The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing, under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Sections 760.11(8) and 760.11(4), Florida Statutes.
Findings Of Fact Petitioner is a 57-year-old male and a former employee of the Respondent. Respondent is an executive agency of the State of Florida with more than 15 full-time employees and is, therefore, an employer under Sections 760.02(6) and (7), Florida Statutes. On May 19, 1995, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations. He charged his former employer, Respondent, with gender and age discrimination for failure to promote him. The Florida Commission on Human Relations conducted an investigation of the charges. It did not issue a Notice of Determination. The staff of the Commission misled or lulled Respondent into inaction, for a period of time, as follows: Day 0000 - 19 May 1995: Charge of Discrimination submitted to Commission. Day 0061 - 19 July 1995: FCHR Notice of Receipt, Docketing and Dual Filing with EEOC. Day 0110 - 6 September 1995: Respondent submitted response to Commission request for information. Day 0255 - 29 January 1996: Petitioner drove from Orlando to FCHR in Tallahassee and met with Iliana Haddock, who advised him that she had just been assigned to investigate the Discrimination Complaint. Haddock took the opportunity to interview the Respondent relative to the complaint. Day 0312 - 26 March 1996: Telephone conversation between Haddock and Petitioner. Haddock stated that she had reviewed all the applications submitted for the Environmental Manager position and had found evidence of age discrimination. Day 0340 - 23 April 1996: Telephone conversation between Haddock and Petitioner. Haddock stated the investigation was almost complete, but they were waiting for Respondent to submit criteria used for determining who would be interviewed for the Environmental Manager position. Day 0431 - 23 July 1996: Petitioner drove from Orlando to FCHR headquarters in Tallahassee and met with Haddock and her supervisor, Harry Lamb. They told Petitioner that Haddock's investigation was completed and that her report would be submitted to Lamb in 30 to 45 days and from there Lamb would submit it to the FCHR legal staff and then it would go to the Executive Director for his approval and determination. Day 0494 - 24 September 1996: Assistant Enforcement Director Singleton sent Petitioner a letter stating that the Commission had not been able to complete the investigation in this case and stated four options of proceeding, (1) file a civil action in civil court; (2) file petition to have case heard by ALJ in DOAH; (3) request a right to sue so I could bring an action in Federal Court; or (4) allow the commission to continue with the processing, investigation and final action in this matter. Day 0509 - 9 October 1996: Petitioner responded to Singleton's letter by pointing out the contradictions between her letter and what Petitioner had been told at the meeting with Haddock and Lamb on 7/23/96. Petitioner requested more information in order to make a decision concerning the future course of this case. Petitioner submitted 11 questions to Singleton. Day 0521 - 21 October 1996: Commission Investigator Iliana Haddock submitted her report to the FCHR Office of General Counsel. Day 0573 - 12 December 1996: Petitioner sent follow-up letter to FCHR Executive Director advising him that he had not received a reply to the 10/9/96 letter to Singleton. Day 0644 - 21 February 1997: Mathis sent Petitioner a letter about the status of the original complaint of discrimination. Mathis stated that Haddock had submitted her report of investigation, with a recommendation for a cause finding to Harry Lamb; that Haddock was no longer with the Commission; that Lamb was no longer with the Commission but had not forwarded the investigation report before he left; and that the report was now in the hands of Otis Mallory. Day 0795 - 22 July 1997: Mathis sent Petitioner a letter advising that the "initial charge is still located in Mr. Mallory's office and will be reviewed." Day 0805 - 1 August 1997: Assistant Director Snell sent Petitioner a letter stating: "The investigation of your first case has been completed and is in the Employment Enforcement Manger's office for review". Day 0809 - 5 August 1997: The EEOC State and Local Coordinator advised Petitioner by letter that the cases were still being processed by the FCHR. Day 0852 - 27 September 1997: Petitioner sent letter to FCHR Executive Director advising him that Otis Mallory had Discrimination Report for almost a year; that Mallory also had received the Retaliation Report in August 1997; and since Mallory now had both reports, he ought to be able to complete his review and move this matter forward. Day 0986 - 29 January 1998: Petitioner sent letter to FCHR Executive Director attempting to get Investigators' Reports through the internal FCHR review system. Day 1076 - 29 April 1998: Commission issued Notice of Determination on Retaliation Complaint. No action on original discrimination complaint. Day 1252 - 22 October 1998: Petitioner mailed Petition for Relief and Administrative Hearing concerning Discrimination Complaint to FCHR. After filing the Complaint of Discrimination with the FCHR, Petitioner actively pursued the progress and status of the Discrimination Complaint with the Commission. In response to his pursuit, the staff of the Commission told the Petitioner throughout the above time-line, that his Complaint was being investigated; the investigation was completed; the report would be submitted; the report was submitted; the