The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered March 4, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of these proceedings, the following findings of fact are made: The FEC is the statutory entity that is responsible for investigating complaints and enforcing Florida's election laws, Chapters 104 and 106, Florida Statutes. See § 106.25, Fla. Stat. Lieutenant Wills has been employed by the West Palm Beach Police Department for approximately 23 years and has served as a lieutenant for approximately three years. At the time he was promoted to lieutenant, Lieutenant Wills was serving as the president of the West Palm Beach Police Benevolent Association, Inc. ("PBA"), which is a police union for officers, sergeants, and lieutenants employed by the West Palm Beach Police Department. Lieutenant Wills resigned this position when he was promoted. In May 2004, the time material to this proceeding, Lieutenant Wills served as a representative to the PBA. In May 2004, Lieutenant Wills worked the night shift, from 5:00 p.m. to 6:30 a.m. He supervised a uniformed patrol squad of 10-to-12 police officers and two sergeants. The squad was divided into two units; the first night-shift unit began work at 5:00 p.m., and the second night-shift unit began work at 7:00 p.m. Sergeant Riddle supervised the first night-shift unit, and Sergeant Kapper supervised the second night-shift unit, under Lieutenant Wills's command. The police officers in Lieutenant Wills's squad were required to attend a briefing or "line-up" before they began their patrol or other duties. During the line-up, the officers were briefed on arrest information, bulletins, training, work assignments, and other employment-related matters. The briefings were conducted by Sergeant Kelly, an administrative sergeant who was not under the direct supervision of Lieutenant Wills. Lieutenant Wills often participated with Sergeant Kelly in conducting the briefings for his squad. Officers in the first night-shift unit went on duty at 5:00 p.m., and the briefing for this shift began promptly at 5:00 p.m.; an officer was considered late for work if he or she arrived in the briefing room after 5:00 p.m. The officers in Lieutenant Wills's first night-shift unit routinely began congregating in the briefing room 15 or 20 minutes before the 5:00 p.m. briefing began. They watched television; talked about many different topics, including politics; and generally interacted informally until briefings began at 5:00 p.m. When a police officer was on the police department premises, the officer was expected to obey a direct order from a superior officer, even if he or she was not on duty. If an officer was given an order by a superior officer to carry out work-related duties prior to the beginning of his or her shift, the officer was eligible for overtime pay for the time spent performing these work-related duties. An off-duty officer was not, however, expected to obey anything but a direct order from a superior officer. In an e-mail dated May 4, 2004, Sergeant Peneque, who was the president of the PBA, advised that the PBA planned to endorse Ric Bradshaw, a former chief of the West Palm Beach Police Department, as a candidate for Palm Beach County Sheriff and that the endorsement would be announced at a press conference to be held on May 25, 2004. Sergeant Peneque related in the e-mail that the "chief" was asking that the members of the police department support him by coming to the press conference. Sergeant Peneque sent this e-mail out on the West Palm Beach Police Department "Lotus notes" e-mail system, and it appeared on all of the police department computers. The PBA routinely sent e-mails regarding union business through the police department e-mail system, and the information was generally disseminated to the assembled police officers prior to the start of shift briefings. On May 10, 2004, about 10 or 15 minutes before the beginning of the briefing for the 5:00 p.m. shift, Sergeant Kelly read Sergeant Peneque's e-mail to the officers who had congregated in the briefing room. There were about five or six officers present at that time, and few of them indicated to Sergeant Kelly that they would attend the Bradshaw rally. Sergeant Kelly was upset by this lackluster response and made several remarks to the officers in the briefing room to the effect that they should support "Chief" Bradshaw, that Bradshaw had hired most of them, and that they should show their loyalty by supporting his candidacy for sheriff. Lieutenant Wills came into the briefing room in time to hear Sergeant Kelly's remarks about the lack of support for the Bradshaw candidacy, between 5 and 10 minutes before 5:00 p.m. By that time, more officers had assembled in the briefing room. Before the 5:00 p.m. briefing began, Lieutenant Wills read the PBA e-mail to the officers in the briefing room. Lieutenant Wills asked how many officers planned to attend the Bradshaw rally. Lieutenant Wills was disappointed when only a