The Issue Whether the Department of Juvenile Justice (DJJ or Department) acted illegally, arbitrarily, dishonestly or fraudulently in the rejection of all proposals for the Better Outlook Center request for proposals.
Findings Of Fact The Department has responsibility for the custody and treatment of delinquent youth in the State of Florida. As part of that responsibility, the Department sought proposals for a halfway house program to be located in Dade County, Florida (District 11). This program, also known as the Better Outlook Center (BOC), will provide residential beds for twenty-eight male juveniles who are considered a moderate risk to public safety and require a structured residential community. The Department advertised a request for proposal (RFP) for the BOC project, RFP #K6P07, on January 24, 1997. Subsequent to the general mailing of the RFP packet, the Department received twelve proposals for the BOC project. Among those proposals, the Petitioner, Haynes Services Corporation, was awarded the highest score. In a telephone conference call conducted in February, 1997, the Petitioner’s CEO was advised of his apparent highest ranking but was asked to lower the per diem rate. Petitioner agreed to the amendment. Subsequently, upon further review of the matter, the Department determined it had not included criteria which would consider quality assurance performance on similar programs, third party reviews, or past performance. The Department determined that these criteria should be included in all RFP evaluations and set about to draft language incorporating these provisions into new RFP instructions. These new criteria would be applicable throughout the state and would be applied to review all applicants for programs awarded through the DJJ. Concern over the new criteria arose because the Department was advised that Petitioner had failed quality assurance requirements at another project. Thus, while the Department had considered Petitioner’s proposal for the subject project well articulated, it became concerned regarding Petitioner’s ability to perform as represented. In order to place all applicants on an even playing field for consideration of this project as well as others where this issue might arise, the Department determined that all applicants should submit records of past performance. The results of past performance and quality assurance ratings would then be a factor to consider before awarding future projects. Accordingly, all proposals which had been submitted for the BOC RFP at issue were rejected. On or about March 7, 1997, all applicants who had submitted proposals for the BOC project were notified that the Department intended to re-advertise the RFP with new criteria. The Petitioner was not awarded a contract for the subject RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the challenge to the rejection of all bids for RFP #K6P07. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH 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 8th day of May, 1997. COPIES FURNISHED: Calvin Ross Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Kaydell Wright-Douglas, Esquire The Wright Building 110 North Armenia Avenue, Suite A Tampa, Florida 33609 Scott C. Wright, Esquire Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Are the intended contract awards by the Department of Juvenile Justice (Department) to Intervenor, Ramsay Youth Services, Inc. (Ramsay) under Request for Proposal (RFP) Numbers J5G01 and J5G02 contrary to the Department's governing statutes, applicable rules or policies, or the specifications of the RFPs?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Background On March 29, 2002, the Department issued RFP No. J5G01 for the operation of a 350-bed residential commitment program for high-risk males in Polk City, Florida (Polk Program). On April 5, 2002, the Department issued RFP No. J5G02 for the operation of a 74-bed, multi-level residential commitment program in Homeland, Florida (Bartow Program). CSC is the incumbent provider for both the Polk and Bartow Programs. On or about April 25, 2002, two proposals were submitted in response to the RFP for the Polk Program, one from CSC and one from Ramsay. On or about May 3, 2002, four separate proposals were submitted by CSC, Ramsay, Sescuricor New Century (Securicor), and Lighthouse Care Center (Lighthouse) in response to the RFP for the Bartow Program. On June 25, 2002, the Department posted separate notices of its intent to award contracts for the Polk and Bartow Programs to Ramsay. The Notice of Intended Contract Award for the Polk Program (RFP No. J5G01) lists Ramsay as the highest-ranked bidder with 655.3 average points, and CSC as the second-ranked bidder with 537 average points. The Notice of Intended Contract Award for the Bartow Program (RFP No. J5G02) lists Ramsay as the highest-ranked bidder with 590.3 points, followed by Securicor with 542.7 average points, CSC with 535.7 points, and Lighthouse with 233.3 points. All parties stipulated to the Department's scoring of the past performance portion of both CSC proposals. With the exception of Item C-3.7, all parties stipulated to the Department's scoring of the past performance portion of both Ramsay proposals. With regard to Item C-3.7, the parties stipulated the Department's scoring for Ramsay should have reflected 60 additional points because Ramsay's Manatee Adolescent Treatment Services program (Department's Contract No. F7027) met or exceeded the approved Performance Based Budgeting performance measure for recidivism for the past two years. In light of the corrections for Item C-3.7, Ramsay's total average score for the Polk Program should have been 715.3 (i.e., 655.3+60), compared to CSC's score of 537. Likewise, for the Bartow Program, Ramsay's total average score should have been 650.3 (i.e., 590.3 + 60), compared to CSC's score of 535.7. The Process Since at least the end of 2001, the Department has utilized two procurement methods: one provides for the scoring of costs; the other does not because the RFP specifies a fixed maximum contract price. When the fixed price method is used and costs are not scored the Department conducts a so- called "negotiation phase" after issuing notice of intent to award the contract. During the so-called "negotiation phase," the Department and offeror determine such things as the unfilled bed rate and maintenance rate, but the Department does not negotiate material terms of the technical proposal or allow the selected offeror to modify its proposal. The Department does not allow the selected offeror to increase the cost or price included in its proposal. However, if an error is discovered in the selected offeror's budget, the budget can be adjusted to redistribute expenses from one line item to another, so long as the proposed services are provided and the proposed cost or price is not exceeded. If the Department is unable to complete execution of the contract because the selected offeror is unable to provide the program services within the contract set forth in its proposal, the Department moves on to negotiate with the next offeror. Use of the "fixed price" procurement method has enabled the Department to reduce procurement process from 180 to less than 120 days on average, and often as low as 60 days. Speeding up the procurement process helps to ensure that services will continue to be provided and that legislatively appropriated funds do not go unused and, as a result, become subject to forfeiture. This is important because the State has a "waiting list" of committed youth who require program services. The "fixed price" method also allows the Department to place its principal emphasis on the quality of programs offered. In this case, the RFPs for both programs contemplate fixed priced contracts. Each RFP specifies a maximum contract dollar amount that the Department will award for each contract. The dollar amount is a "fatal criterion," meaning that any proposal with a cost exceeding that amount would be rejected. Both RFPs required each offer to submit a technical proposal (Volume I) setting forth an introductory statement and specific sections describing the offeror's management capability, the offeror's past performance, and the program services being offered. Both RFP's required offerors to submit financial data (Volume II) including, among other things, a total cost or price for the program and an itemized budget. The total costs submitted by Ramsay and CSC did not differ significantly; the difference was less than one dollar for the Polk Program and only two dollars for the Bartow Program. Both RFP's provided that zero points would be assigned for costs or price, indicating that costs or price would not be scored. Instead, the primary scoring criteria are "program services" and "past performance." Together, these criteria reflect 700 out of the 1000s total points available. Nothing in the RFPs requires the Department to evaluate budget details in conjunction with its review of the technical proposals prior to the notice of intended award. The Department uses the budget information primarily as a baseline to