Findings Of Fact On October 13, 1993, Respondent filed an application to change the ownership of an ACLF known as Kadima Manor. Respondent also applied to operate the facility as its administrator. The facility is situated at 6750 West Flamingo Way South in St. Petersburg, Florida. Petitioner denied Respondent's ACLF application by letter dated March 23, 1994, substantially on the basis that: Respondent entered a plea of no contest to an offense of abuse or neglect of a disabled or aged person and; Respondent failed to provide complete and accurate background information in the application for licensure. Section VIII of the application seeks information about an applicant's "Criminal Abuse History". Section VIII(a) of the application asks the following question: "Has any owner, administrator, partner, or director ever been arrested, adjudicated, or convicted of a crime involving injury to persons, or financial or business management (e.g. assault, battery, embezzlement or fraud)?" In response to the question in Section VIII(a) of the application, Respondent answered "no". Although Respondent answered "no" to the question in Section VIII(a) of her ACLF application, Respondent thought that she answered the question truthfully. Respondent was arrested by the St. Petersburg Police Department on February 8, 1977, on the charge of petty larceny. The disposition of that arrest is unknown and Petitioner did not rely on the 1977 arrest as a basis for the denial letter relating to Respondent's application. On May 8, 1991, Respondent was arrested by the Pinellas County Sheriff's Office. Pursuant to that arrest, a two-count Information was filed alleging that Respondent operated an ACLF without first being licensed and that she abused or neglected aged or disabled persons. In the criminal cases in 1991, Respondent challenged the charges. As to the first count relating to operating an ACLF without first being licensed, the charge was dismissed. On September 16, 1991, Respondent entered a plea of nolo contendere to the offense of abuse or neglect of aged or disabled persons, Winona Sill and/or Carolyn Poole, a misdemeanor. Respondent entered a plea of nolo contendere to the charge of abuse or neglect of an aged person based upon the advice of legal counsel that she would not have a criminal record and that the "no contest" plea would not adversely affect her or her business. Following Respondent's entry of the "no contest" plea, Respondent was ordered to pay court costs of $250.00 only; the court withheld adjudication of guilt and no fine or probation was imposed. Respondent has never been convicted of a crime involving injury to persons, or financial or business management. Concurrently with law enforcement, HRS adult Protective Services conducted its own investigation relating to the incidents in 1991. Upon completion of FPSS Reports 91 Respondent as the perpetrator of abuse or neglect of two aged or disabled adults. Respondent challenged the classification and sought to have her name expunged from the reports. Following a formal hearing before the Division of Administrative Hearings, HRS issued a Final Order on February 17, 1993, which expunged Respondent's name from the Abuse Registry and changed the classification of the reports to "unfounded". In reviewing ACLF applications, Petitioner obtains and relies on criminal arrest records obtained from the Florida Department of Law Enforcement (FDLE). Petitioner requested that Respondent provide certified copies of the criminal charges involving the 1991 incidents. Respondent timely submitted the requested information. In addition Petitioner is required to be screened for prior confirmed abuse, neglect or exploitation reports from the Florida Protective Services System Abuse Registry. Technically, Respondent did not disclose the fact that she was arrested in 1991 for a crime involving injury to persons as she was asked in question VIII(a) on the ACLF application. However, the question on the form was not clear and did not track the statutes or the rule. There was no evidence that the failure to disclose was a conscious effort on Respondent's part to withhold information relating to her arrest in 1991. Respondent provided all of the related information regarding the abuse allegations, including the fact that those records were expunged in the HRS files. She acted upon the advice of legal counsel when she did not disclose the "no contest" plea. On each occasion that Petitioner asked for additional information regarding her criminal history, Respondent timely responded and provided the information requested. Respondent completed the required courses and other requirements to be an ACLF administrator, including the ACLF Core Education Program on or about October 5, 1993. Respondent did not intend to fail to fully disclose her criminal history. In the one instance where she answered "no" to the criminal arrest history, Respondent considered that she completely and truthfully answered question VIII(a). Respondent attached to the original application a copy of the Division of Administrative Hearings Recommended Order which called for the expungement of her name for the abuse registry and changing the classification of the report to unfounded. She also attached other information which disclosed the 1991 criminal charges. Respondent intended to show that she had been arrested but, by administrative action, her name had been cleared and her name expunged. Respondent has demonstrated that she is of suitable character and competency to be an owner and administrator of an ACLF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application for licensure to change the ownership and operate an adult congregate living facility, subject to the payment of the requisite fees and other licensing requirements. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 12th day of September, 1995. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8 (in part. Rejected as contrary to the greater weight of evidence; paragraphs 7, 8 (in part. Respondent's proposed findings of fact Accepted in substance: paragraphs 1 (in part), 2 (in part), 3 (as modified), 4 (as modified), 5 (as modified), 6 (as modified), 10 (as modified), 11 (as modified), 15 (as modified), 17 (in part), 18 (as modified), 19 (as modified), 23 (as modified). Rejected as subsumed or irrelevant and immaterial paragraphs 1 (in part), 2 (in part), 7, 8 (argument), 9, 12, 13, 14, 16 (argument), 17 (in part), 20, 21, 22, 23. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6827 North Dale Mabry Highway, Unit 100 Tampa, Florida 33614 Dale L. Gross, Esquire P.O. Box 40041 St. Petersburg, Florida 33741 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Bldg. 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Whether Respondent Florida Department of Health and Rehabilitative Services (HRS), acted illegally, dishonestly, fraudulently, arbitrarily or/and capriciously in determining to award the contract for RFP 95-142CM-FAP to Unisys Corporation (Unisys).
