The Issue The issue in this case is whether a statement of Respondent's, which informed Petitioner of his right to seek judicial review of an administrative decision Respondent deemed outside the purview of the Administrative Procedure Act, constitutes an agency statement of general applicability that implements, interprets, or prescribes law or policy in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner Philip Carter was, at all relevant times, a student at Florida International University ("FIU"). Located in Miami, Respondent FIU is a public university within the state university system of Florida. The Florida Board of Governors oversees the state university system, and each public university, including FIU, is administered by a board of trustees whose powers and duties the Board of Governors establishes. Carter claims that FIU has caused him injury by, among other things, improperly using or disclosing personal or confidential information gleaned from his educational records. He believes, as well, that certain documents in his student file should be amended to correct alleged inaccuracies. FIU denies Carter's allegations, and, each time Carter has pursued an administrative remedy, FIU has declined to grant him relief. On one such occasion, by letter dated March 23, 2015, FIU denied Carter's request for a hearing concerning various matters relating to his student records. This letter concluded with the following notice of right to judicial review: Please be advised that this decision constitutes final agency action of the University, and that no further action will be taken by the University on these matters. You may seek judicial review of this final University decision pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days of this final University decision. If you seek review with the court, you must also provide a copy of the petition to [the] Clerk of the University . . . . (Emphasis added.) Carter alleges that the underlined sentence above is an unadopted rule.1/
The Issue The issue in this case is whether Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Peter J. Singhofen is a licensed professional engineer in the State of Florida. He is the President and sole stockholder of Petitioner Streamline. In the 1980’s, Mr. Singhofen had a need for and developed engineering software that specialized in stormwater management for the terrain found in Florida. The software had to be specific to Florida because the terrain in the state is different from the terrain in many other parts of the country, and the Florida Statutes and rules governing stormwater management are some of the most stringent in the country. The software that Mr. Singhofen developed uses the Interconnected Channel and Pond Routing model (ICPR). This system performs complex calculations utilized in stormwater management and planning. It was the first proprietary model to be formally reviewed and accepted as a nationally accepted hydraulic model. ICPR is also extensively used by local and state government agencies throughout Florida, both to review stormwater permit applications as well as for the development of stormwater management master plans. Some of the users of Petitioners’ software are the Southwest Florida Water Management District, Department of Environmental Protection, South Florida Water Management District, St. Johns Water Management District, and Department of Transportation. Indeed, ICPR may be the most popular program of its type in the State of Florida. Streamline sells the stormwater management software and offers training and technical support for the software it sells. Clearly Petitioners have a direct financial interest in the engineering software they developed and own. As part of its business, Streamline conducts eight-to- ten workshops each year. Many of the state and local agencies that use ICPR send their engineers to these training programs. These workshops take three days. The first two days consist of intense lectures supported by hands-on exercises on computers provided by Petitioners. On the third day participants perform a "real world" project, using aerial photographs and survey notes to work on the project. The evidence was clear that these workshops are not “shill” presentations that are tantamount to product promotions or advertisements. Florida Statutes require licensed professional engineers to obtain a minimum of four professional development hours in the licensees' area of practice each biennium, or two hours per year. The Board approved Streamline as a CE provider during the 2001-2003 and 2003-2005 bienniums. However, Streamline's application for approval for the 2005-2007 biennium was denied as a result of amendment to Florida Administrative Code Rule 61G15-22.011(2), effective August 8, 2005. The amendment to the Rule in question reads as follows: . . . The continuing education provider shall not have any financial or commercial interest, direct or indirect, in any technology that is the subject of the instruction. The denial, and thus the Rule, has the potential to affect Petitioners’ substantial interests in its product since their training can no longer qualify for CE credits for the engineers who need training and technical support in order to better use this complex software. The Notice of Rulemaking published in the Florida Administrative Weekly listed the authority for the Rule as Section 471.017(3), Florida Statutes. Section 471.017(3), Florida Statutes, grants the Board rulemaking authority and requires that the CE rules be consistent with the guidelines of the National Council of Examiners for engineering and Surveying (NCEES) for multijurisdictional licensees. The Notice of Rule Development published in the Florida Administrative Weekly, as well as the Notice of Rulemaking, stated the purpose and effect of the Rule was to include a prohibition of conflict of interest as an added requirement for Board approval of CE providers. The same reason was provided in the Additional Statement to the Secretary of State under the Statement of Facts and Circumstances Justifying Proposed Rule. However, there was no discussion or finding by the Board prior to engaging in rulemaking that a CE provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest. In fact, the NCEES guidelines do not contain such a prohibition. According to the Board’s Director, the statement that the purpose and effect of the Rule was to avoid a conflict of interest was "erroneous" and that "it was erroneous three times if it was published three times." Indeed, other than minor references in various minutes of Board meetings, there was very little official Board discussion about the Rule prior to its adoption. The evidence on the rationale behind the Rule showed that there was general concern by the Board over prohibiting “shill” CE courses that were nothing more than product promotions or advertisements. The fact that the published purpose of the Rule was erroneous is a material failure to follow the rulemaking process since notice to the public of the Rule’s purpose is an important aspect of rulemaking. Notably, the Board does not directly approve individual courses. It approves CE providers. Under the Rule the courses must be offered or sponsored by an approved CE provider. NCEES model rules do recognize that a governmental authority may approve CE providers. In Appendix C, the guidelines indicate that provider approval be contingent upon the provider permitting a Board to attend courses and review course material to determine whether the course meets the standards of the Board. In the process of applying for CE provider status, the Board requires the applicant to provide course descriptions, syllabuses, and a list of courses intended to be provided. Section 456.025(7), Florida Statutes, mandates that: [e]ach board . . . shall establish, by rule, a fee not to exceed $250 for anyone seeking approval to provide continuing education courses or programs and shall establish by rule a biennial renewal fee not to exceed $250 for the renewal of providership of such courses. The fees collected from continuing education providers shall be used for the purposes of reviewing course provider applications, monitoring the integrity of the courses provided, covering legal expenses incurred as a result of not granting or renewing a providership, and developing and maintaining an electronic continuing education tracking system. Florida Administrative Code Rule 61G15-22.011 provides that: The Board retains the right to audit and/or monitor courses [61G15-22.011(7)], which the guidelines require the provider to permit; The Board retains the right to review course materials [61G15-22.011(7)], which the guidelines require the provider to supply; The provider must provide a description of the type of courses or seminars the provider expects to conduct [61G15- 22.011(3)(a)] and a sample of intended course materials [61G15-22.011(3)(d) and the course curriculum [61G15-22.011(3)(f)], which the guidelines require a provider to supply; The provider must demonstrate the education and/or experience necessary to instruct engineers in the conduct of their practice [61G15-22.011(2)], which reflects the guideline requirement that providers ensure instructors are qualified; The provider must list anticipated locations to conduct the course [61G15- 22.011(3)(3)], which the guidelines require the provider to supply after the course is presented. Based upon information an applicant has provided, the Board has in the past denied applications for CE providers proposing to offer "shill" courses. Additionally, an existing rule of the Board, as well as NCEES guidelines, specifically provides that equipment demonstrations or trade show displays do not qualify as continuing education activities. See Fla. Admin. R. 61G15- 22.005. The evidence was not clear on how denial of CE provider status, because the provider had a financial interest in the technology which is the subject of a CE course, would prohibit “shill” courses without limiting otherwise legitimate CE courses such as the one here. Indeed, the most logical person to present a course on the software at issue here would be Petitioners, since they are the developers of the software. The NCEES guidelines at Section 2 set forth model rules for continuing professional competency. NCEES guideline 2B4 defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve, or expand the skills and knowledge relevant to the licensee's field of practice. Rule 61G15- 22.002(5) defines course/activity as any qualifying course or activity with a clear purpose and objective that will maintain, improve or expand the skills and knowledge relevant to the licensee's area of practice. Clearly, Petitioners’ workshops meet these definitions. NCEES guideline 2C sets forth the ways licensees can earn the necessary CE credit through patenting inventions, active participation as an officer in professional or technical societies, authoring published papers, articles, books or accepted licensing exam items, teaching or instructing college courses or continuing education courses, completion of college courses, CE courses, correspondence, televised, videotaped and other short courses or tutorials, seminars, in-house courses, attendance at workshops, professional and technical presentations made at meetings, conventions or conferences. Similarly, Florida Administrative Code Rule 61G15-22.003, sets forth qualifying activities for the area of practice requirements and generally lists the same types of activities as the NCEES guidelines. Petitioners’ course specifically falls within both the NCEES guidelines and the Board’s rules defining qualifying activities for CE credit. Thus, the Board’s amendment to Florida Administrative Code Rule 61G15-22.011 results in a qualifying activity being excluded from such recognition, and thereby is inconsistent with NCEES guidelines. Such inconsistency is outside of the Board’s rulemaking authority and the amendment to Florida Administrative Rule 61G15-22.011(2) is an invalid exercise of delegated legislative authority.
The Issue The issue in this case is whether Respondent wrongfully terminated Petitioner's continuing contract of employment.
