Findings Of Fact Prior to April 21, 1976, Gordon C. Barton had been employed by the City of Eustis Police Department for approximately six (6) years. At the time of his discharge in May, 1976, he had attained the rank of sergeant. As a sergeant, he was responsible for one of three patrol shifts, each consisting of three patrolmen. The City of Eustis Police Department consists of twenty-one (21) certified law enforcement officers and other support personnel. Authority over the department rests in the city manager under the city charter, while administration of the police department is the responsibility of the chief of police. The procedures governing, the employment relationship between and employee of the city and the city are set forth in the city charter (Respondent's Exhibit 14), the rules and regulations governing conduct, duties and procedures of Eustis Police Department (Respondent's Exhibit 13), and city ordinance 409 (Union's Exhibit 2). In February, after some discussion with his patrol sergeants, the chief of police had adopted a modification of the department's radio procedures. In early March, 1976, after some experience with the new procedures, Sergeant Barton discussed the subject of problems arising out of the change in radio procedures with Assistant Chief Horner. Horner suggested that Barton reduce his comments to writing because the chief was out of town and that Horner would present the matter to the chief upon his return. Barton authored the memorandum to the chief on March 3, 1976. The memorandum expressed concern with the safety and efficiency of the modified radio procedures. On the date the memorandum was prepared, Barton showed the memorandum to the sergeant relieving him who expressed to Barton the fact that he concurred in Barton's observations and wished to co-sign the memorandum. Barton assented to this and eventually the signatures of thirteen (13) additional police officers were placed on the back of the memorandum. On March 12, 1976, Sergeant Barton was called into Chief Burrows' office. Burrows asked Barton to express his views concerning the modified communications procedure. Sergeant Barton explained the problems that he and other were having with it. The chief criticized Barton for having publicized the contents of the memorandum by making it available to other officers for their signature. The chief's criticism of Barton for having allowed others to sign the memorandum caused an emotional exchange between the men. In late March, the chief learned from other police officers in the department that Sergeant Barton had solicited fellow police officers who were on duty in behalf of the West Central Florida Police Benevolent Association. In late March, the chief advised the city manager and city attorney that he desired to discharge Barton. He was requested by the city manager and city attorney to provide them with information on Barton's conduct upon which the termination was to be based. The chief prepared a memorandum to the city manager (General Counsel's Exhibit 3), and several meetings were held between the chief, city manager, and city attorney. Their evaluation of the grounds asserted by the chief for Barton's discharge resulted in a letter of discharge dated April 20, 1976, which was signed and delivered to Barton by the chief of police, prepared by the city attorney, and approved by the city manager. This letter was delivered to Barton on April 21, 1976, while Barton was waiting to go on duty at 3:00 P.M. When asked for some justification of his termination, Barton was told by Burrows that if Barton requested in writing the grounds for the discharge that Burrows would look it over. Notations on the memorandum prepared by the chief and submitted to the city manager and city attorney and the testimony of the city manager indicate that four of the paragraphs in the letter of discharge relate to the memorandum authored by Barton and signed by his fellow officers. Police Chief Burrows freely admitted that the preparation and submission of the memorandum signed by the police officers was one of she reasons for the termination of Barton. The City of Eustis is a public employer as defined by Chapter 447, Florida Statutes. The Charging Party, West Central Florida Police Benevolent Association, is a labor organization as defined under the act. The Charging Party was not the "organization", however, with which the public employer interfered. The organization which was interfered with was the group which signed the memorandum. It was not the group which was interfered with which brought the unfair labor practice charge.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Public Employees Relations Commission enter its order directing the following: That the City of Eustis offer Gordon C. Barton immediate and full reinstatement to his former position of employment, or if such employment no longer exists, to reemploy Barton in a substantially equivalent position without prejudice to his seniority or rights or privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Such back pay shall include interest at a rate of 6 percent per annum and computed quarterly and in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1949); Pasco Classroom Teacher's Association, PERC Case No. 8H-CA-754-1037 (Order No. 76U-875) (April 1, 1976); and Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice stating that all public employees have the right to form, join, and participate in, or to refrain from forming, joining, or participating in any employer organization of their own choosing and may not be discharged or otherwise discriminated against because of their exercise of these rights. DONE and ORDERED this 8th day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: C. Anthony Cleveland, Esquire Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Norman F. Burke, Esquire Van Den Berg, Gay & Burke, P.A. 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32801 Ben R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303
