The Issue Whether Respondent's selection of Squire, Sanders and Dempsey, L.L.P., jointly with Hicks and Peisner, P.A., as one of four offerors to provide services as bond counsel is contrary to applicable law, is clearly erroneous, is arbitrary, is capricious, or is contrary to competition. Whether an offeror engaged in a prohibited business solicitation communication. Whether an offeror violated the anti-collusion certificate of the Request for Qualifications.
Findings Of Fact Part V of Chapter 420, Florida Statutes, consisting of Sections 420.501 - 420.517, Florida Statutes, is the Florida Housing Finance Corporation Act (Act). FHFC, created by the provisions of Section 420.504, Florida Statutes, is a public corporation. Pursuant to Section 420.504(2), Florida Statutes, FHFC is an agency of the State of Florida for the purposes of Chapter 120, Florida Statutes. At all times pertinent to this proceeding, Mark Kaplan served as the Executive Director of FHFC. As provided by the Act, a Board of Directors governs FHFC. The Board consists of eight members appointed by the Governor from specifically designated industries and backgrounds plus the Secretary of the Department of Community Affairs, who is an ex-officio and voting member of the Board. Pursuant to Section 420.507, Florida Statutes, FHFC has all powers necessary or convenient to carry out and effectuate the purposes and provisions of the Act. FHFC has the authority to issue bonds and hire bond counsel. On February 2, 2001, FHFC issued the RFQ at issue in this proceeding. Through the RFQ, FHFC solicited competitive, sealed responses from qualified law firms to act as bond counsel on behalf of FHFC. The RFQ defined the term "offeror" to mean a law firm that submits a response to the RFQ or two or more law firms that submit a joint response to the RFQ. The RFQ defined the term "response" to mean a written submission by an offeror that responds to the RFQ. The RFQ required written responses to be filed no later than 5:00 p.m. on March 2, 2001. By subparagraph B.3. of Section Three of the RFQ, FHFC reserved the right to obtain any information concerning any or all offerors from all sources. By subparagraph B.4. of Section Three of the RFQ, FHFC reserved the right to request an oral interview from any or all offerors. FHFC received ten responses to the RFQ, including a joint response from Petitioners, a response from Squire Sanders, and a joint response from AMCER and Hicks. Stephen J. Mitchell and David L. Lapides submitted the response on behalf of AMCER. Reginald Hicks submitted the Hicks response jointly with the AMCER response. The submission letter for AMCER, signed by Mr. Lapides, stated, in part, as follows: Stephen J. Mitchell and David L. Lapides, on behalf of [AMCER] are pleased to join with Reginald D. Hicks to respond to [FHFC's] request for proposals [sic] in its efforts to select a law firm to serve as its bond counsel in multi-family and single-family bond issuances. AMERC, which served as [FHFC's] bond counsel since 1996, may merge with another firm. The attorneys who have served [FHFC] intend to continue to practice together. We want to assure [FHFC] that, regardless of the name we may practice under, the individuals who have worked with [FHFC] look forward to continuing our relationship with you. The submission letter for Hicks, signed by Mr. Hicks, stated, in part, as follows: Reginald D. Hicks, on behalf of [Hicks] is pleased to join with Stephen J. Mitchell and David L. Lapides to respond to [FHFC's] request for proposals [sic] in its effort to select a law firm to serve as its bond counsel in multi-family and single-family bond issuances. The AMCER and Hicks response stated, in part, as follows: Stephen J. Mitchell, David L. Lapides, Michael J. Nolan, Joseph D. Edwards, Fred B. Karl and Hillary M. Black are continuing the municipal bond practice of [AMCER]. As of the date of the RFQ response, AMCER continues its legal existence as a Florida professional services corporation. It is anticipated that, if selected to continue as [FHFC's] bond counsel, the contract will be accepted in the name of a successor firm. As required by the RFQ, the response filed jointly on behalf of AMCER and Hicks described their municipal bond practice group, their tax group, and set forth the qualifications and experience of each member of the groups that would be providing services to FHFC. That response responded to all other items in the RFQ, including information as to minority involvement. The response filed by Squire Sanders responded to all items in the RFQ. The joint response filed by Petitioners responded to all items in the RFQ. The responses consisted of objective items that could be scored and