The Issue The issue is whether Petitioner may terminate the employment of Respondent for misconduct in office.
Findings Of Fact Respondent graduated in 1963 with a degree in accounting. He earned his juris doctor degree in 1967. He has practiced public accounting and also been employed by W. R. Grace & Company and Getty Oil Company. For most of the 1970s, Respondent was employed as head of construction for the City of Baltimore. In this capacity, he assumed significant responsibilities in the construction of a major convention center and aquarium, as well as over 50 schools. For most of the 1980s, Respondent ran a construction management company. From 1988-92, Respondent developed residential homes. From 1992-96, Respondent was the executive director of the Port of Bridgeport. From March 1996 to January 2000, Respondent was employed as the executive director of the Port of Palm Beach. While so employed, Respondent directed a $100 million redevelopment project for the Port. Following the conclusion of his employment with the Port of Palm Beach, Respondent was employed for a short period in Tampa. Wanting to return to West Palm Beach, Respondent applied for the position of Respondent's Chief Operating Officer. Then-Superintendent Ben Marlin hired Respondent in July 2000. Superintendent Marlin was implementing a School Board plan that divided the District into academic and business sections. As Chief Operating Officer, Respondent headed the business section. As Chief Academic Officer, Dr. Arthur Johnson headed the academic section during the last six months of Superintendent Marlin's tenure, which ended in February 2001. Dr. Johnson succeeded Dr. Marlin as the new superintendent and was a member of the School Board when it adopted the plan dividing the District into academic and business sections. The creation of a separate business section within the District facilitated the implementation of efficient business and management practices. The School Board designed the new organizational plan to obtain greater productivity from the business side of the District and to maximize the academic benefit from available revenues. Currently the 14th largest school district in the United States, the Palm Beach County School District administers a $2 billion annual budget in the service of 157,000 students in 150 schools. Half of this $2 billion outlay is devoted to operational expenses; most of the remainder is devoted to capital expenditures and debt service. The District operates the largest food service and bus company in Palm Beach County. At the time of the hearing, the District was constructing three high schools, three middle schools, and ten elementary schools-- with a total construction value of over $250 million. Striving to meet the needs of a large, but still fast-growing community, the District will open twelve schools in August 2002. Just over half of the District's 17,000 employees are noninstructional. Hired shortly before Respondent, on June 1, 2000, William Malone became Chief of Facilities Management Services. Mr. Malone graduated with a degree in civil engineering in 1971. His prior experience consisted of 21 years with the United States Army Corps of Engineers and 13 years with the South Florida Water Management District. For the last five and one- half years with the South Florida Water Management District, Mr. Malone oversaw the district's construction projects. He left the district shortly after trying unsuccessfully in 1999 to be appointed as the executive director of the South Florida Water Management District. Upon assuming the duties of the Chief Operating Officer, Respondent analyzed all of the divisions reporting to him. An immediate problem was maintenance. The District had just fired Service Master, and the maintenance department was leaderless and in some disarray. Respondent decided to split off maintenance from Mr. Malone's responsibilities. Respondent contacted three Port employees who had worked under him when he was Executive Director of the Port of Palm Beach: Martin Mets, Michael Scheiner, and Lauriann Basel. On July 17, 2000, Respondent hired Mr. Mets as the Director of Maintenance and Plant Operations. At about the same time, Respondent hired Mr. Scheiner as a business manager and Ms. Basel as the liaison between the maintenance department and the schools. As evidenced in part from the fact that he continues to serve as Director of Maintenance and Plant Operations, Mr. Mets has done a good job for the District. He previously handled similar duties for 19 years at the Port of Palm Beach. Among Mr. Met's responsibilities as Director of Maintenance and Plant Operations is the duty of approving all invoices to be paid by the District. Mr. Scheiner continues to serve as a business manager for the District, although, at the time of the hearing, he testified that his contract might not be renewed. After serving as capital projects coordinator with the Port of Palm Beach, Mr. Scheiner, who has a degree in accounting, implemented the orders of Mr. Mets and Respondent to document all maintenance invoices before submitting them to accounting for payment. To perform this task, Mr. Scheiner had to design and implement internal controls to ensure, among other things, that vendors were doing the work in a satisfactory manner for which they were to be paid. One of Mr. Scheiner's first discoveries were that the District did not maintain the records he needed to ensure that the District had received the goods and services for which it was being invoiced. Prominent among the missing information were purchase orders showing that the District ordered goods or services