report was in for review; and the report would be reviewed. Thus, the Petitioner was misled or lulled into believing by the staff of FCHR not only that the Complaint was going to result in a Determination, but also that the Determination was going to be a cause-finding. On September 24, 1996, a year and four months after filing the Complaint, the Commission advised Petitioner that he had four options relating to the charges, including having the Commission continue with the processing, investigation, and final action in this matter. When Petitioner requested further information so he could make an informed choice, the staff of the Commission failed to respond to his letter. In addition, other staff took no further action on his case. However, Petitioner waited more than two years from issuance of the letter of September 24, 1996, to the filing of his Petition for Relief, dated October 22, 1998. Although Petitioner was misled or lulled into inaction for a period of time by the staff of the FCHR, the Petitioner has failed to demonstrate equitable estoppel or excusable neglect in his failure to file the Petition within a reasonable period of time after the statutorily mandated time limit.
Conclusions The Division of Administrative Hearings has jurisdiction on the parties and the subject matter pursuant to Sections 120.569, 120.57(1) and 760.11, Florida Statutes. The Florida Commission on Human Relations has the authority to investigate a charge of discrimination with alleges that an employee has committed an unlawful employment practice by its failure to promote Petitioner based on his sex and/or age. Section 760.10(1) and 760.11, Florida Statutes. When a complaint has been filed with the Commission, it has the duty to investigate the allegations in the complaint and make a determination within 180 days of the filing of the Complaint, if there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992. After a determination is made, the Commission is charged with the duty to notify the aggrieved person and the Respondent of the determination, the date of such determination, and the options available under the law. Section 760.11(3), Florida Statutes. In this case, the Commission failed to make a reasonable cause determination; and three and one-half years after first filing his Complaint, Petitioner requested a formal administrative hearing under Sections 120.569 and 120.57(1), Florida Statutes. Therefore, Sections 760.11(8), (4) and (6), Florida Statutes, applied to this case. These sections read, in pertinent part: In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either: Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or Request an administrative hearing under ss 120.569 and 120.57. The election by the aggrieved person of filing a civil action or requesting an administrative hearing under this subsection is the exclusive procedure available to the aggrieved person pursuant to this act. * * * (6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. . . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission. . . . * * * (8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause. Although it appears unjust that Petitioner's case should be dismissed because of the failure of a state agency to complete its statutory duty to make a reasonable cause determination, nevertheless, the court in Milano v. Moldmaster, Inc., 703 So. 2d 1093 at 1094 (Fla. 4th DCA 1997) held that the 35-day limitation on requesting an administrative hearing begins to run at the expiration of the 180-day period in which the Commission was to make a reasonable cause determination. Therefore, the Petition for Relief is untimely because it was filed nearly three years after the presumed date of determination of cause by the Commission. See Section 760.11(6), Florida Statutes (1997); Wright v. HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995); Pusey v. George Knupp, Lake County Sheriff's Office, 20 FALR 791 (1997); cf. St. Petersburg Motor Club v. Cook, 567 So. 2d 488 (Fla. 1st DCA 1990) and Milano v. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997). This procedure has been determined to be constitutional, under Florida law. McElhath v. Burley, 707 So. 2d 836 (Fla. 1st DCA 1998). The record does establish some evidence of excusable neglect, which might, under certain circumstances, excuse delinquent filing. See, for example, Machules v. Department of Administration 523 So. 2d 1132 (Fla. 1988). In Machules, the Florida Supreme Court described the parameters of the "equitable tolling" doctrine as follows: Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum. 523 So. 2d at 1134. Petitioner asserts that the staff of the Commission lulled him into inaction. That assertion is accepted as true for purposes of ruling on the Motion for Summary Recommended Order. However, Petitioner is claiming he was lulled into inaction for two additional years after he was advised of his options under the statute. The District Court of Appeal has held that Petitioner may not enjoy a manipulable open-ended time extension which could render the statutory limitation meaningless. It held that a Petitioner should be required to assume some minimum responsibility himself for an orderly and expeditious resolution of his dispute. Milano v. Moldmaster, Inc., supra, at 1095. Although this result is harsh, two other district courts have followed this precedent and it is, therefore, binding on this tribunal. Joshua v. City of Gainesville, So. 2d , 1999 WL 71523 (Fla. 1st DCA, February 17, 1999) and Adams v. Wellington Regional Medical Center, Inc., So. 2d , (Fla. 4th DCA, March 17, 1999).
