The Issue The issue in this case is whether Respondent had good cause, pursuant to Section 230.23(5)(a), Florida Statutes, to reject the Superintendent's recommendation that Petitioner's employment be continued from June 30, 1986 to June 30, 1987.
Findings Of Fact Petitioner was employed by Respondent as Deputy Superintendent from 1980 to June 30, 1986, and prior to this, he was employed by Respondent as Director of Secondary Education from 1978 to 1980. From August 1, 1985 until December 1, 1985, Petitioner also served as Interim Superintendent while the position of Superintendent was vacant and Respondent was in the process of selecting a new Superintendent. The educational background of Petitioner includes a Bachelor of Science Degree from the University of Miami, Master of Public Education from the University of Michigan, Education Specialist Degree from Michigan State University, and a Doctorate in Administration from Wayne University. He also served two terms as a member of a school board in Michigan in the early 1960's. The position of Deputy Superintendent has line authority over Elementary Schools, Secondary Schools, Personnel, Finance, Purchasing, Transportation, Data Processing, Facilities and Maintenance. Instructional matters are not handled by the Deputy Superintendent. The position of Deputy is second only to the Superintendent in the administrative organization of the school district, and the Deputy routinely fills in for the Superintendent in his absence. When former Superintendent James H. Fox resigned effective July 30, 1985, Petitioner was appointed on June 18, 1985 to become Interim Superintendent, effective August 1, 1985, until a new Superintendent was selected. According to School Board member Susan Richardson, who was chairperson of the Board at the time, it was a routine matter for Petitioner, as Deputy, to become Interim Superintendent. The current Superintendent, Charles Fowler, assumed his position on December 1, 1985, at which time Petitioner resumed his duties as Deputy Superintendent. Petitioner had applied to be Superintendent when Fox resigned, but was not a finalist for the position. Fowler had not been previously employed by Respondent. In addition to his other duties as Deputy Superintendent, Petitioner was also the chief negotiator for the School District in collective bargaining matters from February to June, 1985. Negotiations continued after Petitioner became Interim Superintendent, and were concluded in October, 1985 with contract approval. After he became Interim Superintendent, Petitioner was replaced as chief negotiator by Walter Pierce, Director of Personnel, but continued as a lead member of the negotiating team with Pierce, and Bruce Monson, Director of Finance, each of whom gave presentations and responded to questions during executive sessions which were called by Respondent to consider contract proposals. On January 14, 1986, Superintendent Fowler recommended a salary increase for Petitioner, effective December 1, 1985, the date Fowler assumed his position. This increase was for the remainder of Petitioner's employment contract, which was to expire on June 30, 1986. Salary increases and contract renewal for all administrative staff, except Petitioner and one other top-level manager, had previously been approved by Respondent. However Respondent's action on Petitioner's salary increase and contract renewal was delayed so that the new Superintendent could address them. Fowler also recommended that Petitioner's contract be extended until June 30, 1987 at the increased salary level. This recommendation was presented to Respondent on several occasions between January and March, 1986, but each time Respondent deferred action. Finally, on March 18, 1986 Superintendent Fowler's recommendation and an employment contract continuing Petitioner's employment as Deputy Superintendent were submitted to, and rejected by Respondent. In making his recommendation to retain Petitioner, Fowler was aware of the fact that after he, as Superintendent, recommended Petitioner for continued employment, his recommendation could only be rejected by Respondent for good cause. Further, Fowler had been informed by School Board member Richardson in early December, 1985 that she had serious concerns about whether Petitioner should remain as Deputy Superintendent. Nevertheless, Fowler did recommend Petitioner's continued employment. Petitioner timely filed a Petition for Formal Hearing following Respondent's rejection, by a three to two vote, of the Superintendent's recommendation on March 18, 1986, and contends that good cause has not been established for such rejection. 0n June 26, 1986 Superintendent Fowler wrote to Petitioner stating: I want to say how much I appreciate the professional way in which you have handled an extremely difficult and pressure-filled situation these past several months. I could not ask for a more cooperative person; many, in this circumstance, would not be so eager and willing to be of assistance. Right up to these last days and the difficult budget decisions we are wrestling with, you have been forthright and cooperative. Your demeanor has made it so much easier on me and all those in the school system with whom you work. Thank you....Your support and kindness are much appreciated. Respondent alleges that Petitioner "willfully or negligently withheld from the Board financial information required by the Board to make an informed decision regarding whether to enter into a multi-year salary agreement with the Sarasota Classified/Teachers Association" (SCTA). On September 20, 1985, Bruce Monson, Director of Finance, wrote Petitioner a memo in which he expressed his concern about the School District's increasing rate of expenditures, summarized grim economic forecasts for the world, and clearly stated he was not comfortable with a three-year negotiated salary contract. His recommendation was for the annual negotiation of salary increases, with a three-year agreement which only dealt with contract language and starting salaries. Monson wrote this memo at Petitioner's request after he had orally informed Petitioner of his concerns in August and early September, 1985. He copied Walter Pierce, Director of Personnel, on his memo, but not School Board members. Monson assumed that Petitioner would provide his memo to all School Board members, but Susan Richardson, Eugene Matthews, Mary Margaret McAdoo and Kay Glasser, Board Members, each testified they were not given a copy of the Monson memo until after the multi-year salary contract was approved. The remaining Board member, Dick Olson, had the Monson memo at the time the multi-year contract was approved. Petitioner did not provide Respondent with a copy of the Monson memo. Negotiations had begun with the SCTA in February, 1985 with Petitioner as chief negotiator. Respondent had made it clear to the negotiating team that it wanted a three-year salary contract, if possible, and it was on that basis that negotiations proceeded. In prior years, Monson had informed Respondent about his concerns with multi-year contracts, but Respondent still directed that a multi-year contract be sought during negotiations in 1985. In early July, 1985 Pierce became chief negotiator and Petitioner, as Interim Superintendent, was simply a member of the negotiating team from that point forward. At the time Monson wrote his memo, negotiations with the SCTA were virtually concluded and Pierce was chief negotiator. According to Board members Olson and McAdoo, negotiations were too far along on a multi-year contract to back out in late September, even if the Monson memo had been considered. Respondent gave final approval to the multi-year contract in the first week of October, 1985, having come to closure on virtually all issues in executive session held on September 24, 1985, four days after the Monson memo. The evidence does not support the allegation that Petitioner willfully or negligently withheld the Monson memo from Respondent. It took Monson several weeks to reduce his concerns to writing, as Petitioner requested. Monson was a member of the negotiating team and attended executive sessions. He was therefore aware of the status of negotiations, and the fact that by late September it would have been virtually impossible for Respondent to back out of the multi-year contract its team had been negotiating with the SCTA all summer. It was reasonable for Petitioner to assume that if Monson was really concerned, he would have spoken up during executive sessions, or promptly reduced his concerns to writing. He did neither. In any event, Pierce was chief negotiator from July through contract approval in early October, 1985. He reported to Respondent in executive sessions, and did have the Monson memo prior to the final executive session on September 24, 1985. He said nothing. Pierce did ask Respondent's labor counsel to draft escape clauses which would allow Respondent to avoid paying negotiated salaries if financial problems developed. The escape clauses were viewed as precautions for Respondent's consideration. Neither Pierce, Monson or Petitioner advised Respondent to include an escape clause in the negotiated contract. It was reasonable for Petitioner, who was acting as Interim Superintendent at the time with many other duties, to rely on the chief negotiator to bring to Respondent's attention those matters which he felt were important and significant. Such reliance does not constitute a willful or negligent withholding of information. It is further alleged that Petitioner willfully or negligently authorized improper payments under a contract between Respondent and MAI, a consulting firm, and that he improperly handled changes in the contract which deprived the Respondent of an opportunity to consider the changes and resulted in the improper expenditure of funds. This contract was entered into in December, 1982, while Fox was Superintendent and payments under the contract had been criticized by the Auditor General for two years. The contract was for professional services for improvements in the pupil transportation system, and payment to the consultant was to be from monies saved through implementation of the consultant's