Findings Of Fact Petitioner is currently a doctoral level graduate student. At all times relevant hereto, she held a continuing contract as a professor at SCC in the Networking and Electronics Program (the "Networking Program"). Respondent is a community college within the state community college system. It is governed by its Board of Trustees. Dr. Ann McGee is president of SCC; vice president of Educational Services is Dr. Carol Hawkins. Angela Kersenbrock is the dean of Career Programs, including the Networking Program. Department chair in that program is Leon Portelli. Beginning in calendar year 2003, SCC began to experience decreased student enrollment, especially in the area of the Networking Program. SCC instituted a program review under Dean Kersenbrock's tutelage. A program review provides for the collection of relevant data to ascertain the continued viability of programs within the college. The program review of the Networking Program found low and declining enrollment and retention, a perceived job market decrease, difficulty in recruiting industry partners, and limited internships for students. Based on those findings, a series of recommendations were made to improve the Networking Program. Included in the recommendations were the following: increase class size, reduce faculty (Reduction in Force (RIF)), cross-teaching in other areas, cut back on adjuncts, reduce contract length, consolidate courses and sections, and work closely with industry partners to locate jobs for graduates of the program. Many of the recommendations were implemented even before finalization of the program review. However, in February 2007, Dean Kersenbrock decided the measures being taken were not alleviating the problem. She then submitted her formal recommendations to the Board of Trustees. A formal presentation was made to the Board of Trustees on April 17, 2007. After much discussion and debate, the Board of Trustees approved the recommendation from Dean Kersenbrock's review committee to implement a RIF in the Networking Department. At that time, there were five faculty members in the department, including Petitioner. The other faculty members were: John DelGado, Ben Taylor, Bill Irwin, and Gary Belcher. The proposed RIF intended to reduce the faculty from five to two. Irwin and Belcher were immediately selected for termination due to the fact that they could teach fewer topics within the department than could the other three staff. After they were terminated, SCC had to select one of the three remaining staff (DelGado, Taylor, and Petitioner) to be the final cut for the RIF. Each of the three had identified strengths and weaknesses; so, the selection was a difficult one to make. In order to make the decision, the following factors were considered: (1) the essentiality of the position, (2) work performance, (3) attendance record, and (4) supervisory recommendations. If all those factors are equal between the faculty members being considered, then length of service to the college would be the determining factor.1 SCC evaluated DelGado, Taylor, and Petitioner and found them, on aggregate, to be equal as far as the four factors were concerned. Each faculty member had strengths and weaknesses within the four categories, but were essentially "tied" when it came down to making a decision.2 Petitioner correctly pointed out that of the three faculty members, she was the only one who had experience making presentations at national level conferences. This fact weighed in her favor, but it was not enough to outweigh the strengths of the other faculty members. Likewise, Petitioner has the ability to teach a number of different classes, a positive in her favor. But, again, her abilities did not make her more essential than the other two. Some questions were raised about Petitioner's work performance, attendance record, and poor supervisory recommendations. However, none of those questions indicated that Petitioner was inferior to her fellow professors. Neither of the parties offered into evidence a true comparison of the three faculty members. There was some indication that each had strengths and weaknesses, but each person's individual assets or liabilities weren't described with any particularity. Thus, a substantive de novo review of that part of Respondent's decision making process is not possible. When all was said and done, Petitioner's length of service at SCC was shorter than the other two, and, thus, she was selected for the final RIF cut. Pursuant to SCC policies and procedures, an employee affected by a RIF must be given at least two weeks notice prior to the reduction taking effect. Petitioner was advised twice concerning her termination: once in a letter from the director of Human Resources Development--letter dated April 26, 2007--and once in a letter from SCC's president, E. Ann McGee--letter dated May 17, 2007. The latter correspondence provided Petitioner her appeal rights. Petitioner was provided her severance package in accordance with SCC policies. President McGee's letter to Petitioner stated in part, "You have the right to appeal the Board's decision pursuant to Chapter 120, Florida Statutes." However, the letter did not address Petitioner's right to appeal directly to the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be given an opportunity to select a direct appeal to the Board of Seminole Community College. As far as the instant case is concerned, Petitioner failed to meet her burden of proof and the termination of her contract would be upheld. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2007.
The Issue The issue in this case, a bid protest, is whether Respondent, Orange County School Board (the School Board), acted contrary to its governing statutes, rules or policies when it awarded the alternative education drop-out prevention services request for proposal number 1401017 (the RFP) to Ombudsman Educational Services, LTD. (Ombudsman) instead of Catapult Learning, LLC (Catapult).
Findings Of Fact Catapult is a limited liability company organized in Delaware. Catapult currently holds the contract in Orange County for the Alternative Education Drop-out Prevention program. The School Board is a public entity responsible for procuring services for the Orange County public school system. Ombudsman is a for-profit corporation duly organized in Illinois. On or about January 31, 2014, the School Board issued the RFP, "requesting solicitations from experienced respondents with a proven track record in providing alternative education services to students at risk of dropping out or [who] have dropped out from school and seek to return to continue their education." Originally, the solicitations were to be filed "no later than 2:00 p.m. EST, on February 24, 2014." The RFP included the following admonition and time schedule: The District will attempt to use the time schedule as indicated below. Note: References to Ronald Blocker Education Leadership Center (RB-ELC) address is: 445 West Amelia Street, Orlando, FL 32801. The below dates and times are subject to change. All changes will be posted to the Procurement website as they become available. January 31, 2014 Solicitation Date February 10, 2014 Re-submittal conference at 1:00 p.m. RB-ELC, February 11, 2014 Request for Information (RFI) cut-off February 24, 2014 Proposal opening at 2:00 p.m., RB-ELC, Lobby Conference Room Proposal will be opened and only the company names will be announced March 6, 2014 Evaluation Meeting Date (Tentative Date) (8:30 a.m.) March 7, 2014 Notice of Intended Decision (Tentative Date)(8:00 a.m.) March 13, 2014 Presentations by Respondents (Tentative Date) March 14, 2014 Notice of Intended Decision Date (Tentative Date) April 8, 2014 Board Recommendation (Tentative Date) On February 19, the School Board issued Addendum No. 1 (the Addendum) which provided the new solicitation deadline, highlighted in red ink, of "11:00 A.M., EST on February 26, 2014." Additionally, the Addendum advised the potential bidders (or vendors) of "changes/clarifications" to the RFP: "REVISED PROPOSAL PRICE SHEET, APPENDIX A" with the sentence, "Please ensure you submit your proposal using this REVISED PROPOSAL PRICE SHEET," and a paragraph addition to the "Scope of Services." These announced changes were also highlighted in red ink. The evaluation criteria for the RFP were provided in section 5, "Evaluation of Proposals." Potential bidders were advised that the PEC would receive, publicly open, review, and evaluate the proposals. Additionally, the PEC reserved the right to "interview any, all or none of the Respondents . . . and to require formal presentations with the key personnel . . . before recommendation of award." Section 5.5, "EVALUATION CRITERIA," provided: Only proposals that meet the compliance requirements will be evaluated based on the following criteria. Shortlist Possible Points Evaluation Criteria I. Experience and Qualifications 100 Maximum Value 30% Weight II. Scope of Services 100 40% III.MWBE/LDB4/ Participation 100 10% IV. Proposal Price 100 20% 400 100% The Procurement Representative shall calculate all scoring and determine a ranking of all respondents. The PEC shall determine if presentations/interviews are necessary. Note: The District will post an intended decision recommending Respondents to move to the next phase to be review [sic] by interested parties on the SBOC website at www.procurement.ocps.net. Failure to file a protest within the time prescribed in Section 120.57(3)b, Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Once the allowed time period has passed this phase of the process will be completed. Presentations/Interviews: Should the PEC members request presentation or interview from shortlisted respondents the following evaluation criteria will apply: Presentation/Interview Evaluation Criteria Possible Points Maximum Weight Value I. Planning/Delivery of Service 100 40% II. Firm Experience 100 20% III. Evidence of Student Achievement 100 40% 300 100% The Procurement Services representative shall calculate all scoring and determine a ranking of the shortlisted firms based on the presentation/interview evaluation criteria. The highest ranked firms will be recommended for negotiation and award. Timely responses to the RFP were submitted by six vendors: Catapult, Ombudsman, Atlantic Education Partners, Advanced Path, Excel Alternative Schools, and Driven Academy. These responses were reviewed by the PEC which was composed of School Board personnel with various educational based backgrounds. On March 6, the PEC evaluated all six proposals according to the RFP stated evaluation criteria: experience and qualifications; scope of services; proposal price; and MWBE/LDB. Four of the six bidders did not provide the pricing proposal as a percentage of full time equivalent. All six vendors were awarded zero points for the proposal price, and each received zero value for the proposal price. The justification for each bidder receiving a zero score was based on the School Board's procurement representative's inability to provide an "apples to apples" comparison of the six pricing proposals. Ms. Nido, the School Board's procurement representative, affirmed the School Board's position that when a proposal is non-responsive it is not scored. Here, all six proposals were scored. The PEC evaluated and ranked all six vendors. The PEC then posted its short list evaluation rankings, which included the short list evaluation form. Both Catapult and Ombudsman scored the same ranking: 64.2. Below the ranking, the following sentence appeared: "Committee agreed by consensus to invite Catapult Learning, Ombudsman, and Atlantic Education Partners for interviews/presentations." Additionally, below this sentence the following language appeared: "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." The 72 hour posting requirement will elapse on March 11, 2014 at 2:30 p.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." Catapult did not have a representative present during the March 6 meeting as Ms. Folsom, the local director, arrived late. It is the School Board's practice that if a member of the public appears late for an evaluation meeting, the staff will bring the public to the meeting room, knock on the meeting door and allow the public into the meeting. If the meeting is over, the public is not brought to the meeting room. No vendor filed a written notice of protest within 72 hours after the School Board posted the short list evaluation ranking. On March 6, the School Board posted a meeting notice that the PEC would meet on March 13 at 8:30 a.m. EST to hear the three bidders' presentations. Atlantic Educational was to make its presentation first, followed by Catapult and lastly, Ombudsman. The meeting notice also provided that the PEC would evaluate the three bidders' presentations immediately following the conclusion of the presentations. Later on March 6, Catapult made a public records request for all proposals submitted pursuant to the RFP. Catapult asked that the documents be sent via email or Catapult would have a staff member come to the "proper office" at the School Board. Catapult received the requested public records at its New Jersey office sometime after March 12, 2014. As scheduled, on March 13, the PEC met and heard the presentations of Atlantic Educational, Catapult, and Ombudsman, the three short list bidders. As set forth in the RFP, section 5.5., the criteria for the presentation evaluation included the following criteria: planning/delivery of service; firm experience; and evidence of student achievement. Four days later, the School Board posted the presentation ranking and presentation evaluation form. Out of a possible 100 points in each category, Catapult received 81 points for planning/delivery of service, 86 points for firm experience, and 83 points for evidence of student achievement, for a total of 250 points. Ombudsman received 88 points for planning/delivery of service, 87 points for firm experience, and 83 points for evidence of student achievement, for a total of 258 points. Below the presentation ranking, the following sentence appeared: "Committee agreed by consensus to enter into negotiation and contract award to the following vendor(s): Ombudsman." Additionally, below this sentence the following language appeared: "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." The 72 hour posting requirement will elapse on March 20, 2014 at 9:00 a.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." On March 19, Catapult filed its notice of protest and posted the requisite bond. On March 28, Catapult filed its formal written protest, the Petition, and thereafter on April 18, filed an Amended Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the presentation ranking that found Ombudsman to be the highest ranking bidder was not contrary to the School Board's governing statutes or the School Board's policies or rules, nor was it clearly erroneous, arbitrary, capricious or contrary to competition. DONE AND ENTERED this 5th day of June, 2014, 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 5th day of June, 2014.