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition of Donald A. Garrepy in DOAH Case No. 98-5090; FCHR Case No. 95-5752. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 9th day of April, 1999. COPIES FURNISHED: Gary C. Smallridge, Senior Attorney Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 600 Tallahassee, Florida 32399-3000 Donald A. Garrepy Post Office Box 276 Portsmouth, New Hampshire 03802 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Ausbon Brown, Jr. (Petitioner), an African-American male was born on April 25, 1943. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause." September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for 244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee. While not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows: 3122 Research Associate Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred. Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation. A Master's Degree from an accredited college or university can substitute for one year of the required experience. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement: Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional knowledge, skills and abilities may be applicable for individual positions in the employing agency." Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation. The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 8th day of June, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sonja P. Mathews, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199
The Issue The issue in this case is whether Petitioner and his family are entitled to be provided developmental services through Respondent.
Findings Of Fact Petitioner Wayne McDuffy (“Wayne”), presently age 9, is mentally retarded as a result of Down’s Syndrome. It is undisputed that he is eligible to receive developmental services through Respondent Department of Children and Families (“DCF”). Wayne has been known to DCF since at least 1996 or 1997 and has received services at some time(s) in the past. From February 2000 through the present, however, Wayne has not received services. Nevertheless, at times during this latter period, as will be discussed below, Wayne has been a “client” of DCF. In February 2000, Wayne’s mother, Deborah Moore (“Moore”), made application to DCF, on behalf of her son, for developmental services. She desired, and continues to request, personal care assistance and residential placement to help manage Wayne, who is occasionally violent and aggressive towards others, including Moore’s younger child. Funding for the services that DCF provides to the developmentally disabled is available though the Individual Family Supports Program (“IFS”), which the state pays for out of general revenue, and the Home and Community-Based Services Waiver Program (the “Waiver”), for which the Florida Medicaid Program (“Medicaid”) pays with federal and state monies. When Moore applied for services in February 2000, she did not know about, or appreciate the differences between, these two funding sources. Some time after February 2000, probably in the summer of that year, a DCF caseworker verbally notified Moore that Wayne had been accepted into the Waiver and would soon be receiving services as a client of DCF. Moore kept in telephone contact with DCF and, in September 2000, verbally notified the local office that she was moving to a new address, which she provided, together with a phone number. Services, however, never commenced. Meanwhile, on October 3, 2000, DCF assigned Wayne’s case to an interim support coordinator at Advantage in Support, Inc. (“Advantage”), a third-party provider under contract with DCF. An employee of Advantage placed telephone calls to, and personally visited, Moore’s old residence, i.e. the one from which she and her family had moved in September 2000. That phone number had been disconnected, however, and no one came to the door at the house where Moore and her family no longer lived.1 On November 2, 2000, Advantage returned Wayne’s file to DCF. Back at DCF, Wayne’s file came into the hands of Thelma Bass (“Bass”), then a Medicaid Waiver Specialist. Bass left a telephone message for Moore at her place of employment but did not receive a return call.2 Thereafter, Bass drafted a letter to Moore3 dated November 28, 2000, which read: You had requested that Wayne McDuffy be placed on the Medicaid Waiver program. This we did and an interim support coordinator was assigned to him. The agency tried without success to set up appointments to see Nelson. You never responded to her calls. We would love to assist you in providing the needed services for your son, however, this is impossible as you refuse to cooperate with the independent support coordinator.