assist it in moving through the "negotiation phase." It enables the Department to determine if specific costs would not be incurred or not allowable. It enables the Department to negotiate the unfilled bed rate, which allows the Department to reduce the contract rate to account for costs that would not be incurred for beds that are not occupied. It also forces offerors to determine whether they can provide the required services within the maximum price before they submit proposals. Based on a Department document entitled "Briefing for SSET Team Members and Advisors," CSC claims that the "RFP Process" requires the Department to evaluate proposed costs for realism, reasonableness, and completeness. The "Briefing" document does state that "the contract administrator is responsible for evaluating the cost proposals of each offeror for completeness, reasonableness, and reality using the COST [PRICE] PROPOSAL EVALUATING form. However, the "Briefing" document is not a part of the RFP's and does not reflect official Department policy. The "Briefing" document is merely a guideline. In this case, the Contract Administrator, Marvin Floyd, did not sign the "Briefing" document and did not score or perform an extensive analysis of the specifics of the proposed budgets for realism, reasonableness, and completeness. However, Marvin Floyd did review each cost proposal to determine whether it included a total cost or price and whether the budget information in Attachment H was filled out. In that sense, Marvin Floyd did review the cost proposal for completeness. Similarly, Marvin Floyd also reviewed the proposed costs and price to determine whether it exceeded maximum contract dollar amount, which the Department had previously determined to be realistic and reasonable. In that sense, Marvin Floyd did review the costs or price for realisms and reasonableness. CSC failed to demonstrate that the evaluation process utilized by the Department provided a competitive advantage to Ramsay. To the contrary, the same evaluation process and guidelines were used for both CSC and Ramsay. Ramsay's Proposed Budget Based on isolated statements made in Ramsay's technical proposal and a review of Ramsay's budget, CSC's senior Vice President, Paul Donnelly, opined that Ramsay's proposal was somewhat "naïve" and a "virtual primer . . . for a novice[.]" However, Donnelly opinions must be weighed in light of the fact that CSC received "minimal performance" and "noncompliance" ratings for both the Polk and Bartow Programs in the latest Department Quality Assurance reviews. Furthermore, Donnelly himself testified in deposition that Ramsay submitted an "impressive technical proposal." The record demonstrated that Ramsay is an experienced provider that currently operates nine programs for the Department, including the Department's only contracted maximum-risk program. CSC contends that the budget included in Volume II of Ramsay's proposal for the Polk Program is not realistic, reasonable, or complete because it did not include specific line items for certain direct expenses, including start-up costs, overtime, employee expenses, and taxes, as well as certain indirect expenses, such as insurance and corporate overhead. CSC failed to demonstrate that the RFP specifications or the Department policy requires such budgetary detail. Moreover, Ramsay's Chief Operating Office, Jorge Rico, explained that Ramsay's budget did address most of the costs identified by CSC in other, more general line items. Whereas CSC's budget was more specific as to some items, Ramsay's budget was more specific as to others. For example, Ramsay included a specific line item for recruiting, but CSC addressed this expense in the general category of corporate overhead. Similarly, Ramsay included specific line items for nursing staff, whereas CSC addressed nursing staff in the general category of medical services. CSC also faulted Ramsay for not including start-up or "transition" costs in its budget for the Polk Program. But had such a line item been included, it would have been eliminated during the so-called "negotiation phase" because the Department does not allow start-up costs for existing programs. CSC's argument that Ramsay should have budgeted these costs amounts to a claim that CSC should be given a competitive advantage because, as the incumbent provider, CSC would not incur transitional costs and, therefore, would have no reason to budget them. Such an advantage would be contrary to competitive principles by favoring the incumbent provider over other offerors. The primary indirect expense that CSC criticized Ramsay for not including in its budget is corporate overhead. As Rico explained, however, corporate overhead is a fixed cost that will not increase with the addition of a new program. Ramsay made a business decision to put whatever funds that might be allocated as corporate overhead into the program itself. CSC claims that Ramsay cannot provide the services outlined in its proposal without incurring a loss. Rico acknowledged that Ramsay likely would incur losses for at least the first year of the programs, as is common when a new provider takes over an existing program. However, whether or not a provider makes a profit on a program is not the Department's concern and is not an award criterion. In fact, when corporate overhead is allocated as CSC suggests Ramsay should have in its budget, CSC itself incurred losses on both Polk and Bartow Programs over the twelve-month period ending July 2002. In its totality, the evidence indicates that the budgets submitted by Ramsay and CSC differ due to differences in management styles. Those differences do not render Ramsay's budget unrealistic, unreasonable, or incomplete. The differences in total costs proposed by CSC and Ramsay were negligible. In any event, budgets are estimates, actual expenses never match budget line items. The evidence does not support CSC's claim that Ramsay will need to make material changes to its budget in order to provide the program services at the cost or price set forth in its proposal. Ramsay is committed to providing the services described in its technical proposal at the cost set forth in its cost proposal. Staffing Ratio Based on a statement in Ramsay's technical proposal, CSC suggests that Ramsay would not meet the staffing ratios required for the Polk Program. However, Ramsay's technical proposal clearly states in bold lettering that Ramsay "will meet staffing requirements documented in the RFP (1:8 days and evening; 1:12 nights)." Moreover, Ramsay's budget includes enough positions and dollars to meet the required staffing ratios. In fact, with regard to "youth workers," who provide the core of the program staff, Ramsay's budget includes considerably more positions (186 full time equivalent or "FTEs"), than does CSC's budget (120.9 FTEs). Instructions to Evaluators CSC failed to demonstrate that the Department failed to provide its evaluators with specific and legally sufficient instructions regarding the scoring of proposals. To the contrary, the scoring sheets provided to the evaluators contain specific and detailed instructions on how each scoring criterion was to be evaluated. For example, in evaluating "Programs Services," the scoring sheets advise the evaluators to assess "soundness of approach" and "compliance with requirements" as follows: SOUNDNESS OF APPROACH: (Does the proposal reasonably and logically identify the proposed approach to perform the services as specified and required by the RFP, Attachment G, Exhibit 1, Scope of Services?) COMPLIANCE WITH REQUIREMENTS: (The degree to which the proposal complies with the requirement specified and required by the RFP, Attachment G, Exhibit 1, Scope of Services)(Does the proposal comply with all requirements for all service components, as identified in Attachment G, Exhibit 1, Scope of services, of the RFP?) The evaluators were then required to provide a numeric score ranging from 5 to zero. The scoring sheets provide specific criteria for determining the appropriate numeric score. For example, an "excellent" score of 5 would be appropriate if "[t]he proposal exceeds all technical specifications and requirements for all program components (and it) is innovative, comprehensive, and complete in every detail." Other Issues CSC failed to prove its allegations that the Departments' scorers evaluated and scored the proposals inconsistently or incorrectly or that the Department deviated from the RFP criteria in evaluating and scoring the proposals. CSC also failed to demonstrate that the Department's reduction in the number of beds for the Bartow Program from 74 to 50 beds after issuance of the RFP provided an unfair advantage to Ramsay or was otherwise contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing CSC's protests and awarding the contracts to Ramsay pursuant to RFP Nos. J5G01 and J5G01 as originally proposed. DONE AND ENTERED this 29th day of October, 2002. Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2002. COPIES FURNISHED: Brian Berkowitz, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 James C. Hauser, Esquire Warren Husband, Esquire Metz, Hauser and Husband, P.A. Post Office Box 10909 Tallahassee, Florida 32302-2909 Gary V. Perko, Esquire Hopping, Green, Sams & Smith 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 R. Terry Rigsby, Esquire Law Offices of R. Terry Rigsby, P.A. 215 South Monroe Street, Suite 505 Tallahassee, Florida 32301 Gary P. Sams, Esquire Hopping, Green, Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechern, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Respondents The School Board Of Marion County, Florida (Board) discriminated against Petitioner, Dorothy Quibell because of her race while employed with the Board.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a white female who was employed by Respondent as a substitute custodian on January 27, 1987. Petitioner was hired as a four-hour custodian at Howard Academy Community Center (Howard) on February 10, 1987. During Petitioner's employment the Board offered her, on more than one occasion, an eight-hour night-time custodial position but Petitioner declined any night-time position because she needed to be at home at night. During Petitioner's employment with the Board she continued to request assignment to an eight-hour day-time custodial position. At no time during Petitioner's employment with the Board did any supervisor complain of the quality of her work. On May 9, 1988, Juanita P. Cunningham, Program Manager for Howard Academy Community Center, who is black, wrote a letter to Petitioner criticizing her punctuality and reliability. There was insufficient evidence to show that Ms. Cunningham's criticism of Petitioner was unjustified. On May 13, 1988, Glen Cook, Area Coordinator of Custodial Services, issued a written reprimand to Petitioner with regard to her absence from work and failure to contact Ms. Cunningham of Petitioner's absence. There was insufficient evidence to show that the reprimand was unjustified. During the same time period that Petitioner was employed and received her reprimands, disciplinary actions were taken against eleven custodial employees within the school system, two of whom are white and nine of whom are black. Jack D. Copeland, Jr., Supervisor of Custodial Services, who is white, offered, and Petitioner agreed to, a re-location to Shady Hill Elementary School (Shady Hill) on a trial basis as an eight-hour day custodian with the understanding that the job included learning to drive a tractor and mowing twenty acres. Petitioner was re-located to Shady Hill on or about June 27, 1988. It is customary practice in the school system for eight-hour day custodians to be located in schools on a trial basis subject to final approval by the principal. This trial period does not mean that an employee who has reached permanent status is placed back on probationary status but, only that the assignment is on a trial basis so that a principal can determine if the custodian is compatible with the administrative staff, teachers and students of that school. The eight-hour day custodian who was located at Shady Hill on a trial basis prior to Petitioner was black and was transferred out for disciplinary reasons. Petitioner was returned to Howard from Shady Hill on or about August 28, 1988 at the request of Charles McAulay, principal of Shady Hill, who is white, after an unsuccessful trial period due to her constant questioning of whether the requested task was within her description and general attitude about performing her job. After Petitioner was returned to Howard from Shady Hill, she was given the opportunity to interview for a custodial position at Fort McCoy School, but was not selected for that position. The custodian selected for the position at Fort McCoy School was white. Petitioner was neither requested nor required to perform duties at Howard or Shady Hill other than those duties included in the job description for a custodial position. While it is clear from the record that Petitioner continually questioned her immediate supervisors in regards to whether a particular duty assignment was within her job description, sometimes even going to a higher level of supervisor, it is also clear from the record that the responses given by the supervisor did not always clarify the situation for the Petitioner. Therefore, because of this continuous questioning by Petitioner the supervisors concluded that she did not have a "good attitude" about her work. Regardless of the supervisor's opinion concerning Petitioner's attitude toward her work, Petitioner continued to perform her duties as a custodian up to and sometimes exceeding standards and, was treated no differently than other custodial employees of Board.
Recommendation Based on the foregoing Findings of Fact, the Conclusions of Law, the evidence off record, the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Florida Commission On Human Relations enter a final order denying relief to the Petitioner, Dorothy Quibell, and dismissing her Amended Petition. DONE AND ENTERED this 20th of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5252 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has presented her Proposed Findings of Fact by categories and they will be addressed in the same fashion. Category 1: Exhibits 3, 4 Cunningham & Cook's Reprimands. 1, 2, and 3 (numbered 2). Rejected as not being supported by substantial competent evidence in the record. Category 2: Tape Recording FCHR. a. - d. Rejected as not being part of the record. Category 3: Notarized Statement. 1, 2(a-b), 3(d-e)(there was no a-b), 4, and 5. This mostly a restatement of testimony or questions asked in the transcript but if considered as findings of fact where possible they would not be material or relevant or would be unnecessary. But see Findings of Fact 14, 15 and 16. Category 4: Important Facts Concerning the Transfers. 1.-14. Same as for Category 3 above. But see Findings of Fact 11.-16. Category 5: Job Schedule. 1.-5. Same as for category 3 above. But see Findings of Fact 15 and 16. Category 6: Job Description. 1.-4. Not supported by any substantial competent evidence in the record. Category 7: Contradictions in Testimony. 1.-11. Same as for Category 3 above but additionally they are not supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-15. Adopted in Findings of Fact 1, 2, 6, 7, 8, 4, 9, 10, 11, 13, 12, 13, 14, 15 and 17, respectively. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dorothy Quibell, Pro Se 5914 Northwest 56th Place Ocala, Florida 32675 Janet W. Behnke, Esquire 121 Northwest Third Street Ocala, Florida 32670
The Issue Whether Respondent, Department of Juvenile Justice (“Respondent” or “Department”), is liable to Petitioner, Tequilla Lockwood (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact The Department is a criminal justice agency of the State of Florida, whose mission is to increase public safety by reducing juvenile delinquency through effective prevention, intervention, and treatment services, designated to strengthen families and turn around the lives of troubled youth. See § 20.316, Fla. Stat. Petitioner is a Black female, age 61,2 who has been employed by the Department as a secretary specialist, in career service, in the Office of 2 Respondent’s age is as stated in her Petition filed on September 10, 2020. Probation and Community Intervention (“Probation”), Northwest Region, Circuit 2, since February 9, 2007. Petitioner was hired as a secretary specialist, in Position No. 80019949, at an initial salary of $20,734.74, or $797.49 biweekly. State Personnel System The Department is a state agency in the State Personnel System (“SPS”), which is the employment system for the Executive Branch of state government and its applicable pay plans. Section 110.2035, Florida Statutes, authorizes the SPS classification and compensation program for positions in the career service, selected exempt service, and senior management service. In addition, Florida Administrative Code Rule 60L-31, Classification Plan, addresses management of the classification system, and rule 60L-32, Compensation and Benefits, addresses management of salary and other benefits. “Compensation” within the SPS is governed by section 110.2035, as is the classification system. In addition, rule 60L-32 establishes the policies and procedures applicable to all occupations in the SPS. In the broadband system of the SPS, pay is determined through a salary range or pay band. Pay bands establish the lowest base pay and the highest base pay for a particular class code. The pay band for a Department secretary specialist is $797.49 to $1,379.66 biweekly, or an annual salary from $20,734.74 to $35,871.09. Upon appointment, a state agency sets an employee’s base rate of pay within the pay band for the broadband level to which appointed. See Fla. Admin. Code R. 60L-32.001. An agency may increase an employee’s base rate of pay within the established pay band at any time, based upon documented justification, provided funds are available for the increase, and the increase is not specifically prohibited by law. See Fla. Admin. Code R. 60L-32.0011. Pursuant to the “DJJ Delegation of Pay Authority,” effective