The Issue The issue presented was whether the Department of Children and Family Services was justified in terminating the provider's certification in accordance with Florida Administrative Code, Chapter 65B-11.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for certification and regulation of supported living coaches, pursuant to Florida Administrative Code, Chapter 65B-11. Petitioner was issued by Respondent, a Home and Community-Based Waiver Services Provider Certificate for Supported Living Coaching. Petitioner was provided information which gave him the specific requirements of a supported living coach which Petitioner acknowledged. Petitioner was offered assistance and training but did not take advantage of the support. Petitioner was given notice by letter that an unannounced monitoring would occur within the week of April 13- 17, 1998, and two self-assessment monitoring checklists were included to be completed in order to be reviewed at the monitoring visit. The self-assessment checklists were not completed. On April 15, 1998, the monitors reviewed the information that was available and determined all 30 citations were unmet. Petitioner was informed of the deficiencies by letter dated April 17, 1998, and was given the opportunity to submit a Quality Improvement Plan (QIP). He was also informed that a follow-up visit would occur within 60 days of the acceptance of the QIP. Petitioner submitted his QIP by letter dated April 29, 1998, and did not dispute any of the findings of the monitors' report. The QIP was approved on May 22, 1998. On August 6, 1999, the monitors conducted a follow-up monitoring visit to determine if the QIP had been successfully implemented to bring Petitioner into compliance with the requirements of Florida Administrative Code Chapter 65B-11. The monitors appropriately determined that Petitioner was significantly out of compliance with 14 of the 30 citations unmet. By letter dated August 18, 1998, Petitioner was informed of his noncompliance and a moratorium from accepting new clients was placed on him in accordance with Florida Administrative Code Chapter 65-11.011. Petitioner was given the opportunity to submit a second QIP which had to be implemented within 30 days of its acceptance. Petitioner again submitted a QIP and again did not dispute any of the findings of the monitors' report. On October 23, 1998, the monitors conducted a second follow-up visit to determine if the second QIP had been successfully implemented. Again, Petitioner was significantly in noncompliance with 13 citations unmet. The Department informed Petitioner by letter dated November 3, 1998, of the noncompliance and of the termination of his certification as a supported living coach. Although Petitioner generally alleged at the hearing that he received disparate treatment by the Department, no reliable evidence was presented to support his claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order terminating Milton Taylor's Home and Community Based Services/HCBS Medicaid Waiver certification. DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2000. COPIES FURNISHED: Laura Smith, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Milton Taylor 15710 Herman Street Clearwater, Florida 33760 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Is Respondent, as an employer, guilty of an unlawful employment practice(s) against Petitioner as its employee through discrimination by race.1/
Findings Of Fact Petitioner is an African-American male. Respondent is the Career Resource Center at the University of Florida (CRC). The CRC specializes in developing individuals' skills in career counseling, administering vocational assessments, presenting workshops, assisting in job searches, critiquing resumes, and assisting students with career plans. CRC is within the University's Division of Student Affairs. Within CRC itself, there are three divisions dealing respectively with career development, experiental education, and job search issues. CRC's administrative group manages the three internal divisions. CRC is the "Harvard" or "Yale" for training career counselors, so the opportunity to train at CRC to be a career counselor greatly enhances trainees' skills, resumes, and hireability. CRC utilizes full-time employees, mostly in the administrative group; graduate assistants; and interns. Both graduate assistants and interns are in training to become career counselors. Some witnesses considered the terms "assistant" and "intern" to be interchangeable. The greater weight of the credible evidence is that they are not. Graduate assistantships at CRC have a student fee waiver attached to them. Graduate assistants are paid at an hourly rate of pay negotiated annually on an academic year basis by their union. Typically, graduate assistantships are funded, in whole or in part, by specific departments of specific academic colleges within the University, and therefore those departments/colleges specify the qualifications for hiring applicants for the graduate assistant positions at CRC. Internships at CRC fall into paid and unpaid categories. Paid internships do not entitle the intern to a fee waiver, but they are paid an hourly wage set by the CRC. Unpaid internships have no fee waiver or hourly wage associated with them. Interns receive undergraduate or graduate credit, regardless of whether they are paid or unpaid. Graduate assistants and interns do not share the same program, but each program usually requires 40 hours of work per week for one semester or 20 hours of work per week for two semesters. Interns and assistants are usually subject to the same work standards. Assistantship positions were required to be advertised, giving the number of required hours and the hourly rate of pay for those hours. Petitioner never applied for an assistantship. At all times material, CRC had a variety of ways of advertising for interns: word of mouth, fliers, and advertisements. At all times material, CRC fliers did not indicate the number of internships available; did not specify whether any internship was paid or unpaid; and did not include anything about assistantships. The fliers were intentionally vague in the foregoing ways because CRC staff wanted to be able to use them year after year, even though the number of paid and unpaid internships varied from year to year with fluctuations in the funding and space available. The fliers were changed to be more specific the year after the year in which Petitioner applied. Petitioner responded to one of the internship fliers in June 2001. For the academic year 2001-2002, CRC counseling internships and assistantships required a two-semester commitment from the applicant. CRC teaching internships required only a commitment to teach one class for a full semester. Each semester is made up of 16 weeks. An academic year equals 32 weeks. The number of paid interns accepted by the CRC per year is dependent on available funding sources. The number of unpaid internships depends, from year to year, upon the needs of the CRC career development team and the space available to CRC for counseling purposes. Most internships in career development are unpaid internships, but students are glad to get them anyway, because it is the counseling experience and resume status that is valuable. Also, the clinical practicum requirements inherent in graduate student programs often can be fulfilled while earning academic credit in the teaching and/or counseling components of