[4] It is important that you contact us if you desire to receive and/or continue receiving services from the Developmental Disabilities Program. If I do not hear from you by December 7, 2000, we will close this case. We love to hear from you, please call me at 305-808-6236. Bass normally sends letters such as this one by certified mail. In this particular instance, however, she did not use certified mail.5 Nor did Bass personally put this letter into the mailbox. Rather, she directed that it be sent out by others in the ordinary course of her office’s business. For reasons unknown,6 Moore did not receive the November 28, 2000, letter.7 Being thus unaware of the deadline that Bass had imposed, Moore could not and did not meet it; in other words, she failed timely to respond to the letter she had not seen. On December 15, 2000, Bass closed Wayne’s file, without first taking any affirmative steps to confirm the actual delivery of the letter of November 28, 2000, which would have been Moore’s only notice of the critical deadline. No notice of any kind was contemporaneously provided to Moore or Wayne regarding the closure of Wayne’s file. Although Moore was clueless as to what had occurred, the closing of Wayne’s case would have disastrous effects on his (and her) substantial interests. Because, when Wayne stopped being a client, his “slot” in the Waiver was given to someone else——and, as will be seen, would be very difficult to get back. In early 2001 (probably January), Moore contacted DCF to inquire about the services that she had been promised but had yet to receive. She was informed that her son’s case had been closed, and that she would need to re-apply. DCF did not tell Moore, then or ever, that she could request a hearing to challenge the agency’s decision to close Wayne’s file based on her failure to respond to Bass’s November 28, 2000, letter (which Moore had not received and hence remained ignorant of). Moore did as she was told. On April 12, 2001, she again applied for services on Wayne’s behalf, signing an application for participation in the Waiver. She still did not know about the different sources of funds (Medicaid and IFS) for developmental services or appreciate how the issue of funding sources might impact upon her request for services. On April 20, 2001, a district-level Crisis Identification Tool Review Committee (the “Committee”) met to consider Wayne’s new application for services. This meeting was necessary because, by this time, slots in the Waiver were so limited that DCF was able to accept only those applicants who were in “crisis” as determined by an internal, unpromulgated “Crisis Identification Tool.”8 Applicants deemed not to be in crisis were now being placed on a waiting list, to be served in date order, based on the date of becoming a client of DCF. The Committee decided, on April 20, 2001, that Wayne was not in crisis. Thus, he was placed on the waiting list, with an eligibility date——which determines his place in line——of (or around) April 12, 2001. No one at DCF took the trouble, in April 2001, to formally notify Wayne or Moore, in writing, that the Committee had found Wayne not to be in crisis, much less to advise them of the consequences of that decision or of Wayne’s right to request an administrative hearing. Nor did DCF inform either of them of its determination, or of Wayne’s right to challenge such decision, in May, June, July, August, September, October, or November of 2001. It was not until December 17, 2001——eight months after the fact——that DCF finally sent Wayne a letter (by certified mail), in care of his mother, telling him about the agency’s decision and notifying him of the right to request a hearing. The December 17, 2001, notice of agency action, which was signed by Evelyn Alvarez (“Alvarez”), Program Operation Administrator, provided in pertinent part:9 We regret to inform you that your request cannot be granted within the limits of the Department’s appropriated general revenue funds unless an individual is in crisis as determined by application of the Department’s Crisis Identification Tool. Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis. Florida law, therefore, prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Emphasis added). In response to the foregoing letter, Moore timely requested a hearing on Wayne’s behalf. At the first session of the final hearing, which took place on May 30, 2002, DCF disclosed the November 28, 2000, letter and represented that Wayne’s file had been closed based on Moore’s failure to respond to that letter. In addition, at the May 30, 2002, hearing, DCF admitted certain facts that revealed the consequences of DCF’s decision to close Wayne’s file: (1) Wayne lost his slot in the Waiver effective December 15, 2000; (2) At the time Wayne was approved for the Waiver, he did not need to be in crisis to receive a slot, but as of April 2001, he did need to be in crisis to avoid being placed on a waiting list; (3) Had Wayne’s file not been closed, he would have remained in the Waiver irrespective of whether he was in crisis, provided he continued to meet the Medicaid eligibility criteria; and (4) Wayne meets the Medicaid eligibility criteria for the Waiver. In sum, therefore, if Moore had received and responded to Bass’s November 28, 2000, letter, then, in all likelihood, Wayne would be receiving developmental services today under the Waiver. The undersigned continued the final hearing to allow Moore an opportunity to amend Wayne’s petition to challenge the obviously significant decision to close Wayne’s case in December 2000 (which was separate and distinct from the agency’s decision, made in April 2001 but not communicated to the substantially affected party until December 2001, that Wayne is not in crisis according to DCF’s criteria). On June 7, 2002, Moore filed an amended petition on behalf of her son, thereby placing DCF’s December 2000 decision in issue. On June 27, 2002, without first seeking or obtaining leave, DCF filed a “corrective letter” from Alvarez to Wayne dated June 27, 2002. This letter (which was sent by certified mail) provided in pertinent part:10 You recently[11] received a letter, dated December 17, 2001, responding to your request for general revenue funded services from the Developmental Disabilities program.