and identifying the specific goods and services. Also prominent among the missing information was documentation showing that someone from Maintenance and Plant Operations physically visited the site that had purportedly received the goods and services to confirm that the goods and services were supplied and they were satisfactory. At the same time that Mr. Scheiner was undertaking the substantial task of designing and implementing much-needed internal controls to cover future operations, he also had to address the deficiencies that had arisen during past operations. Noticing a number of invoices for the installation of vinyl flooring in which the vendor had agreed to reductions in the amount due, Mr. Scheiner suggested to Mr. Mets that he ask Lung Chiu, the District Internal Auditor, to conduct an audit of these vendors. In August 2000, Mr. Mets submitted a request to Mr. Chiu that he conduct an audit of the District's two vinyl flooring installers. Mr. Chiu has served as the District Internal Auditor for eight years. He has a master's degree in accounting, and he is a certified public accountant and a certified internal auditor. Typically, Mr. Chiu reports to the School Board through the Audit Committee. His method of reporting is through the presentation of a final audit to the Audit Committee. Pursuant to Mr. Mets' request, Mr. Chiu conducted an audit of the two vinyl flooring installers from August to October 2000. Having completed his field work, in October 2000, Mr. Chiu prepared a draft audit report and submitted it for comment to Mr. Mets, as head of the maintenance department, and his counterpart in charge of the purchasing department. The draft audit report is dated November 17, 2000, and addressed to the School Board, Superintendent Marlin, and the Audit Committee because, if finalized in time, Mr. Chiu intended to present the final report to the Audit Committee at its next meeting, which was November 17, 2000. On November 6, 2000, Mr. Chiu reported by memorandum to Mr. Mets that he had found an error in the earlier version of the draft audit report dated November 17, 2000. After the correction, the draft audit report, as revised through November 1, 2000, found vendor overbillings (and, presumably, District overpayments) by the two vinyl flooring installers. According to the draft audit report, Buy the Square Yard, Inc. (Square Yard), overbilled the District $2.29 million, and Padron Brothers overbilled the District $2000. The earlier draft audit report had found that Square Yard had overbilled the District by $2.932 million. The tentative findings in the draft audit report caused District administrators to ask District legal counsel to consider various legal questions concerning the possible recovery of these apparent overpayments. In a nine-page legal memorandum dated November 10, 2000, to Interim Chief Counsel Bruce Harris marked "UNFINISHED PRELIMINARY AND TENTATIVE DRAFT FOR INITIAL DISCUSSION PURPOSES ONLY," Randall Burks discussed without resolution several legal issues concerning such a potential claim. At this point, Mr. Chiu referred the matter to the District police department for the purpose of a criminal investigation into the overbillings. In the spring of 2001, the District police department concluded that insufficient evidence existed to pursue criminal charges. In the meantime, in December 2000, Mr. Chiu considered the accounting error that had necessitated the amendment of the draft audit report. After more work, he concluded that his audit conclusion for 1995-99 was "questionable" due to incomplete billing and accounting records. This conclusion had a major impact on his earlier audit conclusions concerning Square Yard, which had tentatively found overbillings of $1.719 million in 1995-99. In May 2001, after the police investigation had concluded, Mr. Chiu resumed the audit work. He reduced the overbillings by Square Yard by removing the 1995-99 data and making another, much less important change. In May 2001, Mr. Chiu finalized the draft. As revised through June 8, 2001, the draft audit report found overbillings by Square Yard of about $387,000. According to a memorandum dated November 5, 2001, from Mr. Chiu to the Audit Committee, in May and June 2001, he "briefed" the committee members about ongoing projects, including the audit of the vinyl flooring vendors. District policy requires Mr. Chiu to update the Audit Committee about his audits, but Mr. Chiu ordinarily does not share with the committee any of the details of any audits, unless he has already submitted to the Audit Committee a finalized draft report. The District Internal Audit Charter outlines the responsibilities of the Audit Committee and District Auditor, although the charter, as contained in this record, does not address confidentiality. However, the premature release of a draft audit would impair the ability of the District Auditor to conduct effective audits. Given his background and service as a member of the Audit Committee, Respondent clearly understood the importance of confidentiality to the integrity of an ongoing audit. In early July 2001, Mr. Chiu shared his updated findings with the maintenance department and purchasing department, again for the purpose of obtaining their responses to the proposed audit findings and possibly incorporating these responses into the draft audit report. On August 2, 2001, Mr. Chiu received the responses of the maintenance department, by way of Mr. Mets' memorandum of the same date. This memorandum largely restates his response several months earlier to an earlier draft of the audit report. Mr. Mets' counterpart in charge of the