a CRC internship. In the summer of 2001, applicants for internships and assistantships were required to submit a resume and a statement of what they hoped to gain from their CRC experience. They were then interviewed. After the review, CRC employees either extended an offer or did not. Throughout the summer of 2001, internship applicants usually would be told whether they were being offered a paid internship only at the point of interview and/or offer by the CRC. Through the summer of 2001, CRC used an "open until filled" method of filling internship positions. CRC's hiring process then was not to interview everyone who applied over a period of several months and then select candidates from the accumulated pool of interviewees all at one time, based on a comparison of their qualifications. Instead, CRC's process was to interview candidates sequentially, as each person applied, and to hire him or her sequentially. In June 2001, Helda Montero, supervisor of the CRC's teaching component, reviewed Petitioner's resume and completed a telephonic interview with him the night before he interviewed with the full CRC team, because she had a conflict with the scheduled team interview time. She concluded Petitioner was qualified to be an intern. She was unsure, but "felt" that she had told him he was interviewing for an unpaid internship. The next day, Petitioner interviewed with the remainder of the CRC team, headed by Dr. Carlos Hernandez, then- Associate Director of the CRC. Afterward, Dr. Hernandez recommended to the CRC's Director that Petitioner be hired; hiring was approved; and a few days later, Dr. Hernandez offered Petitioner an unpaid internship for two semesters, the academic year August 2001 through May 2002. It is not clear whether Petitioner was told at the team interview, or a few days later, when the offer of an unpaid internship was extended by Dr. Hernandez, or whether he was told at both times, but at one or more times, Dr. Hernandez told Petitioner that he was interviewing for/being offered an unpaid internship. In previous years, CRC had utilized between one and four unpaid interns. For the August 2001-2002 academic year, there was only one unpaid internship, the one offered to Petitioner. At the time Petitioner was offered an unpaid internship, there were no vacant paid internships available. At all times material, Petitioner was a graduate student of the University of Florida's Department of Psychology in the College of Arts and Sciences. At the time he applied to CRC, Petitioner had completed his master's degree in psychology. He previously had done a lot of volunteer counseling, but it was counseling outside the area of career counseling. Also, he had never filled a full-time counseling position of any kind. For the 2001-2002 academic year, the CRC, had funding for only two paid internships. One paid internship was all, or partially, funded by the College of Education. Therefore, only graduate students of the College of Education's Department of Counselor Education were eligible to fill it. Petitioner did not have those qualifications. The other paid internship was open to the general graduate student population, including Petitioner. However, both paid internships had been offered to, and been filled by, Caucasian students as of May 24, 2001, and Petitioner did not even apply to the CRC until June 15, 2001. Therefore, when Petitioner had applied, there were no longer any unfilled paid internships available. When Dr. Hernandez extended an offer of a two-semester unpaid internship to Petitioner on June 22, 2001, there was only the single unpaid internship available. Clearly, the CRC could have waited until a Caucasian applicant turned up, but staff offered the sole unpaid internship to Petitioner, an African-American. Petitioner was the only African-American hired in that hiring sequence. When, on or about June 22, 2001, Dr. Hernandez offered Petitioner the sole unpaid internship available, Petitioner expressed disappointment. Dr. Hernandez told him that CRC would try to revisit funding his position. However, it is clear that Petitioner accepted the two-semester unpaid internship, knowing it was unpaid, and it is equally clear that it was never promised by Dr. Hernandez or anyone else that Petitioner would eventually become a paid intern. Petitioner conceded that there was no intentional discrimination in Respondent's advertising methods, but he felt that in practice, it would have been better and fairer if CRC had refused to hire him for the unpaid internship. Petitioner testified that if Dr. Hernandez discriminated in hiring him it had been "inadvertent" and not intentional. Respondent's employees agreed that the 2001 advertising and hiring process for interns could have been clearer, but no discrimination on the basis of Petitioner's race was demonstrated. Petitioner tried to show that in some previous years, unpaid interns had begun to be paid when new funding was acquired, or that they had been moved into paid internships as vacancies occurred, but he was only able to show that unpaid interns sometimes had been hired into paid internships the semester following the semester in which they served as unpaid interns. Ms. Montero had been one such intern, and an African- American male also had been one. Petitioner worked as an unpaid intern for CRC for two semesters of the 2001-2002 academic year. Throughout that period, Petitioner made the work environment difficult for all staff and graduate students by reminding everyone that he was the only one among the assistants and interns who was not being paid. Upon joining the CRC team, Petitioner was required to sign a record of volunteer service; a loyalty oath and an intellectual property agreement; a controlled substance questionnaire; and a retirement form. The loyalty oath and intellectual property agreement identify Petitioner as an "employee." The record of volunteer service identifies him as a "volunteer." On the other forms, he declared that he was not drawing state retirement and that he was a potential employee. In fact, Petitioner never was paid retirement benefits, insurance benefits, or compensation of any kind by CRC. Petitioner's two-semester commitment as an unpaid intern was designed to contain a teaching component and a counseling component for both semesters. The first semester, Petitioner was assigned to teach a section of a career development course, supervised and evaluated by Helda Montero, and to provide intake for counseling appointments and individual follow-ups for those appointments, supervised by Elaine Costellani. Petitioner's teaching component was discontinued for the second semester due to a December 6, 2001, written evaluation by his teaching supervisor, Helda Montero. Ms. Montero counseled Petitioner on his teaching flaws as she perceived them throughout the first semester, and particularly in a mid-semester oral progress report. The mid- semester progress report was done orally to give teaching interns an opportunity to improve and grow before a written evaluation was made for their files. Petitioner made slight improvements during the last half of the first semester, but Ms. Montero's December 6, 2001, written evaluation was based on her perception of his poor classroom management, specific oral complaints by two students, written classroom evaluations of him by all his students which were significantly lower than those for other teaching interns, his poor participation in the