[12] Upon our review of the letter sent to you, we discovered that the letter contained language addressing the Department’s Crisis Identification Tool. This language does not apply to request for General Revenue funded services. The first paragraph of your letter should read as follows: We regret to inform you, as a conclusion of law,[13] that your request cannot be granted within the limits of the Department’s appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.066(4), F.S., and refer to the State Spending Plan as approved by the Florida Legislature. (Italics in original). At the second session of the final hearing on September 3, 2002, DCF’s attorney relied upon the “corrective letter” to argue that the question whether Wayne is in crisis for purposes of the Waiver is not ripe for adjudication because “the process is still going on,” and to contend that Wayne will some day have an opportunity to litigate all Waiver-related issues in a Medicaid “fair hearing” before a DCF hearing officer (assuming, that is, DCF ever gets around to giving Wayne a clear point of entry into such a proceeding, which it still had not done as of September 3, 2002). DCF’s legal contentions will be discussed in the Conclusions of Law below. However, the undersigned rejects here, as factually incorrect, the assertion that DCF somehow has not yet determined whether Wayne is in crisis. Rather, as previously found, the Committee met and decided the “crisis” issue against Wayne on April 20, 2001, and DCF belatedly gave him a clear point of entry to challenge that decision via Alvarez’s letter of December 12, 2001. Wayne then properly exercised his right to challenge DCF’s “crisis” decision. These are matters of historical fact that DCF cannot make disappear through the magic of a revisionist “corrective letter.” Ultimate Factual Determinations DCF’s momentous decision to close Wayne’s file in December 2000 was arbitrary and capricious, in that the action was taken based on Moore’s failure to respond in time to a letter that she had never received——which latter fact DCF would have known had it exercised reasonable efforts to confirm whether Moore had actual notice of the deadline that Bass had unilaterally imposed. A reasonable governmental official would not make a decision of similar detriment to another person’s substantial interests, based solely on the latter’s silence, without first attempting to verify that the adversely affected person was aware of his or her obligation to speak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order that, one, rescinds the preliminary agency action taken in December 2000 which resulted in the closure of Wayne’s case and, two, grants all relief necessary to place Wayne in as favorable a position as he would have been in today were it not for DCF’s wrongful closure of his case on or about December 15, 2000. DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2003.
The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, 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 7th day of April, 2005.
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Respondent at times relevant to the inquiry employed 15 or more employees in each working day in each of 20 or more calendar weeks in the year. Petitioner worked for the Respondent from May 7, 1984 through December 19, 1991. Petitioner had tendered his resignation on December 6, 1991 from his position as Engineering Technician IV. His intention was that his resignation become effective December 20, 1991. On December 6, 1991, Jerry G. Smith, District Land Surveyor for District II, State of Florida, Department of Transportation, accepted Petitioner's resignation effective December 20, 1991. This action by Mr. Smith was by virtue of his responsibility for the Mapping and Surveying Section of which Petitioner was a part. Respondent did not solicit Petitioner's resignation. In the chain of command Mr. Smith was 2 or 3 times removed from Petitioner. Respondent's Exhibit No. 1 describes the duties of Engineering Technician IV incumbent upon Petitioner until November 12, 1991. Those duties were as follows: Plots and inks the final right of way and assists other Department Personnel in the preparation of maps. These maps must meet D.O.T. and Federal Highway Administration Standards. Works with the Document Preparation Section in locating property lines and determining what information is needed on maps in order to prepare legal descriptions. Assists in the verification of final right of way requirements with Road Design Personnel. Assists in the review of right of way maps prepared by Consultants. Assists in making the computations that are needed for map and deed preparation. Provides other Department Personnel and the General Public with right of way information as required. Performs related work as required. Percentages of time will vary due to work load. Respondent's Exhibit No. 2 describes the job description for Engineering Technician IV related to the Petitioner from the period November 12, 1991 through December 19, 1991. Those duties were as follows: 30 percent Prepares very complicated legal descriptions of real property to be acquired by the Department of Transportation. These are written by hand and also by using "Legal Holiday", Computer Software. 