program. The Auditor General's criticism was that the method for determining payments under the contract was vague and indefinite. MAI sought payment of $90,000 for their services, but a negotiated settlement for $30,000 was arrived at by Fox. Petitioner had no involvement in drafting this contract or presenting the settlement to the School Board; those matters were handled by former Superintendent Fox. Respondent alleges that Petitioner willfully or negligently failed to inform the Board that certain Capital Outlay Projections were inadequate and incorrect, thereby falsely leading Respondent to believe that future expenditures would be less than should reasonably have been anticipated. Additionally, it is alleged that certain long range planning projections were inaccurate and were not based on reliable census and cost projections, and that Petitioner knew or should have known about these inaccuracies but failed to inform the Respondent. One of the first things that Superintendent Fowler did after becoming Superintendent was to try to get a clear understanding of capital outlay needs of the District. He reviewed a document entitled, "1985-91 Capital Outlay Needs" and prepared a memo to Respondent on February 12, 1986 which expressed his concern that capital outlay needs of the District had been seriously underestimated. He recommended employing a consultant to verify his enrollment projections and develop an integrated facility planning approach. As Deputy Superintendent responsible for the Facilities Department, Petitioner supervised the preparation of capital outlay projections and their presentation to Respondent. However, the committee which actually developed these projections had been appointed by former Superintendent Fox, who also took an active role in the development and presentation of these projections. According to Charles E. Collins, capital projects administrator, Fox directed the capital outlay needs projects and gave specific instructions about what he wanted. Superintendent Fowler testified that the School District will have an actual need for six or seven new schools, although a need for only two new schools had been projected under Fox. During his tenure as Interim Superintendent, Petitioner did not report to Respondent that capital outlay needs and projections had been underestimated. He always considered the "Capital Outlay Needs" document to be a generalized planning forecast which was to some extent also a "political" document, and had not felt the need to raise this matter with Respondent. Nevertheless, Petitioner did know that said projections were inaccurate, but failed to alert Respondent to the greater need which actually existed during budget considerations, as Fowler did immediately upon becoming Superintendent. Fowler took appropriate and necessary action to apprise Respondent of this inadequacy, and the incorrect basis for these projections, in contrast with Petitioner who withheld this information simply because he did not feel it necessary to make such a report. Petitioner exercised poor judgement in this regard and thereby lead Respondent to believe that future expenditures and the need for new facilities would be less than could reasonably be anticipated. Regarding the construction of North Port Elementary School, it is alleged that Petitioner caused Respondent to suffer an unnecessary and unjustified expense of $50,000 which was paid to the general contractor, even though deficiencies existed and the contractor was not entitled to this payment. According to Larry Derryberry, the architect who designed North Port Elementary School, a meeting took place on February 21, 1985 concerning $57,000 that was retained on this job by the District to insure that certain outstanding items and deficiencies noted by the Fire Marshall were corrected. The school had been accepted as substantially complete and was occupied in the Fall of 1984, approximately eight months prior to this meeting. The cost of the entire project was between four and five million dollars. Following the meeting, Petitioner authorized the payment of $50,000 to the general contractor from the retainage, contrary to the recommendation of Charles Collins, capital projects administrator, and Derryberry, the architect. Petitioner authorized this payment, after discussions with former Superintendent Fox, because the cost to correct all remaining items on the punch-list was only $7,000. In fact, all remaining items were corrected by the general contractor. The evidence does not show that Petitioner improperly or inadequately administered or supervised the North Port Elementary School construction contract, or that he authorized any unnecessary or unjustified expenses. Only minor deficiencies existed in February, 1985 amounting to approximately $7,000 and Petitioner acted reasonably in consulting with the Superintendent, and then authorizing release of excess retainage. This did not deprive Respondent of leverage needed to require the contractor to complete his contract obligation because, in fact, all remaining items on the punch-list were then completed. Respondent alleges that Petitioner failed to adequately supervise and administer the Facilities Department in that he usurped the function of a review committee which had been formed to review the contract and relationship between Respondent and Federal Construction Company. Respondent had asked former Superintendent Fox to form this committee, and Fox put Petitioner in charge of the formation and functioning of the committee. The committee only met two or three times, and then failed to meet again or make recommendations due to resignations and illness of committee members. Petitioner kept the Respondent fully informed of committee meetings, through minutes, and of the committee resignations. He solicited input from Respondent for new committee members. When new members could not be found in a timely manner, Petitioner and other staff members completed an amendment to the Federal Construction Company contract, which was presented to Respondent and approved. This action does not evidence any wrongful usurpation of the role of the committee by Petitioner. Cassius Scott was an employee of the Facilities Department who had been transferred out of the Department by Respondent and assigned directly to the Deputy Superintendent's office for supervision. After a period of time, Petitioner sought Respondent's approval to assign Scott back to the Facilities Department by placing this item on the consent agenda. Chairperson Richardson objected and it was pulled from the consent agenda; Board member Glasser confirmed that it was Respondent's intent that Scott remain under petitioner's supervision. It is alleged that Petitioner reassigned Scott back to the Facilities Department contrary to Respondent's instructions. In fact, Scott was physically moved back to the Facilities Department after Richardson pulled the consent item. Petitioner claims Scott continued to work with him on facilities matters, but admits he moved his office out of the Deputy Superintendent's office without specific approval of Respondent, or even informing Respondent of this move. Petitioner did act contrary to Respondent's explicit instructions in this regard, especially after Chairperson Richardson had pulled this item from the consent agenda. When serving as Interim Superintendent, it is alleged that Petitioner knew that enrollment figures submitted to the Florida Department of Education had been misstated by double counting approximately 100 students, thereby leading the State and Respondent to overestimate revenues to which the School District was entitled. In early 1986 Superintendent Fowler discovered that the full time equivalency count (FTE) for the 1985-86 school year was overestimated by 100 FTE. This necessitated an immediate budget adjustment since revenues for the then-current school year had been overestimated. At the direction of Fowler, Petitioner took care of the preparation, presentation and approval of this amendment by Respondent. Even though this inflated FTE was prepared while Fox was Superintendent, Petitioner had not informed Respondent of this overestimate and its impact on revenues while he was Interim Superintendent. Fowler brought it to Respondent's attention on February 11, 1986. As a result of this overestimate of FTE, Respondent's revenues had been overestimated by approximately $250,000. However, there is no competent substantial evidence that Petitioner deliberately inflated this FTE, or that he specifically knew that enrollment projections were overstated and purposely withheld this information from Respondent. It appears that Petitioner simply had not checked the estimates against actual enrollments prior to December 1, 1985 when Fowler became Superintendent, and so had no knowledge of this problem while he was Interim Superintendent. Other than his overall responsibilities as Deputy and Interim Superintendent, the evidence does not establish that he had any specific role in the preparation and submission of FTE estimates. Board members Richardson and Glasser testified that Petitioner did not provide Respondent with complete information of items before them, that he did not follow up on questions, and that he avoided responding to issues presented by Board members. However, this testimony was contradicted by testimony of Board members McAdoo and Olson, and Superintendent Fowler also commended Petitioner's performance by recommending him for continued employment, and by letter dated June 26, 1986 (see Finding of Fact 8). No evidence was presented of any prior disciplinary action taken against Petitioner on this basis, or on any other basis. Therefore, the allegation that Petitioner was unable to respond to or follow up on questions, or that he avoided issues is not supported by competent substantial evidence. When Petitioner was informed that he had not been selected as a finalist for the position of Superintendent, it is alleged that he called certain School Board members and behaved inappropriately, suggesting they change their decision to avoid adverse consequences. Board member Richardson testified that Petitioner called her after he learned