other items that were for the Board's information.1 Each member of an evaluation committee separately evaluated each response. The objective items were scored and ranked competitively based on that scoring. The informational items were summarized. The ranking and the summary were provided to each member of the Board. The ranking of the objective items of the written responses was a preliminary step in the evaluation process. It was not intended to be a final ranking of the offerors. Pertinent to this proceeding, the joint response of AMCER and Hicks was ranked third, the joint response of Petitioners was ranked fourth, and the response of Squire Sanders was ranked fifth. FHFC invited all ten offerors to make an oral presentation to the Board at its meeting on April 6, 2001. The Board was scheduled to select bond counsel at that meeting immediately after the oral presentations. The preliminary agenda for the April 6, 2001, meeting reflected that each of the ten offerors would be making an oral presentation and set the order for those presentations. Approximately three days before the April 6, 2001, meeting, Stephen J. Mitchell informed Mr. Kaplan by telephone that he, Mr. Lapides, and several other lawyers who had been employed by AMCER were going to join Squire Sanders. Mr. Mitchell advised that Hicks was still a part of their team. Mr. Mitchell also told Mr. Kaplan that AMCER and Hicks and Squire Sanders would not be making separate presentations at the Board meeting scheduled for April 6, 2001. There was no evidence submitted that the telephone conversation between Mr. Mitchell and Mr. Kaplan touched on the merits of any response. After this conversation, a revised agenda for the April 6, 2001, meeting was prepared reflecting that nine offerors would be making oral presentations, not ten. The following appeared on the amended agenda under Agenda Item IV of the section styled Oral Interviews (RFQ2001/01) for Bond Counsel: Squire, Sanders & Dempsey L.L. P. (formerly known as: Annis, Mitchell, Cockey, Edwards & Roehn, P.A.) Each offeror was permitted to make a ten-minute oral presentation to the Board and to present the Board a single sheet handout. The handout presented on behalf of Squire Sanders contained the following: Annis Mitchell Group now a part of Squire, Sanders Squire, Sanders & Dempsey and Steve Mitchell are pleased to announce that the Annis Mitchell group (the "Steve Mitchell Lawyers") that has served the Florida Housing Finance Corporation ("Florida Housing") as its bond counsel for the past 5 years, has now become a part of Squire Sanders. The group joining us is headed by Steve Mitchell, Joe Edwards, and David Lapides. Enhancement of our Commitment to Florida Housing The combined group brings to Florida Housing greater depth and strengths. Squire Sanders is one of the largest and best known national public finance law firms. Out of our 700 lawyers worldwide, 60 of our lawyers practice exclusively in the public finance area, comprising one of the largest public finance practice groups in the United States. Our Firm's public finance tax partners are also recognized as one of the nation's finest tax groups. Strong Presence in Florida The Squire Sanders team has an incredibly strong Florida presence in the public finance marketplace. Squire Sanders has ranked as the number one bond counsel in Florida, on a cumulative basis over the last eight years. Nationwide, Squire Sanders has consistently ranked in the top 10 bond counsel law firms in the nation over the last 12 years. Our Florida offices are in Miami, Tampa and Jacksonville and include 7 lawyers who are exclusively engaged in the public finance practice. Reginald D. Hicks is part of our Team We are pleased that Reginald Hicks will be part of our Florida Housing team. Mr. Hicks has participated in over $500 million of tax exempt bond issuances and has served as co-bond counsel to Florida Housing. Strong Housing Experience Together with the Steve Mitchell lawyers, the Squire Sanders team has been involved in over 43 housing bond issues in Florida during the last five years alone, for numerous Florida housing finance authorities. Our Steve Mitchell Lawyers have served as Florida Housing's bond counsel on 31 bond issues totaling over $618 million. Nationwide, the combined team has been involved in more than 183 housing transactions as bond counsel, underwriters counsel, credit enhancer's counsel and in other roles over the past 5 years covering the broad spectrum of housing finance. Our Continued Commitment With your confidence, we would look forward to our continued service as bond counsel for the Florida Housing Finance Corporation, which will now be greatly strengthened and enriched