30 percent Plots Title Search (Abstract) on Right of Way Maps and determines owners and encumbrances. 15 percent Reviews legal descriptions of real property and related documents prepared by other employees or/and Consultants. 15 percent Compute areas of parcels needed for right of way. Also, computes areas, distances, and bearings on property remainders. 5 percent Determines the types of instruments of conveyance to be prepared. 5 percent Performs related work as required. Percentages of time will vary, due to work load. Some unspecified person within the architectural and engineering firm, Reynolds, Smith and Hills, Inc. made contact with Petitioner concerning the possibility that he might serve as an office engineer in the firm's Lake City, Florida office. This contact was made in October, 1991. On December 3, 1991, Ed Griffin and Eric Rosenstein called Petitioner about the availability of the office engineer position. They wanted Petitioner to come to their Longwood, Florida office and interview about the position. On December 6, 1991, Petitioner went to the firm's Longwood office and was interviewed by Eric Rosenstein and Ed Griffin. They took a photocopy of his social security card and his resume to support his application for employment. Petitioner testified that Mr. Griffin and Mr. Rosenstein during the December 6, 1991 interview specifically stated that they wanted to hire him. These hearsay comments attributable to Mr. Griffin and Mr. Rosenstein were not otherwise proven. Therefore, it has not been established that Petitioner was offered a job with the Reynolds firm on December 6, 1991. Based upon the interview with Griffin and Rosenstein, Petitioner called Jerry Smith's office on December 6, 1991, and spoke to Carol Streer, secretary to Jerry Smith. He told her to prepare a letter of resignation for Petitioner and he told her to tell Jerry Smith that Petitioner would be leaving his position with Respondent in two weeks and wanted to give the Respondent two weeks' notice. This led to the resignation and acceptance of that resignation that has been addressed above. On November 1, 1991, the Reynolds firm had entered into an agreement with Respondent to serve as a consultant for purposes of construction engineering and inspection. This was in association with the resurfacing with bridge widening of Interstate 75. It is inferred that Petitioner had been interviewed by the Reynolds firm to serve as an office engineer to the Reynolds firm on the resurfacing project. In accordance with the agreement between the Reynolds firm and Respondent, related to the Interstate 75 resurfacing project, a definition is given concerning minimum training and experience standards for consultant personnel. Specifically, the training and experience anticipated for an office engineer is described in that agreement to this effect: OFFICE ENGINEER - High school graduate plus three (3) years experience in responsible charge of a construction office. Should exercise independent judgment in planning work details and making technical decisions related to office engineering aspects of the project. Accepts general supervision and verbal instructions from the Resident Engineer. Serve as the Resident Compliance Officer in surveillance of the Contractor's compliance with contract requirements. Within the agreement under Section 2.0 entitled: SCOPE, it states: . . . The Consultant shall provide technical and administrative personnel meeting the requirements set forth Section 9.0 of this Scope of Services in appropriate numbers at the proper times to ensure that the responsibilities under this Agree- ment are effectively carried out. All services shall be performed in accordance with the estab- lished standard procedures and practices of The Department. . . . Section 9.0C. entitled Staffing, within the agreement, states: . . . no personnel shall be assigned to this project by the Consultant until the qualifications of each person proposed have been reviewed and approved in writing by the Program Manager. The Consultant's personnel approval requests shall be submitted at least two weeks prior to the date an individual is to report to work. The Program Manager, according to the agreement, is: "the District employee designated to be in responsible charge and direct control of the projects covered by this agreement." On December 9, 1991, in accordance with the agreement, the Reynolds firm submitted Petitioner's name as proposed office engineer on the Interstate 75 project. This submission was made through a form seeking approval from the program manager. In support of the request to have the program manager approve the Petitioner to serve as an office manager to the consultant, the Reynolds firm submitted a resume which Petitioner had provided that firm. The resume which Petitioner gave to the Reynolds firm and the firm in turn gave to the Respondent's program manager