Findings Of Fact On November 14, 1994, HRS's Office of Information Systems distributed the RFP, entitled "FLORIDA System --Applications Programming Services." The RFP was designed to procure the programming services required by HRS to complete the software programming of, among other things, the state's federally mandated Child Support Enforcement System, and to maintain and enhance the system upon its completion. Upon selection of the winning proposal, HRS intended to enter into the contract for thirty-six months, renewable upon agreement of the parties for an additional 12 months. The cost proposal rates for the initial three-year term would be binding for any subsequent work on the project. HRS also reserved the right to acquire additional consulting services from the contractor for related activities for up to one year after the termination of the Contract. HRS began developing this RFP in the late spring or early summer of 1994 in anticipation of the expiration of the current contract with Deloitte for provision of applications programming services. Before release to prospective proposers, the RFP was approved by HRS' Office of Contract Services and the Information Technology Resources Procurement Advisory Commission (ITRPAC), a body consisting of various state officials including the head of the Division of Purchasing, which ensures that the RFP complies with state rules. In addition, various federal agencies approved the RFP before its release to prospective proposers. The RFP provided that 60 percent of the proposal scoring would be based on the technical proposals contained in the responses to the RFP, and that the remaining 40 percent of the score would be assigned to the costs as submitted in the proposals. After scoring and weighting of the scores, the weighted scores were to be combined to determine the winning proposal. The breakdown of scoring between technical and cost components is based upon HRS' standard practice and its experience with the format required by other state and federal agencies with whom HRS works. The division of the scores was also intended to ensure that an unqualified vendor did not secure the bid solely on the basis of low cost. The selection of the evaluation criteria and weighting of evaluation points for this RFP were subject to the discretion of the Department at the time the RFP was prepared. On December 12, 1994, HRS held a bidders' conference at which representatives of Deloitte and Unisys were in attendance. EVALUATION OF RESPONSES On January 6, 1995, Deloitte and Unisys submitted the only two proposals in response to the RFP. Both proposals were deemed responsive to the requirements of the RFP. HRS appointed a five member Evaluation Committee to review and evaluate the proposals. HRS provided training to the Evaluation Committee members specifically directed to the proper method for reviewing and scoring proposals submitted in response to the RFP. Each member of the Evaluation Committee was qualified by training, education and experience to review and evaluate the technical merits of each proposal. The RFP defined the criteria by which the proposals would be reviewed, scored and ranked by the Evaluation Committee, and the contract awarded. Included in the RFP were blank cost proposal forms which the proposers were to complete. Those forms did not include any blank spaces to be filled in referencing costs associated with any "renewal" periods or otherwise provide for including information about proposed costs for any renewal periods. The Evaluation Committee members each independently reviewed the technical proposals submitted in response to the RFP over a period of approximately two weeks. Committee members submitted the raw scores from their technical evaluations to Karin Morris, the HRS System Program Administrator. The cost proposals were opened and scored on January 20, 1995 by Ms. Morris. The RFP provided, in Section 6.0, that a comprehensive, fair, and impartial evaluation would be conducted of all proposals received. The RFP also provided for the grouping of evaluation criteria into six categories with points assigned as follows: - Mandatory Requirements 0 points - Management Summary 0 points - Corporate Capabilities 200 points - Project Staff 200 points - Technical Approach 100 points - Project Workplan 100 points - Cost 400 points Section 6.0 of the RFP also contained the following language: Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. Further, the RFP provided, in Section 6.1, that: An Evaluation Committee will be established to assist the department in selection of the winning contractor(s). All proposals not meeting the mandatory requirements will be rejected. The committee will evaluate the technical approach, corporate capabilities and project staff of all responsive proposals. The committee will rank proposers by the resulting scores and make a recommended award. The committee will summarize their findings and prepare an evaluation report to the Deputy Secretary for Administration. The report will then be presented to the Secretary of HRS. The Secretary will review the final report, pertinent supporting materials and make the determination of the final award, taking into consideration cost and other evaluation criteria set forth in the RFP. The Secretary reserves the right to take any additional administrative steps deemed necessary in determining the final award. (Emphasis added). Most importantly, Section 6.3(D) of the RFP dealing with the evaluation of the cost proposals stated: The points awarded for the three cost evaluation categories will be totaled and added to the points awarded for technical evaluation cate- gories 3 through 6 to determine the winning proposer. (Emphasis added). After reviewing and comparing the weighted scores of both proposals, the Evaluation Committee issued a "Final Report," with recommendations, on January 30, 1995. The weighted technical scores reflected in the Evaluation Committee's Final Report are as follows: DELOITTE UNISYS Corporate Capabilities 200 186.36 Project Staff 200 159.07 Technical Approach 100 76.62 Project Workplan 100 76.73 TOTAL 600 499 The weighted cost scores were: DELOITTE UNISYS Fixed Price Tasks 10.0 2.27 Monthly Price 357.90 380.0 Hourly Price 7.77 10.0 TOTAL 375.67 392.2 Totaling all categories as required by paragraph 6.3(D) of the RFP, the Department's Evaluation Committee arrived at the following final ranking: DELOITTE UNISYS Technical Proposal 600 499 Business Proposal 376 392 TOTAL 976 891 Based upon the Evaluation Committee's scores, Deloitte's demonstrated technical capability is 20 percent higher than that of Unisys. Under the terms of the RFP, there was no discretion involved in scoring the cost portion of the proposals, including the weight to be accorded costs in the final overall scoring to determine the winning bidder. Based upon HRS' inclusion of the specific criteria in the RFP, the cost portion scoring was merely a mechanical calculation. Both of the proposers' cost proposals fall within the agency's budgetary limits for the current year for accomplishing the work requested by the RFP. Four of the five members of the HRS Evaluation Committee recommended award of the contract to Deloitte, in the following language: Deloitte & Touche scored higher in all areas including recommendations. Deloitte and Touche is the incumbent contractor and therefore there are no risks associated with the transition. Deloitte understood the requirements of the RFP and addressed them more completely in their proposal. Therefore, it is our recommendation that the contract should be awarded to Deloitte & Touche. (Emphasis added). One member of the Evaluation Committee recommended the decision be left to the Secretary of HRS. None of the members of the HRS Evaluation Committee recommended award of the contract to Unisys. HRS SECRETARY'S DECISION TO AWARD TO UNISYS On January 27, 1995, prior to preparation of the recommendations contained in, or the issuance of, the Evaluation Committee's Final Report, HRS Secretary James Towey convened a meeting with Deputy Secretary Lowell Clary, John Holland, Bill Belleville and the department's legal counsel to discuss the contract award process, a draft of the Evaluation Committee's Final Report and other matters the Secretary felt relevant to HRS' ultimate decision on the RFP. At the meeting, Towey was informed by Bill Belleville that Deloitte's proposal was the "best." Towey was also informed by John Holland and Bill Belleville that both companies could perform under the contract. However, neither Holland's nor Belleville's assessments were based on responses to the RFP, but rather upon their own experience with the two vendors outside of this RFP process. Belleville conceded that he believed that a proposer was qualified to perform the contract by merely meeting the "mandatory" requirements of the RFP, a category that was accorded zero points in the scoring criteria. Informed that both companies could perform under the contract, Towey "zeroed in" on costs as the major consideration for the award of the contract. At the meeting, he considered a present-value calculation of the payments that the State would make over the course of a contract, if the contract had been for a 48 month term. The calculation had been prepared by Dean Modling, an HRS senior management analyst supervisor, although the RFP had been approved by the Department of Management Services without provision for such an analysis. The RFP not inform proposers that a