The Issue The issue is whether the proposed policies and summaries of procedures in Sections 7.29 through 7.33 of the Hillsborough County School Board Policy Manual are invalid exercises of delegated legislative authority.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner. Petitioner is a "small business" as defined in Section 288.703, Florida Statutes. Petitioner is also certified as a minority-owned business by the State of Florida and the School Board. Petitioner has performed engineering work on projects for the School Board in the past, and has expressed interest in performing such work for the School Board in the future. Respondent is a local school district, and is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County. To fulfill those responsibilities, Respondent is often required to obtain the services of architects, engineers and other professionals through competitive procurement under Section 287.055, Florida Statutes, the Consultants' Competitive Negotiation Act (CCNA). Background Prior to the Proposed Rules, the School Board's only adopted policy or procedure relating to the acquisition of professional services was Section 7.14 of the Policy Manual. That section does not specifically reference the CCNA; it simply authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board." The only description of the School Board's existing procurement process under the CCNA is in a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board, and it provides only a general outline of the procurement process. The procedures utilized by the School Board to procure professional architectural, engineering, and construction management services have been the subject of considerable review and some criticism over the past year. In February 2002, Mr. Robinson, on behalf of the Black Business Union, provided the School Board with a list of concerns related to the School Board's selection process, including: Selection criteria does not comport to requirements of F.S. 287.055 (i.e., points for utilizing certified minority firms, volume of work, etc.) [School Board] practices fail to follow the requirements of Chapter 4, SREF, Volume #1, and have not been adopted through any determinable policy or procedure. Compliance with [School Board] Policy 7.14 Purchasing Policies and Bidding, has not been followed. (Designees are exempt from nepotism and favoritism policy) On May 17, 2002, the Ernst & Young consulting firm submitted to the School Board a report summarizing the findings and recommendations of its "forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures." At the request of the School Board staff, Mr. Robinson provided comments to Ernst & Young in connection with the evaluation. The Ernst & Young report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here: Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * Interviews with the A/E/C [architectural/engineering/ construction] community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. * * * Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . Ernst & Young Report, at 27-29, 107 (emphasis supplied). The report included the following recommendations relevant to the procurement of architectural and engineering services: The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members. Ernst & Young Report, at 117. On July 31, 2002, Gibson Consulting Group (Gibson), on behalf of the Legislature's Office of Program Policy Analysis and Governmental Accountability, submitted a report based upon its "best financial management practices" review of the School Board pursuant to Section 230.23025, Florida Statutes (2001). Unlike the Ernst & Young report, the Gibson report was not critical of the District's procurement process for professional services. Indeed, the report concluded that the District "has an efficient school planning and construction operation" (Gibson Report, at 6 and 10-1), and that it is utilizing best management practices in procuring professional services. Id. at 13 and 10-34 through 10-35. The Gibson report stated that "[t]he district can demonstrate that procedures for selection were in compliance with Subsections 287.055 and 235.211, Florida Statutes, and that the committee screened written applications in order to select an appropriate number of professionals to be interviewed and that selected candidates were interviewed." Id. at 10-34 (emphasis supplied). The Gibson report also noted that the district can demonstrate that the interview committee considered the factors described in Section 287.055, Florida Statutes, including minority business status. Id. The Gibson report did not acknowledge or address the shortcomings in the evaluation process detailed in the Ernst & Young report. The Gibson report did acknowledge that "[t]he state statute [Section 287.055] encourages objectivity," but it nevertheless concluded that the School Board’s existing procurement process is "an effective hybrid of objectivity and subjectivity." Id. at 10-35. Aside from that conclusion, the results of both studies are consistent with the findings and conclusions in the Recommended Order in DOAH Case No. 02-2230BID. DOAH Case No. 02-2230BID involved a challenge to the specifications of a request for qualifications (RFQ) issued by the School Board in response to a recommendation in the Ernst & Young report that the School Board supplement its in-house staff with contract architects or engineers to provide more on-site supervision and inspection of construction projects. Petitioner in this case was also Petitioner in DOAH Case No. 02-2230BID. The Recommended Order in DOAH Case No. 02-2230BID concluded (consistent with the Gibson report) that "the School Board's current selection process, although not detailed in a formally-adopted rule or policy, is consistent with the procedural requirements of the CCNA." See DOAH Case No. 02- 2230BID Recommended Order, at 35 (emphasis supplied). However, the Recommended Order also concluded (consistent with the Ernst & Young report) that the evaluation of consultants was arbitrary and contrary to competition because the factors upon which the evaluation would be made and the weight afforded to each factor was not specified in advance and because the committee members did not utilize a uniform method of evaluation. Id. at 36. Based upon the conclusion that the RFQ specifications were arbitrary and contrary to competition, the Recommended Order recommended that: the School Board issue a final order that rescinds the [RFQ] and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee. DOAH Case No. 02-2230BID Recommended Order, at 37. The Recommended Order in DOAH Case No. 02-2230BID was issued on September 6, 2002. The record does not reflect whether the School Board has issued its final order in that case yet.3 As of the date of this Order, the final order in DOAH Case No. 02-2230BID had not been filed with the Division in accordance with Section 120.57(1)(k), Florida Statutes. Rulemaking Process In response to the Ernst & Young report and Petitioner's challenge to the RFQ specifications in DOAH Case No. 02-2230BID, the School Board initiated the rulemaking process to formalize and improve its competitive procurement procedures under the CCNA. The Proposed Rules were drafted by Tom Blackwell, the School Board's Director of Planning and Construction, and the School Board's attorney. The Proposed Rules were reviewed by an engineer on Mr. Blackwell's staff. The language of the Proposed Rules was derived from the procurement policies used by other local school boards, the State University System, and other governmental entities. Copies of those other policies were not introduced at the hearing. The Proposed Rules were first considered by the School Board at its meeting on June 18, 2002. The record does not include a copy of the notice that was provided for the June 18, 2002, meeting. Typically, however, the agenda of the meeting is provided to the press and posted on the School Board's website. The agenda includes only the general subject-matter of the agenda items (i.e., "procurement of professional services") and not their substance. The Proposed Rules were an "off-agenda item." They did not appear on the published agenda, so the first public notice that the Proposed Rules would be considered at the June 18, 2002, meeting may have been at the meeting itself. Petitioner (through Mr. Robinson) was aware that the Proposed Rules would be considered at the June 18, 2002, meeting. Mr. Robinson attended the meeting and provided extensive comments on the Proposed Rules. Copies of the Proposed Rules were apparently available at the June 18, 2002, meeting, because Mr. Robinson annotated his copy of the Proposed Rules (Exhibit P3) as he provided his comments to the School Board. At the conclusion of the June 18, 2002, meeting, the School Board authorized its staff to "go forward" with the Proposed Rules. Based upon that authorization, notices were published in local newspapers on June 27 (The Courier), June 28 (La Gaceta), June 29 (Tampa Tribune), and July 5, 2002 (Florida Sentinel-Bulletin). The notices were published in the legal advertisement sections of the papers. The notices stated in relevant part: In compliance with the Administrative Procedure Act, Chapter [sic] 120.54 of the Florida Statutes, 1978 [sic], and the School Board of Hillsborough County's policies, the public is hereby notified of the following amendment to the School Board's Policy Manual: 7.29 Acquisition of Professional Services, 7.30 Public Announcement, 7.31 Competitive Selection, 7.32 Competitive Negotiation, and 7.33 Standardized Agreements. Anyone challenging the above affected Policy/Summaries of Procedures is requested to do so in writing and mail or deliver to the address listed below within twenty-one (21) days of this notice. The public hearing is scheduled for July 30, 2002, 6:00 p.m., in the Board Room, Raymond O. Shelton School Administrative Center, 901 East Kennedy Boulevard. Copies of the affected Policy/ Summaries of Procedures, which have no appreciable economic impact on the school system, are available for inspection and copying at the office of the Superintended of Schools, Hillsborough County School Administrative Center. The notices did not identify the specific authority or law implemented by the Proposed Rules. However, that information was included on the copies of the