The Issue Whether Respondent Heath Currier committed the violations alleged in the Final Notice of Discipline, and if so, the appropriate discipline that should be imposed.
Findings Of Fact The fire chief, on behalf of the City of Cape Coral Fire Department, is responsible for terminating the employment of employees of the fire department. At all times relevant to the this proceeding, Respondent was employed by Petitioner as a firefighter. The employment position that Respondent occupies is included in the positions covered by the collective bargaining agreement between Petitioner and the Cape Coral Professional Fire Fighters Local 2424 of The International Association of Fire Fighters (Union). Petitioner has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City of Cape Coral Charter, ordinances and rules promulgated thereunder, and the collective bargaining agreement between Petitioner and the Union. According to the Joint Pre-Hearing Statement, “Article 7(d)(2) of the union contract states that employees are entitled to Notice of Intended Discipline” and, according to Respondent, “Heath Currier wasn’t advised that his employment was being terminated until after the fire chief’s pre-disciplinary hearing.” The referenced article of the union contract was not offered into evidence. However, chapter 2, division 7 of the City of Cape Coral Ordinances (division 7), was received into evidence and this ordinance sets forth Respondent’s procedural disciplinary notice rights. Section 2-31.4(b) of division 7 provides in part that “[w]hen disciplinary action against an employee with regular status is contemplated by the city, the department head shall provide the employee with written notice of the intended action(s).” Section 2-31.4(c)(6) provides further that “[i]n no event shall the discipline imposed be greater than that specified in the notice of proposed disciplinary action.” On or about December 22, 2015, Respondent received a notice of proposed disciplinary action from Petitioner which informed him that the fire chief was considering disciplinary action including, but not limited to, “written reprimand, suspension, demotion, and/or termination of employment with the City.” Following the issuance of the notice of proposed disciplinary action, an investigation was conducted which resulted in the issuance of a final notice of disciplinary action which advised Respondent that his employment with the City of Cape Coral was being terminated “effectively immediately.” The notice of proposed disciplinary action provided Respondent with notice that termination of his employment with the City of Cape Coral was a possible consequence resulting from his alleged misconduct, and the notice was issued in accordance with the requirements of division 7. Respondent, at the time of the occurrences that provide the basis for the instant action, was a seven-year member of the Cape Coral Fire Department, and, during all times relevant hereto, worked primarily in the department’s division of operations. The fire department’s division of operations is divided into two battalions, “fire north” and “fire south.” Respondent was assigned to the fire south division. The division of professional standards is another division within the fire department, and, during all times relevant hereto, was under the supervision of then special operations battalion chief Timothy Clark. Housed within the fire department’s division of professional standards is the department’s special operations unit, which includes the department’s dive/rescue team. Mr. Clark, in his capacity as battalion chief for special operations, had the authority to direct fire department employees in matters related to dive/rescue operations. To become a member of the dive/rescue team, a firefighter must go through a competitive process that, if successfully completed, results in the firefighter receiving additional pay in the form of a wage supplement. Members of the dive/rescue team, according to Mr. Clark, must be proficient in the operation of dive-related equipment to the point of knowing the equipment “inside and out, upside down, sideways, backwards, eyes closed, [and] blindfolded.” Respondent is a member of the department’s dive/rescue team. At some point (the exact date is not clear in the record), Respondent was assigned to the fire station where the dive/rescue team is located. The dive/rescue team is under the direct supervision of Ryan Corlew. The dive/rescue team has regular training exercises which require members of the team to perform certain tasks so as to maintain operational efficiency. Mr. Corlew, when working with Respondent, determined that Respondent’s knowledge of the operational aspects of some of the dive/rescue equipment was deficient and in need of remediation. Special operations battalion chief Clark was informed of Respondent’s problems with the dive/rescue equipment, and armed with this information, met with Respondent to discuss the issue. Mr. Clark explained to Respondent that he was displeased that Respondent was not as proficient with the dive/rescue equipment as he should be, and that he was placing Respondent on a non-punitive three-week remedial training program. Mr. Clark “instructed [Respondent] at that time to work with the other guys in [his] station, the lieutenant, the engineer, the firefighters, all the divers there, to work with them and train with them and have them teach [you] so that when I come back in three weeks, [you will know] this stuff inside out . . . backwards . . . [and] blindfolded.” Respondent explained that after he was instructed by Mr. Clark to work with the other guys at his station, he repeatedly asked (“morning, noon, and evening”) his lieutenant, Mr. Corlew, for training, and each time he was refused. According to Mr. Corlew, Respondent, while at the dinner table one night, asked if Mr. Corlew could personally train him, and Mr. Corlew, as Respondent’s supervisor, told Respondent to first work with firefighters Stalions and Johnson, both of whom are extremely knowledgeable about the workings of the dive equipment. Mr. Corlew went on to advise Respondent that he would personally work with him once firefighters Stalions and Johnson raised Respondent’s proficiency with the equipment to an acceptable level. Firefighter Stalions testified that during this same discussion at the dinner table, he offered to train Respondent, but Respondent refused and said that he wanted to be trained instead by Mr. Corlew. Respondent testified that “[e]very single day [he] would take all of the dive equipment out of the compartments, disassemble it completely, reassemble it and do that at least twice a day.” In an attempt to corroborate this testimony, Respondent called Steven Jobe as a witness. Mr. Jobe testified that he “didn’t necessarily see [Respondent] putting [the dive equipment] together and taking it apart.” Although Mr. Clark told Respondent to be ready to demonstrate his proficiency three weeks from the time of their meeting, it was actually four weeks later when Mr. Clark again met with Respondent. During the follow-up meeting, Mr. Clark gave Respondent “a simple scenario that engine 2 had come back from a call, all the equipment was trashed and everything needed to be replaced.” According to Mr. Clark: I needed [Respondent] to go in the back room, get all the stuff together and assemble a dive setup, check it out and test it and make sure it was ready to go if a call came in. He fumbled through it. It took him a long time to put stuff together. He ultimately figured a couple things out throughout the process of elimination, but there was [sic] still some things that he had wrong. He had the weights, they weren’t properly in the BCs (undefined), which is a critical safety issue, because if you lose your weights on the call, it could cause you to bolt to the surface, which could cause injury to yourself or others. So by placing the weights improperly the way he did, to me was a huge [problem]. (Hearing transcript pg. 83). Mr. Clark went on to explain that “once we were all done, like I said, he had some issues and I knew--it was obvious that he hadn’t done what I instructed him to do[,] [s]o I asked him at the time who he had worked with over the course of that four weeks.” Mr. Clark explained that he asked Respondent who he had trained with during the four-week period because if the individuals that remediated Respondent were performing at or near the same level as Respondent, then Mr. Clark believed that he had a larger issue of operational preparedness that he needed to address by personally retraining all concerned. In response to Mr. Clark’s request for names, Respondent told Mr. Clark “the only people that I’ve had consistently with me are two firefighters that I’ve worked with,” named Johnson and Stalions. Soon after meeting with Mr. Clark, Respondent sent the following text message to firefighters Johnson and Stalions: Hey guys heads up, I just had my “non punative [sic] dive gear quiz” with [C]lark and I missed a few things. He asked who I had been working with and I reluctantly gave him your names after [C]orlew told him I never went to [M]edero for help. Not sure if there will be any fallout but I wanted to let you both know ahead of time. Mr. Johnson credibly testified that he was surprised to have received the referenced text message from Respondent given that he had never been asked to, nor had he ever provided any type of training to Respondent. Firefighter Stalions credibly testified that after receiving the text he spoke with Respondent and “told him I didn’t appreciate being pulled into it because training wise, I didn’t do any formal training with him and it kind of to me felt like he was looking for kind of some backup on it.” Firefighter Stalions went on to explain that he had never trained with Respondent, but certainly would have had he been asked. Because Respondent did not train with either firefighter Johnson or Stalions, Respondent lied to Mr. Clark when informing him that Respondent had trained with these individuals. Respondent’s poor performance on his remedial test, combined with the fact that not a single witness corroborated Respondent’s testimony of having disassembled and reassembled the dive equipment twice a day, every single day, makes incredible his testimony regarding self-directed remedial training. Respondent testified that he “did everything [he] thought [he] could do” to comply with Mr. Clark’s directions and recommendations. Respondent’s assertion is, however, belied by the evidence which demonstrates that Respondent did not train on the dive equipment with firefighters Madero and Johnson, and refused a direct offer from firefighter Stalions to assist Respondent with training. It was solely the fault of Respondent that he did not secure remedial training as directed by Mr. Clark.
The Issue Do Driscoll Properties and/or Harbor Course Club, Inc., Respondents, have vested rights to complete the project at issue, a golf driving range? (Case Nos. 84-2868VR and 84-3805VR) If Respondents do not have vested rights, did the application to clear land for the golf driving range comply with the provisions of Chapter 380, Florida Statutes, and in particular with the comprehensive plan and land development regulations for the Florida Keys Area of Critical State Concern? (Case No. 84-2868VR). Is the Department of Community Affairs estopped, or otherwise equitably barred, from preventing the completion of this project? (Case Nos. 84-2868VR and 84-3805VR) Did Driscoll Properties or Harbor Course Club, Inc., violate the provisions of Chapter 380, Florida Statutes? (Case No. 84-3805VR) Did Monroe County violate Chapter 380, Florida Statutes, by issuing a land clearing permit prior to transmitting the Monroe County Board of County Commissioners Resolution 091-1984 to the Department of Community Affairs, the South Florida Regional Planning Council and the Developer? (Case No. 84-3805VR) If there is a violation of Chapter 380, Florida Statutes, what is the proper remedy? (Case No. 84-3805VR)
Findings Of Fact The parties stipulated to the following findings of fact which are incorporated herein: The owner of record of the subject property is Driscoll Properties, a Florida general partnership, 522 Gables International Plaza, 2655 LeJeune Road, Coral Gables, Florida 33134, and the property is located in Section 5, Township 59 South, Range 41 East, North Key Largo, Monroe County, Florida, within a subdivision known as Harbor Course South, Section One. Driscoll Properties, and Harbor Course Club, Inc., submitted to Monroe County an Application for Land Clearing, Permit No. C-14919, for the subject property in order to build a golf driving range. The application was dated March 18, 1983, and received by the County on or about March 24, 1983. Monroe County Application for Land Clearing, Permit No. C-14919 was denied by William Russell, Assistant Director, Monroe County Planning, Building and Zoning on May 20, 1983. The denial of Permit Application for Land Clearing No. C-14919 was appealed by Harbor Course Club, Inc., to the Monroe County Board of Adjustment. The Board of Adjustment denied the appeal on December 14, 1983, by Resolution (of) Administrative Appeal 8-83. The Monroe County Board of Adjustment Resolution No. 8-83, denying the Application for Land Clearing, Permit No. C-14919, was appealed by Harbor Course Club, Inc., to the Monroe County Board of County Commissioners. The Monroe County Board of County Commissioners reversed the decision of the Monroe County Board of Adjustment by adopting Resolution No. 091-1984 on March 23, 1984. The Monroe County Zoning Department was responsible for issuing and rendering Monroe County Board of County Commissioners Resolution 091-1984. On April 25, 1984, Harbor Course Club, Inc., or a person acting on its behalf, applied to and obtained from Monroe County Building and Zoning Department ministerial land clearing permit No. C-14919, which was authorized by Resolution 091-1984. Harbor Course Club, Inc., or an authorized agent, employee or representative, received a letter dated June 12, 1984, enclosing Resolution No. 091-1984 and the minutes from the hearing described in No. 6 above. Harbor Course Club, Inc., or an authorized agent, employee or representative arranged for clearing of the subject property. Land clearing activity on the subject property began on April 30, 1984. Land clearing activity on the subject property was conducted on May 2, 3, 7, 8 and 10, 1984. Land clearing on the subject property was continued on July 19, 20 and 24, 1984, and completed August 2, 1984. At the times in question, the Petitioners maintained an office in Monroe County. At the times in question, Bob Dennis was an environmental specialist in the Petitioners' Monroe County office. The Key Largo woodrat is listed as an endangered species by the U.S. Fish and Wildlife Service pursuant to 50 Code of Federal Regulations, Part 17, Section 17.11(h). The Key Largo woodrat is listed as an endangered species by the Florida Game and Freshwater Fish Commission pursuant to Rule 39-27.03(27). The following findings of fact are made based on the evidence submitted at the hearing, after considering the demeanor and credibility of the witnesses who testified: The subject property consists of approximately 3.6 acres. Harbor Course Club, Inc., seeks to have the subject property