he was not a finalist, and he was agitated, accusing her of turning the School Board against him. She testified that Petitioner offered her a way out to avoid serious trouble if she got the Board to put his name back on the list of finalists. Board member Matthews testified that Petitioner also called him and made derogatory remarks about the finalists. Board member Olson testified that Petitioner did not act inappropriately at any time concerning the selection of finalists. Petitioner admitted he did call Board members and was emotional at the time. He testified that the press was calling him for comment on not being selected, and his friends were also calling wanting to know what happened. His reaction to this situation was out of character. Based on the evidence presented, it is found that Petitioner did act inappropriately toward Board members Richardson and Matthews, when informed he was not a finalist for Superintendent, by threatening serious trouble if they did not reverse their decision and also making derogatory statements about the persons they had selected as finalists. Respondent has further alleged that Petitioner wrongly and repeatedly subdivided purchase orders into smaller amounts to avoid competitive bidding and School Board approval of expenditures in excess of $4,000. Superintendent Fowler conducted a review of purchase orders issued while Petitioner was Deputy Superintendent. The purchase orders in question were issued while Fox was Superintendent; Petitioner did not sign any of the purchase orders, but purchasing is a function under the Deputy. Charles Collins, capital projects administrator, testified that Petitioner had no knowledge of the practice of subdividing purchase orders when it was occurring in 1984. After Collins brought it to Petitioner's attention, the practice stopped. There is no evidence that Petitioner wrongly or repeatedly subdivided purchase orders, as alleged. In the Fall of 1984, an agreement was made with the SCTA to advance certain food service employees on the salary schedule, and it is alleged that Petitioner willfully or negligently failed to inform Respondent of this agreement, did not obtain Respondent's approval, and thereby committed Respondent to higher wages to affected employees. The effect of the agreement was to advance forty-three food service employees two steps, when Respondent had only authorized a one step advance. Petitioner testified that at the time of this agreement, former Superintendent Fox was handling these negotiations and he knew nothing of what was done, or why. Nevertheless, Petitioner did coauthor a memo with Fox to Respondent in October, 1984 which described the food service agreement. In response to that memo Respondent approved a one step advance. It appears likely that if forty-three employees under his supervision received a two step advance when he had jointly recommended a one step advance, which was then approved, Petitioner would have, or at least should have, known about it. He did not inform Respondent, and was therefore negligent in not informing them of this matter. It is alleged that Petitioner willfully or negligently failed to properly supervise the management of the Food Services Department resulting in a substantial financial deficit in the Department. The testimony of Board members Richardson and Matthews in support of the allegation was vague and indefinite. According to Monson, the finance director, the Food Services Department has a $200,000 negative cash balance, but it was not established by competent substantial evidence that this resulted in any way from Petitioner's willful or negligent failures. Board member Olson testified that the food service program has been a continuing problem, and he pointed out that local food service managers in individual schools have a great deal of authority and autonomy, and that the Department is not centrally managed. Respondent has not established that Petitioner willfully or negligently failed to properly supervise the Food Services Department. The final allegation against Petitioner is that, while he served as Interim Superintendent, he presented to Respondent a series of facility improvement expenditure requests, but failed to advise Respondent that approval would cause a material deficit in budgeted capital outlay project funds. Respondent did not offer competent substantial evidence in support of this charge. In fact, virtually no direct evidence in support of this charge was offered. The primary allegation against Petitioner which caused Board members Matthews, Richardson and Glasser to vote against the Superintendent's recommendation was that Petitioner willfully or negligently withheld financial information required by Respondent to make an informed decision regarding the multi-year contract agreement with SCTA. (See Findings of Fact 9-11, above.) The other allegations contributed to their decision, but this allegation actually precipitated their action. Board members Matthews, Glasser and Richardson decided Petitioner should not be reemployed after they learned that Petitioner had received the Monson memo on September 20, 1985, but had not shared it with them. They testified that they would have viewed the multi-year contract materially differently if they had known about the Monson memo on September 20, 1985. The Respondent approved the multi-year salary schedule on September 24, 1985.
Recommendation Based upon the foregoing, it is recommended that Respondent issue a Final order approving the Superintendent's recommendation that Petitioner's employment as Deputy Superintendent be continued from July 1, 1986 to June 30, 1987, and that Petitioner be awarded back-pay to the date of his reemployment, at the rate of pay recommended by the Superintendent. D0NE AND ENTERED this 4th day of December 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1400 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 3, 4. Adopted in part in Finding of Fact 18, but otherwise rejected as irrelevant. Adopted in part in Finding of Fact 3, but otherwise rejected as irrelevant. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 6,7. 9-10. Rejected as a characterization of testimony and not a proposed Finding of Fact. Adopted and Rejected in part in Findings of Fact 9-11. Adopted and Rejected in part in Finding of Fact 12. Adopted and Rejected in part in Finding of Fact 13. Adopted and Rejected in part in Finding of Fact 14. Adopted and Rejected in part in Finding of Fact 15. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 17. Adopted and Rejected in part in Finding of Fact 18. Adopted and Rejected in part in Finding of Fact 19. Adopted and Rejected in part in Finding of Fact 20. Adopted and Rejected in part in Finding of Fact 21. Adopted and Rejected in part in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted and Rejected in part in Finding of Fact 24. Rulings on Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Rejected as unnecessary. 3-4. Adopted in Finding of Fact 6. 5. Adopted in Findings of Fact 4, 6. 6-7. Adopted and Rejected in part in Findings of Fact 6,8. Rejected in Finding of Fact 6. Adopted in Finding of Fact 6. Rejected in Findings of Fact 6, 8. Rejected as irrelevant. Rejected as not based on competent substantial evidence. Rejected as unnecessary. 14-19. Adopted and Rejected in part in Findings of Fact 9-11, and otherwise rejected as irrelevant and not based on competent substantial evidence. 20-23. Adopted and Rejected in part in Finding of Fact 17. 24. Adopted and Rejected in part in Findings of Fact 9-11,17. 25-33 Adopted and Rejected in part in Finding of Fact 13, and otherwise rejected as irrelevant and not based on competent substantial evidence. 34-38 Adopted in part in Finding of Fact 24, but otherwise rejected as not based on competent substantial evidence. 39-45. Adopted and Rejected in part in Finding of Fact 11, and otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 10. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant. The issue is not whether the Monson memo was in error but whether Petitioner willfully or negligently failed to inform Respondent. Adopted in Finding of Fact 9. Rejected in Finding of Fact 11. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. What Respondent did or did not believe is not the issue. Rejected in Finding of Fact 11. Rejected as not based on competent substantial evidence. 54-58. Adopted and Rejected in part in Finding of Fact 12. 59-67. Adopted and Rejected in part in Finding of Fact 14, and otherwise rejected as irrelevant and not based on competent substantial evidence. 68. Adopted in Finding of Fact 3. 69-76. Adopted and Rejected in part in Finding of Fact 15, and otherwise rejected as irrelevant and not based on competent substantial evidence. 77-80. Adopted and Rejected in part in Finding of Fact 16. Adopted and Rejected in part in Finding of Fact 18. Rejected as not based on competent substantial evidence. 83-86. Adopted and Rejected in part in Finding of Fact 19, and otherwise rejected as not based on competent substantial evidence. 87-92. Adopted and Rejected in part in Finding of Fact 20, and otherwise rejected as irrelevant and not based on competent substantial evidence. 93-95. Adopted and Rejected in part in Finding of Fact 21. 96-97. Adopted and Rejected in part in Finding of Fact 22. 98. Rejected in Finding of Fact 23. 99-101. Rejected in Finding of Fact 24 and otherwise as irrelevant. The Respondent did vote 3-2 to reject the Superintendent's recommendation. 102. Rejected as not based on competent substantial evidence. COPIES FURNISHED: John R. Blue, Esquire Carol A. Masio, Esquire Charles J. Pratt, Esquire Post Office Box 1866 Bradenton, Florida 33506 Daniel H. Kunkel, Esquire 290 Cocoanut Avenue Sarasota, Florida 33577 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Charles W. Fowler Superintendent 2418 Hatton Street Sarasota, Florida 33577 =================================================================
The Issue Did Respondent, Fresenius Medical Care (Fresenius), discriminate against Petitioner, David E. McDonald, in employment on account of his disability? Did Fresenius discriminate against Mr. McDonald in employment on account of his age?