Proposed Rules available at both the June 18 and July 30, 2002, School Board meetings. On July 11, 2002, Mr. Robinson sent a letter on behalf of Petitioner to the School Board requesting "a Public Workshop pursuant to Florida Statute 120.54(2)(c)" or an explanation from the agency head as to why such a workshop is unnecessary. On July 19, 2002, the chairwoman of the School Board responded to Mr. Robinson's letter and stated that a workshop was determined to be unnecessary because a public hearing was already scheduled on the Proposed Rules for July 30, 2002. The chairwoman also noted that the School Board staff had met with Mr. Robinson on a number of occasions to discuss the procurement policy, and that Mr. Robinson appeared at the June 18, 2002, meeting where he presented his recommendations on the policy. The chairwoman invited Mr. Robinson to submit written comments to the School Board prior to the July 30, 2002, public hearing, and to make an oral presentation to the School Board at the public hearing. On July 25, 2002, in response to the invitation in the chairwoman's letter, Petitioner (through Mr. Robinson) submitted a comprehensive procurement policy for the School Board's consideration. The policy was submitted as an alternative to the Proposed Rules. Petitioner's proposed policy (Exhibit P7) tracks the language of Section 287.055, Florida Statutes. It also includes the prohibition against contingent fees and the exemption for reuse of existing plans which are in the statute but were not restated in the Proposed Rules. Petitioner's proposed policy also includes a detailed explanation of the selection process, instructions for the evaluation of applicants (including criteria to be considered in the evaluation and the process for awarding points for those criteria), and forms to be used by applicants and scoring sheets to be used by the evaluation committee. The School Board held a public hearing on the Proposed Rules at its July 30, 2002, meeting. Mr. Robinson attended the meeting and provided comments on each of the Proposed Rules. The minutes of the July 30, 2002, meeting reflect that at least one other professional, an architect, appeared and provided comments on the Proposed Rules at the public hearing. At the conclusion of the public hearing, the School Board voted unanimously (six to zero) to approve the Proposed Rules. The version of the Proposed Rules approved by the School Board on July 30, 2002, included several of the changes previously recommended by Mr. Robinson. Those changes are discussed below. On August 9, 2002 (10 days after the School Board's July 30, 2002, meeting), Petitioner filed a petition with the Division requesting a determination that the Proposed Rules are invalid exercises of delegated legislative authority. Substance of the Proposed Rules The Proposed Rules create Sections 7.29 through 7.33 of the Policy Manual. The complete text of the Proposed Rules is included in the Appendix to this Final Order. Each section of the Policy Manual has two parts, a "policy" statement and a "summary of procedures" that implement the policy. The Proposed Rules follow that same pattern. Accordingly, the "policy" and the "summary of procedures" must be read together. The specific authority cited for the Proposed Rules is Sections 230.03(2), 230.22, 230.23, 235.211, and 230.23005, Florida Statutes. The law implemented by the Proposed Rules is Sections 235.211 and 287.055, Florida Statutes. The procedural aspects of the Proposed Rules are essentially the same as the practice followed by the School Board in the past as detailed in the Recommended Order in DOAH Case No. 02-2230BID. Proposed Section 7.294 establishes the general policy that professional architectural, engineering, landscape architectural, land surveying, or construction management services will be procured in accordance with the CCNA. The School Board's Operations Division is assigned the responsibility for administering the procurement process. Proposed Section 7.30 establishes the public announcement requirements for acquisitions of professional services on projects with construction costs in excess of $250,000 or professional service fees in excess of $25,000. Those are the same thresholds in the CCNA. The public announcement must include "a general description of the project and must indicate how interested consultants may apply for consideration." The announcement is required to be published in the Tampa Tribune, La Gaceta, the Florida Sentinel Bulletin, and another paper whose circulation is in the vicinity of the project. Proposed Section 7.31 outlines the competitive selection process. It requires firms interested in providing services to the District to be certified as being qualified to render the required service, and provides a non-exclusive list of factors to be used in determining whether the firm is qualified. Proposed Section 7.31 also creates the Professional Services Selection Committee (Committee) that is responsible for evaluating and ranking prospective providers of professional services. The Committee is chaired by the Assistant Superintendent of Operations, and the other members of the Committee are specified. The Committee is responsible for evaluating materials submitted by interested firms, conducting interviews, hearing presentations, and ranking applicants. The evaluation criteria "shall" include: the ability of professional personnel; whether the firm is a certified minority business enterprise; past performance; willingness to meet time and budget requirements; location; recent, current, and projected workloads of the firms; and the volume of work previously awarded to each firm by the District, and such other factors which may be pertinent to the project. Section 7.31 (emphasis supplied). The word "shall" was used rather than "may" based upon Mr. Robinson's comments at the June 18, 2002, workshop. As a result, consideration of these criteria/factors is mandatory. However, as the underscored language suggests, the evaluation criteria may vary from project to project. The project-specific evaluation criteria will be available to prospective applicants at the time of the public announcement along with the location of project, scope of work, project budget, project schedule, and submission requirements. See Proposed Section 7.30. In addition, Proposed Section 7.31 requires the weights to be associated with each qualification and evaluation criteria to be disseminated to prospective applicants, presumably also at the time of the public announcement. Proposed Section 7.31 requires the Committee to "report a consensus evaluation for each applicant, including a relative ranking for each weighted criteria." The phrase "consensus evaluation" is not explained, but because the Committee is required to "short-list" the three firms that receive the "highest aggregate score" it appears that the evaluation will be made based upon a numerical scoring system. Such a system is a significant improvement over the existing evaluation process which was found to be arbitrary in the Recommended Order in DOAH Case No. 02-2230BID at pages 16-17. Indeed, the School Board's witnesses confirmed that, although the criteria and weights may vary from project to project, all of the applicants for a particular project will be evaluated and scored by the Committee members in a uniform manner. The Committee is required to interview the applicants as part of its evaluation if the project's construction cost is more than $1 million. If the cost is less than $1 million, Proposed Section 7.31 provides that interviews are optional. The purpose of the threshold was not explained at the hearing. Mr. Blackwell simply testified that the threshold was derived from a review of the policies of other governmental entities. Those policies were not introduced at the hearing, and the record is devoid of any other evidence to justify the School Board's choice of $1 million as the threshold, as compared to some other amount. The Committee's "short-list" will be submitted to the School Board for approval. Thereafter, the School Board is required to notify each applicant of the "short-listed" firms. The notice must be given by certified mail, return receipt requested, and must include the notice required by Section 120.57(3)(a), Florida Statutes. The latter requirement was added after the June 18, 2002, meeting based upon Mr. Robinson's comments. Proposed Section 7.32 outlines the competitive negotiation process. Pursuant to that section, the Director of Planning and Construction is required to negotiate with the top- ranked firm. The top-ranked firm is required to submit a fee proposal with supportive information, if required. If a mutually acceptable compensation package cannot be negotiated with the top-ranked firm, negations will commence with the next firm on the "short list." Upon completion of successful negotiations, the agreed compensation must be submitted to the School Board for approval. Proposed Section 7.33 requires the Director of Planning and Construction, in collaboration with the School Board attorney, to prepare standard contract documents to be used on all projects. Modifications from the standard documents must be clearly indicated. In short, the polices and summaries of procedures in the Proposed Rules prescribe the process that will be followed in connection with all procurements subject to the CCNA. The policies and procedures also prescribe the critical substantive aspects of the process, but they contemplate additional detail being provided on a project-by-project basis in the solicitation package (i.e., RFQ or request for proposals (RFP)) for the project. The project-specific materials, which will be available to potential applicants at the time of the public announcement (and, hence, in advance of the submittal and evaluation of responses) will specify the particular evaluation criteria/factors to be used by the Committee as well as the weight that will be given to each factor. Those materials will include forms, instructions, and other information similar to that in Petitioner's alternative proposal (Exhibit P7). The Proposed Rules do not specifically incorporate the prohibition on contingent fees in Section 287.055(6), Florida Statutes, nor do they incorporate the provisions of Section 287.055(10), Florida Statutes, relating to reuse of existing plans.