The Issue Whether the disciplinary action taken against Arthur Ray Campbell was for good cause.
Findings Of Fact Arthur Ray Campbell is a Career Service Employee of the State of Florida employed by the Division of Law Enforcement, Department of Natural Resources. He was suspended for a period of eleven (11) working days for using the blue light on a Marine Patrol vehicle to run a red traffic signal in Cross City. Campbell filed a timely appeal of his suspension with the Career Service Commission. On February 10, 1976, the Florida Marine Patrol was ordered by the Office of the Governor of the State of Florida to provide personnel for a special assignment in Pensacola, Florida. These personnel were to assist local law enforcement authorities in controlling a civil disturbance in that city which had resulted from racial tensions in one of the high schools. Pursuant to those orders, Lieutenant Colonel J. J. Brown of the Florida Marine Patrol directed Major Louis Shelfer, the staff officer in charge of the Marine Patrol Emergency Squad, to notify the District Offices of the Florida Marine Patrol to dispatch Marine Patrol Emergency Squad personnel to Pensacola. Major Shelfer was ordered by Colonel Brown to make certain that all supportive personnel understood that in their movement to Pensacola blue lights and sirens would not be used. Colonel Brown further instructed Major Shelfer to advise the various district offices that personnel were to move as quickly as possible to Pensacola and that he wanted the Emergency Squad in Pensacola the morning of February 11, 1976. Just prior to 5:00 p.m. on February 10, 1976 Major Louis Shelfer called each of the district offices from which Emergency Squad personnel were being dispatched to Pensacola and advised the officer in charge or the dispatcher that the personnel on the Emergency Squad, who were already on standby for movement, were to be dispatched to Pensacola. Major Shelfer further directed that these personnel were to move to Pensacola as soon as possible but were not to run blue lights or sirens. He further advised that there was no emergency existing in Pensacola at the time. Major Shelfer did not give a time by which personnel would report in Pensacola. It was, however, the understanding of Colonel Brown and Major Shelfer that all personnel would be in Pensacola by 6:00 a.m. on February 11, 1976. In District 7, Major Shelfer spoke with Mrs. Patricia Morgan, secretary/dispatcher. Mrs. Patricia Morgan, who is also the wife of Captain H. C. Morgan, Jr., the District Supervisor of District Seven, received Major Shelfer's first alert call for the movement of the Emergency Squad personnel of District 7 to Pensacola at 4:45 p.m. on February 10, 1976. Shortly thereafter, she received the second call from Major Shelfer directing that the Emergency Squad personnel would proceed to Pensacola. Upon receiving the second call Mrs. Morgan contacted Officers Malcolm and Johnson on the communications radio and advised them that they were to proceed to Pensacola as quickly as possible but not "1018" by which she meant it was not an emergency. Mrs. Morgan further instructed these Marine Patrol Officers not to run red lights while proceeding to Pensacola. She specifically instructed Officer Malcolm that he would pick up Officer Campbell who would ride with him to Pensacola. While Officer Malcolm remembered Mrs. Morgan's reference to red lights, neither Officer Malcolm nor Officer Schumaker, who monitored their conversations, remembered any information passed on by Mrs. Morgan that the trip was not a "1018" run or not an emergency run. Mrs. Morgan was initially unable to contact Officer Campbell by radio and therefore called Officer Campbell's home and spoke with his wife giving her the information that she had given Officers Malcolm and Johnson. However, while speaking with Officer Campbell's wife, Officer Campbell called District 7 on his radio and asked Mrs. Morgan if she had any information for him. She advised Officer Campbell at that time that he would be going to Pensacola and would ride with Officer Malcolm. Mrs. Morgan did not remember giving Officer Campbell any information on the use of lights during the trip, but said that she did remember telling him it was not a "1018" run. Officer Campbell states that the information he received ordered him to return to his home and get ready to be picked up by Officer Campbell and that the information he needed had been passed on to his wife and Officer Malcolm. At approximately 7:30 p.m. on February 10, 1976, having secured from