present-value analysis would be performed and provision for the present-value of a contract was not included in the scoring criteria for the proposals. Present value calculation became an issue when it was raised and discussed at the January 27, 1995 meeting, and subsequently used in the Secretary's decision to award the contract to Unisys. Towey also considered, in deciding to award the contract to Unisys, a calculation of "raw costs," provided after the January 27, 1995 meeting. These "raw costs" were presented on two charts. Both added up the amounts submitted by each proposer for fixed price tasks and monthly costs, over 36 months. Although the RFP did not request, and neither proposer submitted costs for a 48 month contract, the two charts included a calculation for a hypothetical 48 month contract using the same monthly payments submitted for the 36 month contract. In addition, one of the two charts included a 5.8 percent factor for overtime, which was also not addressed by the RFP or by the proposals submitted in response to the RFP. There was no evaluation criteria contained in the RFP which dealt with the issue of "raw costs" over the term of the contract. Prior to the decision to award to Unisys, HRS never performed and Towey never considered a present value analysis for the 36 month contract period provided for in the RFP. Finally, as a result of concern expressed at the January 27, 1995 meeting regarding whether Unisys could handle the immediate tasks required by the contract, including requirements of the Child Support Enforcement and federal certification programs, Towey considered whether there would be any risk of transition if Unisys were unable to hire some of Deloitte's employees and subcontractors should he decide to award the contract to Unisys. Towey specifically requested Deputy Secretary Clary to research this issue. In order to obtain information, Clary had HRS personnel directly contact Deloitte's subcontractors. Clary responded to Towey three days later on January 30, 1995, the day before the decision by Towey to award the contract to Unisys, that Deloitte's subcontractors would not be prohibited from working for Unisys. Consideration of overtime and risk of transition were not criteria contained in the RFP, nor were these elements evaluated and scored by the HRS Evaluation Committee. By way of a January 31, 1995 memorandum to Clary announcing the award of the contract to Unisys, Towey stated: I have now had an opportunity to review the report of the evaluators of this RFP, the recommendations contained therein, the raw data submitted with the proposals, and the RFP. I understand the nature of the project and its importance to the agency. Based upon my review of the information presented to me and my understanding of similar projects in the past, my decision is to award the contract to Unisys as the proposal most advantageous to the state of Florida, taking into consideration the price and other criteria set forth in the RFP. Although I have considered the risk of transition to a new contractor, I find that I am unable to ignore the dollar savings which will result in awarding the contract to Unisys. Since you and your staff have assured me that both companies are technically competent to perform the work, I believe the monetary savings outweigh any risk that might exist in the transition of contractors. Therefore, I have determined that it is in the state's best interest to award the contract to Unisys. Please take whatever steps are necessary to implement this decision. (Emphasis added). By his actions, Towey exercised more than the prerogative conferred by the RFP to "take any additional administrative steps deemed necessary in determining the final award" and actually evaluated criteria other than that contained in the RFP in reaching his decision to award the contract to Unisys. Further, in awarding the contract to Unisys, Towey effectively altered the relative weight of the criteria as specified in the RFP. Towey relied upon the advice of Clary. Illustrative of Clary's perspective is his testimony at the final hearing that he believed the 60/40 weighting contained in the RFP to be inapplicable to decision making by the Secretary of HRS. Neither Bill Belleville nor John Holland reviewed, in detail, the proposals submitted in response to the RFP. Neither performed their own independent analysis of the responses. Further, Clary never reviewed the RFP nor the proposals submitted in response to the RFP. In the course of his decision making process with regard to award of the contract to Unisys, Towey relied on the advice of Clary, Belleville and Holland, referred to by Towey as his "top managers", despite their undisputed lack of familiarity with the Deloitte and Unisys proposals. While his memorandum dated January 31, 1995, states he reviewed the RFP, Towey admitted in his testimony at the final hearing that he had not personally reviewed the document. Further, he never reviewed or performed his own analysis of the two proposals submitted in response to the RFP. The members of the Evaluation Committee members were the only persons to fully and carefully evaluate the two proposals and score them under the criteria contained in the RFP. Since that time, no one else from HRS has attempted to reevaluate or re-score the proposals. Neither Towey nor anyone else involved in the January 27, 1995 meeting disagrees with the analysis and scoring of the proposals by the Evaluation Committee. PRESENT-VALUE ANALYSIS Section 1.2 of the RFP, states, in part: This RFP will result in a thirty-six month contract. Further, Section 4.12(C) of the RFP states, in part: Upon selection of the winning proposal, the department shall enter into a contract for thirty-six (36) months. Although the possibility of renewal of the contract for a maximum of a single, one year term is contained in the RFP, there is no provision in the RFP which requires that HRS renew the contract after 36 months or that the contractor accept a renewal after 36 months for any specific term. By the terms of the RFP, any renewal of the contract for a period beyond the 36 month term is subject to negotiation between the contractor and the department. While proposals submitted by Unisys and Deloitte commit to maintaining the same costs in the event of renewal, negotiation as to the length, price and staffing for any renewal period less than a year, is not excluded by the terms of the RFP. Neither HRS nor the contractor is bound, under the terms of the RFP, to any extension of the contract. HRS' own manual, HRSP 75-3, entitled "Developing a Request for Proposal," states, in the section on contract renewals: If Contract Renewals have been provided for in this RFP, include the following recommended language in the Special Provisions subsection of the RFP: This contract may be renewed on a yearly basis not to exceed two (2) years beyond the initial contract or for a period no longer than the term of the original contract whichever period is longer. Such renewals shall be contingent upon satisfactory performance evaluations as determined by the department and shall be subject to the availability of funds. As specified in the provider's response to the RFP/ITB, the total cost for the contract under the' first year renewal will not exceed $ and the second year renewal will not exceed $ . Each renewal shall be confirmed in writing and shall be subject to the same terms and conditions set forth in the initial contract. (Emphasis added). Another in-house document at HRS is HRS manual, HRSM 75-2 (May 1, 1994 update), entitled "Contract Management System for Contractual Services". Chapter 5 of that document, entitled "Contractual Procurement Requirements," states, in pertinent part: The dollar amount and the manner in which the costs for the . . . renewals will be calculated must be specified in the response to the RFP and in the resulting contract document. By contrast, the RFP contains none of the language specified in either HRS manual regarding renewal. Section 4.12(c) of the RFP merely states: This contract term shall be renewable for a max- imum of a one year term upon the mutual agreement in writing of the contractor and the department. (Emphasis added). Terms of the RFP did not invite proposers to submit a specific cost or any other information for a renewal period or explain how costs for a renewal period would be calculated. Neither did the RFP contain any language that renewals would be conditioned on satisfactory performance by the contractor. Proposers, on blank cost forms, were requested in the RFP to provide HRS with their proposed prices for fixed price items, monthly costs and hourly costs. The forms, contrary to the requirements of HRS manuals applicable in situations where information for a renewal term is requested, did not provide a place for proposers to indicate costs for any renewal term or to demonstrate how those costs were calculated. Both contractors understood that any renewal would be subject to negotiation. The "Standard Contract" contained in the RFP provides only for a term of 36 months and a cost for that specific contract term. Consistent with the terms of the RFP that the contract was for a 36 month term, HRS submitted, on more than one occasion, materials to ITRPAC. In those materials, HRS represented that the proposed budget amounts of $25 million and $28 million for the project were for a three year term contract. The Notice of Award which HRS issued stated that a three year contract was