purchasing department submitted her response in September 2001, and Mr. Chiu submitted the final draft of the audit report to the Audit Committee in November 2001. On August 3, 2001, Respondent attended a breakfast meeting at a motel restaurant with Henry Harper, Sr., the principal of Square Yard, and Isaac Robinson, the President of the City Commission of West Palm Beach. Commissioner Robinson had arranged the meeting so Respondent and Mr. Harper could try to resolve the problems that Mr. Harper felt that he was having with Respondent. Respondent's relationship with Superintendent Johnson was not as good as Respondent's relationship had been with Superintendent Marlin, who had announced his resignation in January 2001. In April 2001, Dr. Johnson switched Respondent and Mr. Malone's jobs. Superintendent Johnson claims to have been concerned about Respondent's interpersonal skills, but evidence of shortcomings in this area are anecdotal and unpersuasive. Superintendent Johnson also claims to have been concerned about Respondent's performance when he failed to produce a requested $50 million reduction from the business side. However, the record fails to establish sufficient details concerning this matter, which Superintendent Johnson did not pursue with Respondent at the time. Mr. Malone had unsuccessfully applied for the Chief Operating Officer position when Superintendent Marlin had selected Respondent. It appears that Respondent and Mr. Malone enjoyed different sources of support, and the replacement of Superintendent Marlin with Superintendent Johnson was an adverse development for Respondent and a favorable development for Mr. Malone. Also, at this time, a member of the School Board, who had strongly supported Mr. Malone's application for the Chief Operating Officer position, had been exploring the possibility of obtaining a position as the administrative assistant to the Chief Operating Officer and preferred to work under Mr. Malone, rather than Respondent. At some point, this factor was mooted when the School Board member secured a position as the director of a newly formed education commission in West Palm Beach. When switching the jobs of the two men, Superintendent Johnson also transferred to Mr. Malone's new position the responsibility for construction that he had previously borne as Chief of Facilities Management Services. At minimum, Superintendent Johnson preferred that this important responsibility remain in a person with whom he was more comfortable. However, Superintendent Johnson was not trying to rid the District of Respondent, as evidenced by his renewal of Respondent's one-year employment contract on June 30, 2001. Sometime after switching jobs with Mr. Malone, Respondent decided to run for the Commission of the Port of Palm Beach. The election is in November 2002, and, although most of the vote campaigning takes place within two weeks of the election, candidates often file early so that they can open campaign accounts and line up support. Campaign expenditures for each seat, which are all at-large, typically range from $30,000 to $40,000. On July 3, 2001, Respondent filed the paperwork to become a candidate for a seat on the Port Commission and advised Mr. Malone of his candidacy for public office. A few days later, Respondent briefly met with Mr. Mets, Mr. Scheiner, and Ms. Basel and informed them of his filing and warned them that they were not to involve themselves with his candidacy while on District time. Shortly after these conversations, Respondent went on a two-week vacation, from which he returned on July 24. Within a few days after returning to work, Respondent presented to Mr. Mets, Mr. Scheiner, and Ms. Basel three identical letters, all dated July 5, 2001. These letters reiterated Respondent's direction not to conduct any campaign business on District time. Each letter had a place for each of the three employees to sign and add the date. As instructed by Respondent, each employee signed his or her name and wrote in the date of July 5, 2001. The evidence does not establish that, in backdating the letters, any of these employees felt intimidated or coerced by Respondent or felt that they were doing anything wrong. None complained about the request at the time. In an abundance of caution, not inconsistent with feelings of blamelessness, Mr. Mets and Ms. Basel later memorialized the backdating of their letters. More likely than not Respondent had these employees backdate the "July 5" letters in late July. Although there is a conflict in the evidence whether the date on which Mr. Mets and Ms. Basel signed their letters was in late July or late August, it appears more likely that Respondent, in acceding to his wife's wishes to get these letters signed, did not delay in performing this task. It also appears less likely, for reasons discussed below, that Ms. Basel would have backdated such a letter in late August after Respondent's difficulties had surfaced. Mr. Scheiner did not testify to any discomfort in backdating the letter, but Mr. Mets and Ms. Basel testified that they felt discomfort at signing their letters. The most obvious objective distinction between Mr. Scheiner, on the one hand, and Mr. Mets and Ms. Basel, on the other hand, is that Mr. Scheiner believes that his continued employment with the District is already in doubt. This distinction is important in evaluating the testimony of Mr. Mets on this point and Ms. Basel on this and other points. Respondent had been the sponsor of all three of these employees, and they may reasonably have felt that their future with the District was tied to Respondent. Mr. Mets is near retirement. He is