by the joinder of the Steve Mitchell Lawyers with Squire Sanders. Prior to the presentations, Mr. Kaplan stated the following to the Board (beginning at page 71, line 24 of Joint Exhibit 2): . . . Just by way of background, Mr. Chairman, this board authorized staff to issue an RFQ for potential bond counsel to serve the corporation. We received 10 responses to the RFQ. Those were scored by staff pursuant to the scoring matrix that was in the proposal. There was no committee meeting. Each staff member scored individually, those scores were aggregated and averaged, and preliminarily score reports were made. You have as Exhibit A (Joint Exhibit 7) to this information a detailed matrix that shows how that scoring played out. You have all 10 respondents [sic] and you have the narrative of every question that was scored, the number of potential maximum points, and the average points that each participant received, so you can see as a board where the distinctions arose between various respondents [sic]. Those scores are one factor to go into your evaluation in determining who you wish bond counsel contracts with. Also relevant are nonscored items from the application. You have Exhibit B (Joint Exhibit 8) that includes some of the nonscored items, such as, the amount of insurance each respondent has. You also have as part of that response to questions, "Have you ever been sued? Tell us about it." And Exhibit C (Joint Exhibit 9) is the nonscored portion of the fee proposals that each bond firm gave us. The RFP [sic] says that those proposals on fees will be used as a guideline in negotiating the ultimate fee contracts. And I believe that what it says is that from those selected we will then make a determination as to the fee that will be paid to all bond counsel. The fourth evaluation that should go into your evaluation is what's about to happen, which is the oral presentations by the bond counsel firms. All respondents were invited to make their presentations. There is one change to the printed agenda that is before you. We've broken them up, but [there is] one change, and you have information of that in front of you. We had several [sic] proposals from the Annis Mitchell firm, Reginald Hicks, and the Squire, Sanders and Demsey firm. The Annis Mitchell group of lawyers are now part of Squire, Sanders, and Demsey, so they will make a single presentation on the number four spot on your agenda. Each participant's [sic] been given 10 minutes to make their [sic] presentation. . . . Stephen Mitchell, Reginald Hicks, and Ken Meyers (a Squire Sanders partner), made the presentation under Agenda Item IV on behalf of Squire Sanders. That presentation represented that Mr. Mitchell, Mr. Lapides, Joe Edwards, and Fred Karl and others at the former AMCER firm had been approved for membership in the Squire Sanders firm. The presentation emphasized the combined strengths of the former AMCER lawyers with the resources of Squire Sanders. Following that presentation, Mr. Kaplan made the following statement to the Board (beginning at page 148, line 17 of Joint Exhibit 2): . . . Given the merger of the group that filed the Annis Mitchell application into the Squire Sanders firms, we are treating the two applications as having also been merged and become one application. Following the nine oral presentations Mr. Kaplan recommended to the Board that FHFC select four offerors to provide services as bond counsel on a rotating basis. In response to a request to do so, Mr. Kaplan recommended his top four offerors to serve as bond counsel. The four included Squire, Sanders, and Demsey, jointly with Hicks. Mr. Kaplan did not recommend Petitioners. The Board therafter adopted Mr. Kaplan's recommendations. There was no evidence that Squire Sanders, Hicks, or the former AMCER lawyers received any unfair competitive advantage by the FHFC's treating their responses as having been merged. Section Five of the RFQ contains an anti-collusion provision which requires an offeror to certify the following: The response is made without prior understanding, agreement, or connection with any person or entity submitting a response for the same service - except for any such agreement with a person or entity with whom the Response is Jointly Filed or such Joint Filing is made clear on the face of the response - and is in all respects fair and without collusion or fraud. There was insufficient evidence to establish that any party violated the foregoing anti-collusion provision. All offerors in this proceeding have the basic qualifications to perform the services required by FHFC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing this bid protest. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2001.