to be awarded. Although the RFP addressed staffing at a maximum of 107 persons, HRS was aware that 100 percent staffing might not always occur. Section 2.l(B)(5) of the RFP permits 90 percent of the maximum staffing level at a given time without the vendor incurring a penalty. At one point in the RFP preparation, a draft of the RFP required 95 percent staffing. Even that level was considered by HRS to be too restrictive and anti-competitive and was amended to 90 percent out of fear that a 95 percent staffing level would discourage submission of competitive proposals. The 90 percent figure was also used in the RFP to account, in part, for projected attrition of contractor employees that HRS had historically experienced on this project. From the standpoint of budgetary allowances by HRS for the project, it is realistic to believe that the job will be staffed at somewhere between 90 percent and 95 percent rather than at the maximum staffing level of 107 employees. Although Section 4.15(D)(5) of the RFP states that the State is not responsible for paying contractor's employees for leave or vacation time, the testimony of Petitioner's financial expert, Dr. Elton Scott, establishes that a reasonable assumption is to assume that each employee is entitled to, and would take, at least two weeks vacation. Such an assumption should also be included when performing a present value analysis, particularly when assuming 100 percent staffing. Depending on budget allocations for this project, it is possible that HRS would only require that the contractor provide as few as 46 employees. The present value calculation performed by HRS indicated that, over 48 months, at 100 percent staffing (107 employees), the monetary cost of awarding the contract to Unisys would be approximately $500,000 less than the cost of awarding the contract to Deloitte, a savings of approximately 1.5 percent over the term of the contract. As demonstrated by HRS' subsequent present value calculation performed at final hearing in this cause, for the 36 month actual contract period, at maximum staffing, HRS would realize a savings of no more than $39,802 by awarding the contract to Unisys, a savings of less than 2/10ths of 1 percent. None of HRS' present value calculations accounted for leave/vacation time or for any staffing levels under 100 percent for any other reasons. Based upon the terms of the RFP, the language of HRS' procurement manuals, and the expert testimony of Dr. Scott, any valid present-value analysis should have included a 36 month term contract. Any such analysis should also have taken into account varying levels of staffing, leave/vacation time, and overtime if staffed at the minimum required. A properly performed present-value analysis indicates that Deloitte's proposal is less expensive than the Unisys proposal in the following amounts over a 36 month contract term, at the staffing levels indicated: Employees Leave/Vacation Time Overtime Deloitte Savings 107 2 weeks none $12,791 96 none none $109,062 96 none 5.8 percent $ 18,327 46 none none $844,473 (Pet. Exh. 15) The only scenario in which the Unisys proposal is less costly than the Deloitte proposal, using the proper present value analysis, would be at 107 employees, with no accounting for leave time. This unlikely future scenario would result in a savings of no more than $47,378, or less than 2/10ths of l percent of the contract amount over 36 months. Because it requires an up-front payment of more than $1,600,000 (as compared to $78,000 for Deloitte), the Unisys proposal places the State of Florida at substantially more financial risk than the Deloitte proposal in the event of nonperformance by Unisys. On February 1, 1995, HRS posted its notice of intent to award the Contract to Unisys. Deloitte filed its timely notice of intent to protest on February 3, 1995, and filed its timely formal protest and request for hearing on February 13, 1995.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which declines the award to Unisys and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of contracting for the services sought by the RFP. DONE and ENTERED this 12th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Intervenor's Proposed Findings: Adopted. Adopted as to 1st sentence. Remainder not relevant with exception of last sentence which is adopted. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. 6.-7. Rejected, cumulative. 8. Accepted. 9.-10. Rejected, subordinate to HO findings. Accepted. Rejected, subordinate to HO findings. Accepted. Rejected, cumulative. 15.-17. Rejected, subordinate. 18.-20. Rejected, relevance. 21.-22. Accepted. 23. Rejected, subordinate to HO findings. 24.-25. Accepted. 26.-29. Rejected, subordinate to HO findings. 30. Accepted. 31.-36. Rejected, subordinate. Rejected, weight of the evidence. Rejected, opinion, weight of the evidence. 39.-41. Rejected, subordinate. Respondent's Proposed Findings: 1.-3. Adopted, not verbatim. 1.-6. Adopted by reference. 7. Rejected, relevance. 8.-9. Rejected, cumulative, unnecessary. 10.-12. Accepted. 13. Rejected, cumulative. 14.-16. Accepted. Rejected, weight of the evidence. Rejected, relevance. Rejected, weight of the evidence. 20.-21. Rejected, argument. 22.-23. Rejected, subordinate to HO findings. 24. Rejected, argument. 25.-27. Rejected, subordinate, weight of the evidence. 28.-29. Rejected, relevance. 30.-31. Rejected, subordinate. Rejected, weight of the evidence. Rejected, subordinate, weight of the evidence. Rejected, relevance. 35.-36. Rejected, cumulative. Rejected, weight of the evidence. Accepted. Rejected, argument, weight of the evidence. Rejected, relevance, argument. 41.-42. Rejected, argument. Rejected, subordinate. Rejected, 20 percent difference, improper characterization. Rejected, relevance, argument. Rejected, argument, subordinate. Rejected, redundant, subordinate. Rejected, legal conclusion. Rejected, relevance, argument, lack of credible evidence. Rejected, weight of the evidence. Rejected, subordinate. Rejected, weight of the evidence. Rejected, relevance. Rejected, argumentative, legal conclusion. Rejected, legal conclusion, argument. Rejected, legal conclusion. Petitioner's Proposed Findings Of Fact: 1.-43. Accepted, though not verbatim in some instances. 44. Subordinate to HO findings. 45.-48. Accepted. Subordinate. Accepted. Subordinate. 52.-70. Accepted. COPIES FURNISHED: William E. Williams, Esq. Red D. Ware, Esq. Huey, Guilday & Tucker, P.A. 106 E. College Ave., Ste. 900 Tallahassee, FL 32301 William A. Frieder, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 W. Robert Vezina, III Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Dr. Tallahassee, FL 32302 Steven A. Blaske Unisys Corporation 4151 Ashford Dunwoody Rd. Atlanta, GA 30319 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Kim Tucker, Esq. Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
Conclusions This case came before me for the purpose of issuing a final agency order. The Administrative Law Judge, Stephen F. Dean, assigned by the Division of Administrative Hearings (DOAH) to the above-styled case, entered his Recommended Order dated June 4, 2004. In the Recommended Order, the Administrative Law Judge explained that the Division of Retirement could not process the Petitioner’s Petition for Benefits absent a judicial order issued by a court of competent jurisdiction determining heirs and a judicial order of guardianship of minor heirs. At the time the Recommended Order was issued, the Petitioner had not submitted either order to the Division of Retirement. The Administrative Law Judge recommended that the Division of Retirement allow the Petitioner to submit the required judicial orders within 45 days of the date of the order. In addition, the Administrative Law Judge recommended the Division’s dismissal of the Petition for Benefits, upon Petitioner's failure to provide the judicial orders within the 45 day time period. Prior to the Administrative Law Judge’s Recommended Order, the Petitioner submitted an Order Determining Beneficiaries to the Division of Retirement. Rather than submit the judicial orders identified by the Administrative Law Judge in response to the Recommended Order, the Petitioner filed a Notice of Exception stating that documents submitted prior to the Recommended Order fulfilled the requirements of the Recommended Order. Those documents were part of the application for benefits that the Administrative Law Judge determined are inadequate to support the Petition for Benefits. Because the exception is not responsive to the Recommended Order, it is rejected. The Division hereby adopts and incorporates by reference the Recommended Order issued by the Administrative Law Judge on June 4, 2004. A copy of that Recommended Order is attached hereto and made a part hereof as “Exhibit A.” Based upon the foregoing, it is ORDERED and DIRECTED that the application filed by Lavondra Steadman o/b/o John Steadman is rejected and the request for retirement benefits is hereby Denied. DONE and ORDERED this A k day of l , 2004, at Tallahassee, Leon County, Florida. Soult. Serra SARABETH SNUGGS ~~ State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 (850) 488-5541
The Issue Whether Petitioner, Eugenia Mays, has demonstrated by clear and convincing evidence that she should not be disqualified from employment in a position involving direct contact with developmentally disabled persons; and, thus, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification is an abuse of discretion.
