The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989.
The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Respondent's proposed award of a contract to Intervenor is contrary to statutes, rules, policies, or the bid specifications, pursuant to Section 120.57(3)(f), Florida Statutes.
Findings Of Fact On January 14, 2003, Respondent advertised for bids by way of an invitation to bid (ITB) for Contract Number E3C42, Maintenance Financial Project Number 40952917201. This would be a "Push Button" contract for the replacement of damaged guardrails along various roadways in Okaloosa and Walton Counties. Pursuant to this Contract, the successful bidder would respond upon notice, and repair or replace guardrails, or take other measures to ensure safety of the traveling public. The bid solicitation and contract were issued pursuant to Section 337.11, Florida Statutes. All bidders had to certify compliance with Florida Statutes and other applicable law, and all contractors were held to strict compliance with all legal requirements. There were no protests to the terms and conditions of the bid solicitation. The instant challenge does not allege non-compliance with the statutes or terms of the ITB generally. The challenge is whether award of the bid to Intervenor, as a non-profit corporation, is "contrary to competition." This maintenance contract does not require that the contractor be pre-qualified pursuant to Section 334.14, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code. Four bidders responded to the solicitation, with the apparent low bidder being Intervenor, and the apparent second low bidder being Petitioner. Respondent posted its intended award of the contract to Intervenor, and Petitioner timely filed a protest that initiated this proceeding. Intervenor is a not-for-profit corporation created under the provisions of Chapter 617, Florida Statutes. As such, pursuant to Sections 617.0301 and 617.2001, Florida Statutes, Intervenor can engage in any lawful purpose not for pecuniary profit. As a not-for-profit corporation, Intervenor may receive certain tax breaks and other economic advantages not enjoyed by a for-profit corporation. Petitioner is a for-profit corporation. No evidence exists that Intervenor is not capable and responsible to perform the work. Intervenor is qualified to contract with Respondent for the performance of work related to the construction and maintenance of transportation-related facilities by youths enrolled in youth work experience programs, pursuant to Section 334.351, Florida Statutes. Respondent spends appropriations under this section, and Intervenor is the recipient of such contracts. However, the instant contract will not be let under Section 334.351, Florida Statutes, but pursuant to Section 337.11, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the protest filed by Petitioner be dismissed and Respondent shall award the subject contract to Intervenor. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 24th day of July, 2003. COPIES FURNISHED: John C. Bottcher, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 Timothy Patrick Driscoll, Esquire Timothy Patrick Driscoll, P.A. 101 First Avenue South, Suite 340 St. Petersburg, Florida 33701 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Does correspondence dated August 18, 1997, from John M. Awad, Ph.D., District Administrator for District II, State of Florida, Department of Children and Family Services, directed to Theodore R. Buri, Jr., Regional Director, American Federation of State, County, and Municipal employees, AFL-CIO, identify Respondent’s agency policy? If yes, is that policy a “Rule” as defined in Section 120.52(15), Florida Statutes (Supp. 1996)? If a “Rule," has Respondent promulgated the policy in accordance with Section 120.54, Florida Statutes (Supp. 1996)? If the policy is a “Rule” that has not been promulgated, does a statutory basis exist for its promulgation?