July 1, 2016, and the “DJJ Spending Guidelines for FY 2019-2020,” effective July 1, 2019, Respondent authorizes increases to an employee’s rate of pay for a variety of reasons, including added duties and responsibility, receipt of a competitive job offer, and merit. A position with a Competitive Area Differential (“CAD”) designation is one that has been approved by the Department of Management Services (DMS) and the Legislature to receive a pay additive which is designed to attract and retain workers in geographical areas where other employers pay comparatively more for similar jobs. See Fla. Admin. Code R. 60L-32.0012(1)(h). Allegation of Paycut Prior to her employment with the Department, Petitioner was employed by the Department of Children and Families (“DCF”) as a data entry operator, at a salary of $20,478.38, or $787.63 biweekly. When Petitioner was hired by the Department, although she was hired at the lowest base pay for a secretary specialist, she received a slight increase in salary ($256.36) from her prior position with DCF. Allegation of Failure to Increase Compensation During her employment, the Department has increased Petitioner’s annual salary. On October 1, 2013, her salary was increased to $22,134.84. On October 1, 2017, her salary was increased to $23,534.94. As of January 10, 2020, Petitioner’s base rate of pay was $905.19 biweekly. As of October 1, 2020, Petitioner’s base rate of pay is $943.66 biweekly. Based upon a biweekly base pay of $943.66, paid 26 times in a year, Petitioner’s current annual salary is $24,535.16. Allegation of Discrimination in Starting Salary At the time Petitioner filed her Complaint alleging that younger, White secretary specialists were being hired at a greater rate of compensation, Petitioner offered no comparators. As a result, the EEO Officer, Aldrin Sanders, conducted a statewide data comparison for Department secretary specialists. As of January 9, 2020, the Department had 84 employees in secretary specialist positions. Of those employees, one was Asian, 41 were Black, nine were Hispanic, and 33 were White. Mr. Sanders determined that Petitioner’s salary was higher than all secretary specialists hired after her, with the exception of four—one Black and three White—whose salaries were equal to that of Petitioner. Mr. Sanders further determined that all 34 secretary specialists whose salaries were higher than Petitioner’s—18 of whom were Black, five Hispanic, and 11 White—were hired before Petitioner. Furthermore, five of those with higher salaries were part of the 2010-2011 Statewide Workforce Reduction efforts and were demoted from other positions to the secretary specialist position, and one was a voluntary demotion with a five percent decrease in salary pursuant to spending guidelines. Additionally, the data obtained by Mr. Sanders indicated that, on average, secretary specialists who are 40 years of age or older made $63.45 more than their counterparts who are 39 and under; and Black secretary specialists, on average, made $8.09 more than their non-Black counterparts. At the final hearing, Petitioner identified particular Department secretary specialists as comparators for her claims of unlawful discrimination. She highlighted specific positions from the spreadsheet listing the Department’s secretary specialists statewide, which was included as a part of Mr. Sanders’ report. Petitioner also submitted into evidence screenshots about employee salaries from the website, “Florida has a Right to Know,” https://www.floridahasarighttoknow.myflorida.com/search_state_payroll. The secretary specialist in Position No. 80004540 is a Black female, 26 years old, who was hired by the Department on November 9, 2018, at a starting base pay rate of $877.24 biweekly. That rate is higher than Petitioner’s starting base pay rate of $797.49 biweekly in 2007. That position is in Probation Circuit 11, Dade County, as of November 7, 2020. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist in that position has an annual salary of $25,077.26, higher than Petitioner’s current salary of $24,535.16. The secretary specialist in Position No. 80048017 is a Black female, 37 years old, who was hired by the Department on August 16, 2019, at a base pay rate of $877.24 biweekly. The secretary specialist in that position was initially hired by the State of Florida on December 7, 2007, but the evidence is insufficient to determine which agency previously employed her, her position title, or her salary. That position is in Probation Circuit 17, Broward County, as of September 5, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having a current annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. The secretary specialist in Position No. 80002854 is a Black female, 37 years old, who was hired by the Department on November 9, 2018, at a base pay rate of $877.24 biweekly. That position is in Probation Circuit 15, Palm Beach County, as of November 6, 2018. According to the screenshot from “Florida Has a Right to Know,” the secretary specialist is reported as having an annual salary of $24,077.04, which is lower than Petitioner’s current annual salary. According to a screenshot from “Florida Has a Right to Know,” a secretary specialist in Position No. ***002456, by the name of Kenneth David Devilling, assigned to Department Community Interventions & Service, purportedly earns $29,050.84. That position is not in Probation. Petitioner introduced no competent evidence on which to base a finding of either the race or age of that particular secretary specialist. When an employee is hired, they negotiate their salary with the hiring manager. Determining an employee’s salary is a subjective process. Managers can adjust starting salaries within the pay bands based on consideration of many factors, including the type of appointment; the knowledge, skills, and abilities (“KSAs”) required of the position; the KSAs possessed by the employee; difficulty in recruitment for the position; geographic location of the position; years of service and experience of employees; licensure; certification and registration requirements; collective bargaining agreements; layoff, etc. These factors are not to be considered all- inclusive, and each appointment or employment decision may vary because of the different factors from one situation to another. Regional Structure of Probation Probation is divided into North, Central, and South regions. Probation North region is further divided into Northeast and Northwest regions. The Northwest region encompasses judicial circuits 1, 2, 3, and 14. Gwen Steverson has served as Northwest Regional Director for Probation since March 2019. Ms. Steverson reports directly to Assistant Secretary Paul Hatcher, who supervises and manages Probation statewide. Ms. Steverson’s duties and responsibilities include assisting the assistant secretary in directing and operating all activities within the Probation Northwest region; ensuring that Probation’s programs are administered in accordance with applicable laws, rules, and regulations; managing her assigned circuits; and managing all human resource decisions. Ms. Steverson has three counterparts: Jill Wells, regional director for Probation Northeast; Cathy Lake, regional director for Probation Central; and Wydee’a Wilson, regional director for Probation South. Each regional director has ultimate responsibility for the Probation regions, and the judicial circuits therein, to which they are assigned. Secretary specialist positions in the South Region are subject to a CAD to account for cost-of-living differences in that region, compared with Central and North. The record does not contain competent evidence to determine the amount of the differential. Ms. Steverson has ultimate management authority only in Probation Northwest for recruitment, selection, hiring, and salary offers to job candidates and pay raises to employees. She has no management authority in the other Probation regions or in any other Department program areas with respect to job candidates and employees. Likewise, other Department managers have no authority concerning job candidates and employees in Probation Northwest. Petitioner is employed as the sole secretary specialist in Probation Northwest, Circuit 2, Gadsden County Office, in Quincy, Florida. There are other secretary specialist positions in Circuit 2, and the Northwest Region more broadly, but the evidence was insufficient to determine how many positions and to which circuits they are assigned. Petitioner’s duties and responsibilities as secretary specialist include the following: managing the office; serving as a receptionist for Probation Circuit 2 by receiving and routing all incoming calls; receiving and directing visitors; ensuring that office supplies are maintained and stocked; performing background juvenile records checks for law enforcement and/or other agencies; running monthly caseloads and distributing daily court dockets to supervisors; performing data entry tasks, including maintaining required tracking logs, such as Pre-Disposition Reports (PDS) and Rep-Release Notification (PRN) logs, and entering “at larges” in the Juvenile Justice Information System (JJIS); and performing other duties as assigned. Ms. Steverson has management authority over Juvenile Probation Officers (“JPOs”) in the Probation Northwest Region. The duties and responsibilities of a JPO differ greatly from those of a secretary specialist. Key JPO duties are case management of a youth and their family, including understanding the court process; attending court for a youth that has been arrested; arranging for all assessments, whether mental health or substance abuse, to determine the needs of the youth and the family; making referrals to Department contract providers, based upon the results of the assessments; ensuring that all court-ordered sanctions are completed by the youth; filing violations of probation; conducting face-to-face visits; working with the schools; and carrying the youth through the process. The qualifications for JPOs differ from those for a secretary specialist. A JPO must have a bachelor’s degree; successfully complete the JPO Academy Certification process within the first 180 days of employment; obtain certifications in Protective Action Response (PAR), Cardiopulmonary Resuscitation (CPR), and First Aid; and be trained in the Detention Risk Assessment Instrument (DRAI). A secretary specialist in Probation is required to have a high school diploma and is not required to successfully complete the trainings or obtain the certifications required for a JPO. Petitioner complained that she was performing the functions of a JPO, for which additional compensation was due her, such as interpreting arrest affidavits, “at larges,” entering charges in the Department system for four counties, documenting status of prior cases in the case notebook, etc. However, Petitioner did not prove that these tasks were outside of her assigned job duties. Ms. Steverson testified, credibly, that Petitioner has not been working “out of class,” that is, Petitioner has not been performing job duties above and beyond those in her position description.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that the Department of Juvenile Justice did not discriminate against Petitioner, Tequilla Lockwood, based upon either age or race, and dismiss Petition for Relief No. 2020-21773. DONE AND ENTERED this 13th day of January, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Tequilla Y. Lockwood 351 Carter Road Quincy, Florida 32351 Debora E. Fridie, Esquire Department of Juvenile Justice Suite 3200 2737 Centerview Drive Tallahassee, Florida 32399-3100 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which Petitioner claims to be substantially affected by an agency statement that allegedly violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns two sentences at page 11 of a pamphlet generated by Respondent, which is entitled "Florida's Educational Opportunities for Students with Sensory Impairments (2000)(the DOE Pamphlet)." The two sentences state that the Florida School for the Deaf and the Blind (FSDB) is an available educational option for sensory-impaired children in Florida.
Findings Of Fact Background Congress enacted the Individuals with Disabilities Education Act (IDEA) "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. Section 1400 (d)(1)(A). As a condition to IDEA funding, each state must have a policy in effect that executes the principal goal of the Act, which is to assure "all children with disabilities [have] the right to a free appropriate public education." 20 U.S.C. Section 1412(1). In 1997, Congress substantially amended IDEA. On March 12, 1999, regulations were published at Part B of Part 34 of the Code of Federal Regulations (CFR), implementing the 1997 IDEA amendments. The IDEA, as amended, is implemented in Florida at Section 230.23(4)(m), Florida Statutes, and Chapter 6A-6, Florida Administrative Code. IDEA’s centerpiece is the "individualized education program" (IEP), which is a detailed statement "summarizing the child’s abilities, outlining the goals for the child’s education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 173 (3d Cir. 1988). The IEP provides special education and related services tailored to the child’s unique needs and designed to provide the child with a "free appropriate public education." 20 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13, 300.15, 300.344-300.347; Section 230.23(4)(m)5, Florida Statutes; Rule 6A-6.03028, Florida Administrative Code. A team including the child’s teachers, local education agency representatives and the child’s parents creates the IEP; 20 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule 6A-6.03028, Florida Administrative Code. Both IDEA and the parallel Florida Statute state that special education students should be educated with non-disabled peers "to the maximum extent appropriate," and that separate classes or schooling should be used if "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." See 34 CFR Section 300.550 and Section 230.23(4)(m)6, Florida Statutes. Placement must be determined on a child-by-child basis. Section 230.23(4)(m), Florida Statutes, generally identifies the educational options available for sensory- impaired children in Florida, including FSDB. That statute is implemented in pertinent part by Respondent at Rules 6A-6.03014, and 6A-6.03022, Florida Administrative Code, which set school district admissions criteria for visually impaired and dual- sensory impaired children, respectively. One of the options listed in the statute is FSDB. Section 230.23(4)(m)3, Florida Statutes. Section 242.3305, Florida Statutes, states the "responsibilities and mission" for FSDB. In pertinent part, it provides that FSDB educates "hearing-impaired and visually impaired students in the state who meet enrollment criteria." Rule 6D-3.002, Florida Administrative Code, implements that statute by setting forth the "Admission and Enrollment Requirements" for FSDB. The DOE Pamphlet was generated in 1997, and amended in 2000, to explain the special education options available to parents of sensory-impaired school-age children in Florida. The Parties Petitioner is a nine-year-old student who is legally blind and otherwise developmentally impaired. He resides in St. Johns County, Florida, and attends classes for the sensory- impaired offered by the St. Johns County School District. His parents moved from Belize in September, 1999, for the express purpose of enrolling Petitioner at FSDB. Respondent is the head of the state agency that published the DOE Pamphlet. FSDB is a state school that, pursuant to Section 242.3305, Florida Statutes, maintains a residential program for educating sensory-impaired children in Florida. The Factual Background The Petition asserts that Petitioner’s parents moved to St. Johns County in 1999, where they "chose to enroll the Petitioner in the . . . FSDB . . . as described in the DOE Pamphlet." The Petition notes that FSDB declined to accept Petitioner. The Petition further states Petitioner then filed multiple due process petitions pursuant to Section 232.23(4)(m), Florida Statutes, which "yielded an offer by FSDB that the Petitioner be evaluated over an extended period in a temporary assignment at FSDB." Thereafter, "As the parents’ choice of enrollment was denied by FSDB, Petitioner’s parents enrolled the Petitioner in the local St. Johns County School District." The Petitioner further states that he later sought County support for placement at FSDB, which was rejected because the County believed it could adequately educate Petitioner. The records of DOAH adequately set forth the factual background. Petitioner was denied admission to FSDB when he applied in 1999. Thereafter, his parents filed a due process petition to contest the FSDB denial (DOAH Case No. 99-493OE). Petitioner and FSDB entered into a Settlement Agreement, which allowed Petitioner to enroll at FSDB on a "temporary assignment basis for extended evaluation [in] accordance with Rule 6D- 3.002(4) . . ., for a period of 90 school days within which time [Petitioner] will participate in the educational program as established by the IEP team." The Petitioner dismissed his case, however, for reasons not apparent in this record, the child’s parents opted not to enroll their son in the school. On January 19, 2000, Petitioner’s parents again filed a request for a due process hearing, alleging that they made a "unilateral mistake" in entering into the first Settlement Agreement. (DOAH Case No. 00-0348E). On March 1, 2000, Petitioner and FSDB entered into another Settlement Agreement (the Second Settlement Agreement). The Second Settlement Agreement provided for the same 90-day temporary assignment, which would commence on the first day of the 2000-2001 school year. That agreement also provided that Petitioner could contest any decision made by FSDB after the temporary assignment. The Petitioner then dismissed his petition. On July 9, 2000, Petitioner filed a third request for due process hearing against FSDB (DOAH Case No. 00-2871E). It alleged that both settlement agreements denied rights under the IDEA, violated FSDB’s admissions rules, and the Second