Findings Of Fact APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust, and is charged with serving and protecting adults or children with developmental disabilities, sometimes referred to as vulnerable individuals.2/ Vulnerable populations served by APD may include individuals with developmental and intellectual disabilities, autism, cerebral palsy, spina bifida, Prader-Willi syndrome, and Down syndrome. Some of APD’s clients are incapable of expressing their needs or unable to express whether something is wrong. APD also has administrative jurisdiction to enforce the laws governing such licensees. Petitioner is a 55-year-old female seeking licensure from APD to serve as a direct care provider for Respondent’s clients. As part of the application process for employment as a direct service provider, Petitioner was subject to a routine pre- employment background screening pursuant to section 435.04, Florida Statutes. The screening revealed the existence of several disqualifying criminal incidents in Petitioner’s past. In 1987, 1990 and 1994, Petitioner was convicted of possession of cocaine, possession of cocaine with the intent to sell, and the sale of cocaine. Additionally, there were several non- disqualifying events in Petitioner’s background. On January 9, 2017, Petitioner executed her Request for Exemption, which was filed with the Department of Children and Families (DCF).3/ DCF conducts the initial screening of all applicants by making sure all the required documents are present and then it conducts the initial background investigation for APD. Background screening and local criminal records revealed a history of involvement with law enforcement. Petitioner admitted and took full responsibility for the offenses in both the paperwork she filed with APD and in her testimony at hearing. DCF then issued a “high level summary” to APD. Among the items submitted by Petitioner in support of her Request for Exemption were her employment history record, information regarding the final court dispositions of the arrest reports and/or charging affidavit; information regarding the completion of sanctions; her proof of rehabilitation; letters of recommendation; her personal history; an executed affidavit of good moral character; the non-disqualifying issues; and an updated local law result. Several letters were sent to Petitioner seeking additional information, and Petitioner responded to the best of her ability to each request for information. Once Ms. Jones received the DCF summary, she reviewed Petitioner’s documentation. She then checked the court and other systems for any additional charges that may not have been included by the Florida Department of Law Enforcement or the Federal Bureau of Investigation. Ms. Jones also verified that any court-ordered sanctions were completed. Ms. Jones had access to state and federal government databases, including a comprehensive case information system to ensure that all fines and fees were paid, and she checked the applicant’s “driving record through the DMV.” Additionally, she checked Petitioner’s “eligibilities through AHCA and Medicaid.” Ms. Jones then prepared a summary packet, which was provided to the ROM. The ROM must review the packet within a certain time frame and provide a recommendation to the State Office Committee (SOC). ROM Smith identified the factors that he considered when making his recommendation: the disqualifying offense(s); the circumstances surrounding the offense; any proof or some evidence of rehabilitation or counseling; any show of “some remorse and/or ownership of the charges that have been filed”; the possible consequences to “the health and safety of the individuals that” APD serves; and “any non-disqualifying offenses that may have been charged against the individual.” ROM Smith recommended denial of Petitioner’s exemption request. Upon receipt of the ROM’s recommendation, Ms. Jones then prepared a recommendation summary and presented that to the SOC. The SOC consists of APD’s chief of staff and a program administrator from the regional support unit. An APD attorney was present for legal advice. Ms. Jones identified the factors that APD’s SOC considers in making the recommendation for the denial of an exemption request as: “any arrests or criminal convictions after the original disqualifying offense; the employment history; training and education; professional references”; driving record; other agency exemptions or involvement with other agencies; and any inspections or exemptions of the other agencies. Ms. Jones averred that APD takes “into account those inspections or those exemptions.” Once the SOC made its recommendation, Ms. Jones took the two recommendations (the ROM’s and the SOC’s) to APD’s director who reviewed the material to make the final decision. Ms. Jones averred that “most of the time common sense is used” when APD approached the question of rehabilitation standards. That if the issue involved a drug-related offense, one would look for drug rehabilitation, and if that were missing, “that is a lack of responsibility on the applicant’s part.” A review of Petitioner’s application, and her uncontroverted testimony confirmed that she has been employed in several successful occupations since 1990. Petitioner’s first business, started in 1990, was Precise Nail and Beauty Salon (Salon). When the economy went down, Petitioner determined she needed a second job and that is when she started working for a home companion company in Bradenton. The Salon continues in operation today. Petitioner did research to begin her own home companion company and started Precise Home Companions (PHC). PHC is a non- medical operation, which is certified through the state to go into private homes and provide non-medical home care. This care includes preparing meals, doing laundry, making their beds, helping persons with their bills, taking them to and from doctors’ appointments, and whatever other activities they need. Petitioner successfully completed a Level 2 background screening and took the classes and/or training necessary for the license. Petitioner obtained the requisite insurance and continues to hold the appropriate bond for PHC. In setting up PHC, Petitioner was given access to conduct background screenings to hire more staff. Once the staff was on board, Petitioner had to ensure they had training and were tested for “TB.” Petitioner was responsible for making sure the six employees recorded their work hours in order for the payroll service to issue their pay. Petitioner recognized another area of need when a PHC client needed more attention than PHC could provide. Petitioner researched and opened an adult family care home. Petitioner’s adult family care home (AFCH) is licensed by the Agency for Health Care Administration (AHCA). AFCH is Petitioner’s responsibility and she maintains the requisite insurance and bond. AFCH is a home which provides room and board for up to five elderly clients, although only four were in residence on the hearing date. The clients may need assistance with their activities of daily living. AFCH also keeps the residents busy with various activities, outings and events. Disqualifying Offenses Petitioner testified that her “downfall,” as she refers to it, occurred in and before 1994. Between 1987 and 1994, Petitioner (when she was between 25 and 31 years of age) was convicted of possession of cocaine with intent to sell, sale of cocaine, and possession of cocaine, all disqualifying