teaching supervision process (weekly meetings, etc.), and other teaching problems. Ms. Montero's December 6, 2001, evaluation was based partly on two of Petitioner's students separately seeking her out and relating that Petitioner's humor in class had embarrassed and demeaned them. Ms. Montero also placed great emphasis on the many student evaluations which complained about Petitioner's assignments being too difficult and his grading scale being too strict for a one-hour, one-credit class. Part of her evaluation of his classroom technique was based on observational supervision of his classroom performance through a window. This is a teaching mode widely recognized as valid. Another part of her evaluation was based on her perception that Petitioner was defensive and resistant to incorporating interactive periods into his own lecture style of teaching and on his "difficult" personality in group meetings. Ms. Montero's perceptions may have been correct or incorrect, but there is no persuasive evidence that she had any racial motive in her written evaluation of Petitioner's teaching. Likewise, the students who complained to Ms. Montero about Petitioner may or may not have had the motivation to do Petitioner harm so as to get a better grade, but there is no persuasive evidence their complaints were racially motivated. Also, although there is a suggestion within the collected written student evaluations of Petitioner's teaching that some students just did not want to work hard in a one- credit course or did not consider spelling, grammar, and presentation of projects and tests as important as Petitioner did, such student evaluations are considered a valid tool by the University. The University uses these student evaluation forms to review all its instructors. Finally, there is no persuasive evidence that the written student evaluations of Petitioner's teaching were applied selectively to Petitioner or were racially motivated. The two Caucasian interns who were paid were rated higher in teaching by Ms. Montero than Petitioner was, but Petitioner did not establish that there was any inaccuracy or racial motivation in her ratings of them or of Petitioner. Petitioner protested, and was afforded a conference with Ms. Montero and Ms. Montero's supervisor, Ms. Severy. Afterwards, he was permitted to place a written rebuttal of Ms. Montero's December 6, 2001, evaluation in his file, but Ms. Severy upheld Ms. Montero's decision to remove the teaching component from Petitioner's internship program for the second semester. Petitioner claimed that he was rated on different forms than the two Caucasian interns, but the difference in forms appears to be associated with differences in on- and off- site counseling assignments. In any case, that issue is immaterial in that the different forms were not associated with teaching, which was the only component wherein Petitioner was found deficient. Despite curtailment of the teaching component of his internship, Petitioner was permitted to continue career counseling through both semesters of the 2001-2002 academic year, and despite some other problems,3/ he was ultimately rated satisfactory by his counseling supervisor, Ms. Costellani. (See also, Finding of Fact 51) During both semesters, his counseling responsibilities were the same as the Caucasian assistants and interns who were paid. In the Spring of 2002, CRC lost the intern whose position had been funded by the Department of Education. This left one vacant paid internship and rendered the remaining counseling staff, regardless of their titles or paid or unpaid status, overwhelmed with counseling work. CRC staff, most notably Lisa Severy, made the decision not to pay Petitioner, who was already on board as an unpaid intern and counselor, but to recruit someone new, so as to replace the missing counselor with an additional counselor who was sorely needed. As noted above, there was never any promise that Petitioner would be moved into a paid internship if a vacancy occurred. This was not a promotion-type situation. The CRC was looking for an additional qualified “warm body.” Moving Petitioner into a paid position would not have represented a net gain in the number of counselors. It also would not have been possible to replace Petitioner as an unpaid intern in the middle of the second semester. CRC did not re-advertise for a paid intern, graduate assistant, or a new counseling position. Ms. Severy heard about Kristin Mercer by word of mouth. Ms. Mercer was an experienced counselor with years of full-time counseling experience. She had completed a master's degree and a counseling specialist certification program, and was on maternity leave at the time she was hired by CRC. CRC hired Ms. Mercer, a Caucasian, effective May 3, 2002, for 15 hours per week. At the time of hire, Ms. Mercer's credentials exceeded those of Petitioner. (See Finding of Fact 22) Ms. Mercer was not a University of Florida student at the time of hire, and therefore she was not eligible for an internship or graduate assistantship. However, upon being hired, she performed the same counseling duties as CRC's graduate assistants, paid interns, and Petitioner, the sole unpaid intern. Although Ms. Severy first testified that the remaining money allocated to the internship funded by the Department of Education and vacated by a paid intern in the Spring of 2002, was used to pay Ms. Mercer, I find more persuasive Ms. Severy's later testimony, the corroborative testimony of Ms. Montero, and Petitioner's own testimony, that Ms. Mercer's salary for 15 hours of counseling per week was funded out of OPS funds originally allocated to a 40-hour per week secretarial position which had been vacated by a promotion in December 2001. Petitioner completed his two-semester commitment to CRC and was almost immediately employed by Union Correctional Institution as a Psychological Specialist. As such, he assesses and counsels but does not teach. In aid of his almost immediate hiring by the correctional facility, the CRC sent a favorable reference on his behalf to the facility. Petitioner continued to be fully employed, as set out above, through the date of the disputed-fact hearing. He does not seek "damages" after leaving CRC. Rather, Petitioner seeks $9.50 for 20 hours per week for the 32 weeks he was with CRC. This figure is based on his belief that paid interns were paid $9.50 per hour while he was there. This figure is in dispute, but since CRC had time to research and thereafter formally admitted in materials submitted to the Florida Commission on Human Relations that $9.50 was the hourly rate for paid interns in 2001-2002, that figure is accepted over Ms. Montero's testimony that the hourly rate was $8.75. Although he never applied for an graduate assistantship, Petitioner also seeks $6,000.00 as an "equivalent" to an assistant fee waiver. This is a ridiculous contention and without merit. He also claims money on the theory he was subjected to working without pay while knowing that others were paid. This also is not a legitimate element of damages under Chapter 760, Florida Statutes. Since Petitioner is no longer a University student, he is no longer eligible for a CRC internship or graduate assistantship, nor has he been eligible at any time since May 2002. He is not seeking to be reinstated to a CRC internship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 12th day of February, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2004.