few officers indicated that they were going to attend the rally, and he said something to the effect that "Chief" Bradshaw had done a lot for the West Palm Beach Police Department.3 A police officer named Paul Creelman spoke up when Lieutenant Wills told the assembled officers about the Bradshaw rally, after one of the officers in the briefing room made a remark that a group of anti-Bradshaw officers were planning to show up for the rally. Officer Creelman remarked, "What time do they get there."4 Officer Creelman meant his remark as a joke. At the time he made the remark, Officer Creelman was sitting in the back of the briefing room; he was eavesdropping on the discussion between Lieutenant Wills and the officers at the front of the briefing room but was not one of the officers engaged in the discussion with Lieutenant Wills. Lieutenant Wills heard Officer Creelman's remark, but he did not respond to the remark. He went on to discuss other matters. In May 2004, Officer Creelman was assigned to the Neighborhood Enhancement Team ("NET"). Officer Creelman and the other NET officers were not members of Lieutenant Wills's squad and attended the 5:00 p.m. briefing as guests, primarily to gather officer safety information. Sergeant Luciano was the sergeant in charge of the night-shift NET officers, and Lieutenant Sargent supervised Sergeant Luciano and the NET officers. Lieutenant Wills had no direct supervisory authority over Officer Creelman. Officer Creelman was present at the 5:00 p.m. briefing for Lieutenant Wills's squad on May 17, 2004. During the briefing, Sergeant Kelly discussed problems that the squad was having with officers abusing sick leave by calling in sick when they wanted a few days off. Lieutenant Wills joined the discussion, and he was emphatic that he would not tolerate the abuse of sick leave by the officers in his squad because it left the squad short-handed and caused safety concerns. Lieutenant Wills discussed the police department's policies regarding sick leave, and, at one point, Lieutenant Wills stated that he had been the president of the PBA; that he knew how things worked; and that he would "fuck over" anyone who "fucked" with him about sick leave. Officer Creelman interjected a comment under his breath, saying "That's sad."5 Lieutenant Wills asked Officer Creelman to repeat his comment, and Officer Creelman did so. Lieutenant Wills demanded to know what Officer Creelman meant by the remark, and Officer Creelman told Lieutenant Wills that he considered his comment about using what he had learned as PBA president against his subordinate officers to be inappropriate. Lieutenant Wills was angry about Officer Creelman's remark and told Sergeant Luciano that he wanted to see him and Officer Creelman in his office after the briefing. When Officer Creelman and Sergeant Luciano came into his office, Lieutenant Wills expressed his anger about what he considered Officer Creelman's derogatory and disrespectful conduct towards him during the briefing. Lieutenant Wills told Officer Creelman that he did not want him "mouthing off" during his squad's briefing and that he thought Officer Creelman was a "smart aleck." To make the point that the incident on May 17, 2004, was not the first time Officer Creelman had "smarted off" to him, Lieutenant Wills told Officer Creelman that he had not forgotten his remark about the anti-Bradshaw rally. Lieutenant Wills then told Officer Creelman and Sergeant Luciano to leave his office. According to Officer Creelman, the reason Lieutenant Wills called him into his office was to address Officer Creelman's conduct in making inappropriate comments during the briefing of Lieutenant Wills's squad.6 Officer Creelman described Lieutenant Wills's manner during the time he was in Lieutenant Wills's office as "normal" and stated that Lieutenant Wills spoke in a low tone of voice.7 In a memorandum dated May 18, 2004, to Assistant Chief Van Reeth, Officer Creelman set out his version of the events that took place on May 10, 2004, regarding Lieutenant Wills's discussion of the Bradshaw rally; his version of Lieutenant Wills's conduct during the May 17, 2004, briefing; and his version of the meeting in Lieutenant Wills's office on May 17, 2004.8 In the May 18, 2004, memorandum, Officer Creelman requested permission to speak with Assistant Chief Van Reeth and the Chief of Police "so that we can all resolve this matter." On May 21, 2004, Officer Creelman filed a complaint against Lieutenant Wills regarding "the manner in which the Lieutenant spoke to officers in briefing." Officer Creelman's complaint was that Lieutenant Wills used "inappropriate language." A copy of Officer Creelman's May 18, 2004, memorandum was attached to the complaint form. Captain Olsen conducted the investigation of Officer Creelman's complaint against Lieutenant Wills, and she concluded that Lieutenant Wills used inappropriate language during the May 17, 2004, briefing when discussing the abuse of sick leave by members