Water Patrol, gone to his home and packed, picked up Officer Campbell at his home, Officer Malcolm left Daytona for Pensacola. Officer Malcolm drove to Ocala using blue lights, where the men purchased hamburgers for their meal. Officer Malcolm ate while Officer Campbell continued to drive and the two officers changed over when they stopped to get gasoline. Officer Campbell then drove from the vicinity of Ocala to Cross City. As they approached Cross City, Officer Malcolm advised Officer Campbell to turn on the blue light because they were slightly over the local speed limit entering Cross City. As they approached the second traffic light in town which was red, Officer Campbell stopped or came almost to a complete stop at the light. As he started to proceed forward, having made certain the intersection was clear, the traffic light turned green. Malcolm and Campbell continued on through Cross City using the blue light until they reached the open highway on the north side of the city. Officer Malcolm's car does not have a siren but is equipped with blue light only. On the evening of February 10, 1976 Trooper J. R. Touchton was proceeding south on U.S. 19 in Cross City at approximately 9:00 or 9:30 p.m. He observed a northbound automobile, which shortly after he initially saw it, turn on its emergency blue lights. Trooper Touchton, not immediately identifying the type of vehicle he had passed, called his dispatcher to determine if another Florida Highway Patrol vehicle was operating in the area because the car which he had passed was a marked state law enforcement car similar to those of the Florida Highway Patrol. Touchton thought that the car which he had passed was in the process of stopping a truck immediately ahead of him. Touchton executed a "U" turn and proceeded north but shortly after Touchton turned, the truck which Touchton had thought the other patrol car was stopping turned left off the highway and the patrol car in front of him proceeded north out of Cross City still using its blue lights. Touchton saw the patrol vehicle ahead of him slow down or stop at the second traffic light but did not observe whether the second traffic light was red or green when the vehicle proceeded through it. In response to Officer Touchton's call the Highway Patrol Dispatcher advised Touchton that the vehicle which he had observed was probably a Marine Patrol vehicle being dispatched to Pensacola. Sergeant J. D. Peacock was following Officer Touchton south on U.S. 19 in Cross City and first observed that later he identified as a Marine Patrol vehicle approaching the second traffic light in Cross City. At that time the Marine Patrol had its blue lights and emergency flashers on; however, it did not have its siren on. Sergeant Peacock observed the Marine Patrol vehicle slow or stop at the traffic light and then proceed through the traffic light headed north on U.S. 19. Both Highway Patrol Officers indicated that the Marine Patrol vehicle was driving within the posted speed limit. On March 5, 1976 personnel in the Cross City, Florida Marine Patrol Office brought to Colonel J. J. Brown's attention the fact that a Marine Patrol car had passed through Cross City on February 10, 1976 using blue lights. This had been brought to the attention of the Cross City Marine Patrol by the Florida Highway Patrol Supervisor in that area, Sergeant J. D. Peacock. Colonel Brown directed Major Shelfer to conduct an investigation into the matter. Major Shelfer contacted all of the district supervisors who had sent personnel to Pensacola and requested that they provide him with the times and routes of travel of personnel which had been sent to Pensacola. From an analysis of this data, Major Shelfer determined that only personnel sent from District 7 in Daytona to Pensacola would have passed through Cross City enroute to Pensacola at the hour in question. Having determined this Major Shelfer directed Captain Morgan, Supervisor of District 7, to have the personnel from District 7 who were sent to Pensacola prepare written reports on their trips to Pensacola. Officers Campbell and Malcolm prepared and submitted written reports to Captain Morgan which were received into evidence at the formal hearing as Exhibits 5 and 6 respectively. Based upon the investigation conducted by Major Shelfer, Officer Campbell was suspended. Employee evaluations were introduced that indicate that Officer Campbell's efficiency for the period of time involved here was downgraded as a result of the conduct for which he was suspended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer finds that substantial and competent evidence does not exist to show that the agency had good cause to suspend Officer Arthur Ray Campbell for insubordination. The Hearing Officer recommends that the suspension be set aside and further, that the Career Service Commission consider whether remedial action is necessary to clear his employee evaluation for the period in question. DONE and ORDERED this 4th day of February, 1977 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Kent A. Zaiser, Esquire Mrs. Dorothy Roberts Department of Natural Resources Appeals Coordinator 202 Blount Street Room 530 Carlton Building Tallahassee, Florida 32304 Tallahassee, Florida 32304 Melvin R. Horne, Esquire 800 Barnett Bank Building Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses charged in the Administrative Complaint concerning unlawfully committing a battery upon a person he had placed under arrest and, if so, what disciplinary action should be taken.