The Issue Whether Petitioner had a contractual obligation, which it breached, to employ Respondent during the 2009-2010 school year, and, if so, what damages should be awarded.
Findings Of Fact The following is a verbatim recital of the Joint Stipulation of Facts filed by the parties on June 8, 2012: Lurana Hillard (Respondent) was employed by the St. Lucie County School District (Petitioner) as a Program Specialist for School Psychology and School Psychologists beginning in the 2005/2006 school year. Respondent was a participant in the Florida Retirement System ("FRS") and its Deferred Retirement Option Program (hereinafter "DROP"). Respondent's initial 60-month period of DROP was from July 1, 2002 through June 30, 2007. In January 2007, Respondent signed a document requesting to extend her participation in DROP beyond the initial 60- month period. A true and correct copy of the Form is attached as Exhibit B.[1/] Barbara Casteen is the Director of Student Services and Respondent's supervisor. On January 12, 2007, Barbara Casteen sent Steve Valencia, Director of FTE/Position Control, an email with a copy to Respondent regarding DROP extension. A true and correct copy of that email is attached as Exhibit A.[2/] On January 16, 2007, DROP Extension forms [sic] prescribed by the Florida Retirement System were executed by Respondent and Steve Valencia. A true and correct copy of the Form is attached as Exhibit B. Mr. Valencia had the authority, as the Superintendent's designee, to execute the form advising that that the School Board stipulates that the Respondent was eligible to participate in DROP beyond the initial 60- months. On January 23, 2007, at a regularly scheduled School Board meeting, the Board approved the Personnel Agenda which included DROP extension for Respondent.[3/] Attached is a true and correct copy of the Personnel Agenda for the January 23, 2007 meeting and minutes from the same.[4/] The Board has taken no subsequent formal action regarding Respondent's DROP status. On May 26, 2009, Barbara Casteen sent Respondent a letter advising that she would not recommend her for reappointment for the 2009-2010 school year. A true and correct copy of this letter is attached as Exhibit C. On June 30, 2009, Respondent signed a Notification of Separation from Employment Form. A true and correct copy of that Form is attached as Exhibit D. On July 29, 2009, the School Board approved Respondent's retirement. A true and correct copy of a letter from Shelby Baker, Personnel Records Specialist and Employer Notification of Employment Termination are attached as Exhibit E. Respondent initially submitted a letter of resignation pursuant to the DROP statute dated June 30, 2007. Based on request to extend DROP, Respondent submitted another letter of resignation dated June 30, 2010 pursuant to the DROP statute. Respondent received from FRS a Revised Notification of DROP Extension Benefits which is attached as Exhibit F. Attached is a true and correct copy of the FRS DROP Termination Notification as Exhibit G. Apart from the documents referred to herein, Respondent was issued no documents by the St. Lucie County School Board reflecting her employment status during the period of her DROP extension. The body of the January 12, 2007, email from Ms. Casteen to Mr. Valencia attached to the parties' Joint Stipulation of Facts as Exhibit A (1/12/07 Email) read as follows: I am approving the DROP extension for Lurana Hillard for 3 years from 7/1/07 to 6/30/10. If you need any further information, please feel free to contact me. The "Form" attached to the parties' Joint Stipulation of Facts as Exhibit B is a completed Department of Management Services, Division of Retirement (Division) form--Form DP-EXT (05/05) (DROP Extension Form)--signed in January 2007, by Ms. Hillard and by Mr. Valencia, as the Superintendent's "designee".5/ On this completed and signed DROP Extension Form (Executed Extension Form or Form), Ms. Hillard indicated that her "DROP begin date" was July 1, 2002; that her "DROP termination and resignation date" was June 30, 2007; and that she was "requesting to extend [her] DROP participation through 6/30/10 with the approval of [her] employer." The "Employer Certification" section of the Form contained the following statement made to the Division by Mr. Valencia, as the Superintendent's designee: This is to certify that the St. Lucie County School Board (agency name) has rescinded the resignation of the above named member whose position meets the definition of an instructional position. The agency has approved a new termination date of 6/30/10. This agency stipulates that this member is eligible to participate in the DROP beyond 60 months and the member will continue working in a regularly established position as a School Psychologist.[6/]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Lucie County issue a Final Order declining to award Ms. Hillard the relief requested in her Petition. S DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 18th day of July, 2012.
The Issue The issue in this case is whether Respondent should award a contract to Intervenor to provide physical and occupational therapy services to approximately 1,300 exceptional education students who qualify for such services in 77 public schools in Brevard County, Florida.