developed into a golf driving range for the use of its members. Harbor Course Club, Inc., is a private membership golf club located within the Ocean Reef Development on North Key Largo. Ocean Reef is a residential development with three eighteen hole golf courses consisting of approximately 4000 acres, half of which is developed and half of which has been dedicated to wilderness. The subject property as well as the entire Ocean Reef Development is part of an Area of Critical State Concern previously designated on July 1, 1979 under Section 380.0552, Florida Statutes, and subject to Chapters 27F-B and 27F- 9, Florida Administrative Code. Monroe County has developed a comprehensive plan pursuant to Chapter 163, Florida Statutes, which provides for certain standards and criteria for the issuance of development permits, such as the one applied for in this instance. As it relates to this case, the comprehensive plan is known as the Monroe County Coastal Zone Protection and Conservation Element. Prior to its clearing, the subject property was a high quality, mature tropical hardwood hammock with a closed canopy approximately thirty feet in height, and represented a unique genealogy not found elsewhere in North America outside of the Everglades. There were also several "protected" or "threatened" tree species on the site such as the paradise tree, red berry stopper and thatched palm, and approximately five active Key Largo woodrat nests. The clearing that has taken place has substantially destroyed the tropical hardwood canopy and removed most of the top soil from the area. One strip of hammock remains at the border of the property as well as several tree clumps, but the strip and clumps are too small and narrow to serve as a habitat. Therefore, the area's use as a habitat for woodrats has been destroyed and their nests can no longer be found on site. Trees such as the torchwood which were previously found on the site and which serve as host plants for endangered or threatened species, such as the Schaus swallowtail butterfly, have also been destroyed. This finding is based on the testimony of Mark Robertson, Dr. Art Weiner who was accepted as an expert in biology and Florida Keys ecology, and Numi Goodyear, an expert in zoology and Keys mammalian. The subject property was not selectively cleared, but rather was indiscriminately cleared. This has had a scouring effect on the soil. The evidence does not establish that fill material has been deposited on site. A survey of trees and vegetation on the subject property was submitted by the applicants, but this was not a complete or adequate survey of vegetation on the site. The applicants had no adequate protective plan for the endangered or threatened species, such as the woodrat, and trees on the subject property. Although it was established through the testimony of Melvin R. "Chick" Harbert, who was recognized as an expert in golf facility components, that a golf practice area is an integral part of Professional Golfer's Association approved courses, and that such areas allow golfers to warm up, practice and receive golfing lessons, it has not been established by competent substantial evidence that driving ranges, such as the one applied for in this case, are customarily associated with golf courses such as the ones in Ocean Reef. There is no evidence that professional golf tournaments have, or will be, held at these courses, or that the owners of the courses intend to seek P.G.A. sanctioning of a tournament at their facility. Additionally, Harbert admitted that not every golf course requires a driving range. Finally, Harbert's involvement with the Ocean Reef Development as a professional golf instructor diminishes his credibility as a witness. Even if it had been found that driving ranges are customarily associated with golf courses such as the ones in this case, the testimony of Charles C. Gardner, a partner in Driscoll Properties, and Charles Pattison, Director of Planning, Building and Zoning for Monroe County, establishes that a golf driving range was not shown or located on the subject property on the Master Development Plan Map for the Ocean Reef Development filed with the County in June, 1977. Further, other than the permit from which the appeal in this case was taken, there are no records, maps, authorizations or permits on file with the County which allow or indicate a driving range on the subject property. Therefore, the applicants had no interest in the development of a driving range at this location prior to its designation as an Area of Critical State Concern. To the contrary, Gardner specifically testified that the desire to locate a driving range on the subject property did not arise until 1982 or 1983. Although Permit No. C-14914 was transmitted to Petitioner's Keys Office on May 14, 1984, Monroe County Resolution No. 091-1984 and the development order authorizing issuance of the permit for land clearing were not transmitted to Petitioner until June 21, 1984. On August 3, 1984, Petitioner filed its appeal with the Land and Water Adjudicatory Commission of Resolution No. 091-1984. Bob Dennis, Petitioner's environmental specialist, attended the March 23, 1984 meeting of the Monroe County Board of County Commissioners when Resolution 091-1984 was adopted. He did not participate in the meeting, but simply observed the meeting as part of his normal job duties.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued denying Respondents Harbor Course Club, Inc. and Driscoll Properties' application for a land clearing permit. Since the clearing has already taken place, there are no changes in the development proposal that would make it eligible for a permit, and it is therefore also recommended that further development permits for the site in question comply with final action to be taken in Case No. 84-3805VR. DONE and ENTERED this 26th day of February, 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2868VR Rulings on Petitioner's Proposed Findings of Facts: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 18. Adopted in Findings of Fact 2 and 23. Adopted in part in Finding of Fact 1, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 19, but otherwise rejected as irrelevant and unnecessary. 6-12. Adopted in part in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 26 and 27 but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 22, but otherwise rejected as not based on competent, substantial evidence. Adopted in Findings of Fact 16, 17 and 22. Rejected as irrelevant. Rejected as cumulative and unnecessary. 19-20. Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in part in Finding of Fact 5, but otherwise rejected as irrelevant. Adopted in Finding of Fact 6. Adopted in Finding of Fact 29. Rejected since this is actually a conclusion of law. 28-30. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 28. Rejected since in part this is a conclusion of lawn and is otherwise irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 28, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 10. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11-13. Adopted in Findings of Fact 22, 23. Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary. 42-45. Rejected as irrelevant and unnecessary. Rulings on Respondents Driscoll Properties, Walter Driscoll and Harbor Course Club, Inc., Proposed Findings of Fact which have been adopted by Respondent Monroe County: 1. Adopted in Finding of Fact 1. 2-3. Adopted in part in Finding of Fact 27, but otherwise rejected as not based on competent, substantial evidence. Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 27. Adopted in Finding of Fact 26. Rejected in Finding of Fact 26. Adopted in Finding of Fact 20. Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary. Adopted in Finding of Fact 2. 11-13. Adopted in part and rejected in part in Finding of Fact 24. Rejected in Finding of Fact 25. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Findings of Fact 5, 6. Rejected in Findings of Fact 22-25. Adopted in Findings of Fact 8, 28. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 18 but otherwise rejected in Finding of Fact 23. 23-24. Adopted in Findings of Fact 15, 29. 25. Rejected as irrelevant. 26-27. Adopted in Finding of Fact 28. 28-29. Rejected as not based on competent, substantial evidence and otherwise irrelevant. 30-33. Rejected as not a proper proposed Finding of Fact since this is simply Respondents' summary of rulings and testimony at final hearing. The testimony of Mark Robertson and the deposition of Sandra Hersh has been accepted and considered to the extent they reflect the personal observations, experiences and records of said witnesses. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Glenn W. Robertson, Secretary Land and Water Adjudicatory Commission Office of the Governor Room 415 Carlton Building Tallahassee, Florida 32301 Susan Vernon, Esquire 310 Fleming Street Key West, Florida 33040 Larry A. Stumpf, Esquire Suite 1000 777 Brickell Avenue Miami, Florida 33131 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Ross Burnaman, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether Respondent's tentative decision to attempt to negotiate with Intervenor a contract for services as a construction manager at risk is contrary to statutes, rules, policies, or the request for qualifications, in violation of Section 120.57(3)(f), Florida Statutes.
Findings Of Fact In 2001, Respondent began to investigate various options for the construction of Jensen Beach High School and reconstruction of Port Salerno Elementary School. The recent, sudden departure of Respondent's Director of Facilities and several of his employees left Respondent with few employees sufficiently experienced to deal with a general contractor constructing substantial projects, such as the construction of these two schools. Respondent thus considered the use of a construction manager and construction manager at risk (CMAR) contract. Under these types of contracts, Respondent would hire a construction manager to serve as its representative in entering into contracts with subcontractors and suppliers. Although not relevant to this case, the CMAR contract imposes upon the construction manager greater risks for increased construction costs. Initially, Superintendent Wilcox and School Board Attorney Griffin investigated the CMAR form of contract. After they had decided to recommend the use of a CMAR, on January 14, 2002, Respondent hired Rodger Osborne as the new Director of Facilities, and Mr. Osborne assumed from them the primary responsibility for investigating and later implementing the CMAR procurement in this case. Immediately prior to his employment with Respondent, Mr. Osborne had been the Director of Maintenance and Operations for the Charlotte County School District. In this capacity, Mr. Osborne managed construction, maintenance, and operations for the school district. Among his duties was the procurement of construction contracts. The Charlotte County School District has used the CMAR form of contract seven or eight times. Managing the process, Mr. Osborne borrowed provisions and procedures from various sources, including state statutes and provisions used by Sarasota County. Four days after Mr. Osborne began employment with Respondent, Mr. Griffin submitted a memorandum to the Martin County School Board in which he recommended that it approve the use of a CMAR for the construction of Jensen Beach High School and Port Salerno Elementary School. Eight days after Mr. Osborne began employment with Respondent, the Martin County School Board approved Mr. Griffin's recommendation and authorized Respondent to advertise for applicants to serve as the CMAR for these projects. Mr. Osborne's first task as Director of Facilities was to prepare the legal advertisement. On January 28, 2002--two weeks after Mr. Osborne had started working for Respondent--a local newspaper published the first of three legal advertisements for submittals from interested parties. The advertisement states: MARTIN COUNTY PUBLIC SCHOOLS will select a qualified Construction Manager at Risk under the Consultants' Competitive Negotiation Act to provide preconstruction and construction services for the Port Salerno Elementary Replacement School and Jensen Beach High School. The School District will award both projects to a single Construction Manager at Risk. Firms interested in being considered are requested to submit a letter of interest, resumes of key personnel who would be used on the project, proof of professional liability insurability as required by Martin County Public Schools and a copy of Florida Registration Certification. Each applicant must submit a completed Professional Qualification Supplement (PQS). Copies of the PQS Format and project information are available through the Facilities Department by calling [telephone number omitted]. All data must be current as of date of submission and received no later than 4 P.M. February 15, 2002. Submissions to be received by: Director of Facilities Martin County Public Schools 500 East Ocean Stuart, Fl. 34994 Anticipated award date is, March 19, 2002, with work to begin immediately. Estimated construction cost of $43,500,000. In accordance with School Board Rule 6Gx43-8.01, the Professional Services Selection Committee will rank the top three (3) firms and submit the ranking of firms to the Superintendent and School Board. MARTIN COUNTY PUBLIC SCHOOLS Dr. Sara Wilcox, Superintendent Fifteen potential applicants timely submitted responses to the advertisement. Mr. Osborne supplied each of these applicants a package consisting of another copy of the advertisement and "Guidelines for Selection of Construction Manager at Risk for Martin County Schools" (Guidelines). The Guidelines state: Complete all items of the Professional Qualifications Statement (PQS) for Construction Manager at Risk. Submit not less than three copies of the PQS along with any supporting information to Director of Facilities, Martin County Public Schools, 500 East Ocean, Stuart, Fl 34994. SHORT LIST Within approximately seven (7) days after the submission date of 4 P.M. February 15, 2002, for the purpose of reducing the number of applicants qualifying for interviews to no more than six (6), a short list committee will be formed. The Short List Committee will include one School Board Member, one Superintendent's designee, one representative from Operation Services, one Program Staff Member, the Director of Facilities and Supervisor of Construction. The Director of Facilities will serve as chairperson. The following criteria and point values will be used to determine a number rating for each applicant: Letter of Interest 0 points [PQS] 0 points Certified Minority Business 5 points Location 1-5 points Current Work Load 0-10 points Capability 0-10 points Professional Accomplishments 0-10 points Up to six (6) firms with the highest rankings will be interviewed by the Professional Services Selection (Ranking) Committee. The package supplied to potential applicants contained blank scoring sheets with specific points assigned to different factual scenarios. The package also contained a fact sheet describing each of the schools to be constructed and a set of forms seeking specific information; the forms were part of the Professional Qualification Statement for Construction Manager At Risk (PQS). PQS Paragraph E states: RELATED EXPERIENCE List the three (3) projects in the last five (5) years for which your firm has provided/is providing construction management and/or general contracting services which are most similar in scope to this project. In determining which projects are more related, consider: related size and complexity; how many members of the proposed team worked on the listed project; and how recently the project was completed. List the projects in priority order, with the most related project listed first. The PQS form provides one box that asks for specific information about the three listed projects, such as the size, type of construction, and construction cost. The PQS form supplies another box for a "detailed description of projects." PQS Paragraph F requires the disclosure, for each of the three projects, the owner budget, final budget, schedule status, and impact of firm on the final results. PQS Paragraph G states: PROPOSED TEAM Describe your proposed organization structure for this program indicating key personnel and their relationship to this project and other team members. Give brief resumes of key persons to be assigned to the program. The PQS form provides one box for office staff and one box for onsite staff. Each box asks for specific information about the listed key personnel, such as the percentage of time they will be assigned fulltime to the subject projects; their experience in terms of "types of projects, size of projects, [and] project responsibilities"; and "other experience and qualifications relevant to this project." Mentioned in the legal advertisement, although not included in the package, Respondent's Rule 6Gx43-8.01 provides: FACILITIES AND OPERATIONS 6Gx43-8.01 Professional Services Professional Service Contracts between the Board and architects, engineers and surveyors shall follow the following procedures if the basic construction cost for the project is estimated to be greater than $120,000 or if the fee for professional service for planning or study is estimated to exceed $8,500 (except valid emergencies so certified by the Superintendent of Schools): Publicly announce each project indicating: general project description how interested parties can apply Certify firms or individuals wishing to provide professional services while considering: General Services Administration Forms 254 and 255. Past performance Willingness to meet requirements of: time budget availability--planning-- construction ability to furnish required service Firm's workload in relation to job under construction. Volume of work previously awarded to the firm. A committee, comprised of the Superintendent of Schools and/or his/her designee, appropriate staff members, and an annually appointed School Board Members [sic] shall recommend to the School Board a minimum of three (3) "certified" firms or individuals which shall be recommended in order of preference 1, 2, and 3, with the object of effecting an equitable distribution of contracts, providing the selection of the most highly qualified firm is not violated. The School Board, or its designee, shall negotiate a contract with the most qualified firm for professional services at compensation which the School Board, or its designee, determines if fair, competitive, and reasonable. In making such determination, a detailed analysis of the cost of professional services shall be conducted in addition to considering the scope and complexity of the services required for the project. Should the School Board, or its designee, be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the School Board, or its designee, determines to be fair, competitive and reasonable, negotiation with that firm shall be formally terminated. Negotiations shall then be undertaken with the second most qualified firm. Failing accord with the second most qualified firm, negotiations shall be undertaken with the third most qualified firm. If unable to negotiate with any of the selected firms, three more firms shall be selected in the order of preference and negotiations will be continued until an agreement is reached. For professional services when the basic construction cost for the project is estimated to be less than $120,000 or planning or study fees estimated to be less than $8,500, the procedure shall be as follows: Follow steps B, C, and D outlined under preceding 1 for purpose of selecting the agency best to accomplish the project. The use of a continuing contract may be approved provided the following provisions are met. A continuing contract is for professional services for projects in which construction costs do not exceed $500,000; or for study activity, the fee for which professional service does not exceed $25,000; or for work of a specified nature as outlined in the contract required by the School Board, or its designee. The contract requires no time limitation but shall provide a termination clause. Footnote: All professional firms are encourage [sic] to submit their statements of qualifications and performance data using Govt. Service Adm. Forms 254 and 255. The submission will be valid for one year beginning July 1. A reminder for this purpose will be made in the form of an annual public announcement. Superintendent Wilcox selected a Short List Committee, whose task was to score the submittals and, based on these scores, select the five applicants that would make presentations to the Professional Services Selection Committee. The Short List Committee comprised Mr. Osborne, chair; Bob Sanborn, Supervisor of Operations; Darrel Miller, Director of Educational Technology; Dr. David Anderson, School Board chair; Tracey Miller, principal of Port Salerno Elementary School; and John Dilworth, Supervisor of Construction. The Short List Committee met on February 21, 2002. After examining the submittals of the applicants in response to the Guidelines, the Short List Committee scored the submittal of each applicant. The highest-ranking applicant received 185 points. Intervenor was ranked third with 160 points, and Petitioner was ranked fourth with 158 points. The Short List Committee selected five applicants to make presentations to the Professional Services Selection Committee. By letter dated February 22, 2002, Mr. Osborne supplied each of the five short-listed applicants with a document entitled, "Interview and Selection for Construction Manager At Risk" (Selection Criteria). The Selection Criteria states that the Professional Services Selection Committee will use the following criteria to "reduc[e] the number of qualified applicants to three . . .": 1. Letter of Interest 0 points 2. Professional Qualification Supplement forms 0 points 3. Certified minority business 5 points 4. Location 0-5 points 5. Current work load 0-10 points 6. Capability 0-10 points 7. Professional accomplishments 0-10 points 8. Schedule & budget 0-10 points 9. Approach and methods 0-10 points 10. Understanding of project 0-10 points 11. Previous work for MCSD 0-10 points 12. Progressive use of technology 0-10 points 13. Warranty period 0-10 points 14. Construction administration 0-10 points The Selection Criteria states: "The Professional Services Selection Committee will present to the Superintendent for approval and presentation to the Board a ranked list of the top three qualifying firms." Separate pages of the Selection Criteria detail the scoring guidelines for each of the scored criteria. For example, the Selection Criteria states under Professional Services Evaluation: "Current and past records of those projects successfully completed which are similar in scope to project(s) under consideration. References listed and check [sic]. Review PQS form." Ratings of 9 and 10 are for "extremely qualified for project"; ratings of 7 and 8 are for "very qualified for project"; ratings of 5 and 6 are for "qualified--experienced with project type"; ratings of 2, 3, and 4 are for "not very qualified--questionable abilities for project"; and ratings of 0 and 1 are for "unqualified--no experience with project type." After sending the February 22 letter, Mr. Osborne called each of the applicants to confirm that each had received the letter. During these conversations, Mr. Osborne informed each applicant that only the applicant ranked first by the Professional Services Selection Committee would make a presentation to the School Board. As Mr. Osborne understood the selection process, the Board would have the final decision whether to accept the top-ranked applicant. If it did so, the School Board would then try to negotiate a CMAR contract with the top-ranked applicant. If the parties could not reach an agreement, the School Board could then try to negotiate a contract with the applicant ranked second by the Professional Services Selection Committee. Superintendent Wilcox, with Mr. Osborne's assistance, selected the Professional Services Selection Committee. The Professional Services Selection Committee comprised Leighton O'Connor, Executive Director of Operations Services and immediate supervisor of Mr. Osborne; Hank Salzler, Assistant Superintendent and designee of Superintendent Wilcox; Ms. Miller; Mr. Dilworth; Dr. Anderson; and Mr. Osborne. On March 5, 2002, Mr. Osborne informed the members of the Professional Services Selection Committee that they would rank the applicants and the top-ranked applicant would make a presentation to the School Board. No member of the committee voiced an objection to the process. After Mr. Osborne had addressed the Professional Services Selection Committee, the representatives of the five short-listed applicants made their presentations. Based on these presentations and the earlier submittals, the Professional Services Selection Committee, on March 5, 2002, ranked Petitioner first with 513 points and Intervenor second with 487 points. Immediately after the meeting of the Professional Services Selection Committee, Assistant Superintendent Salzler visited Superintendent Wilcox and told her that Mr. Osborne had told the committee members that only the top-ranked applicant would make a presentation to the School Board. For professional services contracts, the top three-ranked applicants customarily made presentations to the Board, which would then select the applicant that the Board felt was most qualified. Superintendent Wilcox had thought that the same process would apply to the selection of the applicant with which to negotiate the CMAR contract. Superintendent Wilcox immediately visited Mr. Osborne and informed him that the School Board would want the top three applicants to make presentations. Mr. Osborne replied that he had told the applicants that only the top-ranked applicant would make a presentation to the Board. Superintendent Wilcox told him to telephone the top three applicants and tell them that all of them would be making presentations to the Board, so that the Board could make the final ranking. Later the same day, Mr. Osborne telephoned the top three applicants and informed them of the new procedure. Dr. Anderson had had to leave the meeting of the Professional Services Selection Committee before it was finished, so, later the same day, he telephoned Mr. O'Connor to learn the results of the voting. Mr. O'Connor informed Dr. Anderson of the three top-ranked applicants and expressed his opinion that the key criterion was not the general ranking that resulted from the guidelines and criteria that Mr. Osborne had developed, but the quality of the personnel who would manage the actual construction. Acknowledging that the School Board would not have adequate time to view the applicants' presentations and evaluate their submittals, Mr. O'Connor asked Dr. Anderson if Mr. O'Connor should undertake an analysis for use by the School Board. Dr. Anderson agreed that such an analysis would be helpful and asked him to prepare one. Mr. O'Connor prepared a 24-page document entitled "Construction Manger [sic] at Risk Finalist Comparisons" (O'Connor Finalist Comparisons). Mr. O'Connor provided the O'Connor Finalist Comparisons to each School Board member prior to the March 19 meeting. The O'Connor Finalist Comparisons introduces a new element to the procurement criteria--cost. The document advises the School Board members that the "number of team members and percentage of time devoted to the project may impact the cost of services." The document also relates, in an unspecified manner, "pre-construction services" to "cost saving alternative." The O'Connor Finalist Comparisons emphasizes some published selection criteria at the expense of others--without regard to their relative point value. Admittedly reflecting only Mr. O'Connor's opinion, the O'Connor Finalist Comparisons states that the "key consideration [sic] for this project" are "pre-construction services," "onsite construction service," and "experiences of assigned project staff." The document adds: "Our architect indicated that the Project Superintendent was the most important team member." The O'Connor Finalist Comparisons analyzes the proposals of the three applicants in terms of two criteria-- "credentials" and experience of selected members of the onsite project team in school construction. The emphasis upon school--construction experience also reflects Mr. O'Connor's opinion--this time clearly without the smallest support in the Guidelines or Selection Criteria, which ask for experience of similar scope, not merely school-construction experience. For Intervenor and Petitioner, the O'Connor Finalist Comparisons compares two employees per job site. For the high school, Intervenor's two employees have handled six school- construction projects, and their credentials consist of one bachelor's of arts degree in business administration. For the elementary school, Intervenor's two employees have handled 12 school-construction projects, and their credentials consist of one of them holding a bachelor's of science degree and master's degree in civil engineering. For the high school, Petitioner's two employees have handled one school, and their credentials consist of one bachelor's of science degree in business administration. For the elementary school, Petitioner's two employees have handled 11 school-construction projects, and their credentials consist of no four-year degrees. In this part of his analysis, Mr. O'Connor does not disclose his rationale for excluding from his analysis other key team members assigned 100 percent to the school projects, such as the two assistant project superintendents for the Jensen Beach High School project. These two persons have handled a total of seven school-construction projects. Interestingly, Mr. O'Connor included a third member of the third applicant's high-school team, and this person was an assistant superintendent. Mr. O'Connor fails to explain why he omitted analysis of project engineers assigned fulltime to the sites. From his charts, Intervenor did not assign such a person to either site, Petitioner assigned one to the elementary school and two to the high school, and the third applicant assigned one to each site. Petitioner's project engineer for the elementary school has handled two school-construction projects, and the sole person identified by name as a project engineer for the high school has handled one school-construction project. Again without explanation, Mr. O'Connor identifies Petitioner's project manager for the high school as someone other than the person whom Petitioner