitrarily in its decision to reject all replies. The Department did not act illegally, dishonestly, or fraudulently in its decision to reject all replies. EPSI would likely be harmed in any re-solicitation of bids relative to its position in the first ITN, because potential competitors would have detailed information about EPSI?s earlier reply that was unavailable to them during the first ITN. An ITN requires a great deal of work by the Department and creates a big demand on Department resources. The decision to reject all replies was not undertaken lightly. The State of Florida would likely benefit in any new competitive solicitation7/ because all vendors would be aware of the replies that had been submitted earlier in response to the ITN, and bidders would likely try to improve upon those proposals to improve their chances of being awarded the contract.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Corrections issue a final order finding that the rejection of all replies submitted in response to ITN 12-DC-8396 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing all four protests. DONE AND ENTERED this 1st day of November, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 1st day of November, 2013.
The Issue Whether the Respondent, Florida Public Utilities Company, established the natural gas account for Mother's Kitchen Restaurant in compliance with all applicable statutes, and Florida Public Service Commission (PSC) rules concerning establishment of service and customer deposits, specifically Rule 25-7.083(4)(a), Florida Administrative Code. Whether Petitioner, Mother's Kitchen, Ltd., provided a deposit of $500 to Respondent at any time to establish a new account for Mother's Kitchen Restaurant. Whether Respondent administered the account of Mother's Kitchen Restaurant in compliance with all applicable statutes and PSC rules concerning refusal or discontinuance of service, specifically Rules 25-7.089(2)(g), (3), (5), (6)(a) and (e), Florida Administrative Code. Whether Respondent should be required to provide a refund of all or any part of any deposit made to establish an account for Mother's Kitchen Restaurant or any amounts paid for natural gas usage, service charges, returned check charges, or other fees charged to that account.
Findings Of Fact Petitioner, Mother's Kitchen, Ltd., is a partnership formed to operate a restaurant under the name of Mother's Kitchen Restaurant. The partners consist of Anthony Brooks, II; Daniele M. Dow-Brooks; Eddie Hodges; and Arthur L. Brooks. Mr. Alford Byrd was an original partner, but has since withdrawn from the partnership. At all times in dispute, Mother's Kitchen Restaurant was physically located at 1744 West Airport Boulevard, Sanford, Florida 32772-0134. Respondent, Florida Public Utilities Company, is a natural gas utility regulated by the Florida Public Service Commission (PSC) pursuant to Chapter 366, Florida Statutes, and Chapter 25-7, Florida Administrative Code. On March 21, 1996, Mr. Alfred Byrd (Byrd), a partner in Mother's Kitchen Ltd., signed a Job-Work Contract authorizing Respondent to prepare and connect appliances at Mother's Kitchen Restaurant to receive natural gas service. On March 21, 1996, Byrd provided, in person at Respondent's Sanford Office, a $200 deposit on behalf of the partnership to Respondent in order to establish a gas account for Mother's Kitchen Restaurant. Byrd received a deposit receipt from Respondent dated March 21, 1996, in the amount of $200. On March 21, 1996, Respondent established account number 0131-07252 in the name of "Alfred Byrd, d/b/a Mother's Kitchen" with a mailing address of "P. O. Box 134, Sanford, Florida 32772- 0134." This was based on the information provided by and the instructions of Byrd. On March 22, 1996, Respondent's serviceman prepared and connected a range and a fryer at Mother's Kitchen Restaurant for gas service, pursuant to the March 21, 1996, Job-Work Contract, and turned on the gas supply to Mother's Kitchen Restaurant. On March 31, 1996, Respondent billed Byrd $126.59 for the labor and materials required to prepare and connect the appliances under the March 21, 1996, Job-Work Contract. On April 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $67.32, consisting of $46.32 for gas usage from March 22, 1996, through April 2, 1996, and a $21.00 turn on charge from March 22, 1996. On April 23, 1996, Respondent credited $126.59 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1013, dated April 22, 1996. On May 8, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $297.07, consisting of $229.75 for gas usage from April 2, 1996, through May 1, 1996, and $67.32 in arrears. On May 23, 1996, Respondent credited $150.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1074, dated May 20, 1996, and signed by Anthony Brooks (Brooks). Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On June 3, 1996, Byrd signed a Job-Work Contract authorizing Respondent to clean the pilot light on the gas oven at Mother's Kitchen Restaurant. Respondent's serviceman completed this work the same day. On June 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $391.72, consisting of $244.65 for gas usage from May 1, 1996, through May 31, 1996, and $147.07 in arrears. On June 7, 1996, Mother's Kitchen check No. 1074 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On June 11, 1996, Respondent credited $170.