Findings Of Fact Intervenor is the incumbent contractor for physical and occupational therapy services provided to Respondent. Intervenor has provided such services to Respondent for approximately six years. On February 24, 1999, Respondent issued its request for proposals ("RFP") for occupational and physical therapy services. The RFP consists of eight unnumbered pages. Ten companies responded to the RFP. However, only the proposals of Petitioner and Intervenor are at issue in this proceeding. A four-member evaluation committee ranked each proposal on the basis of six categories. The six categories were: experience; qualification; recruiting ability; location of office; and responsiveness. The evaluation committee also considered the hourly rate and mileage to be charged by each proposer. The evaluation committee met as a body. Each member of the committee then returned to his or her respective office to complete a scoring sheet. The scoring sheet listed each proposer's name in a column down the left side of the sheet and the six categories for evaluation from left to right across the top of the sheet. A column down the right side of each sheet listed the hourly rate to be charged by the proposer identified in the column down the left side of the sheet. The RFP does not prescribe a scoring formula to be used in completing the scoring sheets. In relevant part, the RFP merely states: . . . The Selection Committee shall rank the firms in order of preference and will submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. All four members of the evaluation committee ranked Intervenor's proposal first and Petitioner's proposal second. However, the hourly rate in Petitioner's proposal was the lowest of all proposers, at $34.75, and $4.25 less than the $39 hourly rate quoted in the proposal submitted by Intervenor. The proposal submitted by Intervenor charged mileage in addition to the hourly rate while the hourly rate quoted by Petitioner included mileage. Before May 11, 1999, when the Board selected Intervenor as the proposer, the evaluation committee met. The committee asked Respondent's buyer assigned to the contract if the committee was required to recommend the proposal with the lowest price. The buyer advised the committee that the contract was for professional services and did not require the committee to recommend the lowest-priced proposal. The committee determined that Ms. Eva Lewis, one of its members and the Director of Program Support for Exceptional Student Education in Brevard County, should telephone Intervenor and ask if Intervenor would match Petitioner's price. Ms. Lewis telephoned Mr. Rick McCrary, the manager for Intervenor, and asked if Intervenor would accept the contract price of $34.75. After consultation with his superiors, Mr. McCrary agreed to the straight-rate price of $34.75. On May 11, 1999, Ms. Lewis presented the recommendation of the evaluation committee to the Board. The Board asked Ms. Lewis if Intervenor's price was the lowest price. Ms. Lewis disclosed that the evaluation committee preferred the proposal submitted by Intervenor, asked Intervenor to lower its price to meet that of Petitioner, and that Intervenor agreed to do so. The Board voted unanimously to select Intervenor as the proposer to be awarded the contract. The parties directed most of their efforts in this proceeding to the issues of whether competitive bidding requirements apply to the proposed agency action and whether the scoring formula used to rank the proposers complied with those requirements. Petitioner asserts that the selection of Intervenor by the Board violates the competitive bidding provisions in Section 120.57(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated). Intervenor and Respondent contend that Section 120.57(1), rather than Section 120.57(3), controls the Board's selection of Intervenor for the contract. Although the document used by Respondent to obtain proposals from vendors describes itself as an RFP and describes the responses as either proposals or bids, Respondent and Intervenor suggest that the document is not an RFP but merely a "solicitation." Respondent and Intervenor further argue: . . . that the . . . Board . . . did not attempt to comply with the requirements for competitive procurement under Section 120.57(3) or Chapter 287. . . . And . . . that the . . . Board was never required to comply with those statutes. . . . these are contracts for professional, educational and health services, contracts uniquely and specifically exempted from [the] competitive bid procurement process. Transcript ("TR") at 40. It is not necessary to reach the issue of whether Section 120.57(1) or the competitive procurement provisions in Section 120.57(3) and Chapter 287 control Respondent's selection of Intervenor as the proposer to be awarded the contract. In either event, the proposed agency action is contrary to the specifications in the RFP. Assuming arguendo that Section 120.57(3) and Chapter 287 do not apply to the contract at issue in this proceeding, Respondent failed to comply with RFP specifications. As Intervenor and Respondent point out in their joint PRO, Section F.8. of the RFP states: The . . . Board . . . and the selected proposer will negotiate a contract as to terms and conditions for submission to the . . . Board for consideration and approval. In the event an agreement cannot be reached with the selected proposer in a timely manner, then the . . . Board reserves the right to select an alternative proposer. (emphasis supplied) Intervenor and Respondent are also correct that the phrase "negotiate a contract as to terms and conditions" includes terms and conditions such as the contract price. Contrary to the provisions of Section F.8., the Board did not first select a proposer at its meeting on May 11, 1999, and then negotiate a contract price with the selected proposer. Rather, the evaluation committee negotiated a contract price with Intervenor before May 11, 1999, and the Board then selected Intervenor as the successful proposer. The evaluation committee is not the Board and does not have authority to act on behalf of the Board. As the RFP states, the evaluation committee has authority only to: . . . rank the firms in order of preference and . . . submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. The last sentence in Section F.8. makes clear that the right to select a proposer is the sole province of the Board and not the evaluation committee. Even if one were to ignore the legal distinctions between the evaluation committee and the Board and the authority of each, the RFP specifications fail to provide adequate notice to potential proposers of the true purpose for the RFP. As Respondent and Intervenor state in their joint PRO: . . . the . . . Board used the proposals it received to test the market for physical and occupational therapy services in Brevard County. The . . . Board then used the information it developed from the proposals as negotiating leverage to obtain a price concession from its incumbent contractor. The . . . Board's negotiation tactics permitted it to secure the superior vendor at the price of an inferior vendor. PRO at 33. The RFP fails to disclose that Respondent intended to use potential proposers to obtain negotiating leverage with the incumbent contractor. The failure of the RFP to disclose its purpose violates fundamental principles of due process, adequate notice, and fairness to potential proposers. It creates a gap between what agency staff knew of the Respondent's intent for the RFP and what potential proposers could know from reading the specifications in the RFP. The failure of the RFP to disclose its true purpose suggests that its authors recognized the chilling effect such a disclosure would have had on the response of potential proposers. The lack of responses from potential proposers, in turn, would have frustrated Respondent's intent to "secure the superior vendor at the price of an inferior vendor." Assuming arguendo that Section 120.57(3) controls the contract award at issue in this proceeding, Respondent's proposed agency action violates relevant provisions in Section 