Findings Of Fact The Respondent, Department of Health and Rehabilitative Services is the state agency charged with the responsibility of monitoring the Aid For Families with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and the Intervenors, are recipients of services under that program and subject to the terms of the existing and proposed rules. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083, on July 21, 1989. The rules in question deal with the issue of entitlement to payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended to change the definition of the date of entitlement to the date of authorization or the 30th day from the date of application, whichever is earlier. Rule 10C- 1.080(11) has been amended to provide that the first payment to an eligible applicant must be made for the date of authorization or the 30th day from the date of application, whichever is earlier, and provides for a prorated payment based on the date of entitlement. Rule 10C-1.082 has been amended to provide that grants of applicants will be prorated for the initial month of entitlement. The increase in grant for the needs of persons added to the grant will be prorated for the initial month of grant increase. Rule 10C-1.107 has been amended to provide that the initial month's grant will be prorated from the date of entitlement. The initial month of grant increase for adding the needs of individuals to the grants will be prorated from the add date. Thereafter, on August 10, 1989, Petitioner Little filed a petition to determine the invalidity of the proposed rules alleging that: They violate Section 409.235, Florida Statutes, which requires the Department to furnish monthly financial assistance, and They provide an inadequate statement of economic impact. At the time she filed her Petition, Nola Little was a pregnant AFDC applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her son were found to be eligible for AFDC. Mr. Perez and his natural children have not been approved due to pending consideration of Mr. Perez' determination of incapacity as a result of a back injury. He is, otherwise, eligible for AFDC. All Petitioners will receive prorated benefits under the proposed rule. Prior to the 1988 legislative session, the Department had been requested by the President of the Florida Senate to identify programs for a possible 5% reduction. The date of entitlement for new applicants for AFDC, the subject matter of one rule in question, was identified as one of those programs. Though the Governor agreed with the Department's proposal and recommended it, the Legislature did not adopt that program for cuts in the 1988 session. Again, prior to the 1989 legislative session, the Governor directed each department to identify programs for possible cuts up to 10% for a total of $23.9 million. As a part of his directive, he hypothetically identified cuts in programs to reach that figure. One item so identified was a change in the date of entitlement to AFDC. After considering various ways to implement the cuts, (4 different program alternatives), all of which had an unpleasant effect, Mr. Don Winstead, Assistant Secretary of DHRS for Economic Services, chose the current method of reduction and recommended it to the Department's Deputy Secretary for Administration who incorporated it as a part of the entire Department submittal to the Governor. A 5% cut list was ultimately forwarded to the Governor in December 1988, which included two of those alternatives on the 10% list. The instant program cuts were not recommended by the Governor. Mr. Winstead and his staff generated substantial input to the Legislature, its committees, and its staffers about the subject. Ultimately, the Legislature, in conference, agreed to certain cuts. Economic Services was reduced by some $17,476,531.00, including the programs covered by the proposed rules in question. It was clear to Mr. Winstead that the Legislature mandated the reduction as proposed. In July 1988, the Department's District Directors were told to implement the change. In Mr. Winstead's opinion, if the Department had "its druthers," it would not have made the change. The Department's policies are driven by the Governor's direction. Since the Governor did not recommend the cut, the official position of the Department is, and was, against it. In fact, Mr. Winstead felt it was not a good idea and testified against cuts in committee hearing. He indicated there that neither he nor the Department supported this cut or recommended it. Though he did not agree, the lawmakers possessed the authority to make the change and the cuts were passed by the Legislature and signed by the Governor. He is, therefore, obliged to implement them. Since the passage of the act which mandates the cuts, Mr. Winstead has not considered alternatives to direct budget deficit reduction, nor has the Department applied to the Governor to transfer social and economic program funds to address budgeting problems with the AFDC budget. Mr. Winstead's position is that the Appropriations Act mandates him to modify the AFDC grant date and the specific basis therefor is Appropriation Number 864 which gives general revenue and trust fund amounts which, when considered with the Legislature's statement of intent, indicates what has to be done. Admittedly, there is no specific mandate from the Legislature or the Governor to cut this specific program. However, when the list of possible program reductions was prepared in an in-house memorandum, the cut in AFDC funds was identified as #3. Mr. Winstead's position with regard to this cut is supported by Jennifer Lange, a program administrator with the Department whose unit wrote the proposed rule. She felt the Department had no option but to promulgate the rule due to the Legislative mandate. Considering the evidence as a whole, it is found that a logical conclusion to be drawn from the pronouncements, documents, and directives coming from the Legislature through the entire appropriations process, is that drawn by the Department here, to wit: cuts were mandated by the Legislature in this and other programs and action must be taken to implement them. The drafting and promulgation of the rule in question is but an appropriate extension of that conclusion. Assuming the rule is ultimately promulgated and funds are saved thereby, it is the intention of the Department to continue with the mandate of the Legislature until that body affirmatively changes its direction, even if more money is found somewhere else. Under the proposed rule, an applicant would be issued a check for the first period 30 days after application or after approval of the application, whichever came first. Since the Department routinely runs three payrolls a month, it would probably be one third of a month after the cutoff date that an applicant would receive his or her first check. Ms. Lange also was instrumental in drafting the Economic Impact Statement (EIS) to accompany the rules, utilizing in doing so, information garnered from a number of sources. Some figures utilized therein are a generalized estimate only. The majority of applications are accomplished within the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS, all pertinent information required to be considered was considered and nothing that would materially effect the probity of the EIS was eliminated. The actual EIS was drafted by Mr. Greenwood and his team in late May or early June 1989. In doing so, Mr. Greenwood did not consider population additives. While the drafters of the EIS considered the entire subject matter, including legislative policy, no impacts, other than those ultimately addressed therein, were considered. The 6,000 case per month figure was used because it was the information provided by the Department's data unit and as a figure that was being used elsewhere in the Department. This was not the latest figure available, however. Current figures available reflected a potential for slightly in excess of 8,000 cases per month. The difference of over 2,000 cases per month is substantial. Mr. Greenwood concludes that the maximum which can be lost to any applicant is 30 days benefit, and the Department presumed, for the EIS, that all would lose that amount. In reality, that is unlikely. There is no doubt that the implementation of the proposed rule will have an impact on the economic welfare of those currently receiving AFDC and those who may receive it in the future. Rosemary Gallagher, an associate with the Florida Catholic Conference and a lobbyist in the area of social services, is very familiar with the social service agencies available to the poor in this state. In her opinion, having studied the proposed rules, almost all agencies will be adversely affected by their implementation. Clients will require more agency help as a result of the rule implementation and homeless shelters will be hit the hardest. The homeless population in Florida is composed of approximately 1/3 single women with children who need financial assistance to be self-sufficient. Reduction in AFDC benefits will require the client to stay in the shelter longer to accumulate rent money and funds for other required expenditures. By the same token, other organizations will similarly be affected. In addition, less money will have a devastating effect on the agencies , and the delay in receipt of payments, occasioned by the proposed change, will, in her opinion, hurt hundreds of thousands who are affected. This cutback is, she believes, the worst thing to happen in a long time, and she lobbied against the basic legislation calling for cutbacks. Ms. Gallagher has never been a case worker and has no degree or course work in either economics or social work. It is her opinion, however, that the legislative statement relied on by the Department calls for modification to AFDC, not necessarily a cut. As a matter of history, she relates, the Department has been asked for the last several years to list items for cut and historically has always identified those items it felt certain the Legislature would never cut. When, in this current year, it listed the currently considered program, in her opinion, this was done with the belief the Legislature would not approve any cuts, a position consistent with that indicated by Mr. Winstead, but cuts were nonetheless made by that body without, she believes, a proper public hearing. Dr. Frederick Bell, an economist on the faculty of Florida State University and an expert in economics, micro-economics, and the techniques of economic impact statement preparation, reviewed the instant EIS along with depositions and the transcript of public hearing on the matter. He has done some rudimentary research into the effect of the proposed rules and considered therewith the spending patterns of low income people in the areas of housing, clothing, and transportation. He has also looked at small businesses in Florida and feels that the EIS as drafted does not accurately reflect the situation and its method of preparation is poor. In his opinion, it is inadequate to show the effect on the economy since it failed to consider all factors pertinent thereto. He objects to the use of the term "negative cost" as used in the document, which he does not considers to be a proper economic concept. He assumes it is another term for savings. He assumes the EIS reference to 6,000 applications which are those approved per month. Other pertinent documentation, however, refers to a substantially larger number of applications (8,042) yet neither figure is sourced, and Dr. Bell is unable to verify their accuracy. The parties stipulated that in formulating the EIS, the Department utilized figures provided by the Legislature, but Dr. Bell's complaint regarding his inability to check their accuracy is still valid. Dr. Bell also questions the average grant amounts and notes that the Department assumes that the determination of eligibility is always going to be accomplished within 30 days. In his opinion, this is neither reasonable nor substantiated. He believes it is a "monumental" error to put into the EIS entirely different numbers than are actually expected. In the instant case, this resulted in a difference of $6.4 million which is substantial. With regard to that section of the EIS that starts, "Changing the effective date of grant increases," on the one hand, it indicates a cost of increased benefits as a result of adding individuals to the household, and on the other hand claims a reduced cost resulting from the loss of benefits to newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in the EIS that the additional costs to the agency will be balanced out by the benefits saved. In his opinion, there is absolutely no justification for that conclusion. He also disputes agency figure of $17.5 million in resultant cuts, concluding it would actually be more in the area of $23.9 million. As a result, he believes the impact will be substantially greater to individuals than that indicated. He also contends the state should have considered the cumulative effect on the economy of governmental program cuts, otherwise known as the "multiplier effect." A reduction in amounts spent will have a resultant double effect on the businesses where this money would normally be spent. There is nothing shown in the EIS to indicate this factor was considered. Dr. Bell also believes the agency should have considered the effects of its cutback on the counties and their support agencies as well as the nongovernmental charities involved in providing assistance to the underprivileged who will have to pick up the slack resulting from the cut in public money. He feels the EIS estimate of the cut's minimal effect on small minority businesses is not supported. It appears to him that the agency failed to utilize the services of the small and minority business advocate attached to the Florida Department of Commerce who could have provided input on whether a cutback in spending would have had a major effect on minority business enterprises. Dr. Bell is convinced that it will and his opinion is diametrically opposed to that of the Department. In substance, Dr. Bell was convinced that the EIS was "completely inadequate." In his cross examination of Dr. Bell, Respondent's counsel indicated there would be no impact on small and minority business and urges that Dr. Bell was stretching when he claims there would be. Such argument is ingenuous however. Regardless of which of the two impact figures cited is used, such a sum cannot help but have some impact on an economy which includes small businesses. The degree thereof and whether or not that impact constitutes grounds to invalidate the rule is another question altogether. Nothing in the statute or the rules relating to the sufficiency of an EIS requires that there be unanimity of opinion as to the conclusions drawn therein. Taken as a whole, the evidence appears to show, and it is so found, that while the EIS may well be subject to some disagreement as to a number of the provisions therein, and while some provisions may well be contra to the weight of the best evidence available, it is, nonetheless, basically adequate in content and form to constitute an acceptable economic impact statement in support of the proposed rules here.