also understandably irritated at Respondent because Mr. Mets left his former, higher-paying job at the Port in reliance upon Respondent's unfulfilled promise to raise his pay with the District within a reasonable time after the commencement of his employment. Although Mr. Mets proved a credible witness in many regards, his testimony concerning discomfort at backdating the letter was unpersuasive. Ms. Basel suffers obvious anxiety concerning her continued employment with the District. She eagerly treated her obligation to testify as an opportunity to display her fealty to the District, which had already conducted an unsuccessful investigation against her for improperly requesting leave. Ms. Basel never harmonized her decision to join Respondent at the District with her portrayal of him as an easily angered supervisor. It is impossible to credit her proffered justification that Respondent had told her that he had changed; it is unlikely that she would ever work again with the overbearing man whom she describes. Ms. Basel's claims that Respondent intimidated her at work is also impossible to harmonize with her close relationship with Respondent and his wife and Ms. Basel's frequent expressions of loyalty toward Respondent--prior, of course, to his current difficulties with the District. Ms. Basel's lack of credibility undermines her testimony of intimidation, as well as her unsupported testimony concerning a couple of occasions on which Respondent, in her opinion, asked her to do campaign tasks on District time and property. One of her two recollections of conducting political business on District time and property involved her playing back a message from a District telephone answering machine and finding that someone had called Respondent to confirm a meeting and that a check--presumably a campaign contribution--was in the mail. Petitioner did not offer any evidence that Respondent conducted political business in connection with the call--only that someone, presumably a campaign supporter, had called Respondent at work. From the lack of evidence concerning other such recorded messages, this would appear to have been an isolated incident over which Respondent had no control. In any event, Ms. Basel's testimony on this matter does not suggest that Respondent conducted political business on District time or property. The other incident lacks detail. Ms. Basel testified that Respondent directed Ms. Basel to call a union president to get the union's support and 20 minutes later asked her if she had done so. Ms. Basel's evident desire to assist Petitioner's case inspires no confidence in the existence or details of the brief statements from Respondent or the duration of the interval between the two statements, so as to preclude the possibility of an intervening break, during which Ms. Basel would not be on District time. However, the Administrative Law Judge credits Ms. Basel's emphatic denial that she ever did any political work for Respondent on District time or property. But her testimony fails to establish that Respondent conducted political business on District time or property. To the contrary, given Ms. Basel's obvious motivation to protect her job and her close proximity to Respondent, the absence of testimony from Ms. Basel concerning any substantiated incidents or even more unsubstantiated incidents suggest that Respondent did not conduct political business on District time or property. Respondent's purpose in attending the August 3 breakfast meeting is difficult to characterize, but the meeting did not take place on District time or property. Respondent claims that he viewed Mr. Harper merely as a disgruntled vendor, but this claim accounts for only a small part of Respondent's motivation in meeting with Mr. Harper. Respondent testified that he knew that Mr. Harper was trying to prevent other persons from supporting Respondent's bid for a seat on the Port Commission, so the possibility of a political purpose exists. However, Respondent also testified that he returned from vacation to find that Mr. Malone had settled the District's disputes with Square Yard at a meeting in July during which the District agreed to pay Square Yard about $43,000 on unpaid invoices and to try to give half of all future vinyl flooring work to Square Yard. As noted below, the omission of any mention of the $387,000 in overpayments is probably due to the fact that the District had already decided, or was in the process of deciding, not to pursue any overpayments. In fact, as Mr. Malone testified, he had negotiated this settlement at the direction of Superintendent Johnson, who misrecalled that Superintendent Marlin had decided to pay Square Yard $43,000 (a decision that, if Superintendent Johnson's recollection were accurate, would have inexplicably gone unimplemented until five months into Superintendent Johnson's tenure). Given these circumstances, Respondent, in an abundance of caution, might want to appease a person who had such apparent influence with Mr. Malone and Superintendent Johnson, just in case Respondent were not successful in his Port Commission election. Commissioner Robinson facilitated the August 3 breakfast meeting. He asked Mr. Harper to state his concerns. Mr. Harper blamed Respondent for certain problems of Square Yard with the Port of Palm Beach and the District. Respondent explained what he was doing at the Port and that, while with the District, he was merely following orders. Clearly addressing District business, Respondent also emphasized the internal controls that the District had recently implemented and underscored the importance of vendor compliance with these