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on June 10, 1996, as reimbursement for the $150.00 returned check No. 1074 and the corresponding $20.00 service charge. Respondent issued a receipt in the name of "A. Byrd" for this payment. On July 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $657.36, consisting of $265.64 for gas usage from May 31, 1996, through July 1, 1996, and $371.72 in arrears. On July 11, 1996, Respondent credited $160.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on July 11, 1996. Respondent issued a receipt in the name of "A. Byrd" for this payment. No person paid a $500.00 deposit on behalf of Petitioner to establish a new gas account with Respondent for Mother's Kitchen Restaurant on July 11, 1996. At no time during the month of July did any person pay such a deposit. On July 15, 1996, Respondent added a service charge of $30.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account for service performed pursuant to the June 3, 1996, Job-Work Contract. On July 25, 1996, Respondent credited $211.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1131, dated July 24, 1996, and signed by Alfred Byrd. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On August 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $540.04, consisting of $224.40 for gas usage from July 1, 1996, through July 31, 1996, $285.64 in arrears, and the $30 service charge added on July 15, 1996. On August 8, 1996, Mother's Kitchen check No. 1131 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On August 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $285.64 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On August 12, 1996, Brooks hand-delivered a $290.00 cash payment to Respondent's Sanford Office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. This payment was not credited to the account until August 28, 1996. The delayed crediting of this payment had no effect on any notices or bills concerning the account. On August 12, 1996, Brooks, in person at Respondent's Sanford office, requested that the mailing address for the "Alfred Byrd d/b/a Mother's Kitchen" account be changed to the physical address of Mother's Kitchen Restaurant. Respondent made the requested change that same day. On August 13, 1996, Respondent's serviceman reconnected gas service to Mother's Kitchen Restaurant based on the August 12, 1996, cash payment of $290.00. On August 28, 1996, Respondent credited $521.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account. This credit consisted of the $290 cash payment made August 12, 1996, and a $231.72 payment made August 28, 1996. The $231.72 payment was made as reimbursement for the $211.72 returned check No. 1131 and the corresponding $20 service charge. Respondent prepared an in- house receipt for this credit. No person made a $521.72 payment to Respondent for the "Alfred Byrd d/b/a Mother's Kitchen" account on August 28, 1996. On August 30, 1996, Respondent mailed a disconnect notice for the "Alfred Byrd d/b/a Mother's Kitchen" account to the physical address of Mother's Kitchen Restaurant. This notice stated that gas service to the restaurant would be discontinued if payment of $230.04 in arrears on the account was not made by September 10, 1996. On September 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $471.29, consisting of $221.25 for gas usage from July 31, 1996, through August 29, 1996, and $230.04 in arrears. This bill was mailed to the physical address of Mother's Kitchen Restaurant. On September 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $230.04 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On September 12, 1996, Harry Johnson, an employee of Petitioner, hand-delivered a $261.04 cash payment, consisting of payments for the $230.04 in arrears and a $31 reconnect fee, to Respondent's Sanford office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On September 13, 1996, Respondent's serviceman was dispatched between 8:30 a.m. and 9:00 a.m. to reconnect gas service to Mother's Kitchen Restaurant. On September 13, 1996, between 8:30 a.m. and 9:00 a.m., Byrd, in person at Respondent's Sanford office, spoke to Diane Keitt (Keitt) and requested that gas service be discontinued on the "Alfred Byrd d/b/a Mother's Kitchen" account. Keitt contacted the serviceman by radio as he was en route to Mother's Kitchen Restaurant and instructed him to tell someone at the restaurant to call Keitt at Respondent's Sanford office. The serviceman arrived at Mother's Kitchen Restaurant at approximately 9:00 a.m. Upon entering the restaurant's kitchen, the serviceman told the occupants that someone needed to call Keitt immediately at the Respondent's Sanford office. Next, he inspected the restaurant's natural gas appliances to make sure there were no open gas lines then exited the building to perform a meter test to check for the