offenses. Petitioner steadfastly maintained that she has never used drugs, but possessed and sold them in order to support her children. No evidence was presented to establish that Petitioner ever used drugs. Petitioner admitted that it was her “decision to do wrong,” and she took full responsibility for those actions. However, Petitioner was clear that it was also her determination to change when she realized she had been wrong. Petitioner did change and for the past 23 years has not had a disqualifying offense. Petitioner changed her environment. She joined a church and became very active in it. She divorced her then- husband who she found to be using drugs. Petitioner recently married a man with a bachelor’s degree in rehabilitation counseling. Petitioner completed the sanctions imposed by the courts, and all fees and costs related to the disqualifying offenses were paid. For the past 23 years, Petitioner has not had any disqualifying offenses. Marvin Smith has known Petitioner for approximately ten years, having married Petitioner’s mother. Smith visits in Petitioner’s home once or twice a month, and does not think her residence is a “destructive environment.” Smith has attended church with Petitioner, and sees her lifestyle as “moving in the right direction.” Further, in the ten years Smith has known Petitioner, he has never seen her act in a violent manner.4/ Marvina Johnson-Allen has known Petitioner for over 20 years, and has witnessed Petitioner caring for people in her church and home. Additionally, Johnson-Allen provided insight into the various successful businesses that Petitioner has started, and Petitioner’s volunteer work in the community. Kathy Barnes has known Petitioner for over ten years, having met her at Petitioner’s beauty salon. Barnes was not Petitioner’s employee, but as a customer, Barnes watched Petitioner work hard. In over ten years, Barnes has never seen Petitioner use drugs or alcohol. At one point Barnes had major surgery, and without being asked by Barnes, Petitioner supplied housekeepers to enable Barnes to recover from the surgery. Edward Gresham has known Petitioner for approximately three years, and is now Petitioner’s husband. Gresham works as a rehabilitation counselor in the health care field, and also works in the home that Petitioner operates. Gresham has successfully cleared a Level 2 background check. Further, he has observed Petitioner ensuring that residents are clothed in their own clothes, are fed, and receive their allowances. In the three years he has known Petitioner, Gresham has not seen Petitioner use alcohol or illegal drugs. Non-Disqualifying Offense APD focused on (in addition to the drug rehabilitation issue) Petitioner’s driving record, and her designation as a habitual driving offender. The basis for this focus was a concern that Petitioner might drive a client to an appointment. Petitioner recently completed a driver’s education course, from which she learned a great deal about her responsibilities as a driver. She paid the fines associated with the offender status, and she has a current, valid work driver’s license. Petitioner anticipates obtaining a completely clear driver’s license in June 2018. In denying the request for exemption, APD “considered all available information that led to [Petitioner’s] disqualification, as well as all information provided by” Petitioner regarding the disqualification. APD denied Petitioner’s request because she had “not submitted clear and convincing evidence of [her] rehabilitation.” Other Attributes of Significance Petitioner has worked consistently over a sustained period in a position in which she cares for multiple persons. By all accounts, Petitioner is a reliable, kind, caring and diligent worker, and her current continuous employment demonstrates that she can be trusted to work appropriately in situations involving vulnerable adults. Petitioner is licensed by AHCA. She holds an exemption from AHCA which has been appropriately renewed since its issuance. Petitioner is allowed to participate in the Medicaid program as a provider. Petitioner completed courses necessary to obtain the requisite licenses. Section 435.07, Florida Statutes, the controlling statute regarding the exemptions from disqualification, provides the following, in pertinent part: Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying offenses revealed pursuant to background screenings required under this chapter, regardless of whether those disqualifying offenses are listed in this chapter or other laws. (1)(a) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies for which at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony; * * * (b) A person applying for an exemption who was ordered to pay any amount for any fee, fine, fund, lien, civil judgment, application, costs of prosecution, trust, or restitution as part of the judgment and sentence for any disqualifying felony or misdemeanor must pay the court-ordered amount in full before he or she is eligible for the exemption. For the purposes of this subsection, the term “felonies” means both felonies prohibited under any of the statutes cited in this chapter or under similar statutes of other jurisdictions. * * * (3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed. The agency may consider as part of its deliberations of the employee’s rehabilitation the fact that the employee has, subsequent to the conviction for the disqualifying offense for which the exemption is being sought, been arrested for or convicted of another crime, even if that crime is not a disqualifying offense. The decision of the head of an agency regarding an exemption may be contested through the hearing procedures set forth in chapter 120. The standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion. * * * (5) Exemptions granted by one agency shall be considered by subsequent agencies, but are not binding on the subsequent agency. Rehabilitation is not defined in statute or rule. Petitioner’s last disqualifying offenses occurred in 1994, approximately 23 years ago. At some point, the passage of time itself, without any disqualifying offenses, must be evidence of rehabilitation. While by no means dispositive, the passage of 23 years since the last disqualifying offense is substantial evidence of Petitioner’s rehabilitation. Petitioner’s forthright demeanor and her willingness to discuss her “downfall” and her determination to turn her life around are significant. Petitioner testified convincingly that she has turned her life around, and is not the same person that she was 23 plus years ago. Petitioner has successfully worked with elderly persons in a positive and helpful manner, and currently presents no danger to the vulnerable population served by Respondent. The concerns outlined by Respondent in its decision letter, without the benefit of the hearing testimony, were refuted by the credible testimony adduced at hearing. Common sense tells a huge story of Petitioner’s rehabilitated life. Petitioner meets the objective criteria for an exemption from disqualification as established by section 435.07(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Persons with Disabilities granting Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2018.
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 5th day of September, 1996.
The Issue The issue is whether Respondent discriminated against Petitioner by committing an unlawful employment action contrary to Section 760.10, Florida Statutes.