of his squad. Lieutenant Wills was disciplined for this misconduct with a verbal reprimand documented in his personnel file. Captain Olsen concluded after her investigation that Lieutenant Wills read the PBA e-mail before the May 10, 2004, briefing began, when Lieutenant Wills and the police officers he supervised were off duty. Because of this, Captain Olsen concluded that Lieutenant Wills did not violate any of the rules or policies of the West Palm Beach Police Department with respect to his remarks about the Bradshaw rally. Neither Lieutenant Wills nor any other member of the West Palm Beach Police Department is expected to enforce Florida's election laws as part of their duties as police officers, and no training with respect to the provisions of Florida's election laws is provided for police officers by the West Palm Beach Police Department or the Florida Department of Law Enforcement. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his professional capacity as a law enforcement officer. Lieutenant Wills has never run for public office or served as a committee chair, a committee treasurer, or a campaign treasurer for a candidate in a municipal, county, or state political campaign. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his personal, individual capacity. Lieutenant Wills was provided with a copy of the rules and regulations of the West Palm Beach Police Department, and he was aware in May 2004 that it was against the police department's rules and regulations for an officer to engage in or discuss political activities during work hours. Notwithstanding this policy, Bradshaw's candidacy for Palm Beach County Sheriff generated a lot of interest among the police officers and was a topic of general discussion at the police department, even when officers were on duty, because Bradshaw had been the Chief of the West Palm Beach Police Department until he retired in early 2004. Summary The evidence presented by the FEC is not sufficient to establish with the requisite degree of certainty that Lieutenant Wills willfully used his supervisory position, authority, or influence for the purpose of coercing or influencing the vote of any of the officers present during the discussion of Bradshaw's candidacy before the May 10, 2004, briefing or of affecting the result of the election for Palm Beach County Sheriff. The evidence presented reflects that none of the officers present in the briefing room prior to the May 10, 2004, briefing had a clear memory of the specific statements made by Lieutenant Wills, and the evidence is not sufficiently persuasive to support a finding of fact that Lieutenant Wills told the police officers assembled in the briefing room that they should support Bradshaw's candidacy for sheriff or that they should attend the Bradshaw rally. It cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reading the PBA e-mail or in making the statement to the officers that Bradshaw had done a lot for the West Palm Beach Police Department was to coerce or influence anyone present in the briefing room to attend the Bradshaw rally, to vote for Bradshaw, or to effect the results of the election for sheriff.9 Even if the evidence were sufficient to support a finding that Lieutenant Wills's purpose was to coerce or influence the officers to attend the Bradshaw rally or to support or vote for Bradshaw for sheriff, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills was aware that his actions violated Florida's elections laws or that he acted in disregard of the law. Evidence that Lieutenant Wills knew that the West Palm Beach Police Department rules and regulations prohibited him from engaging in political activities while on duty is not sufficient to support an inference that Lieutenant Wills should have been on notice that he should consult Florida's election laws prior to reading the PBA e-mail or making any remarks about Bradshaw's candidacy for sheriff. Finally, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills's purpose in telling Officer Creelman on May 17, 2004, that he remembered his remark about the anti-Bradshaw rally was to coerce or influence Officer Creelman's vote for sheriff or the affect the result of the election for sheriff. It is uncontroverted that Lieutenant Wills's purpose in calling Officer Creelman and Sergeant Luciano into his office on May 17, 2004, was to talk to Officer Creelman about his making disrespectful comments during the briefings of Lieutenant Wills's squad, and it cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reminding Officer Creelman of his remark was other than to illustrate Lieutenant Wills's point that Officer Creelman had been disrespectful during briefings on more than one occasion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing in its entirety the Order of Probable Cause entered against Thomas L. Wills on March 4, 2005. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2005.
The Issue Whether Petitioners' protest should be sustained?