120.57(3)(f). In relevant part, Section 120.57(3)(f) provides: In a competitive procurement contest, other than a rejection of all bids, the Administrative Law Judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules, or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, or arbitrary, or capricious. . . . (emphasis supplied) As previously found, the proposed award of the contract to Intervenor is contrary to the RFP specifications, including specifications for the evaluation and selection process described in paragraphs 7 and 17, supra. The proposed agency action is clearly erroneous within the meaning of Section 120.57(3)(f). It violates fundamental notions of due process, adequate notice, and a level playing field for all proposers. All of the proposers who were induced by the terms of the RFP to expend the time, energy, and expense required to prepare and submit proposals were entitled to rely in good faith on the specifications in the RFP and to require Respondent to adhere to its own specifications. The proposed agency action is also contrary to competition within the meaning of Section 120.57(3)(f). The economic incentive to respond to an RFP would likely diminish over time if the proposed agency action were to persist. Potential proposers would eventually recognize the RFP process as a device intended to reduce the contract price of the incumbent provider rather than as a bona fide business opportunity for potential proposers to gain new market share. Such an economic environment would not likely induce potential proposers to incur the time and expense necessary to prepare and submit proposals. The pool of potential proposers would shrink, and Respondent would lose negotiating leverage with the incumbent vendor. The likely result would be an erosion of negotiating leverage and an accretion in costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the selection of Intervenor for the contract award is contrary to the RFP specifications and contrary to competition. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1999. COPIES FURNISHED: Dr. David Sawyer, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Harold Bistline, Esquire Stromire, Bistline, Miniclier, Miniclier and Griffith 1970 Michigan Avenue, Building E Cocoa, Florida 32922 Jonathan Sjostram, Esquire Steel Hector and Davis, LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 Edward J. Kinberg, Esquire Edward J. Kinberg, P.A. 2101 South Waverly Place Suite 200E Melbourne, Florida 32901
Findings Of Fact On February 7, 14 and 21, 1989, respondent, School Board of Pinellas County (Board), published a legal advertisement in an area newspaper inviting prospective bidders to submit proposals for certain construction work to be performed on two elementary schools, Walsingham and Cross Bayou, located in Largo and Pinellas Park, Florida, respectively. The bidders were advised that their bids must be "prepared and submitted in accordance with the drawings and specifications" and that such drawings and specifications could be obtained from the Board. Such bids were to be filed with the Board no later than 2:00 p.m. on March 6, 1989. The notice also provided that the bids would be opened the same day. Bids were timely filed by at least five contracting firms, including petitioner, Prelude Construction Company, Inc. (Prelude), and intervenors, Lincoln Construction Company (Lincoln) and Bandes Construction Company (Bandes). In filing these proposals, each bidder represented he had "thoroughly examined all of the contract documents." After the bids were opened and reviewed by Board personnel, Lincoln, Prelude and Bandes were ranked first, second and fourth, respectively, based upon the dollar amount of their proposals. 2/ Thereafter, the Board issued its notice of intended action on March 7, 1989, wherein it advised all parties of its intention to award the contract to Lincoln. In doing so, the Board concluded that, although a bid bond accompanying Lincoln's proposal was not dated March 5 or 6 as required by the specifications, the deviation was minor and could be waived. That action prompted Prelude to file its protest. Through testimony of Lincoln's vice-president, it was established that the Board staff intended to change its initial position and to recommend to the Board that Lincoln's bid proposal be rejected and the contract awarded to Bandes. This change was prompted by the Board staff's discovery on the day of hearing (April 3) that, with the exception of Bandes, all bidders had failed to list the, roofing subcontractor on their bid proposals. The Board staff accordingly concluded that all bidders except Bandes should be disqualified. The bid specification upon which the Board relies to award the contract to Bandes is found in Part One, paragraph 1.1 of section 07511 of the bid specifications. The requirement is a relatively new one and imposes the following requirement upon bidders: NOTE: The contractor is required to list the name of the roofing subcontractor on the form of proposal, Section 1C. Section 1C is entitled "Form of Proposal" and includes the following section on page 1C-3 to be filled in by the bidder: The following subcontractors will be contracted with on this project. Type of Subcontractor Name of Subcontractor (Trade Specialty) (Company/Firm) The column on the left side is intended to identify the subcontractor by specialty, such as plumbing or roofing, while the blank spaces in the right hand column are to be filled in by the bidders with the name of the subcontractor who will perform the specialty. The Board has not been consistent in requiring bidders to list the name of subcontractors on the bid documents. According to the uncontroverted testimony of Lincoln, the Board requires the listing of subcontractors on some projects but not on others. For example, on the specifications for the recently let contract for the prototype new media center at four elementary schools, the left hand column on the above form was filled in by the Board with five types of subcontractors who were required on the project, including roofing. This meant that the bidder was to fill in the blanks in the right hand column with the name of the subcontractor who he intended to use on each specialty. However, on other contracts, including the one under challenge, both columns in the Form for Proposal have been left blank, and Lincoln construed this to mean that the name of the subcontractor was not required. Indeed, Lincoln pointed out, without contradiction, that on a recent contract which left both columns blank, as was true in this case, it was awarded the contract even though it did not identify the roofing subcontractor on its proposal. Because of this prior agency practice, Lincoln assumed the same policy would be used again. However, Lincoln conceded it had failed to read the requirement in paragraph 1.1 of section 07511 before preparing its proposal. There was no evidence that Lincoln gained any substantial advantage over other bidders by this omission. Also relevant to this controversy is Paragraph 10A of the General Requirements. This item is found on page 1B-11 and reads as follows: Each bidder shall indicate the names of specific major Subcontractors if called for on the form of proposal. If listing of Subcontractors is required and the Bidder fails to list them, the bid may, at Owner's option, be disqualified. (Emphasis added) This authority to waive the requirement is reinforced by language in Paragraph 21 of the General Requirements which provides in part that "(t)he owner reserves the right to waive minor technicalities." According to the Board's outside architectural consultant, who was the author of a portion of the contract specifications including section 07511, the omission of the name of the roofing subcontractor is a "minor" technicality that can be waived. However, the consultant had no personal knowledge as to whether the provision had actually been waived by the Board on prior contracts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding the contract in question to Bandes Construction Company. DONE AND ORDERED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989.