The Issue Whether the Petitioners are entitled to an award of attorneys' fees and costs pursuant to Section 120.595(2), Florida Statutes.
Findings Of Fact The Florida Department of Insurance is responsible for regulation of insurance transactions in the State of Florida. Beginning in January 1997, the Department of Insurance began the process of adopting rules intended to address the "parity" of insurance regulation between insurance agencies affiliated with financial institutions and agencies which are unaffiliated. The Petitioners successfully challenged parts or all of the proposed rules. As set forth in the Final Order entered June 29, 1998, Proposed Rules 4-224.002, 4-224.004, 4-224.007, 4-224.012, 4-224.013 and 4-224.014, Florida Administrative Code, were determined to be invalid exercises of delegated legislative authority. Pursuant to Section 120.595(2), Florida Statutes, the Petitioners are entitled to award of attorneys' fees and costs. The evidence fails to establish that the Department of Insurance was substantially justified in promulgating the proposed rules. The evidence offered during the rule challenge proceeding failed to establish the existence of a reasonable basis in law and fact at the time the proposed rules were drafted and published. There are no special circumstances which make an award of fees and costs unjust. Petitioner Florida Bankers Association identified attorneys' fees totaling $145,683.01, and seeks an award of $15,000, the statutory limit. Petitioner Florida Bankers Association is entitled to an award of attorneys' fees in the amount of $15,000. Petitioner Florida Bankers Association seeks an award of costs of $40,537.53, including $36,590.00 paid to Dr. Michael White, the Petitioner's expert witness during the rule challenge proceeding. The Department asserts that the payment to Dr. White is unreasonable. There is no credible evidence that the costs related to Dr. White's participation in the case are not reasonable. The fact that the Department paid less for its expert than did the Florida Bankers Association does not establish that payments to Dr. White were unreasonable. Petitioner Florida Bankers Association is entitled to an award of costs in the amount of $40,537.53. Petitioner Community Bankers Association identified attorneys' fees totaling $10,290.00, and costs of $806.23. Petitioner Community Bankers Association is entitled to an award of attorneys' fees in the amount of $10,290.00 and costs in the amount of $806.23. Petitioner Specialty Agents, Inc., did not obtain legal counsel for the rule challenge proceeding, and relied on a qualified representative to challenge the proposed rules. The qualified representative calculates that 160.1 hours were expended and suggests a valuation of $100 per hour for his time, for a total of $16,010. Petitioner Specialty Agents, Inc., seeks an award of attorneys' fees in the amount of the $15,000.00 statutory limit. The evidence fails to establish that a Petitioner's non-attorney representative is entitled to an award of attorneys' fees. Petitioner Specialty Agents, Inc., seeks an award of costs in the amount of the $249.07. Section 120.595(2), Florida Statutes, differentiates between "reasonable costs and reasonable attorney's fees", suggesting that a party may be entitled to an award of reasonable costs even if representation is provided by a non-lawyer. Without objection, Petitioner Specialty Agents, Inc., is entitled to an award of costs in the amount of the $249.07. The Department asserts that, due to "untimeliness" of the Petitions for Fees filed in these cases, an award of fees in this case is unjust. There is no issue of timeliness to be addressed in this matter. The Petitions for Fees were filed approximately 60-90 days after the time for appeal of the Final Order in the rule challenge cases had passed. The Final Order entered in the rule challenge proceeding specifically retained jurisdiction for an award of fees. There is no evidence that the Department was adversely affected by any delay in filing the Petitions for Fees.