named in its proposal. The person identified by Mr. O'Connor has handled only one school-construction project. Although it is possible that Petitioner had had to change assigned personnel in the month since it first named its anticipated key personnel, nothing in the record indicates that such a change in personnel actually took place. Sometime after March 5, Superintendent Wilcox, Dr. Anderson, and Mr. Osborne informed each of the top three applicants that each of them would make a 20-minute presentation to the School Board and that the Board would use the Selection Criteria for ranking the applicants. On March 19, 2002, at a regularly scheduled School Board meeting, each of the top three applicants made its 20-minute presentation, interrupted by few, if any, questions from Board members. Petitioner's presentation covered the 14 criteria stated in the Selection Criteria. Petitioner complains that its presentation occurred at the end of the evening, long after the presentations of Intervenor and the third applicant, but this occurrence did not confer competitive advantage or disadvantage. Equally without meaning is the contention of Respondent and Intervenor that Petitioner never objected to any change in the procurement criteria. Nothing in the record suggests that Petitioner was ever aware, prior to the March 19 meeting, of the O'Connor Finalist Comparisons. Nothing in the record suggests that Respondent gave Petitioner a point of entry to challenge the changes that Respondent made during the course of this procurement. At no time during the March 19 meeting did anyone present the School Board with the rankings of the Professional Services Selection Committee. At no time during the March 19 meeting did anyone move that the School Board try to negotiate a contract with Petitioner. At the end of the meeting, without any public discussion, each School Board member voted his or her first, second, and third preference. Intervenor received three first-place votes, one second-place vote, and one third-place vote. Petitioner received two first-place votes and three second-place votes. Dr. Anderson, who ranked Intervenor first, announced that the vote was a tie, but that Intervenor should be declared the winner because it received more first-place votes. In response, another Board member moved to rank Intervenor first, Petitioner second, and the third applicant third and authorize Respondent to commence negotiations with Intervenor. The School Board unanimously passed the motion. The procurement documents are unambiguous, although they are less then comprehensive in their treatment of the procurement procedure. Rule 6Gx43-8.01.c provides that a committee shall recommend, in order of preference, three applicants to the School Board, which shall negotiate a contract with the most "qualified" applicant. The legal advertisement states only that the Professional Services Selection Committee shall rank the top three applicants and submit them to the Superintendent and School Board. The Selection Criteria states that the Professional Services Selection Committee will present to the Superintendent for approval and presentation to the School Board a ranked list of the top three "qualifying" applicants. Citing past practices--although none involves the procurement of a CMAR--Intervenor and Respondent contend that the School Board was authorized to re-rank the applicants and begin negotiations with any of the three applicants submitted to the Board. Citing the reference in the Selection Criteria that the Professional Services Selection Committee ranks the top three "qualifying" applicants and the language in the other documents requiring the School Board to negotiate first with the most "qualified" applicant, Petitioner contends that the Board has no right to change the ranking of the Professional Services Selection Committee, but must deal first with the top-ranked applicant. Due to the interpretation of Mr. Osborne, Respondent's interpretation of its rules and procurement documents is clearly erroneous and arbitrary. Until the telephone calls from Mr. Osborne to the applicants on March 5 after Superintendent Wilcox told Mr. Osborne that all three top-ranked applicants would make presentations to the Board, the applicants perceived correctly that Mr. Osborne was in charge of implementing the procedures for this procurement. And, from the start through his meeting with Superintendent Wilcox on March 5, Mr. Osborne consistently understood that the Professional Services Selection Committee would rank the top three applicants, and a committee member or the Superintendent would present to the School Board only the top-ranked applicant, which would then make a presentation to the Board. As Mr. Osborne envisioned the process, the Board could reject the top-ranked applicant and proceed to the second- ranked applicant, although this was unlikely, but the Board could not re-rank the top three applicants, without ever formally rejecting the applicant ranked first by the Professional Services Selection Committee. Mr. Osborne consistently communicated his understanding of the procurement process to the applicants. Mr. Osborne's understanding of the procurement process is the correct interpretation of the procurement documents. Among other things, Mr. Osborne's interpretation of the procurement documents lends meaning to the task of the Professional Services Selection Committee in ranking the top three applicants. Under Respondent's interpretation, the Professional Services Selection Committee performs a useless act when, in addition to naming the top three applicants, it ranks them. Respondent's departure from this procedure at the moment of decision clearly violates the standards governing this procurement. Exacerbating the situation is the O'Connor Finalist Comparisons. This document distorts the Selection Criteria by omitting many criteria, reassigning weights among other criteria, and adding two criteria--cost and school-construction experience. This document distorts Petitioner's qualifications by its arbitrary selection of personnel for comparison purposes. Presumably, Respondent and Intervenor resist the inference that the O'Connor Finalist Comparisons influenced any of the School Board members. The administrative law judge infers that the document influenced one or more members; given the close outcome of the vote, the administrative law judge infers that the document was a material factor in the selection of Intervenor. These inferences are supported by numerous facts, including the following. The School Board chair, Dr. Anderson, endorsed the preparation of the document. Dr. Anderson preferred Intervenor over Petitioner. The O'Connor Finalist Comparisons appears to be the only document presented to School Board members that was not part of the formal procurement process. The School Board members did not extensively discuss at the meeting the merits of the three applicants before voting. Petitioner tried to elicit testimony from the School Board members, but at Respondent's request, the administrative law judge entered a prehearing order denying Petitioner the opportunity to compel testimony from any of them except Dr. Anderson, who had served on the Professional Services Selection Committee. The inference of materiality is eased by the magnitude of the distortions contained in the O'Connor Finalist Comparisons as to the Selection Criteria and Petitioner's qualifications and the closeness of the Board vote; the extensive distortion contained in the O'Connor Finalist Comparisons means that it was material if it had even the slightest influence on one of the School Board members. Under these facts, Petitioner proved that Respondent's selection of Intervenor was contrary to Respondent's rule, Respondent's policies (as stated by Mr. Osborne), and the other procurement documents. Under these facts, Petitioner proved that the deviations from Respondent's rule, Respondent's policies, and the other procurement documents rendered the selection of Intervenor clearly erroneous, contrary to competition, and arbitrary. As a remedy, Petitioner contends that Respondent should commence negotiations with Petitioner. However, by the time Respondent issues a final order, six months will have passed since each applicant submitted a proposal. The ability of applicants to meet various criteria, such as the availability of key personnel, may have changed dramatically. Also, contrary to Petitioner's contention, this procurement is not fundamentally flawed due to bad faith or favoritism. The change in procurement procedures was indisputably due to an innocent, mutual mistake among Respondent's employees. The newly hired Mr. Osborne intended to handle the procurement his way, and Dr. Anderson, Superintendent Wilcox, and District staff intended Mr. Osborne to handle the procurement their way. Nothing in the record suggests that the O'Connor Finalist Comparisons is anything more than Mr. O'Connor, as Mr. Osborne's supervisor, injecting himself into a process that was not going as smoothly as Mr. O'Connor would have liked. Relying on the advice of an architect, Mr. O'Connor belatedly rewrote the procurement criteria to emphasize school-construction experience and cost; it is easy to indulge the presumption that Mr. O'Connor was motivated by a desire to help Respondent, not an applicant. Absent other evidence in the record, Mr. O'Connor's distortion of Petitioner's qualifications, which was not of the same magnitude as his distortion of the procurement criteria themselves, may presumably be attributed to haste or carelessness, rather than favoritism toward Intervenor.
Recommendation It is RECOMMENDED that the Martin County School Board enter a final order setting aside the proposed decision to enter into negotiations with Intervenor to provide services as a construction manager at risk in the construction of the Jensen Beach High School and Port Salerno Elementary Replacement School and restart the procurement process, if Respondent still seeks to proceed with these projects under this construction method through a competitive procurement. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002. COPIES FURNISHED: Dr. Sara Wilcox, Superintendent Martin County School Board 500 East Ocean Boulevard Stuart, Florida 34994-2578 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Gary M. Dunkel, Esquire Susan Fleischner Kornspan, Esquire Greenburg Traurig, P.A. 777 South Flagler Drive, Suite 300 East West Palm Beach, Florida 33401 Douglas G. Griffin, Esquire School Board of Martin County 500 East Ocean Boulevard Stuart, Florida 34994 Joseph Ianno, Jr., Esquire Michael Winston, Esquire Carlton Fields, P.A. Post Office Box 150 West Palm Beach, Florida 33402-0150
The Issue Whether petitioner has standing to request consent of use of marine bottoms? Whether the site in question lies within the John Pennekamp Coral Reef State Park? Whether petitioner's application for consent to dredge in two places east of Angelfish Creek should be granted, under Chapters 253 and 258, Florida Statutes (1989) and Chapters 16D and 18-21, Florida Administrative Code?
Findings Of Fact Angelfish Creek in Monroe County runs virtually due east from Card Sound (which opens into Biscayne Bay just north of Angelfish Creek) to Hawk Channel, which hugs the upper Florida Keys at the edge of the Atlantic Ocean. The "creek" or strait separates Key Largo and Angelfish Key on the south from Palo Alto Key to the north. Three flashing red lights and other navigational aids mark a channel traversing the saltwater pass between sound and ocean. Petitioner South Florida Waterways Improvement Foundation, Inc. (SFWIF) is a non-profit corporation owing its existence chiefly to John A. Bott, a public spirited boater known in some circles as the "king of luggage racks." T.134. Mr. Bott, whose home at the Ocean Reef Club fronts on Card Sound, (T.145), owns "a 63 Ocean Sports fisherman, a 22 Mako and a 16-foot dinghy." Id. He once ran aground in his big boat in the Angelfish Creek channel. Respondents are state agencies charged with managing state lands in general, including submerged lands like those underlying Angelfish Creek and further east where petitioner proposes to dredge; and state parks in particular, including the John Pennekamp Coral Reef State Park, a pioneering and world- renowned "underwater park," about whose northern boundary the parties are in dispute. Petitioner Named for Predecessor Boats navigated Angelfish Creek as early as March 13, 1945, the date of an aerial photograph received as petitioner's Exhibit No. 8. But Angelfish Creek was first dredged (T.154) only after the Army Corps of Engineers issued a permit in the wake of approval by Trustees of the Internal Improvement Trust Fund (Trustees) on March 12, 1968, approval which is reflected on page 469 of Volume 36 of the official minutes. Petitioner's Exhibit No. 10. After expiration of the original permit, a non-profit corporation, South Florida Waterways Improvement Foundation, Inc. (proto-SFWIF) applied for and received permission to dredge "190 cubic yards of material from an area [in the mouth or slightly easterly of Angelfish Creek] 350 feet long by 60 feet wide." T.159. On December 30, 1975, DER issued a dredging permit to proto- SFWIF. Petitioner's Exhibit No. 11. On January 22, 1976, the Army Corps of Engineers issued a permit to proto-SFWIF for the same project. Petitioner's Exhibit No. 13. After dredging took place as authorized, proto-SFWIF "was allowed to dissolve for failure to pay or failure to file the corporate annual reports." T.164. Proto-SFWIF paid for spoil it removed to uplands (which, when deposited, ceased to belong to it) but "did not [ever otherwise] own any property." T.164. After Mr. Bott engaged Tallahassee counsel, another non-profit corporation, petitioner SFWIF, was formed, in 1990. SFWIF owns no property in Monroe County, either. Mr. Bott and twelve other members of Key Largo's Ocean Reef Club, some of whose boats draw several feet, are members of SFWIF. Two were also members of proto-SFWIF, and at least one, Mr. Bott, owns waterfront property within a few miles of the proposed site. William J. Roberts, the lawyer who formed SFWIF, together with others in his office, serve as SFWIF's corporate officers. Park Boundaries The overwhelming weight of evidence adduced at hearing establishes that the site SFWIF proposes to dredge lies within the John Pennekamp Coral Reef State Park. When the then newly formed DER issued a dredging permit to proto- SFWIF, Petitioner's Exhibit No. 11, it did so on the mistaken assumption "that the project was not in an aquatic preserve, and . . . not within the boundaries of John Pennekamp Coral Reef State Park." T.162. (At the time, SFWIF, the petitioner in the present case, was not in existence. Nor did respondents make any representations directly to proto-SFWIF.) DER may have relied on advice from Jack W. Pierce, then an attorney for DNR, in his letter of August 18, 1975, which stated: "In my opinion, these rules would not affect the maintenance dredging on Angel Fish Creek as that is not on Key Largo." Petitioner's Exhibit No. 17. But, when expressly addressing the question of park boundaries, Mr. Pierce's letter stated simply that "the boundaries . . . are those set out in the Presidential Proclamation of 1960 plus those described as set forth in the Dedication