Settlement Agreement was an attempt by FSDB to "circumvent the requirements of law." Petitioner requested a hearing to determine "their conformity to both IDEA and FSDB Rule 6D." On August 8, 2000, DOAH dismissed the case on two grounds. First, Petitioner failed to allege a dispute subject to DOAH review, because Petitioner "clearly stated his intent to continue his enrollment in the public schools of St. Johns County . . .," and further stated his satisfaction with that school system. Final Order in N.H. v. F.S.D.B., Case No. 00- 2871E at p. 3. Second, it was dismissed because the Second Settlement Agreement barred the action. Id. at p.3, et seq. That order was not appealed, and became final. Petitioner filed a fourth due process petition on August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP meeting set for August 8, 2000, which was set by FSDB to implement the Second Settlement Agreement. Petitioner later withdrew that request. FSDB has repeatedly stated, and continues to maintain, that it will excuse the terms of the Second Settlement Agreement to allow Petitioner to remain in the St. Johns County School District. Alternatively, FSDB continues to state Petitioner may temporarily enroll at FSDB pursuant to the Second Settlement Agreement. The Current Case Petitioner filed the instant rule challenge on January 21, 2001. His father received a copy of the predecessor 1997 version of the DOE Pamphlet in August 2000, from a representative of the Dade County School District. He asserts the following two sentences constitute an unpromulgated rule in violation of Section 120.56(4), Florida Statutes: Parents in Florida have the right to choose the educational setting they consider most appropriate for their child who has a hearing or visual impairment. FSDB is an option in the continuum of placement for the education of students with sensory impairments. The Petition claims Petitioner is adversely affected by the two sentences due to the following three injuries: (1) his "parents were denied the right to choose the educational setting they feel most appropriate for their child"; (2) his sensory-impaired peers attend FSDB; and (3) the St. Johns County School District loses funding for special education of sensory- impaired children because most local parents of sensory-impaired children choose FSDB over the District. At the hearing, Petitioner presented the testimony of two employees of the Respondent, Shan Goff and Margot Palazesi. Both testified that the Respondent promulgated the DOE Pamphlet as an informational document for parents and others dealing with sensory-impaired children in Florida. Ms. Goff testified that DOE generates a multitude of similar brochures and pamphlets. She further stated that there is no relation between funding of FSDB and funding of local school districts’ special education programs. The DOE Pamphlet is clear. At page 3, the DOE Pamphlet distinguishes between mandatory education of sensory- impaired children in school districts and discretionary admissions at FSDB: School districts must provide educational programs to each eligible student who has a sensory impairment, beginning on the student’s third birthday and continuing until the student’s 22nd birthday or until the student graduates with a standard diploma, whichever comes first. * * * For students between the ages of 5 and 22 who have sensory impairments and who meet enrollment requirements, the FSDB provides educational and co-curricular programs, support services, day school and residential programs. Immediately following the two challenged sentences, the DOE Pamphlet advises: Interested parents may contact the School’s Parent Information Office for information regarding admission . . . There is no evidence that the DOE Pamphlet, read in pari materia, is inconsistent with the laws, regulations, or policies of the federal government.
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.
Findings Of Fact On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients. The proposals submitted by Petitioner and Intervenor were responsive to the RFP. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department." Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner. DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C. COPIES FURNISHED: Dominic Amadio, Esquire 100 34th Street North Suite 305 St. Petersburg, Florida 33713 Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 William F. Bowman 2410 East Busch Boulevard Suite 303 Tampa, Florida 33612 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Introduction On February 26, 1988 respondent, Department of Health and Rehabilitative Services (HRS), through its District IX office, advertised a Request for Proposal (RFP) in the Florida Administrative Weekly inviting qualified and interested organizations and vendors to submit proposals for the designation of an Area Agency on Aging in District IX. The designation would run from May 2, 1988 through the end of the calendar year but the successful vendor could be expected to be redesignated in subsequent years. According to the advertisement: Proposals will be received by District IX until 12:00 p.m., EST, March 24, 1988, for the designation of an Area Agency on Aging authorized under Title III of the Older Americans Act as amended, within the jurisdictional areas of Martin, St. Lucie, Indian River, Okeechobee and Palm Beach Counties. * * * Contract awards will be based on approximately 75 percent federal funds, 11 percent general revenue and 14 percent local matching funds. * * * Written inquiries concerning the Request for Proposals will be received until 4:00 p.m., EST, March 11, 1988. A Bidders Conference, to review the proposed format and contract award process, will be held on March 4, 1988. * * * Under this proposal, HRS intended to award the contract to the best qualified firm since price proposals were not being submitted. To this extent, the proceeding differs from the typical state project where the contract is ordinarily awarded to the lowest and most responsive bidder. In response to the above RFP, petitioner, Banyan Area Agency on Aging, Inc. (Banyan), timely submitted its proposal. As it turned out, Banyan was the only organization that filed a bid. After being reviewed by a seven person evaluation committee, the proposal was given a score of 480 out of a possible 1525 and a recommendation that it be rejected. This recommendation was later adopted by the District Administrator. This decision was conveyed to petitioner by letter dated April 4, 1988. That prompted a request for hearing by petitioner to challenge the preliminary agency action. As grounds for contesting the action, petitioner contended the agency was arbitrary and capricious in rejecting its proposal. If its preliminary action is sustained, HRS intends to seek authority from the Department of General Services to negotiate a noncompetitive bid. Under this process, HRS desires to designate, after a screening process, one person from each of the five counties to serve on the board of a corporation to be established to run the program. Thus, HRS does not intend to readvertise the RFP and seek competitive proposals a second time. The Contract The contract in question is funded principally through federal grant dollars under the federal Older Americans Act of 1965, as amended. The monies, commonly known as Title III funds, are used to provide programs for senior citizens. Respondent is the State agency charged with the responsibility of administering the program funds. To receive federal funds, HRS was required to prepare a state plan and submit it to the U.S. Commissioner on Aging for his approval. A part of that plan calls for HRS, or District IX in this case, to designate an area agency on aging (AAA) to plan and administer a comprehensive and coordinated system of services for the aging in the five county area of Palm Beach, Okeechobee, Indian River, Martin and S. Lucie Counties. Among other things, the local AAA must develop an area plan for supportive services, senior centers and nutrition services in the five county area. The AAA will receive $300,000 to cover administrative costs in administering the program and will be in charge of dispensing several million dollars annually in grant dollars for aging programs. District IX had previously designated Gulfstream Area Agency on Aging (Gulfstream) as its AAA. However, due to a combination of faulty management, lack of supervision and other factors, Gulfstream was designated as AAA in May, 1987. Since then, HRS has received several waivers from the Commissioner on Aging but now faces a mandate to designate a District IX AAA by October 1, 1988 or lose its federal funding. To avoid a recurrence of the Gulfstream problem, the HRS District IX contract manager, and several other district personnel, prepared a comprehensive RFP to be issued in conjunction with the selection of a new AAA designee. After a draft was assembled at the local level, the RFP was forwarded to HRS' Tallahassee office where further refinements were made. The final product has been received in evidence as petitioner's exhibit 9 