possibility of a gas leak on the customer's side of the meter. After natural gas service has been discontinued on any existing account, Respondent performs a meter test before reestablishing service in order to determine if there is a leak on the customer's side of the meter. The serviceman's meter test revealed a gas leak on the customer's side of the meter. He searched for the leak by inspecting the gas appliances and applying a soapy solution used to detect leaks to the gas connections on each appliance. The serviceman located the leak on a worn pilot adjustment screw on the range. The leak could not be repaired without replacing the pilot adjustment screw. Brooks was present at the restaurant and called Keitt while the serviceman was performing the meter test. Keitt informed Brooks that Byrd had requested discontinuance of service to the restaurant. Keitt also told Brooks that Respondent would continue providing service on a temporary basis, in order to provide Petitioner time to pay a $500 deposit to establish a new account. Keitt then called Respondent's Vice President Darryl Troy (Troy) at Respondent's home office in West Palm Beach, Florida, to inform him of the situation. Brooks called Troy, who confirmed Keitt's statements concerning Byrd's desire to have service discontinued and the necessity of providing a new deposit to establish a new account. The serviceman interrupted this phone conversation to tell Brooks that there was a gas leak on the restaurant's range. Brooks was upset that the serviceman had not yet restored gas service. Brooks refused to authorize or pay for repairs to the range. The serviceman prepared a Report of Hazardous Condition or Corrective Action Required to document the gas leak on the range and inform the customer of the necessary repairs. Brooks refused to sign this form. The serviceman capped the gas connection to the range, plugged the range, and placed the Report of Hazardous Condition or Corrective Action Required and a red tag on the range. He determined that the fryer could be operated safely, so he lit its pilot before exiting the restaurant. The serviceman spoke with Keitt by radio and told her that he had located a gas leak and that Brooks refused to authorize its repair. Keitt then called Troy for instructions on how to handle the account. Troy felt that Brooks did not believe a gas leak was present on the range. Troy was concerned that someone at the restaurant may attempt to reconnect the range, so he instructed Keitt to have the meter turned off and locked. The meter was turned off and locked due only to safety concerns; Byrd's request to discontinue service to the restaurant played no part in Troy's decision. Keitt contacted the serviceman by radio and instructed him to turn the meter off and lock it. The serviceman turned off the meter and locked it. He then notified Brooks that he had turned off the meter and locked it upon instructions from Keitt. The serviceman left the restaurant at approximately 10:00 a.m. That afternoon, Brooks, in person at Respondent's Sanford office, requested that Keitt provide him a refund of the $261.04 payment made September 12, 1996. Keitt refused to refund this amount. No record evidence exists to show that Petitioner paid a $500 deposit, or a deposit of any amount, to establish a new account with Respondent after gas service to Mother's Kitchen Restaurant was disconnected on September 12, 1996. On September 16, 1996, a serviceman took a final reading from the gas meter at Mother's Kitchen Restaurant and officially turned off the meter. On September 16, 1996, Respondent charged $100.50 to the "Alfred Byrd d/b/a Mother's Kitchen" account for gas usage from August 29, 1996, through September 16, 1996, to finalize the account. On September 19, 1996, Respondent applied Petitioner's $200.00 deposit from March 21, 1996, to the outstanding, final balance of $310.75 on the "Afred Byrd d/b/a Mother's Kitchen" account. No record evidence exists to show that any person paid a $500 deposit, or a deposit of any amount, on behalf of Petitioner to establish a new account with Respondent for gas service to Mother's Kitchen Restaurant since the "Alfred Byrd d/b/a Mother's Kitchen" account was established on March 21, 1996.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found to have acted in compliance with Public Service Commission rules concerning the establishment of new service and management of customer deposits when service was established in the name of Alfred Byrd, d/b/a Mother's Kitchen on March 21, 1996. It is further RECOMMENDED the Respondent be found to have properly administered the account at issue here at all times leading up to its disconnection on September 13, 1996, and that Respondent be found to have acted in compliance with all Commission rules regarding that disconnection and refusal to reconnect. It is further RECOMMENDED that Respondent not be required to provide a refund of any part of the deposit made on this account or any amounts paid for service or fees on the account. DONE AND ENTERED this 11th day of June, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1998. COPIES FURNISHED: Anthony Brooks, II Qualified Representative Mother's Kitchen, Ltd. Post Office Box 1363 Sanford, Florida 32772 Kathryn G. W. Cowdery, Esquire Gatlin, Schiefelbein & Cowdery, P.A. 3301 Thomasville Road, Suite 300 Tallahassee, Florida 32312 Wm. Cochran Keating, IV, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Blanca Bayo, Director of Records Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399