of the Trustees dated September 21, 1967, . . . ." Petitioner's Exhibit No. 17. Successive Dedications On December 3, 1959, the Trustees dedicated "for park, recreational and preservation purposes, . . . [a] portion of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo." Petitioner's Exhibit No. 23. The Presidential Proclamation of 1960 stated similar federal intentions with respect to the same "portion of the outer Continental Shelf." Known as the Key Largo Coral Reef, this offshore tract has a perimeter of some 21 miles. The northern end of its landward edge lies slightly north (and three miles east) of the northernmost point of Key Largo. In describing the offshore dedication by metes and bounds, the Trustees put the northwesternmost point at "Can Buoy '21' (approximate Latitude 25o20'06" N., Longitude 80o12'36" W.) southeast of Old Rhodes Key." Id. Can Buoy "21" has since been lost. A new day marker, No. 23, has replaced it, although possibly at a slightly different point, viz.: Latitude 25o 20' 08.58967" N., Longitude 80o 12' 34.5983" W. T.419; Petitioner's Exhibit No. 22. The current marker is 2.58967 seconds (approximately 260 feet) north and 1.4017 seconds (less than 140 feet) east of what was described as the approximate location of Can Buoy "21" in 1959. If, as a witness testified is likely, the 1959 coordinates were rounded to the nearest tenth of a minute, the apparent discrepancy may be attributable to rounding. In any event, under no analysis advanced, would a difference of 295 feet (to take the hypotenuse) prove significant, for present purposes. T.336. In the dedication of 1959, the Trustees described the southern, as well as the northern, end of the western or landward edge of the original, offshore tract with some specificity. The southern end of the landward edge of the original offshore tract, also some three miles east of the island, lies south of the northern tip of Key Largo, but well north of the island's southern tip. The southern boundary of the original, offshore tract runs approximately east-west, while its northern boundary runs more or less southeast-northwest, as it reaches the northwestern corner. By the time the Trustees dedicated additional sovereignty lands on September 21, 1967, Key Largo Coral Reef had come to be known as John Pennekamp Coral Reef State Park. On that day, the Trustees added: Those submerged tidal bottom lands in the Atlantic Ocean lying between [what was then] the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo. Petitioner's Exhibit No. 24. While preserving to their owners "any riparian rights and interest," the Trustees extended the park landward from the original offshore tract to the shore of Key Largo, without, however, listing coordinates of latitude and longitude for the northernmost and southernmost points on shore. Lying Between The southern boundary of the original, offshore tract is on a line approximately perpendicular to Key Largo's Atlantic shoreline. Surveyors who have considered the problem apparently agree that extending the southern boundary of the original tract to the shore of Key Largo appropriately defines the southern edge of submerged lands lying "between" the island and the original, offshore tract. But the northern boundary of the offshore tract, if extended landward, would proceed northwesterly and come ashore somewhere on Rhodes Key, well north of the northernmost point of the offshore tract, and still further north of the northern tip of Key Largo. T.532. Before the present controversy arose, DNR engaged James Weidener, a professional land surveyor "to survey basically the Pennekamp Park and to provide boundary maps . . . and then as part of that to locate and monument both the north and south boundaries." T. 528. As part of this project, Mr. Weidener and others working with him conducted mean high water surveys at points along the eastern shore of Key Largo and extrapolated a boundary between state-owned bottom lands and uplands in private ownership. In locating the northernmost point on Key Largo, however, Mr. Weidener did not rely on a mean high water study. Instead he chose the northern edge of tidally washed mangroves or "the apparent edge of vegetation" (T.537) that extended probably 40 to 60 feet north of the mean high water line. Nothing in the record raised the possibility that the point he chose was more than 100 feet north of the mean high water line. By joining this point with marker No. 23, he defined the northern boundary of the submerged lands "between" Key Largo and the original tract. Even before the Weidener survey, a sign had been erected "only 30 or 40 feet off the line," (T.533) which the surveyors ultimately decided on. The piling holding the sign stands 34.45 feet off the line. Respondent's Exhibit No. 1. The north side of the sign "says entering Pennekamp State Park. On the south side it says entering Biscayne National Park." T.530-531. The line between the northernmost point on Key Largo and marker No. 23 is depicted as (A) in Appendix B to the recommended order. The site at which petitioner proposes to dredge lies south of the northerly boundary described in the Weidener survey and depicted as (A) in Appendix B. If a point 100 feet further south than the one Mr. Weidener identified as the northernmost point on Key Largo is connected to the marker, the resulting line lies well north of the proposed site. T.565. If a point 260 feet south of marker No. 23 is connected to a point 100 feet further south than the one identified by Mr. Weidener as the northern tip of Key Largo, the resulting line still lies north of the proposed site. The scaled drawing attached as Appendix B requires these inferences, although these variants of line (A) are not depicted there. Forensic Surveying In preparing for litigation in the present case, petitioner engaged a surveyor, George Cole, who assembled Petitioner's Exhibit No. 22. Citing "Hayes v. Bowman, Fla., 91 So.2d 795 and Bliss v. Kinsey, Fla. 233 So.2d 191," Petitioner's Exhibit No. 22, p. 2, Mr. Cole testified that "these cases suggest the best courses [sic] of action is one that's perpendicular to the channel out here if this indeed was a riparian rights case." T.344. But, since the Trustees took care, in expanding the park, to preserve to their owners "any riparian rights and interest," the location of the northerly boundary of the tract dedicated in 1967 has nothing to do with riparian rights; and lines (C) and (D) depicted in Appendix B have no support in the record, aside from Mr. Cole's unfounded speculation. Line (B) depicted in Appendix B, also proposed by Mr. Cole, reflects the same methodology Mr. Weidener employed (in the sense of joining a point on Key Largo to marker No.23), but proceeds on the assumption that the northernmost point on Key Largo of relevance is at the mouth of an inlet known as Pumpkin Creek. Mr. Cole conceded that "Key Largo does indeed go further to the north, but . . . [testified that] this portion up here is obscured and shielded from the Atlantic Ocean by Angelfish Key and this is Pumpkin Creek and various other creeks. These are distinct, discrete islands. They have their own land mass. They are not Key Largo." T.342-3. But Angelfish Key (and Little Angelfish Key) resemble El Radabob Key in this regard. El Radabob Key is the largest of the small islands lying alongside Key Largo in the Atlantic Ocean. All witnesses testifying on the point agreed that submerged land lying between Key Largo and El Radabob Key fell within the Trustees' 1967 dedication of "submerged land in . . . [the Atlantic Ocean including] the various inlets along the easterly coast of Key Largo." Similarly, as Key Largo tapers to a northern point, Angelfish Key and Little Angelfish Key lie on its Atlantic side, separated from it (and each other) by narrow, elongated inlets of the ocean. T. 535, 537. The submerged bottoms of these elongated inlets, no less than the submerged bottom lands in Key Largo Sound, comprise part of John Pennekamp Coral Reef State Park. Poorly Marked Although charts overstate the controlling depth, the channel in Angelfish Creek is already the best channel connecting the Atlantic Ocean to inland waters north of Snake Creek and south of Government Cut. Tavernier Creek to the south and Broad and Caesar Creeks to the north are also navigable by small craft. Of course, weather and low tides make navigation more difficult everywhere they have an effect. Depicting depths at mean low water, Respondents' Exhibit No. 2B maps the ocean bottom in the vicinity of markers Nos. 2A and 3A, including the eastern end of the channel petitioner seeks to widen. The two formations petitioner proposes to dredge aside, depths within the channel vary from 4.9 to 13 or 14 feet, at mean low water. The topographical survey features one-foot contours (between five and fifteen feet below mean low water) and reports hundreds of soundings. Respondents' Exhibit No. 2B. A shoal lies inside the channel about 15 feet from the southerly edge, some 30 feet easterly of green day marker No. 3A. In the worst spot, fossilized coral lies under only 3.5 feet of water at mean low tide. Boats run aground there as well as on another ledge of fossil coral on the other side of the channel, near marker No. 2A. At the latter site, Mr. H. R. Pender once measured the depth at five feet (T.125); and mean low water is shown at 5.4 feet. Whether dredging would actually increase boat traffic was not established, although dredging would permit the channel to handle more traffic. The narrower and more serpentine a channel becomes, the smaller the vessels it can accommodate. But traffic could be routed around these shoals by repositioning markers Nos. 2A and 3A, or by adding markers. Outside the channel opposite marker No. 2A is a deep hole; there is ample water into which to shift the channel. Opposite marker No. 3A outside the channel, depths at mean low water are as low as 5.6 feet. Although that is deeper than places in the mouth of the channel, it might be preferable simply to narrow the channel by moving marker No. 3A the few feet necessary to locate it channelward of the out-cropping of "fossil coral [or] calcium carbonate rock," (T.382) petitioner proposes to dredge. Environmental Effects The DER permit conditions specify turbidity screens, limit dredging to slack and incoming tides, and require deposition of spoil upland. Biota in the vicinity can withstand "spurts of turbidity," in any event. Tidal currents have scoured the channel, removing most fine particles, but intermittent northwesters flush slugs of particulate matter from Card Sound through Angelfish Creek. The project site is on the order of a mile from the nearest active coral reef in the park, but a few small colonies of coral, both hard and soft (gorgonian) grow where petitioner proposes to dredge, as do algae, marine grasses, and perhaps other alcyonarians. Dredging would displace these individuals but create a new and deeper hard substrate for colonization by like organisms. A representative of DER is to help pick which fossil coral to remove. Marine life, if established at a greater depth, would less likely suffer interference from boats' 60- to 100-feet long running aground. Petitioner's Exhibit No. 14. Groundings entail the risk of fuel spills. Traces of presumably toxic bottom paint have been found on fossil coral near the surface. But these hazards would also be greatly reduced if markers Nos. 2A and 3A were repositioned, or additional markers placed, to mark the outcroppings, so boaters could avoid them.
Recommendation It is, accordingly recommended: That respondents deny petitioner's application for consent to dredge. That respondents specifically initiate relocation of markers Nos. 2A and 3A or take other steps to mark the channel appropriately. RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of November, 1991. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 90-4285 Petitioner's proposed findings of fact Nos. 1, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 34, 35, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 56, 57, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 97 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 58, 59, 60 and 71 are immaterial. With respect to petitioner's proposed finding of fact No. 12, no causal connection between the letter and the permit was proven. With respect to petitioner's proposed finding of fact No. 18, the owner's testimony was largely hearsay. With respect to petitioner's proposed finding of fact No. 21, the shallows are a hazard on account of the markers' location. With respect to petitioner's proposed finding of fact No. 27, the adequacy of the width would depend on the vessel. With respect to petitioner's proposed finding of fact No. 28, no fatality occurred from grounding. With respect to petitioner's proposed finding of fact Nos. 30 and 32, see finding of fact No. 24. With respect to petitioner's proposed finding of fact No. 33, such an event blocked the channel for "another large vessel." T.38. With respect to petitioner's proposed finding of fact No. 36, Mr. Bott had only one grounding. Petitioner's proposed finding of fact No. 37 has been adopted, in substance, but proto-SWFIF is now defunct. With respect to petitioner's proposed finding of fact No. 38, a new corporation was organized. With respect to petitioner's proposed finding of fact No. 39, at least one nonprofit corporation obtained such permits. Petitioner's proposed findings of fact Nos. 40, 50, 70, 74 and 76 have been rejected. With respect to petitioner's proposed finding of fact No. 41, while apparently accurate, the proposed finding is not supported by the citation to the record. With respect to petitioner's proposed findings of fact Nos. 53 and 73, the evidence showed that the new marker was likely at the same spot as the old. Petitioner's proposed findings of fact Nos. 54, 55, 72, 75 and 77 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 79, the effect of possibly increased traffic in larger vessels was not considered. With respect to petitioner's proposed finding of fact No. 81, the testimony was "on the order of" a mile. Petitioner's proposed finding of fact No. 96 so-called is actually a proposed conclusion of law. With respect to petitioner's proposed findings of fact Nos. 98 and 99, the proposed dredging is contrary to administrative rules which, at least in the absence of a rule challenge, express public policy definitively. Respondents' proposed findings of fact were not separately numbered, but have been addressed, in substance, in the findings of fact. APPENDIX B TO RECOMMENDED ORDER, CASE NO. 90-4285 (From Petitioner's Exhibit No. 22) COPIES FURNISHED: Robert A. Routa, Esquire P.O. Drawer 6506 Tallahassee, FL 32314-6506 Brian F. McGrail, Esquire John W. Corrigan, Esquire 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000 Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300 Tom Gardner, Exec. Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300
The Issue Whether the Respondent violated Section 112.313(6), Florida Statutes, (1) by corruptly using his official position to benefit his wife, Ms. Wanda Bender-Linero and by pressuring the Complainant to upgrade Ms. Bender-Linero's 1992 performance evaluation; (2) by interfering with the Complainant's supervision of Ms. Bender-Linero; and (3) if so, what penalty is appropriate.