Findings Of Fact Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program. SMSC is a Delaware corporation authorized to do business in the State of Florida. McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients. Garcia & Ortiz, P.A., is a Florida professional association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.) Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services."). On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC." The Request for Proposals On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years." The RFP contained the following statement of "purpose:" The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services: Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . . Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State; Process inquiries from holders and distribute information to holders of unclaimed property; Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners; Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department; Process claim forms received from apparent owners of unclaimed property; Process and issue payment on approved claims to the owners; Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial; Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . . Provide a security plan which protects the information on the ADPB [Abandoned Property Database] from unauthorized access or change, and; Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes. Provide an accounting of funds, reports and claims to the Department's satisfaction. The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made. Section V.E) of the RFP set forth various "special conditions," including the following: 2. Mandatory Requirements The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition. The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator. In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal. 5. Non-Valid Proposals, Non-Responsible Respondents Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible. Legal Requirements Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. 14. Assignment of Contract The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated. No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract. Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows: The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP. Section VI.A) was entitled "Award Notice" and provided as follows: Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract. Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows: Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes. Section VI.C) was entitled "evaluation team" and provided as follows: The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required. Section VI.D) was entitled "Evaluation Sheet" and provided as follows: The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared. The "evaluation sheet . . . found in Appendix I" listed the following awards:" "evaluation criteria" and "possible [point] ITEM POSSIBLE AWARD 1) References 2 2) Experience of Principals 2 3) Financial Statements 1 TECHNICAL SUBMISSION Notification of Holders and Holder Seminar 2 Holder Information 2 Annual Reports 2 Penalties and Extensions 2 Holder Information and Inquiries 2 Receipt of Reports & Reconciliation 3 Record Retention of Reports 2 Contacting Apparent Owners 1 Handling Inquiries 2 Origination of Claims 1 Receipt of Claims 1 Initial Processing of Claims 2 Processing and Payment of Claims 3 Exceptions 1 Tracking 1 Records 2 Automation 4 Security Plan 3 Implementation Plan 2 Disaster Recovery Plan 2 Reports Processing Flow Chart and Narrative Procedures 3 Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows: The evaluation process will take place in five phases: Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation Phase IV- Public Opening and Evaluation of Fee Schedules Phase V- Posting of Final Results Phase I Mandatory Documentation Worth 0 Points Total During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate. Phase IIA. Technical Evaluation Worth 50 Points Total During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP. Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators. B. Minority Business Participation Worth 10 Points Total If twenty-four percent or more of the Contract value- 10 points. If less than 24 percent, proposed percentage divided by twenty-four, times []103 No participation by Certified Minority Business Enterprises (CMBEs), no points The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting: Minority Business Advocacy and Assistance Office 107 Gaines Street Tallahassee, Florida 32399-0950 Telephone (904) 487-0915 The Contract Manager will average the points for each respondent upon completion of Phase II. Phase III Oral Presentations Worth 10 Points Total An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas: Vendor Qualifications (Project experience/project team qualifications) Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison) The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members. Phase IV Worth 30 Points Total The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97." When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)). The instructions for filling out the form are as follows: The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area; 16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process. For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and the proportional cost of equipment, supplies and maintenance. The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections. The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount. It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded. Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G. Comparison between Respondent[]s will take place at the bottom line (Block G) Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D. The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date. The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison. LC/PC x 30 = points for fee schedule In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider. In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K) The instructions for filling out the form are as follows: Example: Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points Phase V Posting Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350 Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows: For purposes of uniformity among proposals, documents must be arranged in this order. Original Form- PUR 7033 State of Florida- Request for Proposal Contractual Services Acknowledgment Designated Spokesperson for RFP The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP. Proof of Legal Entity Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency. Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda. Conflict of Interest This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation. Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place. The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner. The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization. The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project. Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity. Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II. Security plan Implementation plan in accordance with Appendix E Disaster recovery plan Reports and receipts processing flow chart and narrative procedures. Depict separation of duties. Claims processing and payment flow chart and narrative procedures. Depict separation of duties. Proof of insurability to $1,000,000.00 per employee theft or malfeasance. Drug Free Workplace Certification Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference. Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97" Addendum Acknowledgment Forms Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows: IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1. In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program. In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal. As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements. Offerors's Name: Signature Name- Typed or Printed Date Bidders' Conference A bidders' conference was conducted by the Department on February 4, 1997. Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4 Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference. The following discussion concerning the subject of subcontracting took place at the conference: Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP? Only those specifically addressed with Department approval. Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval? Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal. SMSC's Proposal SMSC submitted one of the two proposals the Department received in response to the RFP.5 SMSC's proposal contained the following statement concerning "minority business participation:" SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below. The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center. Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract. The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost." The Other Proposal The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was "[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6 Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company." The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows: McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . . Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . . McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . . Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . . State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . . Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:" I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. Section B. of the MGS Proposal contained the following statement: Designated Spokesperson for RFP Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7 In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street), in this section of the proposal. The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal: Compliance With Terms and Conditions of RFP I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda. Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows: Conflict of Interest Conflicts We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes. We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies. We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent (5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank. We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement. Litigation McGladrey & Pullen, LLP: . . . Garcia & Ortiz, PA: . . . State Street Bank: . . . The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal. Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows: Designated Work Site Within Florida We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award. Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling. Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations. Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success. Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee. In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location. Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm. In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal. Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal. The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal. Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section J. as "a division within State Street Bank & Trust Company.")8 In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided. Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank." Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement: The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A. Evaluation of the SMSC and MGS Proposals Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997. Phase IIA. A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit. SMSC's proposal received scores of 23, 48, 49, 50 and 47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure." The MGS Proposal received scores of 50, 45, 50, 50 and 44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48. Phase IIB. In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to $480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by 10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding." If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of the RFP, 4.16 points for Phase IIB. Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB. Phase III Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP. The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure." The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III, "rounded up" the MGS score (of 7.6) to 8. Phase IV Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure." Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.") Total Points for Phases IIA., IIB., III and IV According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal. Had the Department not used the "rounding" provisions of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal. Notice of Intended Award On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP. The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively. Petitioners' Protest On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet. On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.
Findings Of Fact Petitioner is a child assigned to Respondent's Youth Services Program. He was attending the Palm Beach Marine Institute/Florida Ocean Science Institute (FOSI) and living at home prior to January 13, 1983, when he was transferred to the Youth Development Center (YDC) in Okeechobee, a more restrictive facility. Petitioner was charged with violating his supervision agreement with Respondent by failing to attend classes at FOSI on January 4, 5, 6 and 7, 1953. A hearing before Respondent's program specialist was held where Petitioner was found guilty of the alleged violation and ordered to be transferred to the YDC. Petitioner concedes he was absent without cause in November, 1982. He had further absences in December due to illness where the required medical excuse was not timely furnished. As a result of the absences and apparent personality conflict with his instructor, Petitioner was told not to return to FOSI by an official of that facility on January 3, 1983. Therefore, Petitioner's absences on January 4, 5, 6 and 7, 1983, were not in violation of his supervision agreement.
Recommendation In consideration of the foregoing, it is RECOMMENDED: That Respondent enter a Final Order correcting Petitioner's record to reflect that his transfer to the Youth Development Center was not based on violation of his supervision agreement or other misconduct. DONE and ENTERED this 13th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1983. COPIES FURNISHED: Ms. Joan Solomini 3017 Grove Road Boynton Beach, Florida 33435 K.C. Collette, Esquire District IX Legal Counsel Department of Health and Rehabilitative Services 111 Georgia Ave., 3rd Floor West Palm Beach, Florida 33401 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a 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 School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S 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 20th day of March 2012.
Findings Of Fact Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification. Both Petitioner and the sole other applicant met the published/posted threshold qualifications. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3, Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred." In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15. 22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law. Respondent's PFOF: 1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 8, and 13: Rejected as subordinate and unnecessary. 9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order. COPIES FURNISHED: Harry Lamb, Jr., Esquire Perry & Lamb, P.A. 605 E. Robinson Street Suite 630 Orlando, Florida 32801 Marshall E. Wood, Esquire 303 Centre Street Suite 200 Post Office P Fernandina Beach, Florida 32034 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