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992. Petitioner, an African-American female, began working in the Financial Aid Office at Florida State University as a student from 1978 to 1983. After receiving her undergraduate degree, Petitioner worked for Florida State University as a Financial Aid Specialist, administering Pell Grants from 1983 to 1989. In September of 1989, Respondent hired Petitioner to work in its Financial Aid Office as a Financial Aid Specialist. In July 1991, Petitioner became Respondent's Director of Financial Aid; she worked in that capacity during the 1996-97 school term. Mr. Tom Hanna, Respondent's Vice President for Administrative Services, was Petitioner's supervisor after she became Director of Financial Aid. From July 1991 through June 1996, Mr. Hanna gave Petitioner an overall performance rating of "above satisfactory." During the 1996-97 school year, Respondent's President, T. K. Wetherell, became concerned that students were not receiving timely notice of their financial aid awards. Untimely receipt of financial aid awards was a problem for Respondent because many students received financial aid. Respondent formed the Enrollment Retention Committee in the Spring of 1997. The purpose of the committee was to consider issues impacting student retention, such as financial aid. Mary Coburn, Respondent's Assistant Vice President for Student Services, was the Chairperson of the Enrollment Retention Committee. From the beginning, Ms. Coburn was concerned about problems with the delivery of financial aid to students. She received complaints from students about the Financial Aid Office losing documents and the inability of the staff to answer questions. The Enrollment Retention Committee formed a subcommittee to review financial aid operations. Dr. Marge Banocy-Payne was a member of the subcommittee. Dr. Banocy-Payne also was concerned about complaints from students about delays in receiving financial aid payments and problems with the attitudes of the financial aid staff. Petitioner worked with the subcommittee to find ways to improve financial aid services. In April 1997, the committee made 30 recommendations on ways that Petitioner could improve the Financial Aid Office. Mr. Hanna met with Petitioner at least five times during the 1996-97 school year to discuss multiple issues in the operations of the Financial Aid Office. Mr. Hanna meant for these meetings to serve as counseling sessions regarding Petitioner's ineffective performance. Mr. Hanna did not memorialize these meetings in writing because he believed Petitioner had been a loyal employee. Instead, Mr. Hanna felt that the problems in the Financial Aid Office were temporary and that Petitioner's job performance would improve. In June 1997, President Wetherell and Mr. Hanna requested Ms. Carmelita Tudor, Respondent's Director of Human Resources, to investigate allegations of improprieties in the Financial Aid Office. Ms. Tudor found no evidence to support these allegations. However, Ms. Tudor concluded in a June 12, 1997, written report that Petitioner was no longer an effective director of the Financial Aid Office and that Respondent should remove Petitioner from her position immediately. Ms. Tudor's recommendations were based in part on Petitioner's procrastination in filling vacant positions in the Financial Aid Office. The failure to promptly fill the positions compounded the workload and delayed the processing of Student Aid Reports for students who were waiting for financial aid. For example, an employee in a Veteran Affairs Specialist position gave Petitioner oral notice in June 1996 that the employee intended to retire. In August 1996, the employee gave Petitioner written notice that the employee would retire in January 1997. Mr. Hanna gave Petitioner authority to hire a replacement for the Veteran Affairs Specialist before January 1997 so that the retiring employee could train the new employee. Petitioner did not request that Respondent advertise for the vacant position until May 1997. The position was re-advertised in July 1997. The position was finally filled in September 1997. Mr. Hanna decided that Respondent should be transferred from her position as Director of Financial Aid. The decision was based on Petitioner's ineffective performance during the 1996-97 school term. The office had become dysfunctional and appeared to be incapable of providing financial aid to a significant number of students in the next school year. The decision to transfer or demote Petitioner was based on the following management issues: (a) Petitioner's failure to remain current with the job knowledge that was necessary to perform her duties, specifically in the areas of staff workload and staff morale; (b) Petitioner's failure to timely fill two full-time job vacancies in the office, adversely impacting the ability of the office to function adequately; (c) Petitioner's failure to ensure that the office produced a satisfactory quantity of work, evidenced by the volume of unprocessed aid requests; (d) Petitioner's failure to establish a dependable management style, requiring only minimum supervision; (e) Petitioner's failure to establish office management practices to eliminate unnecessary stress on staff and to ensure the respect of her staff; (f) Petitioner's failure to demonstrate initiative, making it necessary for the Enrollment Management Committee and other college personnel to examine the office in order to suggest ways to improve overall office performance; and (g) Petitioner's failure to exercise management judgment to discern problems and develop solutions or to implement plans of action developed by her colleagues and Mr. Hanna. By letter dated June 16, 1997, Mr. Hanna notified Petitioner of Respondent's intention to demote Petitioner to another position. Respondent scheduled the predetermination conference for June 25, 1997, so that Petitioner could respond in writing and orally to Respondent's proposed action. Petitioner's husband subsequently informed Mr. Hanna that Petitioner had been advised by her medical doctor to avoid any activities that might engender stress, tension, or anxiety for a period of 30 days. On July 1, 1997, Respondent increased the salary of the Financial Aid Director from $45,770.50 annually to $48,059.02 annually. This raise was not related to Respondent personally or to her performance. Instead, it was the result of an effort to standardize the salary for the position compared to the salary of financial aid directors at other institutions and the salaries of peer positions. Respondent's staff insisted that the pay grade for the position of financial aid director be changed even though Petitioner's job performance was substandard. By letter dated July 2, 1997, Petitioner's medical doctor advised Mr. Hanna that Petitioner was being treated for depression and would be unable to attend a July 15, 1997, predetermination conference. Respondent conducted the conference on July 31, 1997. Petitioner authorized her husband to speak on her behalf at the conference. On or about August 4, 1997, Respondent advised Petitioner that she was being transferred to a position with the Big Bend Job and Educational Council, effective August 11, 1997. Petitioner's new job as a WAGES Administrative Assistant had a salary rate of $36,000 annually. Respondent elected to transfer Petitioner to another position rather than terminate her or offer her a probationary period in her position as director of financial aid. Respondent did not want to damage Petitioner's career or cause her to lose benefits. Respondent did not believe that Petitioner could successfully complete a probationary period in her position as director of financial Aid in which she would have been required to show significant progress. On August 13, 1997, Petitioner filed her Charge of Discrimination with FCHR. On August 15, 1997, Petitioner filed a grievance claiming that Respondent's decision to transfer her was "inappropriate and unfair." This complaint initiated the grievance process set forth in the classified staff manual. On August 28, 1997, Ms. Coburn upheld Mr. Hanna's decision to transfer/demote Petitioner. Ms. Coburn handled Petitioner's grievance at Step III because Mr. Hanna was Petitioner's direct supervisor. Mr. Hanna conducted Petitioner's annual employee evaluation for the period of July 1, 1996, through June 30, 1997. In preparing the evaluation form, Mr. Hanna noted the deficiencies in Petitioner's job performance. Mr. Hanna gave Petitioner an unsatisfactory rating regarding her knowledge of her job, the quality of her work, the quantity of her work, dependability, responsibility, initiative, judgment, attitude and attendance. Mr. Hanna attempted to furnish Petitioner with the evaluation personally but was unable to arrange an interview with Petitioner. Mr. Hanna eventually mailed the evaluation to Petitioner on or about September 4, 1997. On September 8, 1997, Petitioner filed her Step IV grievance with President Wetherell. On September 16, 1997, President Wetherell upheld the decision to transfer/demote Petitioner and denied her grievance. On October 9, 1997, Petitioner filed her Step V grievance, seeking review by the Board of Trustees. President Wetherell responded to the Step V grievance on November 14, 1997. On or about November 26, Petitioner received copies of documents to be presented to the Board of Trustees. On December 1, 1997, Petitioner and Respondent's representatives addressed the Board of Trustees. After reviewing the matter, the Board of Trustees approved the decision to transfer/demote Petitioner from her position as financial aid director to WAGES Administrative Assistant. Respondent employed Petitioner at the Big Bend Job and Education Council until May 10, 2000. During that time, Petitioner received employment promotions and salary increases. On May 10, 2000, Respondent concluded its administration of the Big Bend Job and Education Council. As of the time of the final hearing, Petitioner continued to be employed as the One-Stop Coordinator for the Big Bend Job and Education Council. The program is now administered by a private, non-profit organization. In the 1994-95 school term, Carlotta Appleman was employed as Respondent's Computer Systems Manager. She was responsible for all of Respondent's information technology services. In the 1994-95 school term, Respondent employed Norm Cave, an American Indian/Alaskan Native male, as a programmer analyst. Mr. Cave had no supervisory responsibilities or direct contact with Respondent's students. Ms. Appleman was Mr. Cave's supervisor. In the last half of 1994, Ms. Appleman placed Mr. Cave on probationary status because of issues involving interpersonal relations and insubordination. Ms. Cave's probation was not based on the quantity and quality of his work or job performance. Mr. Cave failed to resolve the issues of interpersonal relations and insubordination during his probation. Mr. Cave resigned his position effective August 31, 1995. As director of financial aid, Petitioner had supervisory responsibilities over employees and was charged with direct student contact. Petitioner was transferred/demoted because of her job performance deficiencies. There are no similarities in the employment situation involving Mr. Cave compared to the employment situation involving Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether this cause is barred by a release of all claims.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner, Jessica Miles', Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 9th day of December, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of December, 2010.