The Issue Whether the Pinellas County Sheriff's Office (PCSO or Petitioner) properly terminated Respondent, Richard Stotts, from his employment as a deputy sheriff for engaging in conduct that violated Petitioner's General Order 3-1.1, Rule and Regulation 5.15, regarding the Custody of Arrestees/Prisoners.
Findings Of Fact Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of PCSO. Sheriff Gualtieri's responsibilities include providing law enforcement services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline, in accordance with the Civil Service Act, on PCSO members and employees who are found to have violated PCSO rules or regulations. At all times pertinent to this case, Respondent was employed by PCSO as a deputy sheriff. At the time of his termination, Respondent had been employed by PCSO for approximately 12 years. As a deputy sheriff, Respondent was charged with the responsibility of complying with all PCSO rules, regulations, general orders, and standard operating procedures. PCSO General Order 13-3 requires that PCSO members shall use only that degree of force necessary to perform official duties. The member shall not strike or use physical force against a person except when necessary in self-defense, in defense of another, to overcome physical resistance to arrest, to take an individual into protective custody, or to prevent escape of an arrested person. At the time of the events in issue in this case, Captain David Danzig (then a Lieutenant) was assigned to the PCSO Administrative Investigations Division. Sergeant Deanna Carey is assigned to the PCSO Administrative Investigations Division. Sergeant Christina Cuttitta is assigned to the PCSO Administrative Investigations Division. Sergeants Carey and Cuttitta investigated the complaint of misconduct that was filed against Respondent on or about June 11, 2013. The complaint of misconduct alleged that on May 8, 2013, Respondent violated General Order 3-1.1, Rule and Regulation 5.15, pertaining to the custody of arrestees/prisoners. At the Administrative Review Board (ARB) hearing, Respondent admitted that his use of force on the inmate was not justified because it did not meet the criteria for use of force. PCSO General Order 10-2 covers discipline and ranks certain offenses. This General Order ranks offenses from Level 1 to Level 5. A Level 5 offense is the most severe. A Level 1 offense is the least severe. Further, this General Order sets forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The point total for the violation admitted before the ARB in Respondent's case was 50. Respondent had five carryover points from prior discipline. Under PCSO General Order 10-2, 55 points reverts to 50 points. Under PCSO General Order 10-2, the range of discipline for a 50-point violation is a minimum five-day suspension to termination. Sheriff Gualtieri terminated Respondent from his employment with PCSO effective 1200 hours on July 29, 2013. Exhibit 13 is a series of six video clips taken from various angles in the intake and booking section of the Pinellas County Jail. The six video clips document Respondent's actions. Respondent was not involved in bringing the inmate into the intake/booking area. The inmate, who was yelling obscenities and racial slurs, was standing on the mat to have his picture taken when Respondent left his station, approached the inmate, and proceeded to strike the inmate and take him to the floor. Respondent admitted that he used force on the inmate. Respondent admitted that the use of force on this inmate was not justified. In the past three years, two (former) deputy sheriff were terminated for Level 5 offenses. While the exact offenses involved other Level 5 offenses, the consistency in discipline is constant: termination. There was no justification for Respondent's action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Richard Stotts, violated General Order 3-1.1, Rules and Regulations 5.15, and terminating his employment. DONE AND ENTERED this 12th day of November, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 12th day of November, 2013.