controls. None of the three men discussed Respondent's political campaign. While dealing with Mr. Harper's concerns about the District, Respondent showed him copies of a draft audit, as revised through October 25, 2000, and June 8, 2001, with Mr. Mets' response dated August 2, 2001. Commissioner Robinson asked Respondent if this was public record, and Respondent replied that it was because it had been brought to the attention of the District. Mr. Harper asked for a copy of these documents, and Respondent gave him one. Respondent did not give Mr. Harper copies of other documents, such as the November 10, 2000, unfinished legal memorandum. Mr. Harper likely obtained a copy of this document at the breakfast meeting from Respondent's files, perhaps due to the inadvertent shuffling of papers in the large stack that Respondent had brought with him to the meeting. The key question in this case is whether Respondent improperly supplied Mr. Harper with copies of the draft audits. Respondent testified that he believed that the audit had been completed because Mr. Malone had settled all pending disputes while Respondent had been on vacation. Respondent testified that he knew that the formal audit had been delayed from last fall, but Respondent testified that he thought that the delay was occasioned by the District's investigation during the first half of 2001 of Mr. Chiu for the possible conducting of a lichee nut business for his brother while on District time. Mr. Mets testified that Mr. Chiu told him on August 2, 2001, that Mr. Chiu had discussed the June 8 draft audit with some, but not all, members of the School Board. Evidently based on this discussion, the School Board had decided, according to Mr. Mets' testimony of his conversation with Mr. Chiu, not to pursue the overpayments to Square Yard. This testimony is largely credited. If the School Board could agree not to pursue the overpayments, the discussion with Mr. Chiu must have been more detailed than a mere briefing or updating. On the same day, after his conversation with Mr. Chiu, Mr. Mets told Respondent that Mr. Chiu had explained that the District was not able to pursue any 1995-99 overpayments because of the District's failures in documentation and internal controls and that Mr. Chiu wanted to close the matter promptly. Mr. Mets also told Respondent that Mr. Chiu had told Mr. Mets that Mr. Chiu had discussed the audit in detail with four members of the School Board and intended to discuss the audit in detail with the other three members by the end of the week. Mr. Mets added that the four members had agreed the District could not pursue any overpayments. Two District attorneys have consistently opined that otherwise-confidential audit materials lose their confidential status when distributed to members of the School Board or Audit Committee. One of the attorneys had concluded on June 19, 2001, not to pursue any overpayments for the reasons stated above and had instructed Mr. Chiu to bring the matter to a conclusion. Immediately after obtaining the documents from Respondent, Mr. Harper gave them to his attorney, who promptly returned them to Mr. Harris due to his concern that the release of the documents had been improper. In his cover letter, Mr. Harper's attorney strongly suggested that Respondent's delivery of the materials to Mr. Harper was improper and if the current administration (apparently of Superintendent Johnson) intended to correct the mistakes of the preceding administration, it had better do so quickly, or else its successor would correct those mistakes. On August 15, 2001, Mr. Malone summoned Respondent, falsely telling him that they needed to discuss a school maintenance matter. Mr. Malone prepared the ruse so that Respondent could not prepare untrue responses to the questions that Mr. Malone intended to ask Respondent. At the meeting, when shown some of the documents that Mr. Harper's attorney had sent to the District, Respondent told Mr. Malone that he had met with Mr. Harper, but the meeting had not been political in nature, and that he had given Mr. Harper some of the documents, but not all of them. A later disagreement arose between Mr. Harper and Respondent concerning what Respondent said at the August 15 meeting, but the discrepancies are not material. One week after the meeting, Mr. Malone recommended that the District Department of Professional Standards investigate the entire matter. Mr. Malone suggested that the investigators take testimony under oath because some of the apparent violations were criminal. The Director of the District Department of Professional Standards referred the entire matter to the District police department for investigation. Two District police department detectives interviewed witnesses, including Respondent on August 30, 2001. During his interview, despite being under oath, Respondent three times denied that he had asked Mr. Mets, Mr. Scheiner, and Ms. Basel to backdate their "July 5" letters. Immediately after the conclusion of the interview, Respondent told his attorney, who had accompanied him at the interview, of the misstatements and that he wanted to correct the record immediately. A short delay ensued because Respondent and his attorney had been instructed to go elsewhere immediately after the interview and did so. However, within 20 minutes after the conclusion of the interview, Respondent and his attorney caused the detectives to reconvene the interview, so that Respondent could correct his misstatement about backdating the "July 5" letters. At the reconvened interview, Respondent admitted to asking the three employees to backdate their letters. No evidence