Findings Of Fact Dr. Bert, a white woman, has been employed 25-1/2 years by the Department of Education (hereinafter "DOE"). Dr. Bert earned a Bachelor's of Science (1950), a Master's of Science in home economics education (1963), and a Ph.D. in home economics (1967) from the College of Economics at Florida State University. Beginning in 1950, Dr. Bert was employed as a teacher of high school home economics first at Union County High School (3 years), and then at Havana High School until 1965, when she took leave to finish her Ph.D. courses and write her dissertation. Dr. Bert first went to work for DOE in 1967 as a Vocational Studies Assistant. In 1975, she was promoted to the position of Program Director and worked in the area of research and development. While there, she helped Florida bring in over $30 million in federal grants for various vocational education programs (including home economics). During the period 1980-1985, when the federal government cut back the funds available for educational research and development, the R & D program was phased out; however, Dr. Bert remained as a Program Director in the R & D position, writing grants and seeking funds from other sources. In 1985, DOE was reorganized. Dr. Bert was laterally reassigned and given the job of Program Director I in home economics education by the Division Director, Dr. Joe Mills. Dr. Mills knew that Dr. Bert had earned her Ph.D. in home economics and asked her to take the position. As Program Director for Home Economics Education, Dr. Bert supervised a staff of four other professionals (Program Specialist III's) and was responsible for monitoring and administering the Florida and Federal government programs in home economics education, occupational education and homemaking education in all of the 67 local school districts. The Federal government provides Florida and other states with most of the monies needed for the administration of these programs, collectively referred to as "consumer and homemaking education." DOE's function is to establish the minimum education standards and curricula required in each area and otherwise to carry out the intent of Federal and Florida Law. As Program Director, Dr. Bert voiced repeatedly her concerns in 1992 regarding expenditures of federal funds earmarked for the Consumer and Homemaking Education Program which she described as illegal to Jerry Barnett, DOE's Budget Officer. The June 1993 report of audit on federal financial assistance programs at DOE for fiscal year 1992 confirmed that DOE was mis-spending federal monies, as Dr. Bert had pointed out. Dr. Bouie is a black woman, who had worked for DOE 14 years. She earned a Bachelor's of Science from Florida A&M University in home economics education (1967), a Master's of Science in home economics education from Tuskeegee Institute (1974), and a Ph.D. from Florida State University College of Education in administration and supervision (1983). From 1970- 1979, Dr. Bouie was a home economics instructor in Volusia County, Florida. Dr. Bert and Dr. Bouie were employed in 1992 in the Bureau of Vocational Programs and Services, which is within the Division of Vocational, Adult, and Community Education (the Division's name has now changed to "Division of Applied Technology and Adult Education" but will be referenced by its former name herein, or called the "Division"). Pat Hall (hereinafter "Hall") is the Bureau Chief of the Bureau of Vocational Programs and Services within the Division, and Lanny Larson (hereinafter "Larson") is the Director of the Division. On July 20, 1992, Castor issued a memorandum to the "Policy Group." The subject matter of the memorandum concerned the possible loss by minority employees of their positions or opportunities for advancement due to attrition and downsizing. The memorandum closed by announcing that Herb Parker (hereinafter "Parker") would be meeting with managers to development strategies to reduce the effect of attrition and downsizing and to enhance the composition of the work force. Hall, who was not a member of the policy group, was not aware of the July 20th memorandum, and never met with Parker. Neither Parker, Castor, nor Larson suggested to Hall that she promote a Black. Larson, as a member of the policy group, had seen the July 20th memorandum. Larson was never pressured by Castor to hire a Black and had never met with Parker pursuant to the memorandum. Larson was the Division Director of Vocational Adult Community Education and a member of Commissioner Castor's "Policy Group." He was aware of Castor's policy guidance not to reduce the number of Blacks in the process of downsizing the Department and in promoting Blacks at DOE. In the first week of October of 1993, Hall learned that her Bureau might have to leave five vacant positions unfilled and subject to elimination because of a legislative mandate. Not filling positions vacated by resignations and retirements was the primary means used to achieve the new manning levels of the Departmental reorganization. Hall analyzed her Bureau as to work-load issues, functions required, and expertise areas of remaining staff to insure that the Bureau's work could be covered with available personnel without laying anyone off. Hall's bureau was tasked to search out, apply and complete for Federal, state, and private grants, and to research new and merging issues in vocational education. No new personnel would be available to perform these new resource development duties. Hall's personnel review showed that Dr. Bert had worked 16 years in and was ultimately the Program Director of Research and Evaluation, which included resource development for 16 years. Dr. Bert had an extensive background, broad experience and considerable expertise in this area; and she was the only person in the Bureau with such experience. Hall's review also showed that Dr. Bouie had worked as a home economist for the Agricultural Extension Service, was a Junior and Senior High School home economics teacher, and was Chairperson of her Home Economics Department of her high school in Volusia County, Florida. Dr. Bouie also had a solid background in programs designed for the disadvantaged and the limited English proficient, together with programs administered through the Community Based Organizations Delivery System. She had developed a reputation for being a team player. Hall was of the opinion that this experience would be invaluable to the Bureau's Home Economics Section. The economic development and demographic trends in Florida resulted in the need for extensive restructuring and changes to the program offerings in each vocational area, to include Home Economics. Hall, at Larson's request, previously had asked Dr. Bert to look into changing the Home Economics curriculum. Dr. Bert refused, and Hall asked Shirley Lee, one of Dr. Bert's subordinates, to review the curriculum for change. Dr. Bert refused to allow Lee to conduct the project during normal working hours. Dr. Bert's refusal to consider changing the curriculum was, in Hall's opinion, an example of Dr. Bert's lack of receptiveness to change. In Hall's opinion, Dr. Bert was not the best person to initiate and develop those changes because Dr. Bert had, in the past, not been receptive to new initiatives for Home Economics. Larson was of the same opinion. Hall recommended to Larson that Dr. Bert be transferred to the new position of Program Specialist IV in Resource Development and that Dr. Bouie be placed in the Program Director I position. The decision to transfer Dr. Bert and Dr. Bouie to their new positions was jointly made by Hall and Larson based on Hall's review and recommendation. Both transfers were at the same pay grade. Thirty (30) such lateral transfers have been made due to reorganization in the Division over the last two years. Hall met with Dr. Bert on October 21, 1992 to notify and explain to Dr. Bert her pending transfer. Dr. Bouie was notified of the transfer on or about the same date. Dr. Bouie had not asked for and did not want to make the transfer. The fund-raising position into which Dr. Bert was transferred was a newly created position, having no support staff. Unlike her previous R & D position at DOE, Dr. Bert was given little or no assistance, met infrequently with Larson, and was given no extraordinary resources to perform the duties of her new job. Her transfer was a demotion. Dr. Bouie would retain certain duties she was already performing, as well as assuming those previously performed by Dr. Bert. Louis Davidson, the Health Occupations Program Director, and Loretta Costin, the Marketing Program Director, were also required to take on additional duties within the Bureau. Both Davidson and Costin are white. In late October, 1992, Dr. Bert learned from Dr. Mae Clemons that a group of Blacks at DOE had been communicating with Betty Castor, the Commissioner of Education, regarding the lack of Blacks in administrative positions given the number of Blacks with doctorate degrees. Dr. Clemons showed Dr. Bert an anonymous letter written sometime in 1992 to Betty Castor, containing the name of Blacks seeking promotions at DOE. Dr. Connie Hicks-Evans' and Dr. Bouie's names were two of the names listed in the anonymous letter to Commissioner Castor as having doctorates. Commissioner Castor called Dr. Hicks-Evans about the letter, and then faxed a copy to her. Dr. Hicks-Evans then called the meeting of Blacks holding doctorate degrees at DOE to discuss the issues and decide how to respond to Castor's inquiry. A group of black employees met in the DOE cafeteria to discuss informally the situation in October, 1992. Dr. Hicks- Evans discussed at the meeting the fact that Blacks were being denied promotions. Although this had not happened to her, it had happened to Rufus Ellis, James Scruggs and Baxter Wright. Dr. Bouie attended this meeting. She had never seen the anonymous letter before that meeting. Dr. Bouie believed that Blacks had applied for various positions and were not considered. She and other black employees wanted to find out what was happening in the Department. The subject of Dr. Bouie's transfer into Dr. Bert's position was not discussed at the group meeting. Dr. Bouie had not been told about her transfer at the time of the meeting. On November 2, 1992, Betty Castor met with a group of Blacks within DOE to discuss their concerns regarding promotions and other issues. The nine Blacks listed as "present" at the November 2 meeting were: Dorothy Bouie; Rufus Ellis, Jr.,; Connie Hicks-Evans; James A. Scruggs; Baxter Wright; Mae Clemons, Adeniji Odutola; Herb Parker; and Jean Williams. Dr. Bouie asserts she did not attend the November 2nd meeting with Commissioner Castor because she was sick that day. Her statement is deemed credible. Almost a year after the transfer was effective (December 21, 1992), the Program Director I position was upgraded to Program Director II, and Dr. Bouie's pay grade was increased from pay grade 25 to 27. Dr. Hicks-Evans did not know if any of the Blacks other than Dr. Bouie had been promoted at DOE since the anonymous letter was written and the meetings were held. Dr. Larson is the division Director of Vocational Adult Community Education which has four bureau. Two of the bureau chiefs are black (Leatricia Williams and John Lawrence), one is hispanic (Glenn Thomas), and the fourth is white (Pat Hall). Larson acknowledged that the decision to reassign Dr. Bouie into Dr. Bert's position and, subsequently, upgrading the position to promote Dr. Bouie, met the guidance of Castor regarding promotions for Blacks holding doctorate degrees; Dr. Bouie was not reassigned and promoted because of the