Findings Of Fact At all times relevant to this proceeding, Respondent, Aurelio R. Linero (Respondent), was Director of the City of Coral Gables Public Works Department, having been appointed on February 10, 1986. Respondent held that position until his retirement on July 1, 1998. Prior to his appointment as director and since his employment by the City in 1967, Respondent had worked as a draftsman I, draftsman II, Engineering Division supervisor and acting director of the Public Works Department. As the director of the Coral Gables Public Works Department, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent married Ms. Wanda Bender-Linero on November 26, 1982. Prior to her marriage to Respondent, Wanda Bender- Linero was employed by the City of Coral Gables as a daftsman I. In 1980, Ms. Bender-Linero was promoted to the position of daftsman II in the City of Coral Gables Public Works Department. Ms. Bender-Linero has received no promotions after the marriage to Respondent. At all times relevant to this proceeding, Asdrubal Jorge Rey worked as a civil engineer in the Design Unit of the City of Coral Gables Public Works Department. In this capacity, Mr. Rey supervised three employees, including Ms. Wanda Bender- Linero, Respondent's wife. At all times relevant to this proceeding, Mr. Rey was supervised by Mr. Alberto Delgado, the Engineering Division supervisor. Mr. Delgado, in turn, was supervised by Respondent, director of the Public Works Department. In 1992, written performance evaluations for Engineering Division employees were customarily completed in pencil by those employees' immediate supervisors. Each employee's immediate supervisor forwarded the evaluation to the division supervisor for review. After the division supervisor reviewed the evaluation, he was supposed to forward the evaluation to the department director for final review. The division supervisor and the department director were authorized to give input and make recommendations concerning employee evaluations. Typically, the evaluations were typed after the division supervisor and the department director had reviewed the draft version of the evaluation. In August 1992, Ms. Bender-Linero was evaluated for her job performance for the period from June 1991 to June 1992. Ms. Bender-Linero's over-all rating on the Employee Performance Evaluation was "Above Satisfactory." However, because Ms. Bender-Linero had "topped out" in terms of pay, her 1992 evaluation had no effect on her income or standing in the Department. Ms. Bender-Linero’s 1992 evaluation rating was consistent with her prior evaluations and like those evaluations, was initialed by Mr. Rey, Ms. Bender-Linero’s supervisor, and signed by Mr. Delgado, the Engineering Division supervisor, and Respondent, the Department director. Mr. Rey has been Ms. Bender-Linero’s supervisor’s since he began working for the City of Coral Gables in 1985. From that time to September 19, 1996, Mr. Rey and Respondent had a professional and cordial relationship. On September 19, 1996, alleged comments made during a staff meeting adversely impacted Mr. Rey’s feelings and attitude toward Respondent. Mr. Rey was not present at the staff meeting. However, based on comments made to him by individuals who attended the meeting, Mr. Rey believed that Respondent had said that Mr. Rey was unreliable. As a result of his belief, Mr. Rey felt insulted and was very offended by and angry with Respondent. Mr. Rey also believed that the alleged comments meant that Respondent planned to fire him or was phasing-out his job position. The comments that led to Mr. Rey's mistaken beliefs described in paragraph 12 above were attributed to Respondent's statement of a long-standing policy involving the assignment of construction projects. Respondent's comment was made at the September 19, 1996, staff meeting, when Respondent learned that a certain project had been constructed without Mr. Delgado's, the Engineering Division supervisor's knowledge. To prevent this oversight from happening again, Respondent told those attending the meeting that Mr. Rey did not have the authority to assign construction projects to other divisions in the Department of Public Works and that all construction projects must be approved by division supervisors. Mr. Delgado was certified as a professional engineer and was, thus, authorized to sign and seal certain engineering drawings; but Mr. Rey was not a certified professional engineer. On September 19, 1996, after Mr. Rey was told about the comments Respondent made at the staff meeting, he wrote a four-page letter of complaint to the City Manager's Office. In the letter, Mr. Rey stated he had been insulted by Respondent and demanded a public and private apology from Respondent; he expressed concern about future retaliation; and he made vague allegations about nepotism and favoritism in the Department. The letter also noted that earlier that day Mr. Rey had gone to Respondent's office to demand an apology. Mr. Rey's letter of complaint was received by the City Manager's Office on September 30, 1996. The City Manager appointed of team of city officials (Team) to investigate Mr. Rey's complaint. The Team consisted of William Katz, Director of Human Resources; Ana A. Gonzales-Fajardo, Mr. Katz' assistant; and Carmen Lizama-Gaspa, Head of Purchasing. The Team began its investigation on October 1, 1996, the day after Mr. Rey's complaint was received. The Team addressed all three of the issues raised in Mr. Rey’s letter of complaint: the alleged insulting remarks made by Respondent to Mr. Rey; the alleged nepotism or favoritism in the Department of Public Works; and Mr. Rey’s alleged fear of retaliation. To address Mr. Rey's concern that he had been insulted by Respondent, the Team met with Respondent. At the meeting, the Team told Respondent that Mr. Rey had felt insulted by comments that Respondent allegedly made at the September 19, 1996, staff meeting. Respondent informed the Team that he did not mean to insult Mr. Rey. Nonetheless, Respondent agreed to apologize to Mr. Rey and to clarify at the next staff meeting that he had not meant to offend Mr. Rey. Thereafter, Respondent apologized privately to Mr. Rey and also apologized to him at a staff meeting. However, Respondent did not give Mr. Rey what he wanted: the right to assign projects. During the investigation, to allay his claimed fear of retaliation, the Team reassured Mr. Rey that the City would not tolerate any retaliation or retribution. The Team advised Mr. Rey that any such retaliatory actions should be reported immediately. However, Mr. Rey never complained of any retaliation and there is no evidence that there was any. Finally, the Team investigated Mr. Rey's vague allegation of nepotism and favoritism in the Department of Public Works. In addressing this issue, the Team interviewed Mr. Rey; Mr. Delgado; Tom Springer, a former supervisor of Mr. Bender-Linero; and the two draftspersons who worked with Ms. Bender-Linero and were supervised by Mr. Rey. During the almost two-month investigation, the Team continuously and repeatedly asked Mr. Rey for details concerning the allegations of nepotism and favoritism, but he was evasive and refused to provide any information to them that would support these allegations. The only claim made by Mr. Rey to the Team was that his division was the only unit within the Department of Public Works that allowed employees to work flex-time. This comment was apparently an attempt to lead the Team to believe that the flex-time policy was permitted in his Division because Ms. Bender-Linero worked in that unit. This representation was not true at the time it was made by Mr. Rey. In fact, the flex- time policy was allowed throughout the Department of Public Works. On November 18, 1996, a Team member, Ms. Gonzalez- Fajardo, interviewed Mr. Delgado regarding Mr. Rey's allegations of nepotism or favoritism. During the interview, Mr. Delgado stated that he did not know of any favoritism in the Department and that he never saw Respondent reprimand Mr. Rey. Mr. Delgado explained that whenever Mr. Rey and Respondent met, it was always a one-on-one meeting. The Team interviewed Mr. Delgado again on November 22, 1996. This time, Mr. Delgado completely changed the statement that he had given on November 18, 1996. Mr. Delgado stated that Mr. Rey had been reprimanded by Respondent many times because of the situation with Ms. Bender-Linero and that he had been present at some of these meetings. The fact that Mr. Delgado had given inconsistent statements regarding his attending meetings between Respondent and Mr. Rey was noted in the Team's Summary Memorandum. At the hearing, Mr. Delgado testified that he never told Team member, Ms. Gonzalez-Fajardo, that Mr. Rey always met with Respondent one-on-one. Moreover, Mr. Delgado testified that he called Ms. Gonzalez-Fajardo and told her that there was a mistake in the Team's Summary Memorandum. However, the credible testimony of Ms. Gonzalez-Fajardo was that Mr. Delgado never called her and indicated that the Memorandum did not accurately reflect his statement to her. Mr. Delgado violated the sequestration rule by approaching Ms. Gonzalez-Fajardo in the hallway before she testified and tried to "remind" her of the alleged conversation. However, the violation did not prejudice Respondent's case in that Ms. Gonzalez-Fajardo's testimony was not influenced by Mr. Delgado. During the November 22, 1996, interview, for the first time, Mr. Delgado mentioned that a few years ago, Mr. Rey told him that Respondent changed Ms. Bender-Linero's evaluation. However, according to Mr. Delgado, Mr. Rey said he agreed to the recommended changes on the evaluation. Because Mr. Rey indicated that he had no problem with the evaluation and that he and Respondent had reached a consensus, Mr. Delgado did not pursue the matter. Based on its investigation, the Team concluded that there were no facts to support Mr. Rey's allegations of nepotism and favoritism. However, the Team referred the matter to the Coral Gables Police Department, Internal Affairs Division (Internal Affairs), for further investigation. On January 6, 1997, Major Scherer, the officer who conducted the Internal Affairs investigation, took the sworn statement of Mr. Rey. In his sworn statement, Mr. Rey stated that Respondent had pressured him into changing Ms. Bender- Linero’s 1992 evaluation. According to Mr. Rey, he had filled out the evaluation form in pencil, reviewed the evaluation with Ms. Bender-Linero, and then sent the evaluation to be typed. Mr. Rey stated that he never received a copy of the typed evaluation as he had expected, but instead was called into Respondent’s office. According to Mr. Rey, Respondent asked why Ms. Bender-Linero’s evaluation was so low to which he replied, "That's the way I do the evaluations." Mr. Rey stated that Respondent then told him to look at the evaluation again. Finally, in his sworn statement, Mr. Rey said that after his discussion with Respondent about Ms. Bender-Linero's evaluation, Mr. Rey never saw the evaluation again until it was typed. Moreover, Mr. Rey stated that the typed evaluation had been upgraded. In the instant case, Mr. Rey alleged that Respondent pressured him to upgrade Ms. Bender-Linero's 1992 performance evaluation and that Respondent also interfered with his supervision of Ms. Bender-Linero. In this proceeding, Mr. Rey testified that he filled out Ms. Bender-Linero's 1992 performance evaluation in pencil; discussed the evaluation with Ms. Bender-Linero; and sent the penciled draft of the evaluation to be typed. Mr. Rey testified that he never received the typed evaluation, but rather was called into Respondent's office to discuss the evaluation. Mr. Rey stated that, at this meeting, Respondent wrinkled the evaluation, threw it in the waste basket and told Mr. Rey that the evaluation was garbage and that he could do better. Mr. Rey’s further testified that after the meeting, he went back to his office for approximately five minutes, but then returned to Respondent's office; retrieved the wrinkled evaluation from Respondent’s waste basket; and took it to his supervisor, Mr. Delgado. Finally, Mr. Rey testified that after he explained to Mr. Delgado what had happened in his meeting with Respondent, Mr. Delgado told him to look at previous evaluations of Ms. Bender-Linero and use them to upgrade her 1992 evaluation. Mr. Rey testified that he followed Mr. Delgado's advice and used some old evaluations to complete a new evaluation for Ms. Bender-Linero. Mr. Rey testified that he upgraded Ms. Bender-Linero's evaluation in two or three categories including punctuality, volume of acceptable work, and initiative, and changed the comments on the evaluation to reflect more favorably on Ms. Bender-Linero. Mr. Rey testified that one of the reasons the modified 1992 evaluation was too high for Ms. Bender-Linero was that she did not do computer drafting. Finally, Mr. Rey testified that after he completed the upgraded evaluation for Ms. Bender-Linero, he gave the evaluation to the secretary at the Central Administration Section to have it typed; when it came back, Mr. Rey initialed the evaluation and sent it up through the chain of command. Mr. Rey's testimony that Ms. Bender-Linero's 1992 evaluation was too high because she was not proficient in and did not do computer-assisted drawing is not credible. The 1992 evaluation was for the period of June 1991 through June 1992. During that period, the only computer-assisted drawing program that was being used in the Design Unit was DigitCad. That program had been used by the Design Unit since the 1980's and Ms. Bender-Linero was proficient in the use of that program. The newer program which Ms. Bender-Linero had difficulty with, AutoCad, was not installed in the Design Unit or used by that office until March 1993. Therefore, any difficulties experienced by Ms. Bender-Linero is using AutoCad would be inapplicable to her 1992 evaluation. Mr. Rey’s testimony in this proceeding that Respondent pressured him to upgrade Ms. Bender-Linero’s 1992 evaluation is not credible. Mr. Rey's testimony at hearing regarding the events related to Respondent's involvement in Ms. Bender-Linero's evaluation is inconsistent with his earlier sworn statement to Major Scherer. Mr. Rey's testimony also conflicts with that of Mr. Delgado. Mr. Rey and Mr. Delgado have given conflicting versions of the circumstances concerning the Respondent's alleged interference with Ms. Bender-Linero's 1992 evaluation. In his sworn statement in January 1997, Mr. Rey stated under oath that Ms. Bender-Linero’s 1992 evaluation had been altered, typed, and sent to him to be initialed. However, at the hearing, in this proceeding, Mr. Rey testified that he actually changed the 1992 evaluation after meeting with Respondent. Mr. Delgado testified that Mr. Rey mentioned that he and Respondent had discussed Ms. Bender-Linero's evaluation and that based on that conversation, Mr. Rey made changes. However, Mr. Delgado stated that he specifically asked Mr. Rey if he agreed with the changes, and Mr. Rey indicated that he did. Respondent did not pressure Mr. Rey to upgrade Ms. Bender-Linero's 1992 evaluation. Moreover, Respondent’s signing of the evaluation was merely a ministerial task required by his employer and was not inconsistent with the performance of his duties. In this proceeding, Mr. Rey's second allegation is that Respondent interfered with Mr. Rey's supervision of Ms. Bender- Linero in three specific areas: (1) tardiness; (2) project assignments; and (3) computer games. With regard to the