suggests that Respondent's 20-minute delay in admitting to the backdating request materially delayed Petitioner's investigation. After examining the facts of the case, the School Board voted on November 20, 2001, to terminate Respondent's contract, effective 15 days later, rather than not renew it when it expired on June 30, 2002. The charges that engendered this case are that Respondent disclosed confidential materials to Mr. Harper and that he did so for personal gain. Respondent gave Mr. Harper copies of two draft audit reports, but they were no longer confidential because Mr. Chiu had already discussed in detail the findings of his audit with a majority of the members of the School Board. The evidence suggests that Mr. Chiu did so to obtain the approval of the School Board to resolve its long- pending overpayment issue with Square Yard. The evidence fails to establish that Respondent gave Mr. Harper a copy of the other materials. As for the November 10, 2000, unfinished legal memorandum, this document was no longer confidential because, in June or no later than July 2001, the District had decided not to pursue possible overpayments to Square Yard. If the materials were no longer confidential, the motivation of Respondent in delivering them, during a breakfast meeting not on District time or property, loses its importance. Undoubtedly, Respondent was dealing with a disgruntled vendor, as Respondent claims. Undoubtedly, Respondent's underlying motivation was a mixture of concern for his political campaign and for his present job situation; mollifying Mr. Harper could help Respondent in both regards. Nor has Petitioner proved misconduct impairing Respondent's effectiveness in his handling of the three "July 5" letters. The record does not sustain the allegation that Respondent coerced or intimidated any of the three employees into backdating these letters. The letters themselves are not legally required documents, nor are they even significant documents. These letters are self-, or, if Respondent's testimony were credited, ally-serving documents whose effectiveness is undermined by their transparency. They have the force and effect of birthday cards. Backdating these ineffective documents inspires little confidence in Respondent's mental acuity or at least in his assessment of the mental acuity of those around him. At best, undisclosed backdating is a precarious practice, and Respondent's claim that backdating is prevalent in the District is beside the point. However, the insubstantiality of the letters themselves reduces their backdating to a meaningless self-indulgence. The closest issue in the case is Respondent's dishonest denial, under oath, that he had the three employees backdate the "July 5" letters. The insubstantiality of the letters themselves is irrelevant to this issue, which raises the question of Respondent's honesty. Respondent knew that he had asked the employees to backdate these letters, and he denied under oath doing so. The proper characterization of this incident does not permit consideration of Respondent's intention to protect his employees or Petitioner's failure to advise Respondent that he was under criminal investigation; these factors are entirely irrelevant. However, the proper characterization of this incident requires consideration of Respondent's near-immediate correction of his misstatement. The 20-minute delay arose due to logistics, not any delay on Respondent's part after the conclusion of the interview. Respondent had not expected questions concerning the "July 5" letters, nor, in retrospect, should he reasonably have expected such questions. When asked about the letters, Respondent panicked and denied three times that he had asked the employees to backdate them. The fairer characterization of this incident is that Respondent immediately corrected his admittedly intentional misstatements, rather than made the misstatements and later recanted. Not Respondent's most shining moment, his lapse from honesty, which obviously never impaired Petitioner's investigation, was short-lived to the point of being momentary, was not so serious as to impair Respondent's effectiveness in the school system, and factually did not rise to the level of misconduct constituting just cause for his termination. These findings do not imply acceptance of Respondent's assertion, in his proposed recommended order, that the "only plausible explanation" for Respondent's termination was Superintendent Johnson's desire to remove Respondent. This is a oversimplification and distortion of the facts of this case. Superintendent Johnson renewed Respondent's contract hardly one month prior to the August 3 breakfast meeting. Although Superintendent Johnson clearly wanted Respondent out of the position of Chief Operating Officer, he displayed no desire to terminate Respondent's employment with the District. From Superintendent Johnson's perspective, Respondent's August 3 meeting with Mr. Harper was ill-timed. The District had just worked out the long-pending dispute between it and Square Yard by paying $43,000 to the company and promising it more business. Superintendent Johnson's misrecollection--corrected by Mr. Malone--that Superintendent Marlin had decided on the $43,000 payment suggests the sensitivity of this matter. For nearly nine months, many persons within the District, and probably a number of persons outside of the District, had credited Mr. Chiu's preliminary findings that Square Yard owed the District over $2 million in overpayments-- an attractive receivable in times of tight revenues. This dramatic preliminary finding left a more lasting impression than