Findings Of Fact Mr. McDonald worked for Fresenius as a social worker in its Sebring, Florida, facility. Fresenius provided Mr. McDonald family and medical leave because of back and knee problems. After Mr. McDonald exhausted the available leave, Fresenius granted him non-FMLA medical leave. Because of his continuing health problems, Mr. McDonald obtained long-term disability benefits in 2013 under a plan provided by CIGNA and sponsored by Fresenius. Mr. McDonald was 79 years old. Mr. McDonald’s testimony established that he received one year of benefit payments under the plan. On August 29, 2013, Mr. McDonald wrote Fresenius a letter identified as regarding “L.T.D. approval.” The first three paragraphs stated: On Saturday 7/27/13, I received a copy of the letter dated 7/19/13 sent to you by Ryan Zech, of CIGNA, informing you that my “claim for Long Term Disability was approved, benefits starting on 8/07/13.” This means, barring the time it takes for me to reconcile my affairs with our H.R Dept. that my employment with F.M.C. has come to an end. I had hoped that my medical condition would have improved, such that I would have been able to perform effectively, the required percentage of my duties to qualify to return to F/T employment. This has not turned out to be the case. It is therefore with mixed sentiments that I accept the medical decision/s of CIGNA and my attending physicians including my “Eye specialists." This letter stated Mr. McDonald’s voluntary decision to end his employment with Fresenius. Mr. McDonald did not present evidence that the decision was coerced or even encouraged by any representative of Fresenius. Mr. McDonald voluntarily terminated his employment with Fresenius. Mr. McDonald does not maintain that Fresenius discriminated against him on account of age or disability. He testified repeatedly and clearly that he does not claim that Fresenius discriminated against him in any way on account of his age or physical condition. Mr. McDonald bases his complaint upon his assertion that CIGNA representative Mr. Zech did not properly advise him that the long-term disability policy provided only one year of payments. Mr. McDonald also did not present any evidence that could support an inference that Fresenius discriminated against him on account of his age or a disability. Mr. McDonald did not argue or present evidence that CIGNA employee Ryan Zech was an employee or agent of Fresenius.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of David E. McDonald. DONE AND ENTERED this 13th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2015.
The Issue Whether Respondent's intended award of the contract arising out of Request for Proposal No. 09L04FP4 to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Stipulated Facts In accordance with a 2001 legislative mandate, the Developmental Disabilities Program, formerly part of the Department of Children and Family Services and now within the Agency, established a requirement for prior service authorization (PSA) reviews for individuals enrolled in the Developmental Disabilities Home and Community Based Services waiver (waiver). Following a competitive procurement process, Maximus, Petitioner herein, was awarded a contract to provide PSA reviews for persons satisfying certain selection criteria, and related services. These PSA reviews ensure that services for which reimbursement is provided under the waiver are based on medical necessity. Currently only those cost plans that meet certain selection criteria are reviewed. A 2004 legislative mandate required the Developmental Disabilities program to expand the PSA program to review all support and cost plans for the waiver, including those that do not meet the selection criteria that trigger a PSA review under the Agency's existing contract with Maximus. On or about October 13, 2004, the Agency issued Request for Proposal No. 09L04FP4- Agency for Persons With Disabilities Prior Service Authorization Reviews (the APSAR contract). The RFP sought a vendor to serve as the contracted provider to conduct the additional reviews required by the 2004 legislative mandate (the ASPAR Contractor). The RFP proposals were to include responses to inquiries concerning the qualifications and capabilities of each proposer, as well as the proposed's vendor's proposal for providing the requested services (the technical proposal) and a separate proposal setting forth the proposed vendor's costs for providing such services (the cost proposal). Pursuant to the provisions of the RFP, the ASPAR Contractor will be responsible for reviewing these additional support plans and cost plans in order to ensure that individuals receiving waiver services receive medically necessary services to meet their identified needs. Pursuant to the provisions of the RFP, the ASPAR Contractor will be responsible for determining whether the Developmental Disabilities program is the appropriate funding source for the service(s) identified and shall recommend alternative funding mechanisms. The RFP set forth evaluation criteria and a scoring process in which a proposal could receive a maximum of 100 points, 25 of which are attributable to the cost proposal. The RFP states that "[t]he agency will attempt to contract with the prospective vendor attaining the highest total price." The deadline for submission of proposals in response to the RFP was November 2, 2004. The Agency received proposals from three prospective vendors: APS, Maximus, and First Health Services. On November 12, 2004, the Agency posted its Notice of Intended Award of the APSAR contract to APS. The Notice of Intended Award reflected the prospective vendors' scores as follows: APS, 86.45; Maximus, 82.06; and First Health, 71.52. Of its total score of 86.75, APS received 25 points for its cost proposal as the prospective vendor with the lowest total price. On November 16, 2004, Maximus timely filed a notice of intent to protest the Agency's intent to award the ASPAR contract to APS. Maximus timely filed its formal written protest, a Petition for Administrative Proceedings, with an accompanying bond which satisfied the applicable statutory and RFP requirements. Findings of Fact Based on the Evidence of the Record APS has standing to intervene in this proceeding. The APSAR contract being procured through the RFP is a fixed price contract. Lorena Fulcher is the Agency's procurement manager for the RFP. When the proposals were received, the Agency screened each of them for compliance with a list of fatal criteria set forth in Section 6.3.1 of the RFP. According to Ms. Fulcher, the purpose of the initial screening was to determine whether the proposals should go to a formal evaluation process. No scoring or points were associated with whether a vendor met the fatal criteria. The Agency determined that all three vendors met the fatal criteria. Therefore, the three proposals were sent to an evaluation committee which was responsible for evaluating the technical aspects of the proposals. Fatal Criteria Petitioner asserts that Intervenor did not satisfy one of the mandatory requirements of the RFP and, therefore, its proposal should not have been forwarded for further review and scoring by the evaluation committee. Section 5.4 of the RFP states that the mandatory requirements are described as "Fatal Criteria" on the RFP rating sheet and that failure to comply with all mandatory requirements will render a proposal non-responsive and ineligible for further evaluation. Section 6.3.1 of the RFP is entitled, "Fatal Criteria." One criterion reads as follows: "Did the proposal document and describe at least one year of experience in the developmental disabilities field and with Home and Community Based Services waivers?" According to Ms. Fulcher, the Agency looked at each proposal in its entirety to determine that there was prior experience with the sort of review that the Agency was trying to procure with the RFP. Ms. Fulcher referenced several pages of Intervenor's proposal relating to this criterion that the Agency reviewed in making its determination to send Intervenor's proposal to the evaluation committee. One such reference is contained on page 9 of Intervenor's proposal. That page references Intervenor's experience with Georgia Medicaid since 1999. On page 84 of Intervenor's proposal, that experience is further described as "Prior authorization and Concurrent Review for all Medicaid services under the Rehabilitation Option to individuals with mental health disorders and/or developmental disabilities. Specialized projects include technical assistance to HCBS Waiver providers." Intervenor was formed in the early 1990's and was acquired by APS Healthcare in 2002. Intervenor's proposal explains: "APS Midwest is a wholly owned subsidiary of APS Healthcare Bethesda, Inc. APS Midwest, formerly known as Innovative Resource Group, was acquired by APS in 2002." Petitioner argues that the Georgia experience should not have been counted because it was experience acquired prior to the 2002 acquisition of Intervenor. Specifically, Petitioner argues that since the Georgia project has been ongoing since 1999 and since Intervenor was not acquired by the