and respondent's exhibit 11. According to the District IX contract manager, the RFP is the "state of the art" in terms of what an AAA ought to be. The RFP is a voluminous document, weighing some 6 1/2 pounds according to Banyan, and requires a great deal of information and detail regarding the AAA organization, procedures, and program plans and goals to satisfy the federal act. The RFP was given to interested organizations, including Banyan, around March 1, 1988. This gave vendors approximately three and one-half weeks to prepare and submit a proposal. Only Banyan was interested in being the designee and thus was the only bidder on the job. Its proposal contained 135 pages. Evaluation Process HRS created a seven person evaluation committee to review the proposals. The committee included five HRS employees and two non-HRS members. All members were given Banyan's proposal prior to the selection date. On March 28, 1988 the committee met and each member independently evaluated Banyan's proposal. Although a top score of 1525 was theoretically possible, Banyan received an average overall score from each There of 480, or a rating of approximately thirty-one and one half percent. After the scores were tallied, Banyan was given one hour to orally explain its proposal before the full committee. At the conclusion of the presentation, the committee voted unanimously to reject the proposal. The reasons for rejecting Banyan's proposal are set forth in respondent's exhibit 2. The three primary deficiencies, as broadly stated, were the "proposal did not develop ideas fully enough to demonstrate a clear understanding of the needs and conditions of the District IX 60+ population," the proposal "did not demonstrate a clear understanding of the role and responsibility of area agency on aging nor was there evidence of administrative capability,' and (c) the proposal "did not offer assurance that current board members fully understood their position as the governing board." At hearing, several members of the committee amplified on the above three shortcomings and pointed out specific deficiencies in Banyan's proposal which led them to reject the proposal. For example, the proposal failed to focus on areas outside of Palm Beach County, did not contain a proposed budget, lacked minority representation, failed to fully identify goals and objectives, did not include a detailed description of the fair hearing process and the make- up and procedure of the advisory council and omitted the corporation's bylaws. Given these deficiencies, and others, HRS was justified in rejecting the bid. Petitioner's Case Petitioner contends that three and one-half weeks was too short a time to prepare a responsible proposal to the RFP. In this regard, HRS acknowledged it was a lengthy RFP, but it considered the time adequate for a qualified and experienced organization, particularly since much of the RFP was reference material. Banyan also pointed out that its board of directors was made up of highly qualified people with impressive work experience. While this is true, as evidenced by testimony at hearing, none were experienced in managing a federally funded program of this magnitude. Banyan further stated that, after the proposal was filed, it could have corrected or expanded on many of its abbreviated responses. However, once the proposal was filed, such changes were impermissible. Finally, Banyan conceded that while many of its responses were brief and nonspecific, this was because Banyan intended to rely upon HRS for technical assistance to implement the programs. However, the RFP called for specific, detailed responses so that HRS could properly evaluate the proposal. Allegations of Bias or Impropriety There is no evidence that the committee acted unfairly or improperly during the evaluation process or that any eber was personally biased towards Banyan. There is also no evidence that HRS rejected the bid so that it could "control" the management of the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the protest filed by petitioner be DENIED and that a Final Order be entered confirming the rejection of petitioner's proposal. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 1988. COPIES FURNISHED: Mr. Colman B. Stein 100 Worth Avenue Apartment 416 Palm Beach, Florida 33480 Laurel D. Hopper, Esquire 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is, pursuant to a Pre-Hearing Stipulation and Contingent Settlement Agreement, whether a statement made by Respondent, Tarence Robinson, on April 13, 1999, was obtained freely and lawfully by law enforcement.
Findings Of Fact Petitioner, the Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), is created within the Florida Department of Law Enforcement by Section 943.11, Florida Statutes. The Commission is charged with the responsibility for, among other things, the certification and revocation of certification of officers, instructors, and criminal justice training schools in Florida. Respondent, Tarence Robinson, has been certified as a correction officer in the State of Florida since November 15, 1991, having been issued Correctional Certificate Number 73013. On April 13, 1999, Lawrence Taddeo, a detective with the City of North Miami Police Department (hereinafter referred to as the "Police Department"), spoke with Mr. Robinson by telephone and asked him to meet with Detective Taddeo about allegations by Mr. Robinson's step-daughter that he had sexually battered her. Mr. Robinson agreed to Detective Taddeo's request and voluntarily went to the Police Department's offices where he met Detective Taddeo. Mr. Robinson arrived at about 11:00 a.m. Upon his arrival, Mr. Robinson was interrogated by Detective Taddeo and Scott Croye, another detective with the Police Department. Mr. Robinson was voluntarily interrogated. Before questioning Mr. Robinson, Detective Taddeo explained the nature of the investigation and advised Mr. Robinson of his "Miranda" rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Robinson indicated that he understood his rights, agreed to waive those rights, and signed a form titled "North Miami Police Department Advice of Constitutional Rights Before Interview" (hereinafter referred to as the "Miranda Rights Waiver Form"). The Miranda Rights Waiver Form includes the following warning and questions: BEFORE YOU ARE ASKED ANY QUESTIONS, YOU MUST UNDERSTAND YOUR RIGHTS. You have the right to remain silent. You need not talk to me or answer my questions if you do not wish to do so. . . . . Should you talk to me, anything you say can and will be introduced into evidence in court against you. . . . . If you want an attorney to represent you at this time or at any time during questioning, you are entitled to such counsel. . . . . If you cannot afford an attorney and so desire, one will be provided without charge. . . . . _ DO YOU FULLY UNDERSTAND THE ABOVE STATEMENT OF YOU RIGHTS? . . . . ARE YOU WILLING TO ANSWER QUESTIONS WITHOUT THE PRESENCE OF AN ATTORNEY AT THIS TIME? . . . . After the each of the foregoing questions, Mr. Robinson checked "Yes" indicating that he understood his rights and that he was willing to proceed with the investigation without an attorney. Following the foregoing questions and under the statement "THIS STATEMENT IS SIGNED OF MY OWN FREE WILL WITHOUT ANY THREATS OR PROMISES HAVING BEEN MADE TO ME," Mr. Robinson placed his signature and the date, April 13, 1999. His signature was witnessed by Detectives Taddeo and Croye, who also signed and dated the Miranda Rights Waiver Form. Mr. Robinson, who holds a college degree, in fact understood his constitutional rights and knowingly waived them before giving his April 13, 1999, statement. After having been properly advised of the nature of the allegations against him and his constitutional rights, Mr. Robinson proceeded to freely, without promise, threat, or coercion, answer questions posed by Detectives Taddeo and Croye concerning the allegations that had been made by his step- daughter. The interrogation began at approximately 11:15 a.m. and continued until shortly after 1:00 p.m. At no time did Mr. Robinson indicate that he wanted to assert his constitutional rights to remain silent or to have an attorney present. A little after 1:00 p.m., Mr. Robinson agreed to give a tape recorded statement. Mr. Robinson was placed under oath at the commencement of the tape recorded statement. At no time during the recording of his statement did Mr. Robinson indicate that he wished to assert his constitutional rights to remain silent or to have an attorney present. At the end of Mr. Robinson's recorded statement, Mr. Robinson was placed under arrest by Detectives Taddeo and Croye pursuant to an arrest warrant. Mr. Robinson's April 13, 1999, statement is admissible in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement, Criminal Justice Standards and Training Commission, requiring that Tarence Robinson voluntarily relinquish his certification within 30 days of entry of the final order and provided, that should he fail to do so, his certificate be revoked. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 April, 2003.