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and enforcing the practice standards of law enforcement officers. The Respondent is a certified law enforcement officer being certified by the Criminal Justice Standards and Training Commission on May 12, 1986, and holding Law Enforcement Certificate No. 82811. He was employed by the DeFuniak Springs Police Department as a law enforcement officer during the period of October 29, 1985, until his termination on November 13, 1997. On April 12, 1997, Daniel Robertson was a passenger in a vehicle driven by his girlfriend. The vehicle was stopped by Officer James Burnham of the DeFuniak Springs Police Department for a traffic violation at approximately 3:00 a.m. When the officer approached the vehicle, he detected a strong odor of alcohol which he believed to come from the driver. He asked the female driver to step out of the vehicle and submit to a field sobriety test. Upon completion of the test, he placed her under arrest for driving under the influence of alcohol. While the officer conducted the field sobriety test on the driver, the passenger, Daniel Robertson, began arguing with Officer Burnham about the test and creating a verbal disturbance. Officer Burnham radioed for other officers to respond to the incident. Officers Travis Howell and the Respondent, Kenneth G. May, of the DeFuniak Springs Police Department, together with a civilian, Bradley Stafford, responded to Officer Burnham's call for assistance. Stafford was a civilian authorized by the police department to ride along with Officer Howell as an observer. Once his girlfriend was arrested, Mr. Robertson became concerned about driving the vehicle home, since he owned the pick-up truck in question. Officer Burnham advised him that if he could pass a sobriety test in the field, then he would be allowed to drive home. Officer Burnham administered two field sobriety tests to Robertson and advised him that he had failed both tests and could not drive his vehicle. Mr. Robertson began again loudly arguing with Officer Burnham, after being told to quiet down. Officer Burnham advised him that he was under arrest for disorderly intoxication and told him to place his hands behind his back. Mr. Robertson refused to place his hands behind his back and Officers Burnham, Howell and May, the Respondent, had to physically subdue Mr. Robertson as they attempted to handcuff him with his hands behind his back. Because Officer Burnham had already placed the female driver in the back seat of his patrol car, he asked the Respondent to transport Mr. Robertson to the county jail. The Respondent thereupon escorted Mr. Robertson to the Respondent's police car. Officer Howell followed the Respondent and Mr. Robertson but never physically touched Robertson. The Respondent physically placed Robertson into the back seat of the police car. Robertson was verbally complaining, using foul language, but did not physically resist being placed in the police car. Mr. Robertson continued to verbally complain and berate the Respondent until the Respondent finally slapped him one time in the face, while Robertson was seated in the car with his hands cuffed behind his back. Robertson was then transported to the Walton County Jail by the Respondent and charged with disorderly intoxication and resisting arrest without violence. Mr. Robertson continued to verbally complain to the Respondent, although he was not physically resistant or physically struggling with the Respondent. Once they were inside the jail with his hands still cuffed behind his back and in the presence of other officers, the Respondent sprayed Robertson in the eyes with pepper spray. Mr. Robertson was continuing to be verbally abusive at this point, but his hands were cuffed behind his back and he engaged in no physical contact with the Respondent. The Respondent maintains that he sprayed Mr. Robertson with pepper spray because Robertson was coming toward him in a threatening manner. This account of events is belied by the testimony of Officer Howell, however, which is more credible under the circumstances, as it is not self-serving and which is accepted. The Chief of Police of DeFuniak Springs, Mr. Ray Burgess, and the Assistant State Attorney, Clayton Adkinson, felt that an unbiased investigation was needed and therefore requested the services of the Florida Department of Law Enforcement to conduct the investigation into Mr. Robertson's complaint. Special Agent Carl Causey with the Florida Department of Law Enforcement (FDLE) was assigned to conduct an investigation into Robertson's complaint against the Respondent and did so. He interviewed numerous witnesses including Robertson, Officers Burnham and Howell, and the civilian who rode with Officer Howell on the night in question, as well as the Respondent. Respondent stated at his interview with Agent Causey that he told Officer Burnham that Mr. Robertson had intentionally kneed him in the groin while he was placing him into the police car and therefore Robertson should be charged with resisting arrest with violence. This statement was contrary to the statements of officers Burnham and Howell and Mr. Bradley Stafford. It is also contrary to the statements those three individuals made in their testimony at hearing. During Agency Causey's second interview with Officer Burnham, Officer Burnham denied that the Respondent ever told him that Robertson had kneed him during the process of getting Robertson into the patrol car. Upon completion of his investigation, Agent Causey filed an investigative report. Agent Causey also arrested the Respondent and charged him with two counts of battery on Mr. Robertson. The Respondent pled no contest to those charges in the Walton County Court and was adjudicated guilty on both counts of misdemeanor battery involving Mr. Robertson.