The Issue The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.
Findings Of Fact Stipulated Facts The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to: Jean B. Long Richard P. Daniel Building 111 Coastline Drive East Suite 508 Jacksonville, Florida 32202 The proposals were opened on May 12, 1995. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas. Additional Facts Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation). The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract." In the "Statement of Need" section of each Solicitation, DOR advised prospective providers: Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while insuring free and open competition among prospective proposers. To that end, the Department has departed from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one of these caps will result in automatic rejection of the entire proposal. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format: Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10) Consideration as to Geographic Area (0-4) Firm Resources (0-15) Computer/Software to Manage High Volume Caseload (0-7) Forms (0-4) Telephone System/Fax/Courier (0-4) Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Customer Services and Accessibility to CSE Staff (5) Minority Ownership (0-5) References (0-5) Evaluation of Cost (0-21) Formula X * A = Z _ N A = 21 (Total Possible Points) X = Lowest Proposal N = This Proposal Z = Points awarded * = multiplication The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet. TOTAL POINTS Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview." Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. " There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows: Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of 10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive. Under the heading "Copyright and Right to Data," the Solicitations provided as follows: Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . . Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data." Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal." Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that: After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals, the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that: [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . . DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 103.67 Schulman, Howard 99.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 105 99 Rick Humphries 104 98 Joan Zimmerman 102 100 Averages 103.67 99 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 97.67 Schulman, Howard 93 John Galletta, Jr. 59 Upchurch & Parsons, P.A. 84 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG SCHULMAN JOHN UPCHURCH HEMPHILL HOWARD GALLETTA & PARSON Clara Cross 99 93 61 83 Rick Humphries 98 92 57 82 Joan Zimmerman 96 94 59 87 Averages 97.67 93 59 84 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 99.67 Schulman, Howard 95.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 101 95 Rick Humphries 100 94 Joan Zimmerman 98 96 Averages 99.67 95 By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts." In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary." There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that: Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. 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 11th day of September, 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. Petitioner's Proposed Findings: 1.-10. Accepted. 11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance. Accepted as to first two sentences, remainder rejected as not relevant and speculative. Rejected, not supported by weight of the evidence, relevance and hearsay. Rejected, subordinate to HO findings. Rejected, relevance. Rejected, subordinate. Rejected, argument, relevance. Rejected, legal conclusion. Rejected, argumentative, legal conclusion. Respondent's Proposed Findings: 1.-11. Adopted, not verbatim. Rejected, subordinate to HO findings. Rejected, relevance. 14.-25. Accepted. Intervenor's Proposed Findings: 1.-46. Accepted, though not necessarily verbatim. COPIES FURNISHED: William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500 Jacksonville, FL 32216 Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire Office of the General Counsel Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32301 William E. Williams Huey, Guilday, & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, FL 32301 H. Michael Madsen, Esquire Messer, Vickers, et al. 215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302 Kenneth C. Pollock, Esquire 1401 Peachtree Street, Suite 500 Atlanta, GA 30309 Linda Lettera, Esquire Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100 Larry Fuchs, Exec. Dir. Department of Revenue 104 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100
The Issue At issue in this proceeding is whether Petitioner overpaid Respondent in the amount of $14,190.41 for the pay periods between July 10, 2009, and October 15, 2009, and, if so, whether Respondent should be required to reimburse Petitioner for those overpayments.
Findings Of Fact On October 16, 2008, Respondent signed an employment contract with FAMU to act as the coordinator of statistical research for the "Teachers for a New Era" ("TNE") initiative, a project funded at FAMU and other universities by a grant from the Carnegie Corporation of New York. Dr. Gwendolyn Trotter is the director of the Carnegie-funded portion of the TNE initiative at FAMU. The contract signed by Respondent was an "Administrative and Professional (A&P) Employment Contract." The contract stated as follows, in relevant part: This employment contract between Florida A&M University (FAMU) Board of Trustees and the below-named employee is subject to the Constitution and Laws of the State of Florida as constitutionally permissible, and the regulations, policies, and procedures of the Board of Governors and Florida A&M University Board of Trustees (BOT), as now existing or hereafter promulgated... An employee's contract may be non-renewed and/or the employee may be separated from employment as set forth in University Regulation 10.106, regardless of the above appointment dates. Employment will cease on the date indicated, and no further notice of cessation of employment is required for the following categories of employees: (1) employees holding visiting appointments; (2) those appointed for less than one academic year; or (3) those who are paid from contracts, grants, auxiliaries, or local funds. The appointment dates set forth in Respondent's employment contract were October 10, 2008, through June 30, 2009. The contract stated that Respondent would be paid at an "annual salary rate" of $55,000. The contract further stated that the amount to be paid to Respondent during his appointment period would be $39,615.00, and that Respondent's bi-weekly salary would be $2,107.27. Respondent was an employee "paid from . . . grants" for purposes of the cessation of employment paragraph of the employment contract, as set forth in the third inset paragraph of Finding of Fact 2, supra. Under the heading "Appointment Status," the employment contract stated, "Regular." FAMU Regulation 10.106 provides, in relevant part: The