APS parent company until 2002, that Intervenor could not have been the provider. APS Healthcare, and its subsidiaries, including Intervenor, are managed as a single entity and many of their services and resources are integrated. The evidence established that the resources of the APS family of companies are available in the performance of the contract. Moreover, the undersigned is not persuaded that Intervenor was prohibited in any way by the language of the RFP or otherwise, from referencing experience obtained by a parent or related corporate entity prior to the 2002 acquisition. Intervenor's proposal contained references to other experience which the Agency considered in determining that Intervenor's proposal met the one-year experience fatal criterion at issue. These included experience obtained in Pennsylvania, Idaho, and other states in the developmental disabilities field and with home and community based services waivers. The Agency's determination that Intervenor met the "one-year" experience fatal criterion is supported by the evidence of record. The Agency's decision to forward Intervenor's proposal to the evaluation committee was appropriate. Any evaluation or scoring of the content of Intervenor's representations was left to the evaluation committee. The Cost Proposals Section 4.4 of the RFP reads in pertinent part as follows: The prospective vendor shall clearly present in the cost proposal the total cost for each deliverable as described in Section 3.6, Task List. A pricing schedule must be presented that indicates a unit cost for each task to be performed, with all task amounts added for a grand total cost for each deliverable. The total cost of all deliverables will be presented as the proposed total contract amount. The cost proposal must be bound separately. The vendor must submit as supporting documentation, a detailed line-item budget that delineates and constitutes all costs contained in the proposed total contract amount. The line-item budget shall delineate the number and type of positions that will be required to complete the work identified for each major task, and discrete associated expenses. Further, Section 4.4 included a grid described as an "Example Format of the Pricing Schedule." The RFP does not state that a proposer must use the grid format provided in this section. The grid includes columns marked "Unit Cost," "Number of Units," "Amount for Year 1," "Amount for Year 2" and "Amount for Year 3." At the bottom of the grid, there is a line for a "Total per year" and there is a line for the "Grand Total." APS used the grid format as shown in Section 4.4 of the RFP. Below the grid, APS included a notation that reads: "Please note that costs are adjusted for years two and three accordingly." Following this notation are four "bullets" one of which reads: "Unit cost for PSA reviews slightly increase to reflect a 1-2% growth rate in years two and three. However, if the number of reviews significantly increase more than this amount, pricing would have to be adjusted accordingly." Petitioner argues that the language of the above referenced "bullet" constitutes a contingent price, as opposed to a fixed price as required by the RFP, and, therefore, Intervenor should have received a score of zero for its cost proposal. Section 6.3.3. of the RFP provides in pertinent part: "Evaluating Cost Proposals--The prospective vendor with the lowest total price shall be awarded 25 points or 25% of the maximum total score." Section 6.3.3 further provides that the other prospective vendors would be awarded points by dividing the lowest price by the prospective vendor's price and then dividing the resulting percentage by four. The Agency scored the cost proposal by the grand total stated in each proposal. That is, the points assigned for the cost proposals were based solely on the total price proposed. According to Ms. Fulcher, the Agency ignored the bullets for purposes of scoring the cost proposals because the RFP was for a fixed price contract. Petitioner Maximus submitted a total cost proposal in the amount of $10,259,131. Intervenor APS submitted a total cost proposal in the amount of $7,460,615. Accordingly, the Agency awarded Intervenor 25 points for submitting the proposal with the lowest grand total cost of the three vendors, and awarded Petitioner 18 points for its grand total cost. There is nothing in the referenced "bullet" in APS' proposal that implies that the grand total might increase. The "bullet" clearly references "unit costs" only. Moreover, Section 4.3 of the RFP states that payment method and pricing will be determined during negotiations. According to Ms. Fulcher, the cost information requested other than the total cost was to be used only for purposes of negotiating and drafting the contract. Petitioner argues that Intervenor's cost proposal contained mathematical errors that, if corrected, would increase the total cost proposed. The difference between the two proposals was $2,798,516. The evidence does not establish that if the mathematical errors were corrected, Intervenor's actual cost would have been higher than Petitioner's proposed total cost. Further, Petitioner offered testimony speculating how Intervenor's actual costs might be higher than those reflected in Intervenor's proposal. Petitioner's speculation in this regard is of no consequence. Moreover, the contract is clearly a fixed fee contract. The proposers, including Intervenor, are bound by the fixed total cost reflected in the respective proposals.2/ The Technical Proposals Petitioner asserts that the Agency erroneously scored its technical proposal, thereby depriving Petitioner of points that would have resulted in an award of the contract to Petitioner. The RFP required the vendors to submit sealed technical proposals separate from the cost proposals. In contrast to the cost proposals, the scoring formula for the technical proposals was not based on a ratio comparison of the best proposal to the other proposals. Rather, the formula for scoring the technical proposals provided that the total score of each technical proposal would be divided by 48 to arrive at a total percentage of 100 that was then converted into points. Thus the formula for scoring technical proposals is not based on a comparison of one vendor's proposal to the others, but is based on how well each vendor did within a possible score of 36. Section 6.3.4 of the RFP sets forth the formula for scoring the technical proposals: The prospective vendor with the highest rating in this section (36 points) shall be awarded 75% (75 points) of the maximum possible score. Other prospective vendors are awarded points using the following formula: The rating is divided by 48 to determine the points awarded (36/48=75%). Section 6.3.4 of the RFP also provided three examples applying the formula for awarding points to technical proposals, with each example showing a vendor's points divided by 48. The numerator of the above formula was derived by taking the average of the total points assigned by each of the four evaluators, which was then divided by 48. The average of the evaluators' scores for Petitioner's technical proposal was 30.75. The average of the evaluators' scores for the APS technical proposal was 29.5. Accordingly, when the formula was applied, Petitioner's technical proposal score was 64.06 (30.75/48=64.06%) and Intervenor's technical proposal score was 61.45 (29.5/48=61.45%). Petitioner argues that because it received the highest technical score of 30.75, it was entitled to 75 points for its technical proposal. Petitioner, nor any other vendor, received a score of 36, the highest possible score for the technical proposal. Because no vendor received the maximum possible technical rating of 36 points, no vendor was awarded the maximum possible score of 75 points for the technical proposals. The agency applied the formula to the three vendors in a consistent manner. While the wording of Section 6.3.4 is awkward, the Agency's interpretation of that section is a reasonable one that was applied equally to all vendors. Petitioner's Proposal Finally, Intervenor asserts that Petitioner's proposal was non-responsive because it is dependant upon Petitioner continuing to provide services under its existing contract with the Agency. Petitioner's proposal was prepared using a methodology that contemplated allocating some costs to its existing contract and some costs to the contract solicited by the RFP because Petitioner already has certain resources that can be employed to provide services in the solicited contract. There is no dispute that Petitioner holds a current related contract. The Agency's determination that Petitioner's proposal was responsive in this regard was reasonable. How the costs are to be allocated was subject to evaluation and scoring by the evaluation committee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Persons with Disabilities enter a final order dismissing Petitioner's protest. DONE AND ENTERED this 15th day of March, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway The DeSoto Building 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 15th day of March, 2005.