the more thorough findings that the overpayments were less than $400,000, poor District recordkeeping during the earlier period in question precluded reliable findings of any additional overpayments, and poor District recordkeeping concerning even the $400,000 in claimed overpayments probably precluded their proof in a civil action for damages. The letter from Mr. Harper's attorney exacerbated the situation for Superintendent Johnson, who testified that the matter was serious because the attorney took it seriously and, if the District took no action after receiving such notification from an officer of the court, the District would leave itself vulnerable to later recriminations. The subsequent discovery of Respondent's requests for his employees to backdate the "July 5" letters and, worse, his momentary lying under oath, even though concerning tangential matters, made it much more difficult for Superintendent Johnson to coordinate public perceptions with the reality of the Square Yard matter. On this record, the reality of the Square Yard matter is that poor District recordkeeping and internal controls--since corrected--meant that the Square Yard might have been entitled to $43,000 on past-due invoices and future District business, rather than that the District was owed hundreds of thousands or even millions of dollars in overpayments.
Recommendation It is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing all charges against Respondent and awarding him back pay for the period from the date on which he was suspended without pay through the end of the term of his present contract. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. ____ ROBERT E. MEALE 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 5th day of June, 2002. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Alan M. Aronson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Elaine Johnson James, Esquire Edwards & Angell, LLP 1 North Clematis Street, Suite 1400 West Palm Beach, Florida 31301 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson, P.A. 250 Australian Avenue, Suite 1400 West Palm Beach, Florida 33401
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a staff augmentation contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The parties' Joint Pre-Hearing Stipulation2 and the evidence presented at final hearing established the facts that follow. The Request for Proposals On July 26, 2001, the District issued Request for Proposals C-11940 (the "RFP"). The purpose of the RFP, as set forth on page one thereof, was to solicit technical and cost proposals from qualified respondents [for a staff augmentation contract.3] The South Florida Water Management District (District) is interested in establishing a single qualified information systems/technology contracting firm to provide the services defined herein on an as-needed basis. Contingent upon the responses received as a result of this Request for Proposals (RFP), the District will determine which respondent meets the required standards and qualifications through an evaluation process. The Vendor meeting the required standards and qualifications will be determined to be “pre-qualified” to provide information systems/technology services to the District. The deadline for submission of proposals in response to the RFP was Monday, August 27, 2001 at 2:30 p.m. Section 1.12 of the RFP, which is relevant to this protest, stated as follows: REJECTION OF RESPONSES The District reserves the right to reject any and all responses when such rejection is in the District's interests. Minor irregularities contained in a response may be waived by the District. A minor irregularity is a variation from the solicitation that does not affect the price of the contract or does not give a respondent an advantage or benefit not enjoyed by other respondents, or does not adversely impact the interests of the District. The District further reserves the right to cancel this solicitation at any time if it is in the best interest of the District to do so. Section 1.13 of the RFP stated, in pertinent part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a Final Order that declares DUA’s proposal to be materially non-responsive and, accordingly, rescinds the proposed award to DUA. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency’s discretion, it is nevertheless recommended that, rather than reevaluate or reject all responsive proposals, the District award the contract to the highest-ranked responsive proposer, Syslogic. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of January, 2002.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The amount of reasonable attorney’s fees and costs to be awarded to Petitioner, Palafox, LLC (“Petitioner” or “Palafox”), and against Respondent, Carmen Diaz (“Respondent”), in the underlying administrative matter as a sanction pursuant to section 120.595, Florida Statutes.