President or President's designee may choose not to renew the employment of Administrative and Professional (A&P) employees, including the Executive Service. The notice of non-reappointment or intention not to reappoint an A&P employee shall be in writing. On or before March 1st of each contract year, the President or President's designee shall notify any employee who will be non-reappointed. * * * A&P employees who are appointed to established positions with an appointment status modifier or type, other than Regular (for example, Acting, Temporary or Visiting) are not entitled to a notice of non- reappointment. A&P employees who are issued an employment contract with a clause providing that employment will cease on the date indicated and further notice is not required, are not entitled to the notice of non-reappointment referenced in this regulation.1/ FAMU Regulation 3.019, relating to delinquent accounts, provides in relevant part that FAMU "shall use due diligence and make every effort in the collection of all accounts owed to the University by employees, students, vendors and other parties." FAMU Board of Trustees Policy 2005-19 provides that FAMU will seek reimbursement for salary overpayments. Respondent testified that when he was hired for the coordinator of statistical research position, Dr. Trotter told him that the TNE project would last for two years, but that his initial employment period would be for one year with a second year contingent upon his initial performance. This testimony was plausible, credible, and not contradicted by any testimony or documentary evidence presented by FAMU. The written A&P employment contract signed by Respondent was not for one year, but for the period from October 10, 2008 through June 30, 2009. Respondent testified that the provost's administrative assistant explained that no contract could extend beyond the end of the current fiscal year on June 30, 2009, and that he would be issued a second contract to cover the period from July 1, 2009, through October 9, 2009. Respondent was never given a second written contract extending beyond June 30, 2009, nor was he ever given written confirmation of the terms that he said were communicated orally to him by Dr. Trotter. FAMU's associate director of payroll, Jacqueline Lester, testified at the hearing and essentially confirmed Respondent's testimony that the university does not issue contracts that extend beyond the current fiscal year. Ms. Lester stated that if an A&P employee such as Respondent is to work beyond the end of the current fiscal year, he will be issued a new contract that covers the carryover portion of his engagement. Ms. Lester further testified that if a new contract is not issued, then the employee is expected to stop work at the end of the current fiscal year. Respondent testified that he and Dr. Trotter found themselves at odds over research protocols, and that this disagreement completely fouled their professional relationship. Respondent stated that Dr. Trotter thereafter set out to humiliate and intimidate him, and to isolate him professionally from the other members of the TNE initiative. As the end of the fiscal year approached in June 2009, Respondent noticed that his fellow employees were receiving new contracts for the upcoming fiscal year. On June 29, 2009, Respondent sent an e-mail to Dr. Trotter inquiring as to the status of his contract. Dr. Trotter responded on the same date with an e-mail informing Respondent that TNE would "take on an extremely targeted direction for the coming year." The e-mail went on to state the following: I am in the process of working through contracts starting July 1, 2009. Your contract does end on June 30, 2009. Your 2008-2009 contracted pay was based on a 12-month pay scale. However, your contract started in September 2008, and ends June 30, 2009. I am working with Mr. Herbert Bailey in Academic Affairs to conclude contracts ending on June 30, 2009. Dr. Trotter's e-mail twice stated that Respondent's contract would end on June 30, 2009, but also stated that she was "working through" contracts that would start on July 1, 2009, leaving open, in Respondent's mind, the possibility that his was one of the new contracts still being processed. Dr. Trotter did not unequivocally state that Respondent's services would no longer be required on the TNE initiative after June 30, 2009. On the morning of July 6, 2009, Respondent sent the following e-mail to Dr. Trotter: I am following up on the email I sent you regarding my contract. I received a reply from you stating that you were working on contracts ending June 30, 2009. I continue to come to work under the 12-month contractual agreement since October 10, 2008. I am therefore requesting definitive information about the status of my contract. Telephone discussions and further e-mail exchanges occurred between Respondent and Dr. Trotter over the course of the next two days. Respondent continued to insist that he had a 12-month contractual agreement, and attributed the misunderstanding to the fact that FAMU never issued an official letter of employment that explained the terms under which he had been hired. Finally, on the afternoon of July 8, 2009, Dr. Trotter sent the following e-mail to Respondent: As noted in an earlier e-mail your contract did end on June 30, 2009. You will be compensated for the days worked beyond June 30, 2009. You should not continue to work beyond tomorrow. Thanks for working with Teachers for a New Era. July 9, 2009, was the last day that Respondent worked pursuant to his A&P employment contract. Respondent was paid by FAMU pursuant to his A&P employment contract for all days worked through July 9, 2009. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $2,107.28 from FAMU through the pay period ending October 18, 2009. At the hearing, Respondent conceded that he received these payments despite the fact that he had stopped working for FAMU as the TNE coordinator for statistical research on July 9, 2009. Respondent testified that he believed the university was paying him for the remainder of his one-year contract. On June 30, 2009, Respondent accepted an Other Personal Services ("OPS") appointment to work as an adjunct instructor in the FAMU Department of Economics. The OPS appointment was to teach one economics class per week. Respondent was to be paid $25.00 per hour, five hours per week, for a biweekly gross pay of $250.00. The appointment was for the sixteen-week fall semester, from August 24, 2009, through December 11, 2009, with Respondent receiving total gross pay of $2,000.00 for the period. However, Respondent worked in the OPS position for only one week before starting a full-time faculty position at Savannah State University in Georgia on September 11, 2009. Respondent was correctly paid by FAMU for the one week he worked in the OPS position. Due to an error on the part of FAMU, Respondent continued to receive regular bi-weekly gross pay of $250.00 through the pay period ending October 18, 2009. In total, Respondent received $14,190.41 in unearned compensation from FAMU.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered requiring Respondent to repay $14,190.41 to FAMU. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of March, 2011.