The Issue Whether Petitioner, David Riggins, was subject to an unlawful employment practice by Respondent, Hillsborough County, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner brings this action alleging that his current employer, the County’s Public Utilities Department, discriminated against him based on his disability and in retaliation for his challenge to his job reassignment. Petitioner started working for the County in January 2008. Petitioner was hired as an Electrician 3 in the Public Utilities Department. On January 18, 2011, Petitioner was promoted to Electronic Technician III. Generally, Petitioner’s job was to inspect, maintain, and repair field instrumentation related to the County’s water treatment and wastewater facilities. By all accounts, he was a competent, knowledgeable, and reliable employee without any issues in his performance. In January 2014, Petitioner’s position was reclassified from Electronic Technician III to Industrial Instrumentation and Controls Technician (“IIC Technician”). The job duties for Electronic Technician III and IIC Technician were substantially similar. With the reclassification, Petitioner’s pay was increased to $28.48 per hour (effective October 1, 2013). On October 1, 2014, Petitioner received a market equity pay increase to $29.33 per hour. On March 2, 2011, Petitioner suffered a serious work- related accident. Petitioner was electrocuted while he was servicing modules at a water treatment plant. The electric shock left Petitioner with two medical conditions identified as Syncope and Collapse. Syncope causes a loss of consciousness resulting from insufficient blood flow to the brain. Collapse causes an individual to fall down or become unconscious due to sickness or exhaustion. At the final hearing, Petitioner explained that the shock he received caused the electrical impulses in his heart to stop functioning efficiently. Petitioner relayed that his medical condition causes him to experience episodes of dizziness and light-headedness. He also periodically suffers from blurred vision, tunnel vision, and on several occasions, loss of consciousness. Petitioner cannot predict when he will experience the symptoms of Syncope or Collapse. An episode could happen at any time. In a medical evaluation in July 2012 with his treating cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted that since his electric shock, he “had several spontaneous episoded [sic] of syncope with similar symptoms and still has dizziness sometimes when he gets up in the morning.” Petitioner also complained of dizziness, paresthesia (a tingling or numbness on the skin), and vertigo. Dr. Sullebarger opined that Petitioner “is unsafe to work on ladders or in buckets or high places.” Dr. Sullebarger further instructed Petitioner to “[a]void ladders and working in high places.” On September 25, 2012, Petitioner returned to Dr. Sullebarger. Petitioner “continued to complain of dizziness and episodes of near syncope.” Petitioner relayed that he “is dizzy almost every day.” On August 14, 2013, Petitioner submitted a “Request for Reasonable Accommodation” to the County based on his medical conditions. Petitioner relayed that he should avoid working from heights, elevated platforms, or catwalks, as well as working around open wet wells. In a follow-up letter to the County clarifying his request, Petitioner represented that he could perform his IIC Technician duties if he was allowed to wear a safety harness and lanyard when working at heights and elevated platforms. In January 2014, at the County’s request, Petitioner’s job of Electronic Technician III was analyzed to determine the essential physical requirements of his job. The study found that “climbing in [the Electronic Technician III] position is required.” However, “the frequency of climbing ladders was determined to be approximately 10%.” On June 20, 2014, the County notified Petitioner that, in light of his medical limitations, it would no longer allow him to work as an Electronic Technician III/IIC Technician. The County determined that climbing ladders of various heights was an essential function of Petitioner’s duties. Therefore, because Petitioner’s medical provider had instructed him to “avoid climbing on ladders,” the County determined that Petitioner could no longer perform the duties of an IIC Technician. The County offered Petitioner three months to search for another job with the County. The County informed Petitioner that if he did not find another job within the allotted time, the County would proceed with a Due Process Hearing to terminate his employment. Petitioner valued his IIC Technician job very much and did not want to lose it. Consequently, over the ensuing three months, Petitioner neither applied for nor requested another job with the County. Instead, Petitioner elected to challenge the County’s employment decision at a Due Process Hearing. The Due Process Hearing was held on February 9, 2015. Petitioner did not prevail. Thereafter, on March 20, 2015, George Cassady, the Director of the County’s Public Utilities Department, formally removed Petitioner from his IIC Technician job. However, rather than terminate Petitioner, Mr. Cassady offered to place him in the position of Business Analyst II. Mr. Cassady wrote in a letter to Petitioner, “I have decided to accommodate your restriction(s) by transferring you to the job of Business Analyst II in the Maintenance Planning Support Team. Your salary will be $26.00 per hour. Your transfer is effective Monday, March 23, 2015.” Petitioner was very disappointed to lose his IIC Technician job. He was also distressed that his salary was to be reduced from $29.33 to $26.00 per hour. Therefore, before he accepted the