The Issue The issues are (1) whether Florida Housing Finance Corporation's (Florida Housing) intended decision to award low- income housing tax credits for an affordable housing development in medium-size counties to Grove Manor Phase I, LTD (Grove Manor), JIC Grand Palms, LLC (Grand Palms), Madison Palms, Ltd. (Madison Palms), and RST The Pines, LP (The Pines), was contrary to solicitation specifications, and if so, whether that determination was clearly erroneous, arbitrary, capricious, or contrary to competition; and (2) whether Florida Housing's determination that Brownsville Manor, LP (Brownsville), achieved the maximum available score of 28 points was contrary to solicitation specifications, and if so, whether that determination was clearly erroneous, arbitrary, capricious, or contrary to competition.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504. One of its responsibilities is to award low-income housing tax credits, which developers use to finance the construction of affordable housing. Tax credits are made available to states annually by the United States Treasury Department and are then awarded pursuant to a competitive cycle that starts with Florida Housing's issuance of an RFA. On September 3, 2015, Florida Housing issued an RFA in which it expected to award up to an estimated $10,763,426.00 of tax credits for affordable housing developments in medium counties. The RFA also requested proposals for housing developments in small counties, but that portion of the RFA is not at issue. All applicants in this proceeding proposed developments in medium counties. They include Redding (Seminole County), HTG (Hernando County), Brownsville (Escambia), Grove Manor (Polk County), Grand Palms (Manatee County), Madison Palms (Brevard County), and The Pines (Volusia County). Florida Housing retained the right to "waive Minor Irregularities in an otherwise valid Application" filed pursuant to the RFA. Fla. Admin. Code R. 67-60.008. A "minor irregularity" is defined as "a variation or condition of the Application pursuant to this rule chapter that does not provide a competitive advantage or benefit not enjoyed by other Applicants, and does not adversely impact the interests of the Corporation or the public." Fla. Admin. Code R. 67-60.002(6). These rules are particularly relevant in this case, as during the scoring process Florida Housing waived minor irregularities for several applicants. Florida Housing's Executive Director appointed a review committee comprised of Florida Housing staff to evaluate the applications for eligibility and scoring. Ninety-eight applications were received, processed, deemed eligible or ineligible, scored, and ranked pursuant to the terms of the RFA, administrative rules, and applicable federal regulations. Applications are considered for funding only if they are deemed "eligible," based on whether the application complies with various content requirements. Of the 98 applications filed in response to the RFA, 88 were found to be eligible, and ten were found ineligible. All applicants in this case were preliminarily deemed to have eligible applications and received a maximum score of 28 points. The RFA specifies a sorting order for funding eligible applicants. Recognizing that there would be more applications than available credits, Florida Housing established an order for funding for applicants with tied scores using a sequence of five tie breakers, with the last being a lottery number assigned by the luck of the draw. Applications with lower lottery numbers (closer to zero) are selected before those with higher lottery numbers. On January 29, 2016, Florida Housing posted a notice informing the participants that it intended to award funding to eight developments in medium counties, including those of Grove Manor, Grand Palms, Madison Palms, and The Pines. While the applications of HTG, Brownsville, and Redding were deemed to be eligible, they were not entitled to a preliminary award of funding because of their lottery number ranking. The randomly assigned lottery numbers of those applicants are as follows: HTG (14), Brownsville (16), and Redding (17). HTG and Redding timely filed formal written protests. HTG's protest is directed only at Grove Manor's application. Because Grove Manor agreed that its score should be adjusted downward, HTG is the next applicant in the funding range and should be awarded tax credits, assuming it successfully emerges from the credit underwriting process. No party has challenged the scoring of HTG's application. Redding's protest is directed at the applications of The Pines, Madison Palms, Grand Palms, and Grove Manor, who were selected for funding. Redding also contends that Brownsville, which has a lower lottery number, should have been deemed ineligible or assigned a lower score so that it would no longer be in the funding range. In an unusual twist of events that occurred after the posting of the notice on January 29, 2016, Madison Palms and Grove Manor agreed that they are either ineligible or out of the funding range. Therefore, assuming that adequate funds are available, in order for Redding to be awarded credits, it must establish that at least one of its remaining targets (Grand Palms, Brownsville, and The Pines) is ineligible or should be assigned fewer points. No party has challenged the scoring of Redding's application. Under the RFA, applicants are awarded points in three categories: general development experience, local government contributions, and proximity to services. Depending on whether family or elderly units are being proposed, to obtain proximity to service points, an applicant may select among several types of community services, including transit, a grocery store, a medical facility, a pharmacy, or a public school. Redding has challenged the number of proximity points awarded to The Pines for proximity to a medical facility and public school, Grand Palms for proximity to a pharmacy, and Brownsville for proximity to a public bus transfer stop. Based on Florida Housing's preliminary review of the applications, all three achieved a total proximity score of 18 points. The RFA requires that an applicant submit a Surveyor Certification Form with its application. The form identifies a Development Location Point (DLP), which is representative of where the development is located and must be on or within 100 feet of an existing residential building or a building to be constructed. The DLP is represented by a latitude and longitude coordinate. The distance from the DLP to the selected service is how the proximity points are awarded. The services on which an applicant intends to rely must also be identified on the form, along with the location of the service, as well as the latitude and longitude coordinates for each service. The RFA requires that the coordinates "represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located." Jt. Ex. 1, p. 25. Redding contends that the coordinates for certain services selected by The Pines, Grand Palms, and Brownsville are not on the "doorway threshold of an exterior entrance that provides direct public access to the building where the service is located." Accordingly, it argues that the number of proximity points awarded to each applicant must be lowered. The Pines selected a public school that has no doors allowing direct public access to the facility. Instead, the school is a series of buildings and classrooms connected by sidewalks and covered breezeways, making a primary "doorway threshold" problematic. The office is interior to the school. Given this unusual configuration, The Pines placed the coordinates at a student drop-off area in front of the school, where students then walk under the covered breezeways to their classrooms, and members of the public walk to offices and/or classrooms. Even if Redding's desired point for the coordinates was used, there would be no difference in the awarded proximity points, as the change in distance would be minimal. The coordinates for The Pines' medical facility are approximately 90 feet from the door that provides direct public access. This was due to an error by the surveyor, who used the back of the facility, rather than the front doorway threshold. Even if the front door had been used for the threshold, The Pines would still be entitled to the same amount of proximity points, as the change in distance would be minimal and not change the scoring. The slight error in the form is a waivable minor irregularity. Brownsville selected a public bus transfer stop for its transit service. Due more than likely to a digital error in one of the satellites used to pinpoint the spot, the coordinates were approximately 150 feet from the canopy where passengers load and unload. Even if the correct point had been used, it would not change the amount of proximity points awarded to Brownsville. The slight error in the form is a waivable minor irregularity. Finally, Grand Palms selected a pharmacy for one of its services. During the process of locating the doorway threshold at the pharmacy, a traverse point was established 70 feet east of the doorway threshold. This was necessary because of an overhang above the doorway threshold. A measurement was then made from the traverse point to the doorway threshold. By mistake, the coordinates on the form represented the location of the traverse point, instead of the doorway threshold of the pharmacy. However, this 70-foot error did not affect the distance from the pharmacy to the DLP or the points awarded to Grand Palms for proximity to a pharmacy. The slight error in the form is a waivable minor irregularity. Florida Housing determined that the coordinates used by The Pines, Brownsville, and Grand Palms yielded the same proximity point score had they been located at the "doorway threshold" and/or "embark/disembark location" as defined in the RFA. Because there is no language in the RFA that provides direction on how to treat these types of minor errors, or mandates that Florida Housing treat them as a non-waivable item, Florida Housing considers them to be a minor irregularity that can be waived. In sum, the deviations were immaterial, no competitive advantage was realized by the applicants, and they were entitled to the proximity points awarded during the preliminary review. Redding also contends that Brownsville is ineligible for funding because it failed to comply with a material requirement in the RFA. In its application, Brownsville stated that it intends to place an 87-unit development on a "scattered site" consisting of two parcels (Site I and Site II) with an intervening roadway (North X Street) between them. The RFA defines a development which consists of a scattered site "to mean a single point on the site with the most units that is located