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of a failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and as elucidated by the other authority referenced herein and that the Respondent's certification be subjected to a six-month suspension, followed by a one-year probationary period. DONE AND ENTERED this 4th day of March, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 P. MICHAEL RUFF 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 4th day of March, 1999. H. R. "Bob" Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
The Issue Petitioner protests the method by which Respondent Department of Transportation (DOT) advertised RFP-DOT-99/00-3002 and RFP-DOT-99/00-3003 and the specifications contained in the RFP's SCOPE OF SERVICES, Sections 1.7.2, 2.0-A, 14.0-A, 14.0-B, and 14.0-C.
Findings Of Fact The subject Requests for Proposal (RFPs) are RFP-DOT- 99/00-3002 and RFP-DOT-99/00-3003, commonly referred-to as the 2000 RFPs. These RFPs seek suppliers of security guards for rest areas and welcome centers maintained by DOT in its District III. That District currently is administered by "east" and "west" segments of Interstate Highway 10, with "east" corresponding to RFP 3003 and "west" corresponding to RFP 3002. NYCO is a supplier of security guard services for industrial, health care, general, and retail establishments in Florida, Alabama, and Mississippi. Ken Chandler is Administrator and Operational Manager for NYCO. Since 1994, NYCO has bid on DOT RFPs for the same project and has provided security guard services for District III. Generally speaking, security guards are non-skilled persons who work at or near minimum wage. Higher standards for its security guards imposed by prior DOT contracts requiring law enforcement training and certification have resulted in NYCO paying off-duty law enforcement officers at a considerably higher rate of pay to work at DOT's facilities. The 2000 RFPs constitute "contractual services contracts" governed by Chapter 287, Florida Statutes. They also are "standard scope of services contracts," which means they are developed on a statewide basis with District input. NYCO's first contract with DOT was awarded July 1, 1994, for two years. The second was awarded July 1, 1996, for two years. For the first contract, specifications were mailed to Mr. Chandler three months in advance of the bid submittal date. For the second contract, NYCO, as the incumbent contract holder, was notified that specifications were ready for pick-up. NYCO had to submit a written request for the RFP package. The 1999 RFP was advertised on the Florida Communities Network (FCN) and, according to Richard Norris, DOT District III Contract Administrator, RFP packages also were sent to all proposers for the prior contract because he had promised to do so when that set of bids had all been rejected. Apparently, no such promise was made for the 2000 RFPs. (TR-103). FCN is a website maintained by the Florida Department of Management Services for the purpose of advertising public contracts. During the course of NYCO's most recent contract, NYCO employee Joe Huff regularly checked with DOT personnel to ensure that the security which NYCO was already providing was going along well. Both Mr. Chandler and Mr. Huff assumed NYCO would be alerted during these conversations as to when it could request the specifications for the next round of contracts, the 2000 RFPs. DOT employee Lloyd Tharpe submitted technical aspects of the 2000 RFPs to Richard Norris on or about December 23, 1999. Mr. Huff testified that he made contact with DOT personnel, including Mark Thomas, Tom Williams, Charlie Ward, Rufus Baron, and Milton Blake, on February 7, February 14, February 15, February 21, and February 29, 2000. While Mr. Huff maintained that on nearly every occasion he asked if the DOT employee to whom he was speaking knew when the new RFP specifications would be ready, his testimony on the precise contents of these conversations is a little vague. He based his recollection on notes in his day planner which merely listed the name of a city, and he then assumed that he spoke with whomever he usually contacted in that city. He could not recall the exact content of these conversations. None of the foregoing DOT employees corroborated that they had been asked about the 2000 RFP specifications by Mr. Huff. It was not established that any of Mr. Huff's contacts were with DOT's procurement office, which Mr. Huff knew advertises the RFPs. DOT District Maintenance Engineer