Findings Of Fact Respondent was issued Mortgage Broker License No. 3082 on September 3, 1974 by Petitioner. Respondent conducted certain transactions under its Mortgage Broker License during the period from September, 1973 until April, 1974. Respondent found client investors who had funds which they wished to invest in mortgages which would pay a greater return in interest than the average land mortgage. The transactions involved the purchase of a promissory note from a land development corporation secured by a mortgage deed on land ostensibly owned by the developer, in which the latter reserved the right and was authorized to convey the premises to a purchaser under an installment land contract subject to the lien of the mortgage. The deed further provided that the developer would deliver to a bank as an escrow agent a copy of any such agreement for deed and a quitclaim deed which would be held in escrow unless a default was established under the mortgage deed. What the investor would receive in such cases would be the developer's assignment of an agreement for deed collateralized by the mortgage deed. The issuance of these high interest notes were for the purpose of enabling the development company to make certain improvements on the land which they were obligated to do under sales contracts. In the transactions in question, Respondent dealt through Financial Resources Corporation of Ft. Lauderdale, Florida to which he remitted the investors funds, less an amount retained for fees or commissions. The land developer/borrower would then issue the note and mortgage in the face amount of the total investment made by the investor. The detailed procedure was that when an investor inquired concerning such mortgages, Respondent would determine from Financial Resources Corporation if any were available. It was the practice of Respondent's President then to look at the land development, determine if, in fact, the land was in development and had streets and the like, and to read pertinent documents concerning the development. He would then proceed to accept the full sum of the investment from the investor pursuant to an agreement by which the investor, in consideration of the stated sum, would authorize Respondent to use its best efforts to secure collateralized promissory notes at a minimum percentage of interest on the declining balance with principal and interest payable monthly if held to maturity. Respondent would then deposit the investor's check, usually on the same day as received, and then in several days send a notice to Financial Resources Corporation authorizing it to prepare and execute a self-amortizing monthly principal and interest promissory note with quitclaim deed in the amount of the investment, together with a check representing the proceeds of the Investment less the Respondent's fee or commission, and a sum for intangible tax on the transaction. Financial would thereafter return to Respondent a copy of the note and mortgage in exchange for the funds remitted. The recorded mortgages would be sent to Respondent within a month or so thereafter. Respondent had no agreements in writing with the land developer, nor with Financial Resources Corporation. Respondent claimed that its fees for services were set by Financial Resources Corporation which usually amounted to about 12 percent of the face amount of the investment, but which was sometimes more and frequently less than that authorized under the applicable statutes and regulations. Respondent did not maintain an escrow bank account and all funds received from investors were deposited into the corporate bank account of the firm. Respondent's agreements with investors set no specific term or period of time in which the secured promissory notes were to be obtained although its president would customarily tell investors that it would take some time for the transaction to be consummated, and that they could not expect to receive the recorded mortgages right away (testimony of Mr. Montague, Petitioner's Exhibits 2-10). Respondent discontinued transactions as described above in April, 1974 because he was dissatisfied with the business. He had been informed that certain lands under some of the mortgages had not been sold until after the mortgage had been executed and that this was in violation of State