tardiness issue, at this proceeding, Mr. Rey testified that during the period covered by the 1992 evaluation, Ms. Bender- Linero was sometimes late to work. Mr. Rey testified that on one occasion when he met with Ms. Bender-Linero about being late, she became upset. Mr. Rey testified that a few minutes after his meeting with Ms. Bender-Linero about being late, he was called into Respondent's office and told to stop "bothering" Ms. Bender- Linero. Mr. Rey indicated that Respondent mentioned the City's flex-time policy as a rationale for Ms. Bender-Linero's tardiness. However, Mr. Rey testified that he did not believe that the flex-time policy applied in this case. Despite Mr. Rey's allegation that Ms. Bender-Linero failed to always report to work on time and that he was concerned about this, he never attempted to discipline her for coming in late. Likewise, there is no indication that Respondent ever told Mr. Rey not to discipline Ms. Bender-Linero if she reported to work late. There was only one occasion when he mentioned the issue of punctuality to Ms. Bender-Linero. In that one instance, Ms. Bender-Linero started crying. She then called Mr. Linero, who came upstairs to the Design Unit, saw both Mr. Rey and Ms. Bender-Linero, and told them to come to his office. Given that Respondent was director of the Department and other employees were in close proximity to Ms. Bender-Linero at the time of the incident, it was appropriate for Respondent to take care of a problem which involved an employee crying in the office. Mr. Rey alleged that Respondent interfered with his assignment of projects to Ms. Bender-Linero. At hearing, both Mr. Rey and Mr. Delgado testified that Respondent interfered with the assignment of projects to Ms. Bender-Linero by giving Ms. Bender-Linero the projects she liked and wanted to work on. Mr. Rey indicated that to accomplish this, he had to take projects already assigned to other draftspersons and give them to Ms. Bender-Linero. Mr. Delgado could not recall Respondent changing any draftsperson assignments other than Ms. Bender- Linero. Mr. Rey's testimony at the hearing in this instant case conflicts with the sworn statement that he made in January 1997. In his sworn statement to Major Scherer, Mr. Rey stated that Respondent sometimes directed that changes be made in project assignments to Ms. Bender-Linero, as well as to other employees. Mr. Rey's testimony from his January 6, 1997, sworn statement is as follows: Q. Has he [Respondent] ever come to you about changing any other employee's project load or saying, no, I don't want this individual to handle this project? A. Yea, it's been the case, yes. Q. What reason would that be? A. I think it's because he understands that one employee would be more capable than the other one, that may be the case why. Q. All right. Did Mr. Linero come to you and tell you to give his wife another project or to take that one away because he felt that she wasn't capable, or somebody was more capable than she? Did he ever give a reason? A. Yeah. Well, not a reason, not a reason. He would say like "You better give this to so and so, because he knows how to do it better. You better give it to so and so, because he might do it better. Based on the foregoing, there is no indication that Respondent interfered with Mr. Rey's assignments of projects to Ms. Bender-Linero to benefit her. Rather, based on Mr. Rey's earliest statement regarding assignment of projects, any change in project assignments were made to appropriately match projects with the employees' strengths and abilities. The third allegation regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero involved her use of computer games. Mr. Rey and Mr. Delgado provided conflicting testimony on this allegation. Mr. Delgado testified that on one occasion, Respondent told Mr. Rey to stop "picking on" Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. Mr. Delgado testified that he was present when Respondent called Mr. Rey into his office and told Mr. Rey that he shouldn't be "picking on" Ms. Bender-Linero after Mr. Rey told her to stop playing games on the computer. According to Mr. Delgado, Mr. Rey argued with Respondent but Respondent persisted in his demand that Mr. Rey stop "picking on" Ms. Bender-Linero. Finally, Mr. Delgado testified that after the meeting, he and Mr. Rey had a conversation about Respondent’s interfering in his supervision of Ms. Bender-Linero. Contrary to Mr. Delgado's testimony concerning computer games, Mr. Rey testified that he saw Ms. Bender-Linero and other employees in his unit playing computer games. Subsequently, Mr. Rey met alone with Respondent and told him that "people" were playing computer games. According to Mr. Rey, Respondent told him that since he was the boss upstairs he was supposed to take charge of that situation. Mr. Rey admitted that Respondent never interfered in his supervision of Ms. Bender-Linero in connection with computer games. Respondent never interfered with Mr. Rey's supervisor of Ms. Bender-Linero. In fact, at work, Respondent went out of his way not to show preference or get involved in matters related to his wife's work. It is also found that Mr. Rey's and Mr. Delgado's testimony regarding Respondent's interference with Mr. Rey's supervision of Ms. Bender-Linero lacks credibility. There are numerous inconsistencies and discrepancies in the statements of Mr. Rey and Mr. Delgado. Despite his serious and numerous allegations against Respondent, Mr. Rey failed to provide any documentation of a single incident that involved the alleged disciplinary problems that he had with Ms. Bender-Linero and that resulted in Respondent's involvement. In fact, Mr. Rey acknowledged that he failed to document the time, date, and other details related to the alleged incidents. In light of the length of time that has elapsed since the alleged incident, the absence of any documentation of the alleged incidents, and the discrepancies, conflicts, and inconsistencies in testimony, it has not been established that the alleged offenses occurred.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, Aurelio R. Linero, did not violate Section 112.313(6), Florida Statutes, and denying Respondent's request for attorney's fees. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 4th day of June, 1999. COPIES FURNISHED: Eric S. Scott, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Sheri Garety, Complaint Coordinator and Clerk Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Ronald J. Cohen, Esquire Brickell Bayview Centre 80 Southwest Eighth Street Suite 1910 Miami, Florida 33130
Conclusions This matter comes before the Agency for Persons with Disabilities (the Agency) for entry of a Final Order based on Petitioner’s Motion for Final Order. This case arose out of an Administrative Complaint filed by the Agency on September 21, 2011, charging Respondent Coral Street Group Home with two counts of violating Florida Law and Administrative Code and asking for the imposition of an administrative fine. After Respondent requested a hearing, the matter was referred to the Division of Administrative Hearings. On November 22, 2011, the Agency filed an Amended Motion to Relinquish Jurisdiction based upon the fact that the Parties had reached an agreement to dispose of the case. The agreement was set out in a Stipulation signed by the parties calling for the imposition of a fine for Count | of the Administrative Complaint and the dismissal of Count Il. On November 22, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction. Based on the foregoing, the facts alleged in Count | of the Administrative Complaint are hereby ADOPTED; Count Ii of the Administrative Complaint is hereby DISMISSED; and it is hereby FOUND AND CONCLUDED that Respondent Coral Street Group Home did commit the statutory and rule violations alleged in Count | of the Administrative Complaint. Therefore, based on the foregoing, it is hereby ORDERED that Respondent Coral Street Group Home shall pay an Administrative Fine in the amount of $1000.00 APD-12-0186-FO | 4 Filed April 16, 2012 11:28 AM Division of Administrative Hearings within thirty (30) days of the date of rendition of this Final Order.’ Failure to comply with the terms and conditions of this Final Order may result in further administrative or judicial proceedings against Respondent. DONE AND ORDERED, the \L day of Noc A , 2012, in Tallahassee, Leon County, Florida. / tut /. onetr Michael P. Hansen, Director Agency for Persons with Disabilities RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order. * Respondent shall pay the fine by mailing a check or money order made out the Agency for Persons with Disabilities to: Percy W. Mallison, Agency Clerk, Agency for Persons with Disabilities, 4030 Esplanade Way, Suite 380, Tallanassee, FL. 32399-0950. * The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-12-0186-FO | 2 Information about some sources of possible legal assistance may be found at: http://apd .myflorida.com/customers/legal/resource-listing.htm. Copies furnished to: Coral Street Group Home APD Area 23 Office 822 West Coral Street Tampa, Fl 33604 Jonathan Grabb, Esq. APD Senior Attorney Rebecca F. Kapusta, Esq. Claudia Llado, Clerk DCF Legal Counsel Division of Administrative Hearings CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this \L, day of , 2012. Fungdoe n_- Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 APD-12-0186-FO | 3
The Issue The issues are whether Petitioner has just cause to dismiss Respondent for failing to attend work during duty hours and leaving his class unsupervised so as to constitute misconduct in office, in violation of Florida Administrative Code Rules 6A-6.056(2) and 6A-6.056(4).
Findings Of Fact Petitioner initially employed Respondent as a substitute teacher on February 26, 1990. From January 1991 through June 1991, Respondent was employed as a teacher at Petitioner's Braddock High School. From August 1991 through May 1993, Respondent was employed as a teacher at Petitioner's Coral Park Senior High School. From January 1994 through May 1994, Respondent worked as a substitute teacher at various of Petitioner's schools. From March 1994 through June 1994, Respondent was employed as a teacher at Petitioner's Miami Central Senior High School. Starting in August 1994, Petitioner employed Respondent as a teacher at Miami Coral Park Senior High School. He was continuously employed at this school, except for a suspension from March 13 through April 24, 2014, until Petitioner suspended him on April 13, 2016, for the acts and omissions that are the subject of this proceeding. Spring 2006 marked the first recorded instances of Respondent's attendance problems. On April 5, 2006, Petitioner issued warning memoranda due to Respondent's tardiness. On April 28, 2006, Petitioner summarized a Conference-for-the- Record (CFR) for Respondent's repeated tardiness in reporting for work. A few years later, attendance problems emerged again, evidently at a much greater volume. On March 6, 2013, Respondent failed to report to work at the required time and never called to advise the administration that he would be late. He had also been tardy and failed to call on the two preceding days, as well as on 13 other days during the 2012-13 school year. On March 6, 2013, Petitioner issued a Memorandum of Concern. Respondent was tardy three more days after receiving the memorandum, so, on May 22, 2013, Petitioner issued a CFR summary directing Respondent to report to work on time. On October 15, 2013, Petitioner issued a memorandum determining that Respondent had been selling candy to students without authorization. On November 6, 2013, Petitioner issued a CFR summary containing directives about attendance and selling candy to students. On January 13, 2014, Petitioner issued a CFR summary determining that Respondent had used vulgar language at students, thrown a toilet-paper roll at one student, and commanded the student to get the "fuck" out of his classroom. Petitioner's representatives asked for Respondent's resignation, but he declined to resign. Respondent countered that he was having a difficult year because the administration had "changed drastically" his schedule, and the science department chair had "bullied" him. Before Petitioner had determined the discipline for this offense, on January 28, 2014, Petitioner issued a CFR summary determining that Respondent had taken students off campus in his vehicle, often leaving students unsupervised to pick flowers from a garden for a lab experiment. In response to this charge, Respondent declared that "things have changed and [he] realize[d] that it is a new day." The CFR summary noted that Respondent also had often left his students in the classroom unsupervised; used disparaging language toward students, including calling one student, "retarded"; and kissed the top of the head of a female student. Petitioner's representative offered Respondent the option of resignation, which he again declined. On March 7, 2014, Respondent accepted an offer of a 30-day suspension, evidently for the offenses noted in the preceding paragraph, and he served this suspension from March 12 through April 23, 2014. After the calamitous 2013-14 school year, during which he was disciplined on four occasions, Respondent's offenses focused exclusively on attendance. On February 2, 2015, Petitioner issued an Absence and Tardiness from Worksite Directives Memorandum. This noted absences and tardies on 22 days of the still-ongoing 2014-15 school year. On February 11, 2015, Petitioner issued a CFR summary detailing Respondent's history of nonattendance, noting, in particular, that on January 9, 2015, at about 9:50 a.m., Respondent left his classroom unattended, and several students accessed his computer and changed their grades. Petitioner's representatives advised Respondent that his repeated failure to adhere to directives demanding that he adhere to basic attendance policies would result in gross insubordination upon recurrence. At the start of the 2015-16 school year, Petitioner issued a Absence/Tardiness Directives Reminder memorandum, advising Respondent that the February 11 CFR summary continued to apply. On September 22, 2015, Petitioner issued a Reminder of Absence from the Worksite Directives and a reminder of sign- in procedures. However, between September 22 and October 27, 2015, Respondent failed to sign in on 21 occasions. On October 27, 2015, Petitioner issued a Professional Responsibilities Memorandum covering these 21 violations of Petitioner's attendance policy, and, on November 4, 2015, Petitioner issued a CFR summary reprimanding Respondent for his failure to adhere to attendance policies following a meeting to which Respondent was 20 minutes late. For the preceding 19 months, Respondent had displayed repeated disregard for his basic professional responsibilities, including even attendance. Given the number of violations in a relative brief span, Respondent's compliance with policies would need to improve to rise to the point that it could be described as checkered. While facing discipline for the absences and tardies documented in the October 27 memorandum, two days later, Respondent left the school campus at about 10:00 a.m. to go home and sleep, not informing anyone that he was leaving the campus and not returning to teach his sixth-period class, which, unsupervised, was found milling around a hallway after Respondent had chosen to transform himself from a professional employee to a "no call/no show." The applicable collective bargaining agreement between Petitioner and the union of its instructional employees (CBA) "recognize[s] the principle of progressive discipline," but also requires that the "degree of discipline shall be reasonably related to the seriousness of the offense." CBA, Article XXI, Section 1.A.1. The CBA provides for the suspension or dismissal of instructional employees, as provided by Florida Statutes. Id. at Section 1.B.1.a.