transfer, in June 2015, Petitioner appealed the Due Process Hearing determination to the Hillsborough County Civil Service Board. Petitioner argued that his reassignment to Business Analyst II was a “demotion.” The Civil Service Board held an evidentiary hearing on March 16, 2016. The Civil Service Board agreed with Petitioner that, because his salary was reduced, his placement in the Business Analyst II position should be considered a demotion. However, the Civil Service Board concluded that Petitioner failed to prove that the County “acted without just cause” to demote him to Business Analyst II. Subsequent to the Civil Service Board decision, on May 4, 2016, Petitioner and the County entered into a settlement agreement to amicably resolve the issue of his reassignment. Through the settlement agreement, the County agreed to increase Petitioner’s base hourly rate of pay to $28.00 per hour (up from $26.75). The County also agreed to pay Petitioner a lump sum of $5,000. For his part, Petitioner agreed to “release and/or withdraw . . . [a]ny and all claims, grievances, appeals in any forum associated with the placement of [Petitioner] in the Business Analyst II position as of March 23, 2015.” Petitioner also assented that his placement as a Business Analyst II was a “transfer of his employment and not a demotion.” Petitioner’s current action focuses, not on his placement in the Business Analyst II position, but on the County’s subsequent refusal to hire him back in his previous job as an IIC Technician. On two separate occasions, Petitioner applied with the County for an IIC Technician position. In February 2015, the County advertised an IIC Technician opening. The advertisement did not list any physical requirements for the position. The County did not interview Petitioner for the job. In July 2016, the County advertised to fill another IIC Technician position. In this advertisement, the County expressly listed that the job specific competencies included, “[a]bility to climb ladders.” Petitioner applied again. In September 2016, the County notified Petitioner that he would not be considered for the IIC Technician position. Petitioner received an e-mail from the County Human Resources office stating, “[w]e were very impressed with your qualities as an applicant and even though other candidates overall Qualifications were deemed most compatible with the duties and responsibilities of this position, we hope your interest in career opportunities with Hillsborough County will continue.” Petitioner asserts that, based on the County’s hiring matrix, he was the most qualified candidate given his years of experience and his possession of the required certified central system technician license, which no other candidate possessed. Nevertheless, he was excluded from consideration for the position. Petitioner asserts that no legitimate reason existed for the County to reject his application to fill the IIC Technician position. Petitioner disputes that his current medical restrictions prevent him from performing the essential functions of an IIC Technician. At the final hearing, Petitioner expressed that he is no longer medically prohibited from climbing ladders. On September 21, 2015, following another medical examination, Dr. Sullebarger stated that Petitioner’s only restriction was “Harness at Heights (otherwise no restrictions).” Petitioner’s understanding is that Dr. Sullebarger will allow him to climb ladders if he wears a safety harness. On March 3, 2016, Dr. Sullebarger completed a Medical Certification Form for the Commission. On this form, Dr. Sullebarger wrote that Petitioner is “at risk for dizziness or fainting.” Dr. Sullebarger opined that Petitioner’s use of a safety harness was reasonably necessary in order for him to perform the required functions of an IIC Technician. Dr. Sullebarger specified that “working with a harness at heights will reduce [Petitioner’s] risk of injury due to falls.” Despite the apparent improvement of his condition, at the final hearing, Petitioner affirmed that he still suffers from Syncope and Collapse. Petitioner further acknowledged that his medical condition could make performing the IIC Technician duties more risky. For instance, if an IIC Technician needed to climb a ladder to access a device, and the location did not support the use of a safety harness, then Petitioner would have to work at heights without the medically required safety equipment. However, despite his unpredictable episodes of dizziness and his need to use a safety harness, Petitioner argued that he can competently perform the IIC Technician job. Initially, Petitioner disputed that climbing ladders is an essential function of an IIC Technician. Petitioner expressed that an IIC Technician typically programs and calibrates electronic equipment on level ground. Petitioner relayed that for the months prior to losing his IIC Technician position, he satisfactorily performed his responsibilities without climbing ladders. At the final hearing, Petitioner insisted that, at most, ten percent of the IIC Technician job involves climbing ladders. Furthermore, to the extent