law. In the fall of that year, he received a memorandum from the State Comptroller on the subject of escrow accounts, dated October 11, 1974, which warned mortgage brokers in the state concerning the practice of remitting investors' funds to land developers in anticipation of receiving a recorded mortgage and note (testimony of Mr. Montague, Respondent's Exhibit 9). In 1975,a financial examiner from Petitioner's office was sent to the office of Respondent to examine his books and records. Pursuant to that examination, it was determined that Respondent had committed various violations of Chapter 494, F.S. on certain transactions. The following findings of fact are made with respect to the transactions in question: Allegation: That Respondent took and received deposits of money from Robert E. Creighton, Hazel R. Hardesty, J. Wilfred Caron, Rose A. Hoadley, Margaret A. Gregory and Willard A. Kotthaus, in the regular course of business, and failed to immediately place such said funds in an escrow or trust account as required by Section 494.05(1) , F.S. As heretofore stated, the Respondent did not maintain an escrow trust account with respect to any of the above-stated transactions. The above- mentioned individuals had authorized Respondent to disburse the funds immediately upon receipt (testimony of Mr. Montague, Supplemented by Exhibits 3- 8). Allegation: Respondent failed to maintain adequate records in violation of Section 494.06(3), F.S., in that its files contained no written agreements on transactions with Della W. Shaw, Lantana Sheet Metal and A.C. Inc., and another transaction with Lantana Sheet Metal. The agreement between Della Shaw and Respondent, although not present in Respondent's file at the time of examination of its records by Petitioner's representative, had been executed on October 15, 1975, and presently is contained in the records of the Respondent. It had been taken out temporarily by one of Respondent's associates who also had Della Shaw as a client. Respondent had entered into two transactions with the trustee of the pension fund and profit sharing plan of Lantana Sheet Metal, one for ten thousand dollars from the pension fund and one for three thousand dollars from the profit sharing plan. At the time of these investments there were written contracts which were executed by the parties. The books and records of both the pension fund and the profit sharing fund were maintained at Respondent's office by a firm which administered both plans. The agreements pertaining to the Lantana transactions were requested and withdrawn from Respondent's files by the trustee of the Lantana funds. Consequently, they did not appear in the records of the corporation at the time of examination by Petitioner's representative (Petitioner's Exhibits 2 and 4; Respondent's Exhibit 10). Allegation: Respondent failed on numerous loan purchase agreements to establish the term for which the agreement was to remain in force before the return of the deposit for nonper- formance could be required by the investor, in violation of Chapter 3-3.06, F.A.C. The transactions in question did not involve applications for mortgage loan, but agreements to purchase secured promissory notes. Respondent's clients were investors/purchasers, not borrowers (testimony of Mr. Montague; Petitioner's Exh. 2-10). Allegation: Respondent charged and accepted fees or commissions in excess of the maximum allowable in violation of Section 494.08(4), F.S., and Chapter 3-3.08(3) and (4), F.A.C., on trans- actions involving Rosa Eichelberger, overcharge of $10.90, Lantana Sheet Metal, overcharge of $62.60; Lantana Sheet Metal, overcharge of $10.91; Rose A. Hoadley, overcharge of $9.10; and Margaret A. Gregory, overcharge of $9.10.
The Issue The issue for determination in this case is whether the Petitioner is entitled to purchase a retirement service credit for approximately three and one-half years pursuant to Section 121.011(3)(e), Florida Statutes. The record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits. After review of the record in this case, the Division accepts all the findings of fact as set forth by the Hearing Officer in his recommended order. However, the Division is unable to accept all of the conclusions of law as set forth by the Hearing Officer in his recommended order.