stated as follows: R E S U M E Richard C. Bishop HOME 1605 N. E. 7th Terrace Gainesville, Florida 32609 Telephone (904) 373-6510 538-5225 OFFICE Surveying & Mapping Dept. Post Office Box 1089 Lake City, FL 32056-1089 Telephone (904) 752-3300 EXT. 3662 PERSONAL: Male, Caucasian, U. S. Citizen, Good Health, 5' 10", 195 lbs. EDUCATION: Univ. of Florida Business Administration San Jose City College Associates Degree, Electronic Engineering Univ. of North Florida Communications and Electronics US Air Force EXPERIENCE: Atlantic Ballistic Missile Range with Radio Corporation of America as Electronic-Equipment-Man working with HF and VHF Receivers and Transmitters, a 200+ station North Electric all system, Emergency Networks (radio and telephone), Radar Boresight Cameras, Optical Trackers, Control Room Plotting Boards and Captain of Disaster Control Team. West Virginia Department of Highways: Completed Engineer-In-Training program covering all phases of Construction Maintenance, Soil Mechanics and Testing including Marshall Stability Tests, Los Angeles Abrasion Tests as well as standard sieve analysis, flow plasticity, density, specific gravity, extractions, gradations and concrete and asphalt mix designs. Set up and managed a Complaint Department while continuing duties as an Area Maintenance Assistant over several counties. Certified Portland Cement Concrete Technician with sampling and testing experience in both field and laboratory testing methods. Licensed Nuclear Densitometer Operator with considerable experience using the Troxler Nuclear Densitometer measuring densities on fills, sub- grades and asphaltic concrete bases and overlays. Management and/or supervision in several privately owned asphalt paving and construction companies. Construction Inspection School for 10 weeks at St. Petersburg Junior College. Construction inspection on I-75, Alligator Alley and Toll Plaza, Marco Island Road and other projects in the Naples area, then SR 21, Orange Park to Middleburg, SR 121 at Raiford, Rocky Creek Bridge, 53rd Ave and Waldo Road intersection and others in the North Florida area. Presently working in Right of Way Engineering ordering, receiving and plotting title searches on maps and producing corresponding accurate maps and all the necessary legal documents required for the actual acquisition of real property with a right of way. In December, 1991, the program manager for Respondent on the Interstate 75 resurfacing with bridge widening project was Thomas E. Brenner. Mr. Brenner has never been acquainted with the Petitioner other than responding to the Reynolds firm's request to have the Petitioner approved to be the office engineer on the project. No proof was shown that Mr. Brenner has ever made derogatory statements about the Petitioner. Mr. Brenner in carrying out his function as program manager wrote to the Reynolds firm on December 11, 1991, disapproving the request to have the Petitioner approved as the office engineer for the consultant. In disapproving that request he made the following remarks: "Needs some EEO [sic] experience and three (3) years in responsible charge of a construction office." The experience which Petitioner had prior to December 9, 1991, when the Reynolds firm requested that he be approved as office engineer did not meet the training and experience standards within the agreement which were incumbent upon a person serving as an office engineer for the consultant. Thus, the reason for disapproving the request to have Petitioner serve as office engineer is borne out. The record is not clear concerning what is meant by the need for EEOC experience and what experience the Petitioner may have had with the EEOC process. However, it was not shown that Mr. Brenner placed the requirement for EEOC experience as a means to discriminate against the Petitioner in the firm's attempt to have him approved as office engineer. Following the disapproval of the request to have Petitioner approved as the office engineer for the consultant, Mr. Rosenstein called the Petitioner around December 17, 1991. He told the Petitioner that the Reynolds firm was having a problem getting the Petitioner approved to do work with the Respondent. This refers to the work on the Interstate 75 project as office engineer. Specifically, Mr. Rosenstein told the Petitioner that the difficulty had to do with not enough EEOC experience. Petitioner explained in response that he did not consider that this was a significant problem. Two or three days after December 17, 1991, Mr. Rosenstein called the Petitioner again and told him that the problem about EEOC had settled down and that the Respondent was opposing recognition of approval of the Petitioner for work as an office engineer based upon the Petitioner's lack of experience in the computer field related to LOTUS 1-2-3. Petitioner acknowledged that he did not have experience with that form of computer. The record does not bear out how those requirements with LOTUS 1-2-3 coincided with Mr. Brenner's reasons for disapproving the request to have Petitioner serve as office engineer to the consultant, if at all. Some time in January, 1992, Petitioner went to the Reynolds' Longwood, Florida office to give Ed Griffin further information in support of his application for employment. At that time Petitioner learned