Mark Thomas stated that he only became aware on or about February 29, 2000, that the 2000 RFP was being advertised. Mr. Huff was told on February 29, 2000, by Mark Thomas that the 2000 RFPs were "on the street" and that the mandatory pre-bid conference would be held March 2, 2000. NYCO attended the mandatory pre-bid conference for the 2000 RFPs on March 2, 2000. On March 3, 2000, NYCO timely filed its Notice of Intent to Protest the specifications of the 2000 RFPs. The deadline for submitting proposals in response to the 2000 RFPs was March 9, 2000. NYCO submitted a bid proposal timely, but found it difficult to prepare in such a short time frame. On March 13, 2000, NYCO timely filed its Formal Written Protest of certain specifications of the 2000 RFPs. The specifications challenged in this case were developed by the Department's State Maintenance Office. They read as follows: 1.7.2 Qualifications of Key Personnel Those individuals (as identified in Section 12 of Exhibit "A" Scope of Services) who will be directly involved in the project should have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Contract Manager. Where State of Florida registration, certification, or license is deemed appropriate, as identified in Exhibit "A" Scope of Services, a copy of the registration, certificate, or license shall be included in the proposal package. 2.0-A Services to be Provided by Contractor A. Provide uniformed, armed Security Officers licensed pursuant to F.S. 493, to provide security services. 14.0 Eligibility Criteria All Security Officers and Contract Supervisors employed by the Contractor under this Contract are required to meet the following requirements. Training Requirements: Must be a graduate of a certified United States federal, state, county, or local law enforcement agency training program, a correctional officer training program, a military police training program, or an equivalent training program, which presented the individual with the appropriate certificate or diploma stating eligibility for employment as a Law Enforcement or Correctional Officer. Law Enforcement Officer and Correctional Officer shall be defined in Sections 943.10(1) and (2), Florida Statutes. The Contractor is encouraged to seek services of security guards licensed pursuant to Chapter 493, F.S., who are former members of the armed forces of the United States and have been affected by military downsizing or base closures, and shall be further encouraged to contact community colleges or other educational institutions which provide training for security guards for candidates meeting these qualifications. Licensing Requirements: Contract Supervisors and Security Officers, while on duty, must possess upon their person and present to Department personnel upon request the following: State of Florida Class "D" License (security guard license). State of Florida Class "G" License (license authorizing individual to bear a firearm). State of Florida Driver's License or other State Driver's License which permits the individual to operate a vehicle in the State of Florida. No Security Officer will be permitted to work under this contract using an Acknowledgement Card from the Department of State. A Security Officer or Contract Supervisor employed as a Law Enforcement Officer or Correctional Officer must have documentation showing proof of current employment and approval from his/her employing agency or department to carry a firearm during off-duty hours in his/her capacity as Security Officer and Contract Supervisor. The manner of advertising the 2000 RFPs also was challenged. For the 2000 RFPs, DOT did not advertise in newspapers or the Florida Administrative Law Weekly and did not mail specifications to incumbent contractors or to a list of potential bidders. DOT only advertised the 2000 RFPs via FCN from approximately February 1, 2000 to March 6, 2000. According to Richard Norris, the Department is required by statute to advertise projects on FCN. He cited neither statute nor rule to support his conclusion. He stated that there are many other or additional ways DOT may advertise a project and that advertisement by FCN is only the minimum requirement. He was not aware of any current statutory or rule requirement that DOT directly notify potential bidders for this type of RFP. However, he stated that if he were approached directly by a potential bidder, he would tell that potential bidder about the RFP over the phone. To develop scope of services contracts such as the 2000 RFPs, Alan Reese, the Department's State Contracts and Agreements Manager, directs the gathering of information from the Department's Districts or other sources, develops a draft, receives input from each District as to the draft, and the draft is reviewed throughout the Department, including its legal office, until finally the State Maintenance Engineer signs-off on it. In this instance, the bid specifications were intended to create a uniform and consistent statewide system that was understandable to the bidders. Lloyd Tharpe and his staff were responsible for mailing out the RFP packages as they were requested by potential bidders after the first advertisement approximately February 1, 2000. No active intent or effort by DOT staff to obscure NYCO's opportunity to bid was