within 100 feet of a residential building existing or to be constructed as part of the required Development." Jt. Ex. 1, p. 25. Stated another way, if multiple parcels are used for the development, the DLP must be located on the site which contains the majority of the residential units. Florida Housing considers this to be a material, non-waivable requirement of the RFA. In Brownsville's Surveyor Certification Form, the DLP is located on Site I, a 1.49-acre parcel that is zoned Commercial and lies west of Site II. In making its preliminary decision to award funding to Brownsville, Florida Housing relied upon the validity of the DLP as of the application deadline and assumed that Site I would have the majority of the units. It had no way to verify the accuracy of that information during the initial scoring process. The RFA requires an applicant to attach to its application a form entitled, "Local Government Verification that Development is Consistent with Zoning and Land Use Regulations." Brownsville's verification form was signed by Horace L. Jones, Director of Development Services for Escambia County, who confirmed that the intended use of the property was consistent with local zoning regulations. The verification forms do not include any information regarding the number of units on each parcel of the site. Florida Housing defers to the local government in determining whether local zoning requirements will be met. Mr. Jones later testified by deposition that Escambia County zoning regulations allow only "25 dwelling units per acre" on Site I. Therefore, on a 1.49-acre parcel, the maximum number of units allowed is 36, or less than a majority of the 87 units. Because Brownsville did not comply with a material requirement of the RFA for a scattered site, Florida Housing now considers the DLP for proximity purposes to be invalid. Had it concluded otherwise, Brownsville would be given a competitive advantage over the other applicants. Brownsville contends, however, that during the County site review process, it will utilize a procedure by which the County can consider the two parcels as a "Single Unified Development" and "cluster" the dwelling units. Although the County has a process to allow the transfer of density from one parcel to another, Brownsville had not started this process as of October 15, 2015, the due date for all applications and the cutoff date for any changes. Also, this process would entail a public hearing before the Board of County Commissioners (Board), and there is no guarantee that the Board would approve the density transfer. In fact, Mr. Jones testified that he was not sure if the density transfer was even a viable option. Therefore, the application of Brownsville contains a material deviation from the RFA and is not eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order rescinding the preliminary award to Grove Manor Phase I, Ltd. and Madison Palms, Ltd.; determining that Brownsville Manor, LP, is ineligible for funding; and designating HTG Hammock Ridge, LLC, and Redding Development Partners, LLC, as the recipients of tax credits being made available for developments in RFA 1015-106. DONE AND ENTERED this 19th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2016. COPIES FURNISHED: Kate Fleming, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Jorden Burt, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Betty C. Zachem, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 340 1725 Capital Circle Northeast Tallahassee, Florida 32308-1591 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301-1706 (eServed) Douglas P. Manson, Esquire Manson Bolves Donaldson, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 (eServed)
The Issue Whether Respondent's Notice Of Intent To Award RFP-DOT-91/92-1005 to OHM Remediation Services Corporation is fraudulent, arbitrary, illegal, or dishonest.
Findings Of Fact By RFP-DOT-91/92-1005, the Florida Department of Transportation (DOT), Respondent, sought bid responses to provide equipment and services on an as needed basis to assess and/or clean up contaminants in rights-of-way to be acquired for road construction projects. Principal contaminants envisioned were those resulting from abandoned and leaking petroleum tanks or other business whose waste disposal threatened ground water in the area with contamination. The Requests For Proposals (RFP) provided for technical proposals and price proposals to be submitted for evaluation. The technical evaluation is the process of reviewing the proposer's Executive Summary Management Plan and Technical Plans for understanding the project. The price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider (Exhibit 3). The only issue here is the price proposal. In evaluating the Price Proposals, the RFP (Exhibit 3, Section 1.16.2) provided: The Department will determine a "typical project" prior to receipt of proposals. The District Procurement Office will compute costs for the "typical project" based on fees submitted by each proposer. All responsive bid proposals will be scored in relation to the lowest computed cost for the "typical project" using the following formula: (Lowest "Typical Project" cost - by subject "Typical Project" cost) x 40 = Awarded points for price proposal. The "typical project" was prepared by Raymond Nottingham, District I Contamination Coordinator, prior to the proposals being received and opened. Although the exact content of the typical project was not included in the RFP, bidders were informed of the typical type of project they could expect to encounter under the contract during the prebid meeting and in the RFP. The price evaluation was done by matching up the prices offered by the bidders in their price proposals to the items and tasks listed in the DOT's typical project to come up with the bidders typical project cost. This is the first RFP for remediation services offered by DOT District I. In preparing this RFP, the administrative section of the statewide RFP earlier consummated by the department was utilized; however, for more specific pricing bids the price part of the RFP was largely adopted from a similar RFP prepared by DOT District VI in Miami, Florida. As a result of mixing the two RFPs, a slight possibility existed that some proposers would follow the more general descriptions allowed in the earlier statewide RFP rather than the more specific provisions of the District VI RFP. However, a careful reading of the instant RFP would have eliminated any such confusion. Section 1.17.3 of the RFP provided in pertinent part: The Price Proposal information is to be submitted in a separate sealed package marked "Price Proposal Number RFP-DOT- 91/92-1005.(sic) The Price Proposal information shall be submitted on the forms provided in the Request for Proposal or on Proposers' own forms provided the Department format is followed. The Department reserves the right to reject any proposal that is not submitted in this format. The format included in the RFP was broken down into the following classifications: Labor Classification, Heavy Equipment, Mobile Equipment, Water Equipment, Personal Protective Clothing and Equipment, Drilling, Field Analytical Equipment, Treatment Equipment, and Other. The format further indicated one fee for each item listed under the classification at an hourly rate and overtime hourly rate. The proposal submitted by Petitioner included prices for equipment offered under the following classifications: Trucks and Trailers, Personal Protective Equipment, On-Site Recovery and Treatment, Sampling and Testing Equipment, Construction and Excavation Equipment, Miscellaneous Equipment, Rental Equipment, and Expendables. The proposal submitted by Petitioner contained no price for an air stripper or crane. It lists three prices for three sizes of carbon cells, three prices for three sizes of submersible pumps, three prices for three sizes of pools, two prices for drums, three prices for pool liners, separate prices for hood and suit of protective clothing, and three prices for boots. Petitioner was the only proposer of the 17 submitting proposals that failed to submit a price for an air stripper and crane. Several proposers omitted prices for items on which the other proposers submitted a price. In attempting to keep all bidders in the process by not declaring their bid nonresponsive while being fair to all other proposers, the Department adopted different procedures for different items. Generally, when a proposers omitted a price for a particular piece of equipment, the Department inserted the highest price received from other proposers for that piece of equipment in the proposal in calculating the total bid. On other occasions where the proposer submitted more than one price and did not select the price himself, the Department averaged the prices submitted and used that figure to calculate the price for that item. Where there was obviously a lot of confusion and a wide disparity in the proposals as in establishing well point systems and quality control blanks, the Department omitted those items in calculating the prices. In totaling the bids received, only the daily rate offered was used because the RFP specified only a daily rate, and all proposers did not submit weekly and monthly rates. Part of the confusion stemmed from other parts of the RFP which did indicate that weekly and monthly rates were desired. However, since the other section did not require the submission of weekly and hourly rates, the Department in evaluating the bids did not use those rates in determining the bid price. Petitioner contends that the air stripper and crane to be used on a project can vary widely, and it is not practicable to submit a proposal for a fixed price for such an item. However, it is significant that Petitioner was the only proposer that failed to submit a price for these items. Intervenor utilized the bid forms provided with the RFP and, although Intervenor in its supplementary material listed varying prices for different sizes of the same item or different materials, it entered one price, usually the lowest, on the bid form for calculating its bid. Petitioner contends that had Respondent brought forth the lowest price for items Petitioner submitted several prices on, and disallowed the prices on air strippers and cranes, then Petitioner's bid would have been lower than the Intervenor's bid. However, in the final ranking of proposers, Petitioner stood fifth. No evidence was presented that had Petitioner's contentions been granted and applied to all proposers that Petitioner's proposal would have been lower than the other bidders whose proposals were initially deemed superior to Petitioner's proposal. By failing to follow the format contained in the RFP Petitioner's proposal was not responsive.