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for dismissing Respondent for gross insubordination in repeatedly refusing Petitioner's directives that he attend school and supervise his students. DONE AND ENTERED this 27th day of September, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of September, 2016. COPIES FURNISHED: Kim M. Lucas, Esquire Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Christopher J. La Piano Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Leonel Marrero 1621 Southwest 93rd Court Miami, Florida 33165 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has just cause to suspend Respondent’s employment for thirty days without pay based on the allegations in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Petitioner has continuously employed Respondent since 1984 as the band director at Nautilus. The band curriculum taught by Respondent consists of beginning band, concert band, jazz band, beginning guitar, guitar ensemble, and classical guitar ensemble. Respondent runs a very good band program at Nautilus. Ms. Bernstein, the current principal at Nautilus, opined that Respondent has done a remarkable job with his band students. Throughout his 24 years at Nautilus, Respondent has taken hundreds of field trips both in-state and out-of-state with band students. As a result of these trips, Respondent is fully aware of the paperwork required by the School Board to authorize band students to go on field trips. With the exceptions to be discussed below, Respondent has correctly filled out the required paperwork and has otherwise complied with School Board policies pertaining to field trips. The School Board has developed specific field trip procedures that have been adopted as School Board Rule 6Gx13-6A- 1.22 (Field Trips). The rule provides, in relevant part, as follows: Trips for students are permitted which have value in meeting educational objectives, are directly related to the curriculum . . . In the planning of field trips, absences from school should be restricted to the least number of school days possible. The educational purpose and length of the filed trip must be approved by the principal. Provisions for students to make up assignments for classes missed due to participation in field trips must be in accordance with procedures outlined in Board Rule 6Gx-5A-1.04 - - Student Attendance. A signed parental permission form must be on file at the school prior to student’s participation. . . . A roster is to be submitted along with the field trip application request that includes the names, addresses and telephone numbers of all students who are eligible to participate in the field trip regardless of the student’s decision to participate in said trip. . . . The School Board has also adopted a Field Trip Handbook, which sets forth the responsibilities of the field trip sponsor under the heading “Sponsor’s Responsibilities” (Petitioner’s Exhibit 25, at Bates stamp page 168). Among the delineated Sponsor’s Responsibilities, the sponsor is to secure completed and signed parent permission form from each student who will participate in the field. The sponsor is to place emphasis on complete medical information. The sponsor is to ensure that all chaperones have available and accessible to them during the trip a copy of all parental permission forms with emergency contact information. 2005 Field Trip Matthew Welker served as principal of Nautilus during the 2004-2005 school year. During the Spring term of the 2004- 2005 school year, Respondent sponsored a field trip for the Nautilus band to attend a music festival in Tennessee. Prior to the field trip, Mr. Welker was informed by parents of band students that Respondent intended to take one or more high school students on the field trip. Mr. Welker met with Respondent prior to the field trip to remind him of the field trip procedures and further advised him that he should arrange to ensure that only Nautilus students attend the festival. While the field trip was in progress, Mr. Welker learned that Respondent had permitted a former Nautilus band student to participate in the festival with the Nautilus band. The former Nautilus student was in high school when he was permitted to participate in the festival with the Nautilus band. Prior to seeing him at the festival, Respondent did not know that the former Nautilus student, who had traveled to the festival independently of the Nautilus band, would be at the festival. Respondent did not violate the festival rules by permitting the former student to participate in the festival. On or about May 31, 2005, following Respondent’s return to Nautilus, Mr. Welker conducted a “Conference for the Record” with Respondent, which was memorialized by a Memorandum (Petitioner’s exhibit 1).3 The Memorandum provides, in relevant part, as follows: . . . On Friday, August 13, 2004, you received documentation and in-service training regarding District and school site Field Trip procedures. On Friday, April 15, 2005, I conducted a personal conversation in my office with you regarding information that I received regarding the possibility that two former Nautilus Middle School students who are currently enrolled at Miami Beach High School would be participating with our students at the Smokey Mountain Music Festival in Tennessee. You indicated that you needed their presence to fill out the band. I stated to you that these students were not authorized to participate in the field trip nor were they eligible to participate in the festival as representatives of Nautilus Middle School. I further stated to you that no student or person who is not enrolled or directly affiliated with Nautilus Middle School may attend or participate in the festival. You stated that you understood. On April 29, 2005, I received information regarding the presence of a Miami Beach Senior High School student who was allowed by you to participate in the festival competition representing Nautilus Middle School. The student was also allowed to represent the school in both the ensemble and solo musical performances. On Wednesday, May 11, 2005, I questioned you regarding the participation of the students and you confirmed the fact the student was present at the festival and participated in performances representing Nautilus Middle School. I asked why you permitted the student to attend and perform after I gave you specific directions to the contrary. You responded that you needed the student to fill out the band. * * * Action Taken You were advised that this incident represents a violation of School Board Rule 6Gx-4A-1.21 Responsibilities and Duties. You were directed to follow all School Board and school-site rules and policies regarding field trips. You were directed that no student who is not enrolled as a seventh or eighth grade student at Nautilus Middle School may participate in any extra-curricular activity, co-curricular activity, performance, or field trip. These directives remain in effect as of the date of the conference and are restated to prevent adverse impact to the operation of the work unit and the services provided to students. Any non-compliance by you with respect to these directives will necessitate further review and the possible imposition of disciplinary measures. . . . Copies of the following documents were given to you and discussed at the conference: Miami-Dade County School Board Rule 6Gx- 4A-1.21 Responsibilities and Duties The Code of Ethics of the Education Profession in Florida Field Trip Procedures Common sense suggestion for instructional personnel . . . The Memorandum also contained the following statement: You were advised that the information presented in the conference is confidential and you were directed not to disclose or discuss the information presented with students and staff. The Memorandum contains no statement that the Respondent had been reprimanded or otherwise disciplined because of the 2005 field trip. 2008 Field Trip Respondent sponsored the subject Field Trip for certain members of the Nautilus band to the Fiesta Val National Festival in Gatlinburg, Tennessee, in April 2008. The subject Field Trip left on Wednesday, April 23, 2008, and returned on Sunday, April 27, 2008. The Nautilus band participants consisted of members of the following: the concert band, jazz band, guitar ensemble, and classical guitar ensemble. The participants included Respondent, the band students, and volunteer, adult chaperones. Respondent, his students, and parents of band members began planning for the trip in October 2007. Fund raisers were held to help defray the costs of the trip. Respondent and the band members worked hard to prepare for the trip. As the sponsor of the subject Field Trip, Respondent was required to complete several forms, including a Field Trip Request Form, a Field Trip Chaperone List, Field Trip Permission Request Form, Travel Expense Report, and a Field Trip Roster. The Field Trip Permission Request Form (School Board’s Exhibit 7) includes the following statement: PARENT PERMISSION SLIPS for participating students must be on file in the Office of the Principal prior to the field trip. [Emphasis is in the original.] Both the School Board Rule on field trips and the Field Trip Handbook clearly require a signed parental permission form for each participating student prior to the field trip. The parental permission forms for the subject Field Trip required the parent or guardian to give permission for the student to participate in the subject Field Trip, provide emergency contact information, and authorize medical treatment for the student in the event of accident or illness.4 The Field Trip Roster, which identifies all student participants, is used to excuse the days the students are absent from school because of the field trip. As of the afternoon of April 22, 2008, Respondent had completed or otherwise secured all appropriate paperwork. The subject Field Trip had been approved by Dr. Bernstein as the principal of Nautilus and by the appropriate Regional Director. At approximately 3:00 p.m. on April 22, 2008, Respondent heard that a drummer who had been scheduled to go on the subject Field Trip may have gotten into trouble. Because he was packing musical instruments and equipment for the trip, Respondent did not further investigate. Between 4:30 p.m. and 5:15 p.m. on April 22,5 Dr. Bernstein reached Respondent on his cell phone and informed him that a band member who played drum for the jazz band and the guitar ensemble had been suspended from school (the suspended drummer) and would not be permitted to go on the subject Field Trip, which was scheduled to leave early the next day. Dr. Bernstein stated that Respondent would have to find one of his other students to fill in. The jazz band and the guitar ensemble could not have performed without a replacement for the suspended drummer. The concert band and the classical guitar ensemble could have performed without the suspended drummer. Shortly after his conversation with Dr. Bernstein on the afternoon of April 22, 2008, Respondent began receiving calls from parents of band students who were worried that the subject Field Trip would be cancelled. Rueben Coto, a band parent and volunteer chaperon for the subject Field Trip, called Respondent between 5:30 and 6:00 p.m. on April 22. Respondent was uncertain as to what would happen and stated to Mr. Coto: “Look, I don’t think we’re going to be able to pull this off because we don’t have a drummer. We can’t perform without a drummer.” (Transcript, page 157, beginning at line 14). Mr. Coto located a replacement drummer for the suspended drummer. The replacement drummer (a male) was an ex- Nautilus band member who in April 2008 was a senior at Miami Beach Senior High School. Respondent told Mr. Coto to get something in writing from the replacement drummer’s parents giving permission for the replacement drummer to go on the subject Field Trip. The replacement drummer’s mother never gave written permission for her son to go on the subject Field Trip. Mr. Coto did not follow up on Respondent’s request to obtain written permission from the replacement drummer’s mother. On the morning of April 23, 2008, Respondent knew that the replacement drummer’s mother had not signed a written parental permission form.6 Respondent did not attempt to contact Dr. Bernstein or any other administrator after learning that the replacement drummer did not have written permission to participate in the subject Field Trip. Respondent permitted the replacement drummer to travel with the other students on the bus to and from Tennessee and to participate in certain of the activities of the Fiesta Val. While the subject Field Trip was in progress, Dr. Sidener, principal of Miami Beach Senior High, received a complaint from the band director at her school that the replacement drummer was absent from school and did not attend band rehearsal because he was on the subject Field Trip. Dr. Sidener immediately called Dr. Bernstein to determine whether she knew that the replacement drummer was participating in the subject Field Trip. Dr. Sidener did not excuse the replacement drummer’s absences from Miami Beach Senior High for the school days on which the replacement drummer participated in the subject Field Trip. The subject Field Trip was unrelated to the replacement drummer’s curriculum at Miami Beach Senior High. The subject Field Trip participants returned to Miami as scheduled on April 27, 2008. Prior to Dr. Sidener’s call, Dr. Bernstein was unaware that the replacement drummer was on the subject Field Trip. Respondent did not inform Dr. Bernstein before or during the subject Field Trip that the replacement drummer would be participating in the subject Field Trip. Immediately after Dr. Sidener’s call, Dr. Bernstein requested that the School Board’s Civilian Investigation Unit (CIU) conduct an investigation as to the replacement drummer’s participation in the subject Field Trip.7 The CIU investigation report was forwarded to the School Board’s Office of Professional Standards (OPS) for a CFR with Respondent. After the CFR, OPS sought input as to the appropriate discipline from Dr. Bernstein and Mr. Greenfield (the Administrative Director for the North Regional Center). OPS convened a disciplinary review team, which reviewed all available information. The disciplinary review team recommended to the Superintendent that Respondent’s employment by suspended without pay for 30 days. Following his review, the Superintendent adopted the recommendation from the disciplinary review team and forwarded the recommendation to the School Board. At its meeting of October 15, 2008, the School Board voted to suspend Respondent’s employment for a period of 30 days without pay. The School Board followed all relevant procedures leading up to its vote to discipline Respondent by suspending his employment for 30 days. Although Respondent has served his 30-day suspension without pay, Respondent timely requested a formal administrative hearing to challenge the suspension.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent's employment without pay for 30 days. DONE AND ENTERED this 2nd day of June, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2nd day of June, 2009.