proven. The 2000 RFPs require that to be a security guard of DOT facilities, one must be qualified to be hired as a law enforcement officer or correctional officer as defined in Subsections 943.10(1) and (2), Florida Statutes. (RFP Section 14.0-A). The training qualifications to be hired as a law enforcement officer under Chapter 943 are higher than those imposed by a Class "D" security guard license from the Department of State pursuant to Chapter 493, Florida Statutes. The 2000 RFP specifications also require that to be a security guard of DOT facilities one must have a Class "D" or Class "G" (if a gun is carried) license from the Department of State, pursuant to Chapter 493, Florida Statutes (RFP Section 4.0-B.1 and 2). DOT interprets the foregoing RFP requirements to mean that even currently employed Florida law enforcement officers and correctional officers must also be licensed by the Florida Department of State as Class "D" or Class "G" security officers. DOT is aware of an exemption in Chapter 493, Florida Statutes, permitting law enforcement officers to act as security guards without obtaining a Class "D" license from the Department. As far as the 2000 RFPs are concerned, the exemption may not be exercised. A 1996 DOT Inspector General's internal audit report identified individuals with questionable backgrounds working for security firms which had already contracted with DOT. The report concluded that the background checks that the then- existing contracts required the contract security firms to perform had been unsatisfactory. The report recommended that the security firms do more extensive background checks on their employees. DOT did not want anybody guarding tourists, especially women and children tourists, who had not gone through a thorough background check. DOT apparently felt it could not rely on the security firms to do background checks on their employee-guards. DOT determined that it did not have authority or ability to do its own background checks, so it decided to rely on the Department of State, which did have authority and ability to do background checks. Mark Thomas understood that once an application for a Class "D" or "G" license has been received by the Secretary of State, an FDLE criminal background check is conducted by the Florida Department of Law Enforcement (FDLE), and an acknowledgment card is sent by the Department of State to the applicant which states that the applicant may perform security guard services while carrying the card. However, Mr. Thomas ultimately admitted that he did not know anything at all about Department of State background checks. His "understanding" was not corroborated by Ms. Constance Crawford. Constance Crawford is the Bureau Chief for the Bureau of Licensing, Department of State. She handles the administrative responsibilities associated with the review of security guard applications pursuant to Chapter 493, and Sections 790.06 and 849.094, Florida Statutes. According to her, the Department of State will issue Class "D" and Class "G" security guard licenses to law enforcement officers. Ms. Crawford provided no information about the Department of State's security guard background checks. In developing the 2000 RFPs, DOT decided not to accept Department of State acknowledgement cards because DOT staff believed that acknowledgment cards were issued by the Department of State to applicants before a national background check (also called an NCIC check) was completed through the Federal Bureau of Investigation (FBI). No DOT witness had knowledge of how Department of State, FDLE, or FBI background checks are performed. Mr. Chandler testified that NYCO's problem with the RFPs' requirement for law enforcement officers to have Class "D" and/or Class "G" licenses before they are employed at DOT's interstate facilities was due to the time it takes to get Class "D" and "G" licenses issued by the Department of State, which can be anywhere from a few weeks to several months, and because it is very difficult for NYCO to retain potential employees for that long before they are placed on the jobsite. He testified that NYCO would have no problem if the employees could be certified in three days. Mr. Chandler testified that the letters of authorization required by DOT in specification 14.0-C differed from the language employed in Chapter 493, Florida Statutes, and that many law enforcement agencies had refused to sign the form letter provided by DOT because those law enforcement agencies interpreted the letters to make the law enforcement agencies liable for anything done by the law enforcement officer, on or off-duty. DOT's approved form letter reads: Dear Sirs: is an employee of this Department and has the approval of this Department to carry a fire arm during off- duty hours in his/her capacity as a Security Officer and/or Contract Supervisor at the Florida Department of Transportation Rest Areas/Welcome Centers within the Third District. Sincerely, Name Title
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation which rejects all bids and provides that the specifications be redrafted in accordance with the foregoing Findings of Fact and Conclusions of Law. DONE AND ENTERED this 22nd day of August, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 22nd day of August, 2000.