Recommendation It is recommended that a Final Order be entered dismissing Westinghouse Remediation Services, Inc. protest to the award of RFP-DOT-91/92-1005 and OHM Remediation Services Corporation. DONE and ORDERED this 12th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1992. APPENDIX Proposed findings submitted by Respondent and Intervenor are accepted. Those not included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. Proposed findings submitted by Petitioner are accepted except as noted below. Those not noted below or included in Hearing Officer's findings were deemed to be unnecessary to the conclusions reached. 8. Rejected that Petitioner's price proposal followed FDOT format. 22. Rejected. 28. Rejected. Additional reasons for rejection was the wide fluctuation in prices indicating the bidders did not understand the scope of the item. 37. Rejected. Although an inappropriate substitution was selected, the price for the item was below the maximum price offered for a crane. Accordingly, Petitioner benefited from the decision to substitute an item rather than use the highest price offered. 39. While it is true that OHM and Petitioner were the only bidder submitting weekly and monthly rates the reason for FDOT using only daily rates. See HO #13. 43. Rejected. 45. Rejected. See HO #13. 47. Rejected. Table 1. Rejected. This evidence was not submitted at the hearing. COPIES FURNISHED: Neal Smith, District Manager Westinghouse Remediation Services, Inc. 675 Park North Boulevard Building F, Suite 100 Clarkston, GA 30021 Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Vasilis C. Katsafanas, Esquire Post Office Box 1873 Orlando, FL 32802 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 562 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
Findings Of Fact The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973. The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS. On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992. The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination. By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period. On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS. Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator. In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer. The position of Belleair Beach City Treasurer is established by city ordinance. The position description for the City Treasurer sets forth duties as follows: The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds. Maintains capital assets inventory including acquisition and disposition. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council. In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials. The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows: The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis. The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement. This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them. Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor." The July 14, 1983 contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to: -compilation of current and capital expense estimates for the annual budget -maintenance of a general accounting system -submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget -preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100 ($830.00) per month. THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly. The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows: ....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year). THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer. THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time. THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100 ($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned. The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00. The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00. In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract. The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed. The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows: That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to: compilation of current and capital expense estimates for the annual budget maintenance of a general accounting system submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget preparation for submission to council of a detailed financial statement as to the end of each fiscal year * A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be paid on completion of this contract.>> [[THIS AGREEMENT shall provide for a six months performance evaluation.]] [[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]] THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September 30 of each year unless renewed by Council prior to that time.]] THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so. * Note: In the above quotation, language which has been added is within the <<>>; deleted language is within the [[]]. All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City. Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants. Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed. At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined. The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City. During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis. Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor. In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat. Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave. Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party. Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles. During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses. For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation." For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation." The City did not provide health or life insurance coverage to Mr. Hebden. The City did not pay federal social security or withholding taxes for Mr. Hebden. The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden. The City did not pay retirement contributions to the FRS for Mr. Hebden.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due. DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1994. APPENDIX TO CASE NO. 93-6518 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979. 11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation." Rejected, irrelevant. Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments. Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses." Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant. 28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, Florida 32399-1560 William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Thomas J Trask, Esquire Frazer, Hubbard, Brandt & Trask 595 Main Street Dunedin, Florida 34698 Jodi B. Jennings, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact On February 7, 14 and 21, 1989, respondent, School Board of Pinellas County (Board), published a legal advertisement in an area newspaper inviting prospective bidders to submit proposals for certain construction work to be performed on two elementary schools, Walsingham and Cross Bayou, located in Largo and Pinellas Park, Florida, respectively. The bidders were advised that their bids must be "prepared and submitted in accordance with the drawings and specifications" and that such drawings and specifications could be obtained from the Board. Such bids were to be filed with the Board no later than 2:00 p.m. on March 6, 1989. The notice also provided that the bids would be opened the same day. Bids were timely filed by at least five contracting firms, including petitioner, Prelude Construction Company, Inc. (Prelude), and intervenors, Lincoln Construction Company (Lincoln) and Bandes Construction Company (Bandes). In filing these proposals, each bidder represented he had "thoroughly examined all of the contract documents." After the bids were opened and reviewed by Board personnel, Lincoln, Prelude and Bandes were ranked first, second and fourth, respectively, based upon the dollar amount of their proposals. 2/ Thereafter, the Board issued its notice of intended action on March 7, 1989, wherein it advised all parties of its intention to award the contract to Lincoln. In doing so, the Board concluded that, although a bid bond accompanying Lincoln's proposal was not dated March 5 or 6 as required by the specifications, the deviation was minor and could be waived. That action prompted Prelude to file its protest. Through testimony of Lincoln's vice-president, it was established that the Board staff intended to change its initial position and to recommend to the Board that Lincoln's bid proposal be rejected and the contract awarded to Bandes. This change was prompted by the Board staff's discovery on the day of hearing (April 3) that, with the exception of Bandes, all bidders had failed to list the, roofing subcontractor on their bid proposals. The Board staff accordingly concluded that all bidders except Bandes should be disqualified. The bid specification upon which the Board relies to award the contract to Bandes is found in Part One, paragraph 1.1 of section 07511 of the bid specifications. The requirement is a relatively new one and imposes the following requirement upon bidders: NOTE: The contractor is required to list the name of the roofing subcontractor on the form of proposal, Section 1C. Section 1C is entitled "Form of Proposal" and includes the following section on page 1C-3 to be filled in by the bidder: The following subcontractors will be contracted with on this project. Type of Subcontractor Name of Subcontractor (Trade Specialty) (Company/Firm) The column on the left side is intended to identify the subcontractor by specialty, such as plumbing or roofing, while the blank spaces in the right hand column are to be filled in by the bidders with the name of the subcontractor who will perform the specialty. The Board has not been consistent in requiring bidders to list the name of subcontractors on the bid documents. According to the uncontroverted testimony of Lincoln, the Board requires the listing of subcontractors on some projects but not on others. For example, on the specifications for the recently let contract for the prototype new media center at four elementary schools, the left hand column on the above form was filled in by the Board with five types of subcontractors who were required on the project, including roofing. This meant that the bidder was to fill in the blanks in the right hand column with the name of the subcontractor who he intended to use on each specialty. However, on other contracts, including the one under challenge, both columns in the Form for Proposal have been left blank, and Lincoln construed this to mean that the name of the subcontractor was not required. Indeed, Lincoln pointed out, without contradiction, that on a recent contract which left both columns blank, as was true in this case, it was awarded the contract even though it did not identify the roofing subcontractor on its proposal. Because of this prior agency practice, Lincoln assumed the same policy would be used again. However, Lincoln conceded it had failed to read the requirement in paragraph 1.1 of section 07511 before preparing its proposal. There was no evidence that Lincoln gained any substantial advantage over other bidders by this omission. Also relevant to this controversy is Paragraph 10A of the General Requirements. This item is found on page 1B-11 and reads as follows: Each bidder shall indicate the names of specific major Subcontractors if called for on the form of proposal. If listing of Subcontractors is required and the Bidder fails to list them, the bid may, at Owner's option, be disqualified. (Emphasis added) This authority to waive the requirement is reinforced by language in Paragraph 21 of the General Requirements which provides in part that "(t)he owner reserves the right to waive minor technicalities." According to the Board's outside architectural consultant, who was the author of a portion of the contract specifications including section 07511, the omission of the name of the roofing subcontractor is a "minor" technicality that can be waived. However, the consultant had no personal knowledge as to whether the provision had actually been waived by the Board on prior contracts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding the contract in question to Bandes Construction Company. DONE AND ORDERED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989.
The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2010.