that climbing ladders is required, reasonable accommodations exist to allow him to perform the essential functions of the job. These accommodations include hydraulic lifts, as well as the use of a safety harness at heights. Petitioner asserted that neither preventive measure would change the scope of the IIC Technician responsibilities. Consequently, his medical condition poses no safety threat. Petitioner further argued that his medical restriction should not preclude him from the IIC Technician job because every IIC Technician is required to use a safety harness.3/ Therefore, because Petitioner’s need to use a “safety harness at heights” is a precaution that every IIC Technician must exercise, his medical condition should not prevent the County from hiring him as an IIC Technician. Finally, Petitioner disputed the County’s position that situations exist in which IIC Technicians are not able to use a safety harness to perform their duties. In particular, Petitioner argued that it is standard industry practice for technicians to wear a harness with two lanyards when transitioning at heights, such as from a ladder to a platform. Further, no County employee can perform inspections or repair work six feet or more above any work surface without a safety harness or some other approved means of fall protection, such as guardrails. Therefore, Petitioner’s medical restriction would not affect his job performance in any way. Petitioner pursues four results with his action. First, Petitioner seeks an immediate return to his IIC Technician position. Next, Petitioner wants his salary restored to its previous rate ($29.33 per hour) along with any lost merit increases. Third, Petitioner desires to have his seniority status restored. Prior to his demotion, he was the most senior member of his team. He has no seniority as a Business Analyst II. Finally, Petitioner seeks the ability to renew his professional certifications. He alleged that the Business Analyst II job severely hinders his professional prospects by making it more difficult for him to renew and maintain his professional certifications. Mr. Cassady testified at the final hearing regarding the County’s refusal to rehire Petitioner as an IIC Technician. Mr. Cassady, as the Director of the Public Utilities Department, oversees the division in which Petitioner works. Mr. Cassady made the ultimate decision regarding Petitioner’s current employment status. Mr. Cassady described the County’s public works facilities as an “industrial work environment.” The County oversees and monitors 17 separate water treatment and water reclamation plants. Mr. Cassady commented that some chemical storage tanks “exceed 40 feet in height and have limited guardrails around them.” Mr. Cassady recounted that he reviewed Petitioner’s situation at great length. Mr. Cassady imparted that he is constantly aware of, and watching out for, the safety of his employees. Mr. Cassady relayed that an IIC Technician is responsible for working around high voltages and in close proximity to large machinery that includes rotating pieces of equipment motors and pumps. In considering Petitioner’s medical restrictions, Mr. Cassady determined that climbing ladders and working at heights to access or inspect electronic controls and components is an essential function of the IIC Technician job. Mr. Cassady explained that, although the frequency of the use of ladders might vary amongst assignments, all IIC Technicians must be able to climb and use ladders. Mr. Cassady described several routine tasks in which an IIC Technician operates in or on elevated equipment that do not support the use of a safety harness. These situations include climbing ladders to service electronic instruments located on top of raised pipes. In addition, IIC Technicians regularly ascend ladders to small platforms located on top of the 40-foot-tall treatment tanks to calibrate level control devices within the tank. Consequently, Mr. Cassady concluded that the responsibilities of the IIC Technician position would directly expose Petitioner to the inherent dangers associated with working at heights. Mr. Cassady did not dispute that Petitioner possesses the skills and qualifications to perform the job of ICC Technician (not considering his disability). However, he was (and is) very concerned about the possibility that Petitioner could be injured if he were to experience a sudden or unexpected dizzy or fainting spell while climbing a ladder or accessing a high platform. Mr. Cassady adamantly believes that Petitioner’s unfortunate medical condition creates unacceptable safety hazard for both Petitioner and the County should he return to the IIC Technician position. Mr. Cassady admitted that the County purposely did not interview Petitioner for the IIC Technician job openings. However, he denied that the County refused to consider Petitioner just because he has a disability. Instead, the County’s overriding concern was that Petitioner could not work safely at heights due to his medical condition, which causes him to experience unpredictable dizziness or loss of consciousness. On the other