Blacks' efforts in October and November, 1992. Larson was also aware of the 1992 movement by Blacks holding doctorate degrees, who were seeking promotions, prior to his decision to reassign Dr. Bert and place Dr. Bouie in Dr. Bert's position. There was never any pressure by the Commissioner on Dr. Larson to promoted Blacks because he had already met his EEO goals. The promotion of minorities at DOE was discussed quarterly as an issue related to performance appraisal and performance appraisals of all Division Directors at DOE by Castor. In July, 1992, Larson promoted a Black (Leatricia Williams) to one of his Bureau Chief jobs to replace another Black (Jim Barg). Although Dr. Larson could have reassigned Ann Rushing, a qualified white female, to the resource development position, he felt that Dr. Bouie was a better candidate for that position. Paulette Mainwood, Charlotte Gore, and Nancy Phelps were other qualified whites in the division whom Dr. Larson did not consider for the resource development position. Dr. Parker, a black male, has been DOE's Director of Administration for three years. He was promoted to the position by Castor and replaced by Larson, who was reassigned. Parker's job includes running the DOE's affirmative action program, and he attended the November 2, 1992 meeting with the other Blacks and Castor. The first informal group meeting of Blacks occurred about two weeks prior to the November 2, 1992 meeting with Castor. The anonymous letter had to have been sent before then. Parker met with all Division Directors regarding promotion of Blacks within the Department because he was the Chairman of the EEO Committee, and Betty Castor was concerned about promotion of minorities within the Department. The Department had goals established, and progress was discussed quarterly at executive steering committee meetings. Attainment of departmental affirmative action and EEO goals were not required by any law, according to Parker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Florida Commission on Human Relations Commission enter its Final Order finding no cause regarding the Petitioner's complaint. DONE and ENTERED this 15th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5812 Both Parties submitted proposed findings of fact which were read and considered. The following states which of their findings were adopted, and which were rejected, and why: Petitioner's Proposed Order: Findings: Paragraph 1 Subsumed in 1 Paragraphs 2-7 Paragraphs 3-7 Paragraphs 8,9 Irrelevant Paragraphs 10, Subsumed in 7,8,9 11,12 Paragraph 13 Paragraph 22 Paragraph 14 Paragraph 10 Paragraph 15 True, but Bert was qualified as the resource person, and Bouie was qualified as the Home Economics Director. Paragraphs 16,17 Subsumed in 21-24 Paragraphs 18,19 Paragraphs 25,26 Paragraphs 20,21 Paragraph 32 Paragraphs 22,23 Paragraph 10 Paragraphs 24-27 Paragraphs 27-31 Paragraphs 28,29 Paragraphs 33,34 Paragraphs 30,31 Paragraphs 27,28 Paragraphs 32,33 Paragraphs 11, 15-18 Paragraph 34 Irrelevant Paragraph 35 Subsumed in 15-18 Paragraphs 36-44 Paragraphs 35-41 Paragraphs 45-51 Paragraphs 42-46 Respondent's Proposed Order: Findings: Paragraph 1 Paragraph 1,2 Paragraph 2 Paragraph 11 Paragraph 3-6 Paragraph 15-18 Paragraph 7 Paragraph 24 Paragraph 8 Paragraph 19 Paragraphs 9-11 Paragraphs 20-22 Paragraphs 12,13 Subsumed in 25-28 Paragraph 14 Irrelevant Paragraph 15 Paragraph 12 Paragraph 16 Paragraph 13 Paragraph 17 Irrelevant COPIES FURNISHED: Bruce A. Minnick, Esquire 660 East Jefferson Street Post Office Box 11127 Tallahassee, FL 32399-3127 William H. Roberts, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Dana C. Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent, University of West Florida (Respondent or the University), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Jacqueline R. Pinkard (Petitioner), based upon Petitioner’s race or in retaliation for her participation in protected activity.
Findings Of Fact Respondent is a public university within the Florida State University System. Petitioner was hired by the University in 1998 in the Office of University Budgets (Budget Office) as a Coordinator. In 2004, Petitioner was promoted to the position of Assistant Director of the Budget Office. She received a pay increase simultaneous with the promotion and another pay increase shortly thereafter. She has received several pay increases throughout her employment with the University. From 1998 through June 30, 2014, the Budget Office was a stand-alone department, headed by Valerie Moneyham. In January 2014, Ms. Moneyham was promoted to Assistant Vice President in the Business, Finance, and Facilities Division. Her duties included continued oversight of the Budget Office until June 30, 2014. On July 1, 2014 the Budget Office moved under and became a part of the University’s Financial Services department. There were three employees in the Budget Office: Petitioner, Assistant Director, who is African American/Black; Pam Cadem, Senior Budget Data Analyst, who is Caucasian; and Josie Warren, Coordinator, who is Caucasian (collectively, Budget Office employees). All three Budget Office employees retained their position titles and pay rates upon moving into the Financial Services department. There was another employee in the Budget Office prior to the move named Lourdes Stevens. Ms. Stevens was a Coordinator who began at the University in 2012. Ms. Stevens left the University before the Budget Office became a part of the Financial Services department. The Financial Services department was and is headed by Colleen Asmus, Associate Vice President and University Controller. In her Complaint, Petitioner alleges several bases for alleged race discrimination and retaliation. First, Petitioner alleges that the University discriminated against her based on her race and retaliated against her when Petitioner’s former supervisor, Ms. Valerie Moneyham, issued a “poor” performance evaluation of Petitioner for 2014. Next, Petitioner alleges that her current supervisor, Ms. Colleen Asmus, “accepted Ms. Moneyham’s false and retaliatory evaluation as a means to justifiably deny [Petitioner] an equitable pay increase, position reclassification or promotional opportunity.” And, finally, the Complaint alleges that the University discriminated against Petitioner based on her race when, on December 12, 2014, Ms. Asmus created a position with “very specific ‘preferred’ qualifications . . . as a way to essentially tailor the job to fit a preselected employee or applicant,” who she believed to be “a white male from Financial Services.” The findings of fact pertinent to these allegations are set forth under three separate headings, A. through C., below. Petitioner’s 2014 Performance Evaluation The subject of Petitioner’s first allegation is her performance evaluation covering the period from July 1, 2013, through June 30, 2014 (2014 evaluation). The evaluation cycle for University staff is from July 1 to June 30 each year. Prior to the University’s 2013 evaluations, a different cycle and scoring system was used for performance evaluations. Due to the change in cycling, there were no evaluations for University staff in 2012. The University’s performance evaluation system is electronic-based. The evaluation contains three main parts. The first part is a self-evaluation by the employee. The second part is the supervisor’s evaluation, and the third part is a goal-setting section for the following year. In the second part of the evaluation, supervisors provide numeric ratings on a five-point scale on a series of eight work-related categories, and they also provide narrative feedback on an employee’s strengths and areas for improvement. Since 2013, the numeric scores have been averaged and the resulting number is the employee’s overall evaluation rating. Since 2013, the overall numeric ratings have equated to the following Performance Standards: 1.0 to 1.4 –- “Below” - Not Acceptable 1.5 to 2.4 –- “Below” – Needs Improvement 2.5 to 3.4 –- “Satisfactory” 3.5 to 4.4 -- “Above” 4.5 to 5.0 -- “Superior” It is the University’s standard practice for the supervisor of University staff positions to be the individual who completes those staff position evaluations if he or she was the supervisor for the whole period covered by the evaluation. Ms. Moneyham was the supervisor of record for the Budget Office for the entire period covered by the July 1, 2013, to June 30, 2014, evaluation. Labratta Epting, Human Resources Specialist in the University’s Human Resources department, advised Ms. Moneyham by email dated October 24, 2014, to complete the 2014 performance evaluations for each one of the three Budget Office employees. Ms. Moneyham completed the supervisor’s evaluation portion of the 2014 performance evaluations for all three Budget Office employees because she was their supervisor during the period of time covered by the evaluation. In the electronic performance evaluation system, the evaluations are housed under the name of the current supervisor. In this case, that was Ms. Colleen Asmus, for all three Budget Office employees. For the 2014 evaluation, Ms. Moneyham provided the evaluation information for each of the three Budget Office employees to Ms. Asmus, who cut and pasted the information into the electronic evaluation system. Ms. Asmus completed the future goals section of the evaluation for each of the three Budget Office employees because she was the supervisor beginning on July 1, 2014, and on into the future. In the 2014 evaluation, Ms. Moneyham rated the Budget Office employees as follows: Petitioner received a numeric score of 3.3 and a “Satisfactory” Performance Standard; Ms. Cadem received a numeric score of 3.8 and an “Above” Performance Standard; and Ms. Warren received a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2013 evaluation, Ms. Moneyham rated Petitioner with a numeric score of 3.2 and a “Satisfactory” Performance Standard, Ms. Cadem with a numeric score of 3.8 and an “Above” Performance Standard, and Ms. Warren with a numeric score of 3.0 and a “Satisfactory” Performance Standard. In the 2011 evaluation, under the old scoring system, Ms. Moneyham rated Petitioner with a numeric score of 42 and a “Satisfactory” Performance Standard, and Ms. Cadem with a numeric score of 46 and an “Above” Performance Rating. As previously noted, the numeric rating system was changed for all staff evaluations after the 2011 evaluation. Ms. Moneyham increased the numeric score of only one employee from the 2013 to the 2014 evaluation, and that employee was Petitioner. She increased Petitioner’s numeric rating from 3.2 in 2013 to 3.3 in 2014. Petitioner’s Performance Rating was at the “satisfactory” Performance Standard level in 2011, 2013, and 2014. Petitioner testified that Ms. Moneyham’s comments on page 7 of Petitioner’s 2014 performance evaluation under the heading of “Supervisor’s Comments” were not discriminatory and were not retaliatory. Ms. Asmus’ Acceptance of Petitioner’s 2014 Evaluation Ms. Asmus received a copy of the October 24, 2014, email sent by Ms. Epting to Ms. Moneyham directing Ms. Moneyham to complete the 2014 evaluations for Petitioner, Ms. Cadem, and Ms. Warren. When Ms. Asmus met with Petitioner to discuss Petitioner’s 2014 evaluation, Ms. Asmus stated that she believed that they (Petitioner and Ms. Asmus) had started with a clean slate, which began when Ms. Asmus became Petitioner’s supervisor on July 1, 2014. Petitioner’s letter dated December 15, 2014, to the EEOC acknowledges this, quoting Ms. Asmus as saying, “I hope we can move forward with a great working relationship.” No evidence was provided by Petitioner showing that