The Issue The issue in this matter is whether Petitioners are entitled to attorneys’ fees pursuant to Section 120.595(3), Florida Statutes (2006), and Section 57.105, Florida Statutes (2006).
Findings Of Fact In Peter J. Singhofen, P.E., and Streamline Technologies, Inc. v. Board of Professional Engineers, DOAH Case No. 05-3674RX, Petitioner challenged the validity of Florida Administrative Code Rule 61G15-22.011(2), promulgated by Respondent. The Rule generally denied owners of technology, such as computer software programs the ability to qualify a course, taught by the owner on the technology, from qualifying for continuing education credit. The published purpose of the rule was to prevent a continuing education provider from having a conflict of interest. Petitioner filed an Affidavit detailing the hours and work performed in the rule challenge care and requesting fees in the amount of $15,750. Respondent also submitted an Affidavit from an expert supporting the hours, work, and fees requested as reasonable. In the underlying case, the record contained some evidence of some meaningful discussion by the Board supporting the Rule. The discussion primarily reflected that the Board’s desire was to prohibit and prevent “shill” courses from receiving continuing education credit. Significantly, the Board had previously denied applications for continuing education providers proposing to offer “shill” courses. However, the record did not contain any evidence that the Board considered whether the Rule was consistent with NCEES guidelines as required by statute. There was no discussion or finding by the Board prior to engaging in rulemaking that a continuing education provider who taught about technology over which he or she had a commercial interest would be engaging in a conflict of interest or be inconsistent with NCEES guidelines. Additionally, the published purpose for promulgating the Rule was admitted to be erroneous by Respondent’s Executive Director. This error alone was material and a sufficient ground to invalidate the rule. Petitioner’s courses met both the NCEES and Florida Administrative Code Rule 61G15-22.003 as a qualifying activity for purposes of continuing education credit. The Rule resulted in Petitioners’ being denied approval to teach such qualifying activity; and was therefore, inconsistent with NCEES guidelines. Such inconsistency was outside of the Board’s rulemaking authority. In this case, Respondent stipulated to the reasonableness and the amount of fees, subject to the statutory cap. Respondent presented no evidence showing that special circumstances existed which would make the award unjust. Therefore, Petitioner is entitled to attorneys’ fees and costs subject to the statutory cap.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the parties pre-hearing stipulation and the entire record compiled herein, I hereby make the following relevant findings of fact. By its Administrative Complaint filed November 5, 1982, Petitioner seeks to suspend the Respondent, Robert L. Devlin, from the right to operate and practice the fitting and selling of hearing aids for a period of thirty days and to place his license on probation for a period of one year with the licensee's customer record subject to monthly audit by the Petitioner. Alternatively, Petitioner seeks to impose any other penalty authorized by law. During times material, Robert L. Devlin, Respondent, was the holder of a Certificate of Registration (number 244-10-68) for the fitting and selling of hearing aids. On December 3, 1981, Respondent was employed by Better Hearing Aid Services located at 2430 East Commercial Boulevard, Ft. Lauderdale, Florida. William Jellison was tested for a hearing aid on December 3, 1981, at the Ft. Lauderdale location of Better Hearing Aid Services. Someone in a position of authority accepted fifty dollars ($50.00) cash from William Jellison as a deposit on a hearing aid and gave him a receipt therefor on December 3, 1981. (stipulated facts) Phillip C. Kribbs 1/ is not licensed to test, fit or sell hearing aids the Petitioner during times material herein. William F. Jellison visited the offices of Better Hearing Aid Services on December 3, 1981 for the purpose of purchasing a hearing aid mold. Jellison spoke to Kribbs who advised him that he needed a hearing aid test. Kribbs called out certain words and requested Jellison to repeat the words that Kribbs called out. During that testing procedure, the Respondent was present, although he was taking care of other chores in the Better Hearing Aid Services office. Kribbs gave Mr. Jellison a receipt which reflected that it was a new hearing aid to be purchased; a customer discount of one hundred ($100.00) dollars was reflected on that receipt; a cash downpayment of fifty ($50.00) dollars was reflected and a balance due of five hundred forty nine (549.00) dollars was shown as the amount remaining due. On the following day, Mr. Jellison was curious as to what he could purchase the hearing aid for at another company and determined that he could purchase the same hearing aid at another store for approximately two hundred ($200.00) dollars less. With that knowledge, Mr. Jellison attempted to cancel his purchase of the hearing aid from Better Hearing Aid Services by serving notice of his intent to cancel in the form of a telegram on the offices of Better Hearing Aid Services which was followed that same day by a telephone communique. Mr. Jellison did not take delivery of the hearing aid which he was tested for by Better Hearing Aid Services on December 3, 1981. Phillip Kribbs was employed as an apprentice by Better Hearing Aid Services during the period June, 1980 through February, 1983. During his employment as an apprentice for Better Hearing Aid Services, part of his duties included giving a "pure tone and word test" Kribbs twice sat for the registration examination and was unsuccessful on both sittings. Kribbs conducted all of his duties respecting testing under the direction and supervision of the Respondent while employed as an apprentice for Better Hearing Aid Services. Finally, Kribbs acknowledged tendering Mr. Jellison a receipt for the deposit for a hearing aid which was completely written by him (Petitioner's Exhibit Number 3).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent's license for the fitting and selling of hearing aids and his right to operate and practice thereunder be placed on probation for a one (1) year period with the licensee's customer records subject to monthly audit by the Department. RECOMMENDED this 29th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983.