Findings Of Fact As a teacher with the Orange County School Board (the School Board") since 1967, Petitioner is a member of the Florida Retirement System. Petitioner was so employed in 1978 and was a member of the Florida Retirement System at that time. In January, 1978, Petitioner was on approved personal leave for her wedding. Her husband lived in Arkansas. Petitioner requested and was granted a leave of absence to join her husband in Arkansas for the balance of the school year. Petitioner and her husband intended to return to Orlando, Florida before the beginning of the next school year. Petitioner's husband intended to accept a position with a veteran's clinic in the Orlando area. Petitioner intended to resume employment with the School Board. On January 16, 1978, Petitioner properly submitted a written request for a leave of absence. The leave requested was limited to the remaining term of the school year which ended in June, 1978. The request asked for a teaching assignment in the event the request was denied. On February 14, 1993, the School Board granted Petitioner's request for a leave of absence. The School Board's written authorization was issued on a standard approval form used by the School Board for such authorizations. The one page form consisted of standard boiler plate language except for three blanks in the first paragraph stating the date of approval, the reason for the leave, and the expiration date for the leave. The boiler plate language in the standard form included the following statement: . . . A teacher who desires to return to employment at the expiration of the leave period must notify the Superintendent in writing by March 1 of the school year for which the leave was granted. . . . Petitioner notified the Superintendent in writing of her desire to return to employment. Petitioner's written request on January 16, 1978, was addressed to the School Board. The relationship of the School Board and Superintendent is that of principal and agent. Petitioner's written request expressly provided that the leave period was limited to the remainder of the school year and that Petitioner wanted a teaching assignment if the request for leave of absence was denied. The requirement for notice prior to March 1, 1978, was based on the Master Agreement, Article IX, Section L, entered into by the School Board and the teacher's union. No similar requirement appears in Respondent's rules. Florida Administrative Code Rule 60S-2.006(1)(a) requires only that: . . . A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence. Petitioner's leave of absence was authorized in writing by Petitioner's employer during her personal leave. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden, Associate Superintendent of the School Board, and informed him that she desired to return to her employment at the beginning of the next school year; in the Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to provide timely written notice of her intent to return to employment. Later in February, 1978, Petitioner traveled to Orlando. While in Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return to employment at the beginning of the next school year. The Associate Superintendent did not indicate to Petitioner that she had failed to provide timely written notice of her desire to return to employment. In May, 1988, Petitioner moved back to Orlando. Petitioner again telephoned Mr. Walden. Petitioner was informed for the first time during that telephone conversation that there may not be a teaching position available for her at the beginning of the next school year. The reason stated by the Associate Superintendent was that Petitioner had failed to notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. Petitioner immediately wrote a letter on May 25, 1978, restating her desire to return to employment at the beginning of the next school year. On the same day, Mr. Walden issued a letter to Petitioner stating that the School Board would not automatically assign Petitioner to an employment position for the 1978-1979 school year. The reason stated in Mr. Walden's letter was that Petitioner failed to comply with the requirement that she notify the Superintendent in writing by March 1, 1978, of her desire to return to employment. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting to terminate her as an employee of the School Board. The reason given for the purported termination was that Petitioner had failed to give written notice to the Superintendent by March 1, 1978, of her desire to return to employment. The letter purporting to terminate Petitioner contained no notice of Petitioner's rights to challenge the School Board's proposed action, including the right to a proceeding under Section 120.57, Florida Statutes. After informing Petitioner of the purported termination and the reason, the letter stated: . . . Should you wish to return as an employee with the School Board of Orange County, we invite you to communicate with us in the near future. Please accept our sincere appreciation for your contribution to the educational program for children in the Orange County Public School System. 1/ Shortly after July 11, 1978, the School Board sued Petitioner for repayment of funds allegedly advanced to Petitioner for a paid sabbatical in 1973. The litigation culminated in a settlement agreement and Petitioner's reinstatement to her employment for the 1981-1982 school year with credit for nine years of service. Petitioner has been continuously employed by the School Board since that time and has maintained her continuing contract status with no loss in seniority. The settlement agreement did not pay Petitioner any back compensation and did not address Petitioner's fringe benefits, including the right to purchase the retirement service credit for the period of January, 1978 through the date of her reinstatement. Petitioner must pay the total cost of providing the retirement credit into the Retirement System Trust Fund. The economic burden of the retirement service credit falls solely on Petitioner. Petitioner's purchase of the retirement service credit will not result in any adverse economic impact on the School Board, Respondent, or the State of Florida. The proposed purchase price for the retirement service credit is sound for actuarial purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order allowing Petitioner to purchase the retirement service credit at the statutorily prescribed purchase price. RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993.