Findings Of Fact Petitioner is a Florida limited liability company and was the applicant for the Permit challenged in Case No. 19-5831. Respondent is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision, and was the Petitioner in Case No. 19-5831. Petitioner was represented by the firm of Carlton Fields, P.A. (“the Firm”), in Case Nos. 19-5831 and 20-3014F. Petitioner’s counsel and paralegal with the Firm spent 392.4 hours litigating both the underlying substantive case and entitlement to attorney’s fees, for a total of $123,763.50 in fees, broken down as follows: Name Hours Rate Subtotal W. Douglas Hall 171.8 $382.50 $65,713.50 James E. Parker-Flynn 197.4 $270.00 $53,298.00 Christine Graves .3 $382.50 $ 114.75 Kimberly Pullen 22.9 $202.50 $ 4,637.25 The hourly rates shown above were discounted by approximately 10 percent of the standard rates charged by the Firm at the time this matter originated. Furthermore, over the course of representing Palafox in this matter, the Firm discounted a number of its bills as a courtesy because of the amount of time required to litigate the matter and to adjust for potential overlap among attorneys working on the case. Those courtesy adjustments totaled $7,437.45. Applying that discount to the total fees shown above, the total amount of attorney’s fees incurred by Palafox in litigating this matter is as follows: Total Unadjusted Attorney’s Fees $123,763.50 Less Courtesy Adjustments $ 7,437.45 Total Adjusted Attorney’s Fees $116,326.05 In addition to attorney’s fees, Palafox incurred the following taxable costs and expenses: Court Reporter - Diaz Depo. $ 564.28 JSB-Advantage Court Reporters - Carswell Depo. $ 1,032.48 Phipps Reporting - DOAH Transcript -Day 1 $ 1,605.67 Phipps Reporting - DOAH Transcript -Day 2 $ 542.52 WSource Group, LLC (1/8/20-1/27/20) $ 3,987.50 WSource Group, LLC (2/6/20-2/20/20) $ 9,652.50 Total Taxable Costs $ 17,384.95 Additionally, Palafox is seeking the costs incurred by its expert, Mr. Varn, up through and including the final hearing. Mr. Varn’s hourly rate for his work on this case was $250, and, including the final hearing, he spent 9.8 hours on the case. The total cost for his services was $2,450.00. Palafox is seeking a total of $136,161.00 in fees and costs. Mr. Varn testified that both the rates charged by Palafox, and the hours Palafox’s counsel spent on the matter, were reasonable and consistent with the rates charged and time spent for similar work by other attorneys in the area. His opinion was supported by detailed time records kept by Palafox’s counsel, who confirmed that the fee statements were reviewed and periodically adjusted as necessary to account for potential overlap and duplication of effort among the attorneys working on the case, or if it appeared the bill simply needed to be reduced. Respondent stipulated that Mr. Varn is an attorney with sufficient qualifications to render an opinion regarding the amount of reasonable attorney’s fees to be awarded to Palafox in this proceeding. Respondent did not object to the rates charged by the Firm, and did not challenge any of the Firm’s time entries, fees, or costs. The number of hours set forth above by the attorneys and the paralegal working on this case were reasonable, the rates charged were reasonable, and the costs expended by Palafox were reasonable.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Carmen Diaz, pay to Palafox its reasonable attorney’s fees and taxable costs in the amount of $136,161.00. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Nicholas D. Fugate, Esquire Nicholas D. Fugate, P.A. Post Office Box 7548 Tallahassee, Florida 32314 James E. Parker-Flynn, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Brett J. Cyphers, Executive Director Northwest Florida Water Management District 81 Water Management Drive Havana, Florida 32333-4712 W. Douglas Hall, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601
Findings Of Fact Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made: On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County, Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not Mr. Morro, owns the subject property. After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit. On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10. Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit. Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits. On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance Manager, to be held on May 19, 2003, "to discuss these issues with him in person." On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green. On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003. After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition. On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property. Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing." On October 24, 2003, Mr. Carlie responded to Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard." Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff. On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred. On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application." On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10. However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall. By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?" By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall. During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley. On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra. By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991, 1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time. According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall. On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control." On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than May 8, 2005. The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003. On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005. Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun. In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property. On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time. On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project. Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff. Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.") On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005 Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