that the Reynolds firm did not intend to follow up their discussions held with Petitioner concerning his employment and that he would not be hired by the Reynolds firm. In addition to failing to prove that Mr. Brenner had made derogatory statements about him which might have interfered with Petitioner's opportunity to gain employment with the Reynolds firm, Petitioner failed to prove that any of Respondent's employees or managers had made derogatory statements which interfered with his opportunity to gain employment with the Reynolds' firm. The only suggestion that anyone working for the Respondent had made derogatory remarks about the Petitioner were promoted by the Petitioner himself. He told others who worked for Respondent that Jerry Smith wanted to get rid of or fire Petitioner and that Jerry Smith had said that Petitioner would never work a day for the Reynolds firm. Jerry Smith had not made these remarks. Jerry Smith had no contact with the Reynolds firm concerning the Petitioner. Moreover, Jerry Smith has had limited contact with Mr. Brenner and none of it was designed to influence Mr. Brenner in his decision to disapprove the request by the Reynolds firm to have Petitioner serve as office engineer for the consultant. Mr. Smith works in the production side of the District II operation. Mr. Brenner worked in the construction side of the District II operation while he was employed there. Unrelated to the attempt by Petitioner to gain employment with the Reynolds firm, Jerry Smith has had involvement with the Petitioner concerning personnel matters. On several occasions discussions were held between the Petitioner and Smith in which Petitioner was attempting to gain a promotion. On those occasions Smith told the Petitioner that he did not think that the Petitioner was operating at a level that warranted discussing promotion. Smith held the opinion of the Petitioner that the Petitioner could not perform the job duties incumbent upon him in his position as Engineering Technician IV. In particular, Mr. Smith did not believe that Petitioner would finish a task assigned and always had to have someone else finish the work for the Petitioner. Mr. Smith tried to have the Petitioner focus on the perceived shortcomings, but this did not lead to a satisfactory result from the point of view which Mr. Smith felt. When the Petitioner left his employment with the Respondent Mr. Smith made a notation that he would not recommend rehiring the Petitioner at some future date. There is no indication that Mr. Smith or anyone in a supervisory position with the Respondent ever took disciplinary action against the Petitioner for matters related to the Petitioner's performance as Engineering Technician IV. Robert Stewart who is a project manager for Respondent, a friend of Jerry Smith, was not involved in making the decision on December 9, 1991, to disapprove the request to have Petitioner serve as office engineer for the consultant. As stated before Robert Stewart had no contact with the Reynolds firm concerning the Petitioner and the Petitioner's possible employment with the Reynolds firm. The job description and resume information do not support the Petitioner in his claim that his experience gained while employed by the Respondent equates to the necessary experience to perform the duties as office engineer for the consultant in the Interstate 75 project. Nor does the record indicate that Mr. Brenner was aware of any experience outside the position description and resume when disapproving the request to have Petitioner serve as office engineer. Finally, the numerous requests which Petitioner made to gain additional training while employed by Respondent, which requests were not granted, were not matters which Petitioner has shown that he was entitled to be granted. Moreover, those requests have not been shown to be matters which coincide with the requirements for the position of office engineer to the consultant in the Interstate 75 project. On September 2, 1994, in the prehearing conference held by telephone, Petitioner indicated to Hearing Officer Davis that he accepted the "no charge" determination of the Florida Commission on Human Relations as to the untimeliness of his age discrimination allegation and waived his right to proceed on that claim. Petitioner's position by the Petitioner was memorialized in the order by Ms. Davis entered September 15, 1994. At the hearing held on October 20, 1994, Petitioner proceeded on the basis that the age discrimination claim was no longer viable.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the petition for relief based upon a claim of an unlawful employment practice by the Respondent as defined in Section 760.10(7), Florida Statutes. DONE and ENTERED this 22nd day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 22nd day of December, 1994. APPENDIX The following discussion is given concerning the proposed facts found in Respondent's proposed recommended order: Paragraphs 1 through 4 are subordinate to facts. Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 20 are subordinate to facts found. Paragraphs 21 and 22 are not necessary to the resolution of the dispute. COPIES FURNISHED: Richard C. Bishop 1606 Northeast Seventh Terrace Gainesville, FL 32609 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