Findings Of Fact Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined: Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that: Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I) Petitioner had violated section 490.009(2) (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II) Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III) The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings: 5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with R. B.'s husband in order to make R. B.'s termination of therapy more successful. The evidence did not show that Respondent had ever agreed to formulate a psychologist/ client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated. The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr. Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added) The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel: I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that occurred to me were out of his own mouth. . . (emphasis added) This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR): By Dr. Brown's own admission, he performed psychological services for the children of R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner: Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S. The matter was assigned DPR Case No. 9007566. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter: This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that: It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations." On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows: I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows: Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86). Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that: ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY. I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice: Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony. But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not. I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata. Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new administrative complaint on his own admission. Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows: This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes. It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action. It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues. I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If you have any questions or comments regarding this matter, please feel free to contact me. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order: . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity. The court went on to say The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts. Id. at 1341. The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total $12,537.00.
Findings Of Fact The Department of Management Services ("Department") and United Technologies Corporation ("UTC"), on behalf of itself and its divisions, subsidiaries and affiliates, hereby enter this Joint Stipulation, through counsel, and stipulate to the following facts: On August 28, 1992, UTC pleaded guilty to a four count criminal information. A copy of the plea agreement and related documents are attached as Exhibit A. The plea was entered in the United State District Court, Eastern District of Virginia, and resulted in the criminal judgment attached as Exhibit This judgment, under the definitions of subsection 287.133(1)(g), Florida Statutes, was a public entity crime. UTC's conviction arose from an investigation of defense procurement improprieties, focusing on consultants, known commonly as the "Ill Wind" investigation. On August 28, 1992, UTC notified the Department by telephone and in writing of the anticipated judgement. A copy of UTC's written notification is attached as Exhibit C. On September 3, 1992, UTC provided the Department with a copy of the plea agreement, the criminal information, and the prosecutor's statement of facts. A copy of the transmittal letter accompanying these documents is attached as Exhibit D. On August 10, 1994, the Department issued a notice of intent pursuant to subparagraph 287.133(3)(e)1., Florida Statutes. UTC received the notice, a copy of which is attached as Exhibit E, on September 6, 1994. On September 23, 1994, pursuant to subparagraph 287.133(3)(e)2., Florida Statutes, UTC timely filed a petition for formal administrative hearing in accordance with subsection 120.57(1), Florida Statutes, alleging that it would not be in the public interest to place UTC or any of its divisions, subsidiaries or affiliates on the State of Florida Convicted Vendor List. Section 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable, will mitigate against placement on the Convicted Vendor List. Section 287.133(3)(e)3.d., Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a mitigating factor. UTC paid promptly all fines ($2 million), assessments ($800), civil claims ($2.5 million), and the government's costs of investigation ($1.5 million for Department of Justice and $10,000 for Department of Defense). An affidavit attesting to these payments is attached as Exhibit F. The Department does not contest any of the facts set forth in the affidavit. Section 287.133(3)(e)3.e., Florida Statutes, establishes "[c]ooperation with a state or federal investigation or prosecution of any public entity crime" as a mitigating factor. UTC cooperated fully in the grand jury investigation conducted by the United States Attorney. As part of the plea agreement, the United States Attorney agreed to advise the Department of Defense that UTC "cooperated fully" with its investigation. A copy of this stipulation is attached as Exhibit G. UTC also cooperated fully with the Florida Department of Management Services in its investigation pursuant to Section 287.133(3)(e)1., Florida Statutes. Section 287.133(3)(e)3.f., Florida Statutes, establishes "[d]isassociation from any other person or affiliate convicted of the public entity crime" as a mitigating factor. UTC has disassociated itself from all individuals convicted of the wrongdoing which gave rise to UTC's conviction. Relationships with convicted consultants and employees have been terminated. A more detailed description of these terminations is contained in the affidavits and documents attached as Exhibit H. The Department does not contest any of the facts set forth in Exhibit H. Section 287.133(3)(e)3.g., Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. UTC has comprehensive ethics and government contract compliance programs. These programs are outlined in Annex I to an AGREEMENT BETWEEN THE DEPARTMENT OF DEFENSE AND UNITED TECHNOLOGIES CORPORATION, effective as of September 29, 1992, attached as Exhibit I. UTC's programs are centered on a Code of Ethics and a Policy Statement on government contracting, copies of which are attached as Exhibit J. Section 287.133(3)(e)3.h., Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. The Department of the Navy, acting on behalf of the Department of Defense, entered an administrative agreement with UTC, the sole purpose of which was to evidence that UTC is presently responsible to contract with the federal government notwithstanding UTC's conviction in Ill Wind. The AGREEMENT BETWEEN THE DEPARTMENT OF DEFENSE AND UNITED TECHNOLOGIES CORPORATION, effective as of September 29, 1992, provides -- paragraph 2: "UTC may use the fact of this Agreement as evidence of the Navy's favorable review of the UTC compliance program." paragraph 14: "In recognition of the actions by and covenants of UTC set forth herein, the Department of Defense will not suspend or debar UTC or any of its divisions or affiliates" based upon UTC's Ill Wind conviction. (A copy of the full agreement is attached as Exhibit K). Section 287.133(3)(e)3.i., Florida Statutes, establishes compliance with the notification provisions of section 287.133(3)(a) or (b) as a mitigating factor. UTC promptly complied with these provisions. Section 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. UTC has demonstrated good citizenship through its community affairs programs. This includes both financial contributions and employee volunteers in supporting UTC-sponsored programs. More than 10,000 employees volunteer their time in support of education and other community needs. More detailed information demonstrating UTC's good citizenship is attached as Exhibit L. The Department does not contest any of the facts set forth in Exhibit L. The Department is aware of no aggravating facts concerning the conviction of UTC. The UTC divisions and subsidiaries which conduct or currently plan to conduct business in or with the Sate of Florida and/or which are registered to do business in Florida are listed in Exhibit M. This joint stipulation provides a full and complete factual basis for determining whether UTC should be place don the Convicted Vendor List. In light of the facts and the criteria set forth in section 287.133(3)(e)3.a. through k., Florida Statutes, and the presumptions created by section 287.133(3)(e)4., Florida Statutes, there are no disputed issues of material fact between the Department and UTC which would require a formal hearing.