Ms. Asmus used the evaluation scores provided by Ms. Moneyham in the 2014 evaluation to deny Petitioner any benefit of any kind. Denial of Position Reclassification and Promotional Opportunities Interim Promotion In the Complaint, Petitioner alleges that Ms. Asmus used the “poor evaluation” as a means to deny her a position reclassification or a promotional opportunity. At the hearing, Petitioner testified that she should have been made Interim Associate Budget Director, or a similar title, starting when Ms. Moneyham was no longer physically in the same building as the Budget Office employees, which she said was during “Spring 2014.” She also testified that the interim position should have lasted either until Ms. Asmus became the supervisor of the Budget Office employees (July 1, 2014) or, alternatively, until February 2, 2015, when Mr. Djerlek became the supervisor of the Budget Office employees. Ms. Moneyham became Assistant Vice President in January 2014. No evidence was offered stating a more specific date of when Ms. Moneyham moved to a different building than the Budget Office employees. Petitioner did not offer any comparators for this allegation. Petitioner did not offer any evidence that any employee was made Interim Associate Budget Director (or similar title) in this situation. Petitioner admitted on cross-examination that Ms. Moneyham was the supervisor of record for the Budget Office employees until Ms. Asmus became the supervisor for the Budget Office employees. Ms. Rentz, the former University Associate Director for Human Resources, testified that there was no Interim Associate Budget Director or other position into which Petitioner could have been placed because Ms. Moneyham was the supervisor of record over the Budget Office employees until Ms. Asmus became the supervisor of record. That testimony is credited. 2. Reclassification In support of her allegation that she was denied a position reclassification, Petitioner submitted into evidence an email that she sent to her supervisor, Ms. Asmus, on December 11, 2014. In the email, Petitioner asked Ms. Asmus to reclassify all three Budget Office employees (Petitioner, Ms. Cadem, and Ms. Warren) and provide each of them with salary increases. On December 11, 2014, the three Budget Office employees had been under the supervision of Ms. Asmus for approximately five and one-half months. Petitioner’s email further stated that all three employees were well trained. Petitioner, however, provided no evidence either in the email or at the hearing that would reasonably provide a basis for reclassification or promotion of any of the three Budget Office employees. Petitioner did not offer any comparators for this allegation. No evidence was provided showing that there has been a position reclassification or promotion for any of the three Budget Office employees since being moved into the Financial Services department on July 1, 2014. The University provided credible testimony that seniority, or length of time in a position, is not, on its own, a basis for a promotion at the University of West Florida. Denial of Equitable Pay Increase Petitioner also alleged in the Complaint that Ms. Asmus used Ms. Moneyham’s “poor evaluation” as a means to deny Petitioner an equitable pay increase. At the hearing, Petitioner stated that she was denied an equitable pay increase when distributions were made to some staff under a 2013 Employee Pay Equity and Compression Program conducted by the University (Salary Study). Petitioner and the two other employees in the Budget Office did not receive a distribution under the 2013 Salary Study. The University provided credible evidence showing that approximately 25 percent of the staff received increases through the Salary Study, and that Petitioner’s salary was the only salary in the Budget Office that was above the benchmark for receiving an increase. On April 7, 2014, Petitioner filed a discrimination charge with the EEOC claiming that she was denied a distribution from the 2013 Salary Study based on race and retaliation. The EEOC found that the University did not violate discrimination statutes and issued Petitioner a “Right to Sue” letter on September 30, 2014. Petitioner did not file suit in connection with that EEOC discrimination charge. The University has not conducted any equity studies since 2013 and Petitioner has not been excluded from any staff pay increases since 2013. In May 2015, Ms. Asmus asked the Human Resources department to determine whether there was a pay inequity as to Ms. Warren’s salary. Ms. Warren’s position in the Budget Office was “Coordinator” and it remained “Coordinator” when she moved into the Financial Services office. Human Resources reviewed Ms. Warren’s salary against the other Coordinators in the Financial Services department. The Human Resources department determined that Ms. Warren was performing services similar to the Accounting Coordinators in the Financial Services department. The starting salary for an Accounting Coordinator in Financial Services is $45,000. Ms. Warren was earning $32,000 at the time. As a result, in May 2015, Ms. Warren’s salary was increased to $45,000, which is the level of the starting salary for Accounting Coordinators in the Financial Services department. No evidence was offered of a similar increase for Ms. Cadem. Petitioner’s current position is Assistant Director. Before she was promoted to Assistant Director, Petitioner’s position title was Coordinator. The position of Assistant Director is higher in rank than the Coordinator/Accounting Coordinator position occupied by Ms. Warren. Petitioner’s salary is approximately $15,000 higher than Ms. Warren’s salary at the increased level. There is no similar pay inequity in Petitioner’s position as there was with Ms. Warren. Petitioner’s salary is right at the midpoint of the five employees in the Financial Services department at the Assistant Controller/Assistant Director level. Petitioner is earning more than two of the Assistant Controllers and less than two of the Assistant Controllers. Petitioner did not allege or provide any evidence showing that her job duties were more complex than the two Assistant Controllers who have a higher salary than she does. Preferred Qualifications for Associate Controller Position During the fall 2014 semester, Ms. Asmus envisioned an improvement in the efficiency and consistency of the reporting functions carried out by the Financial Services department. She had noticed that there were overlaps and redundancies between the financial reporting area and the budget reporting area. She believed greater consistency in reporting could be achieved if these areas were merged. In November-December 2014, the Financial Services department began the recruitment process for an Associate Controller. The Associate Controller was to be over the reporting areas, which would include financial reporting (production of financial statements), budget reporting, and tax reporting. Florida’s State University System’s (SUS) minimum qualifications for an Associate Controller were posted as the minimum qualifications for the position. They are: Master’s degree in an appropriate area of specialization and four years of appropriate experience; or a Bachelor’s degree in an appropriate area of specialization and six years of appropriate experience. Although the SUS system allows additional requirements be added to the minimum qualifications, none were added in the posting of the Associate Controller position. The preferred qualifications for the position as advertised were: Master’s or Bachelor’s degree must be in an accounting related field. CPA License preferred. Experience with production of financial statements in a higher education setting preferred. Experience with tax accounting in a higher educational setting preferred. Familiarity with budget operations in a higher educational setting preferred. The preferred qualifications were all approved by Human Resources as being job-related before the position announcement was posted. After receiving an applicant pool from the first posting for the Associate Controller position, Human Resources for the University did not “certify” the applicant pool because the percentage of minority applicants was low. The position was posted again and was also advertised again in a publication geared to attract minority applicants. Although additional applicants applied, the percentage of minority applicants decreased. Nevertheless, because it determined that a good faith effort was made to recruit qualified female and minority applicants, Human Resources certified the pool after the second posting. Petitioner pointed out at the hearing that the January 2015 advertisement in the publication geared to attract minority applicants contained an application deadline of December 19, 2014, which was prior to the date of the advertisement. The University’s Associate Director of Human Resources provided credible testimony that the published application deadline was a mistake, and that she was unaware of the error when she certified the pool after the second posting. Ms. Asmus provided credible testimony explaining why each of the preferred qualifications for the Associate Controller position was job related. No contrary evidence as to any of the preferred qualifications was offered by Petitioner. Ms. Asmus advised the three Budget Office employees of the job posting and invited them to apply for the position. Petitioner met the minimum criteria for the position but did not apply for the position. All candidates who met the minimum qualifications for a position would have been considered for the position. Petitioner testified that she did not apply for the position because she did not meet the preferred qualifications. Petitioner explained that in 2012 she had applied for a position as an Executive Assistant in the University’s President’s Office, and she was not selected for the position because she did not have all the preferred qualifications. She said that she did not have event-planning experience. She said that based on that experience in 2012, she did not apply for the Associate Controller position posted in December 2014. Petitioner acknowledged on cross-examination that the Executive Assistant position that she applied for in 2012 was in the President’s Office and that the Financial Services department is in a different division of the University than the President’s Office. There were no limitations in the advertisement that would discourage an individual of any particular race from applying for the position. The advertisement stated on the bottom, “The University of West Florida (UWF) is an Equal Opportunity/Access/Affirmative Action Employer.” Mr. Djerlek was ultimately selected for the Associate Controller position. He is Caucasian and is outside of Petitioner’s protected class. Mr. Djerlek’s qualifications for the position were stronger than Petitioner’s. Mr. Djerlek had experience in all three of the areas that would be under the supervision of the Associate Controller: financial statements/reporting, budget reporting and tax reporting. Mr. Djerlek's background included a great deal of experience with financial statements, tax reporting, and budgeting, along with some budget reporting experience. He is licensed as a Certified Public Accountant. At the final hearing, Petitioner admitted that she did not have experience in two of three areas that the Associate Controller would be supervising: financial statements/reporting and tax reporting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 3rd day of May, 2016, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2016.