hand, while Petitioner was unable to perform the job of IIC Technician, Mr. Cassady believed that Petitioner’s analytical and practical skills remain an asset to the County. Therefore, Mr. Cassady offered Petitioner the Business Analyst II position. A Business Analyst focuses on data collecting and analyzing as opposed to operations. Not only does the Business Analyst II position provide Petitioner the opportunity to use his knowledge and training in the same field as an IIC Technician, but Petitioner can perform the job on the ground and is not required to climb ladders or work at heights. The Business Analyst II position includes a higher pay scale than the IIC Technician. However, Mr. Cassady set Petitioner’s initial salary at a lower rate ($26 per hour) to maintain equity with the four other County employees who had been assigned to the same position for a longer period of time. Mr. Cassady denied that the County refused to hire Petitioner as an IIC Technician job in retaliation for his request for a Civil Service Board review of his placement in a Business Analyst II position. On the contrary, Mr. Cassady believed that Petitioner was a valuable employee with the Public Utilities Department. Mr. Cassady offered Petitioner the Business Analyst II job specifically as a way for the County to retain his services. Mr. Cassady explained that he has always been supportive of Petitioner’s career development with the Public Utilities Department. In fact, he rejected Human Resources’ initial recommendation to terminate Petitioner’s employment when the County determined that Petitioner was unable to perform the essential functions of his IIC Technician job. Mr. Cassady has also encouraged Petitioner to improve his marketable skills by furthering his education, courtesy of a County scholarship program. Finally, Mr. Cassady testified that implementing the accommodations that Petitioner suggests is unworkable. Mr. Cassady contended that a number of the locations in which an IIC Technician must work do not support the use of a safety harness and lanyard. For example, the treatment tanks are not equipped to enable the use of a safety harness while climbing up the 40-foot-tall ladder or when transitioning from the ladder to the platform. Mr. Cassady asserted that any such modifications would be prohibitively expensive or impractical to install. Several County employees who are currently employed as IIC Technicians testified at the final hearing regarding their job requirements. These witnesses discussed the role of climbing ladders and working in high places in performing their duties. Mark Maples, an IIC Technician with the County, testified that he regularly climbs ladders while performing his job. Mr. Maples stated that he must use a ladder during several of his routine work responsibilities, such as checking a flow meter device at a water treatment plant. Mr. Maples estimated that he uses a ladder approximately 40 percent of the time he works. Mr. Maples also remarked that he routinely climbs ladders in work settings that do not offer a mechanism to tie off a safety harness. Consequently, a safety harness would not provide an IIC Technician complete protection while working at heights. Mr. Maples also expressed his discomfort with the idea of working with an IIC Technician who was not medically cleared to work on elevated equipment. As an example, Mr. Maples described how IIC Technicians are responsible for inspecting and calibrating the level control devices situated on top of each large treatment tank. Each tank is 40 feet high. To accomplish such an inspection, the IIC Technician must scale a ladder attached to the side of the tank. The tank provides no apparatus to which a safety harness may be fastened. Based on Petitioner’s medical condition, which could cause sudden and unanticipated dizziness, Mr. Maples was concerned whether Petitioner could safely accomplish the required inspection. Mr. Maples would be worried that Petitioner might faint and fall down the ladder or tumble off the top of the tank. Mr. Maples declared that a “one- time fall is one time too many.” Michael Newsome, another IIC Technician, testified that he regularly uses a ladder to perform his job. Mr. Newsome explained that his job requires him to work in elevated places, and he has to climb a ladder to get there. Mr. Newsome estimated that he needs a ladder less than five percent of the time. Louis Ocampo has worked as an IIC Technician for the County for approximately two years. Mr. Ocampo testified that he regularly uses a ladder in his job. He works at heights and elevated areas, such as treatment tanks and on video cameras. Mr. Ocampo estimated that he needs a ladder approximately ten percent of the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that the County discriminated against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: finding that Petitioner, David Riggins, did not prove that Respondent, Hillsborough County, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 29th day of November, 2017, 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 29th day of November, 2017.