Findings Of Fact The individual Petitioners are employed at the Florida State Hospital. This is a mental health facility operated by the Respondent. The individual Petitioners have contact with the clients who reside in the hospital. Because those individual Petitioners have client contact in performing their employment at the hospital, Respondent, as their employer, is responsible for screening the employees to ascertain whether those individual Petitioners have been convicted of or pled guilty or nolo contendere to certain offenses set forth in Sections 435.03 and 435.04, Florida Statutes (1995). Such a finding would disqualify the employees from working directly with the clients. The requirement for screening is in accordance with Section 110.1127(3), and Section 394.4572, Florida Statutes (Supp. 1996). Florida Public Employees Council 79, American Federation of State, County, and Municipal employees, AFL-CIO (AFSCME), represents the individual Petitioners in collective bargaining between those Petitioners and the State of Florida. Each of the individual Petitioners received notification from Robert B. Williams, Hospital Administrator, Florida State Hospital, that each person had been declared ineligible to hold a position of “special trust” based upon certain offenses attributable to the Petitioners. The basis for the disqualifications was Chapter 435, Florida Statutes (1995). This meant that the individuals could not have client contact. As a consequence, Petitioners were told, through the correspondence notifying them of their disqualifications, that they could seek exemption from disqualification and/or contest the accuracy of the records declaring their disqualifications. All Petitioners sought relief from Respondent in accordance with Section 435.07(3), Florida Statutes (1995), by requesting exemption from disqualification before the Respondent. Bobby Jones, Clarence Cornell Simmons, Freddie Lee, and Frank Lawrence Dickens were denied exemption. Whether those Petitioners have contested the preliminary decision by Respondent denying their exemption through hearing procedures set forth in Chapter 120, Florida Statutes is not known. The other Petitioners were granted exemption from disqualification by action of the Respondent. Before Respondent made its preliminary determination on eligibility, on August 13, 1997, Theodore R. Buri, Jr., Regional Director of AFSCME Florida Council 79, wrote to Dr. John Awad, District Administrator, District II, Department of Children and Family Services. The purpose of the letter concerned the disqualification of the individual Petitioners to continue work in positions of “special trust” by having contact with clients at Florida State Hospital. That correspondence stated: The above referenced employees have been previously notified of disqualification, allegedly under the provisions of Chapter 435, Florida Statutes. These employees have notified Council 79, through their local union, that they are scheduled for a hearing on a possible exemption from the provisions of Chapter 435 on August 27, 1997. I have reviewed the documents of these individuals and I have found, without exception, that the charges which served as the basis of potential disqualification all occurred prior to October 1, 1995. As I am sure you are aware the provisions of Chapter 435, Florida Statutes, did not become effective until October 1, 1995. Further, the notations are consistent throughout Chapter 435, indicating that the provisions of Chapter 435 shall apply only to offenses committed subsequent to October 1, 1995. It appears that these, and other, employees are being improperly required by the Department to defend themselves against provisions of Florida Statutes which do not apply to them. I wish you would immediately review this concern with your legal department and direct Florida State Hospital to immediately make the affected employees whole and to terminate the pending actions against these employees. Your prompt attention in this matter is very much appreciated. On August 18, 1997, Dr. Awad responded to Mr. Buri’s inquiry through correspondence, in which Dr. Awad stated: The concerns expressed in your letter dated August 13, 1997, concerning background screenings were reviewed approximately a year and a half ago by an agency statewide workgroup, which included several background screening coordinators, District Legal Counsels, and attorneys from the General Counsel’s office. The legal research from that group resulted in the issuance of Agency policy addressing this and other statewide issues. In response to a question similar to that raised in your letter, Agency policy is that although Section 64 of Chapter 95-228, Laws of Florida, states that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date,” it applies only to the new criminal offense of “Luring or enticing a child” created by Section 1 of the law and does not apply to screening provisions. Therefore, in accordance with established principals [sic] of statutory construction, a person being rescreened after 10-1-95, must meet the requirements of the law in effect as of the date of the rescreening, which includes the broadened offenses, just as a new job applicant must meet such requirements. If you have any further questions concerning this matter, you may wish to have your attorney discuss this with the Agency’s General Counsel. The exemption hearings before Respondent were held on August 27, 1997, leading to the grant of exemptions for some Petitioners, and denial for others. Through their Petition to determine the invalidity of a “Rule," Petitioners allege and request the following relief: Although Chapter 435 of the Laws of Florida concerning employment screening specifically states that it applies to offenses committed on or after October 1, 1995, the Respondent applies employment screening to all employees and to all offenses regardless of the date of the offense. The Respondent articulated this policy of application in correspondence addressed to Theodore R. Buri from John Awad dated August 18, 1997,. . . The Respondent’s policy, as more fully described above, is a 'Rule' within the meaning of Section 120.52(16), Florida Statutes, because it is an 'agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of the agency.' Id. This rule should be declared an invalid exercise of delegated legislative authority for the following reasons: The above described rule has not been adopted in substantial compliance with Section 120.54, Florida Statutes; The Respondent has no statutory or rule authority to adopt the above described rule as applied to offenses predating October 1, 1995, thus the rule violates Section 120.56, Florida Statutes. The rule imposes a civil penalty against the individually named Petitioners for which there is no specific statutory authority. The rule is arbitrary and capricious as applied to offenses predating October 1, 1995, and thus violates Section 120.56, Florida Statutes. The rule adversely affects the Petitioners' substantial interest in continued employment in a position of 'special trust.' The rule is an unconstitutional impairment of the contract of employment. It unfairly burdens the Petitioners and others similarly situated with the duty to timely request and prove by clear and convincing evidence that [sic] either an entitlement to an exemption from disqualification or that the records are inaccurate. It is an oppressive and unreasonable condition of employment. As a penalty attached to an offense committed prior to October 1, 1995, the Rule is unlawful as an ex post facto law. The immediate removal from a position of trust before an employee may be heard denies the employee due process. The rule attacks a protected property and liberty interest of the individually named Petitioners and those similarly situated. The Agency’s actions against the Petitioners based on the Rule stigmatizes the employee. Petitioners also request that they be granted costs and attorneys fees pursuant to Section 120.595(3) and (4), Florida Statutes (Supp. 1996). Chapter 95-228, Laws of Florida, referred to by Dr. Awad in his August 18, 1997, correspondence to Mr. Buri, created Chapter 435, Florida Statutes.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
The Issue Whether Petitioner willfully violated Section 106.021(3), Florida Statutes, which prohibits a candidate from making an expenditure except through the campaign treasurer on 66 separate occasions, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the testimony, documentary evidence, entire record of the proceedings, and facts admitted to in the Joint Pre-Hearing Stipulation, the following Findings of Fact are made: Petitioner, Alan Schreiber, was the incumbent candidate for Public Defender, 17th Judicial Circuit, in the 2000 election. Petitioner was unopposed for reelection when qualifying ended on July 21, 2000. Petitioner is an experienced politician serving his seventh term as Public Defender. During the 2000 campaign qualifying period, Petitioner made sixty-six expenditures for which he submitted receipts and received reimbursement from his campaign account. The expenditures for which Petitioner was reimbursed are as follows: Date Merchant Amount 05-01-00 Andrew's Tallahassee $261.00 04-04-00 Andrew's Tallahassee $225.61 12-13-99 Bar Amici/ Cathode Ray $50.40 10-29-99 Bar at Embassy Suite $51.41 06-30-00 Big Louie's $265.01 06-20-00 Big Louie's $145.72 06-27-00 Bimini Boatyard $64.82 05-31-00 Bimini Boatyard $316.49 05-21-00 Bimini Boatyard $70.08 05-18-00 Bimini Boatyard $43.26 12-08-99 Bimini Boatyard $71.66 10-20-99 Bimini Boatyard $47.92 05-04-00 Bravo Italiano $63.86 02-24-00 Bravo Italiano $232.43 02-15-00 Bravo Italiano $52.79 01-31-00 Bravo Italiano $62.86 01-27-00 Bravo Italiano $86.83 06-19-00 Café de Paris $113.34 05-24-00 Café de Paris $70.04 05-16-00 Café de Paris $154.99 05-12-00 Café de Paris $160.94 05-06-00 Café de Paris $136.11 04-13-00 Café de Paris $146.65 03-18-00 Café de Paris $113.09 03-04-00 Café de Paris $144.47 02-23-00 Café de Paris $280.10 02-07-00 Café de Paris $73.27 01-17-00 Café de Paris $193.51 12-27-99 Café de Paris $66.47 11-29-99 Café de Paris $145.60 11-26-99 Café de Paris $230.51 11-24-99 Café de Paris $133.57 11-15-99 Café de Paris $183.97 10-31-99 Café de Paris $105.68 10-22-99 Café de Paris $99.43 10-19-99 Café de Paris $130.76 03-31-00 Café de Paris $182.64 03-15-00 Costco Wholesale $140.96 12-14-99 Costco Wholesale $267.61 10-27-99 Costco Wholesale $231.02 Costco Wholesale $256.87 05-23-00 French Quarter $499.24 11-09-99 French Quarter $81.25 11-09-99 French Quarter $85.02 06-08-00 Georgio's Food and Spirits $193.14 05-11-00 Greek Islands $89.73 06-03-00 Greek Islands $75.25 01-04-00 Greek Islands $70.49 10-29-99 Heavenly Ham $349.66 03-22-00 Houston's $75.54 10-28-99 Mayhue's Liquors $70.02 06-14-00 Mezzanot $102.02 12-01-99 Padrino's Restaurant $61.21 03-17-00 Publix $235.32 12-16-99 Publix $235.32 10-29-99 Publix $212.00 Publix $149.41 05-07-00 Restaurante Botin $146.39 01-04-00 Sage $79.85 12-28-99 Sage $107.89 10-29-99 Salute-Embassy Suites $211.26 03-01-00 TGI Fridays $47.08 05-25-00 Things Remembered $79.49 05-24-00 Things Remembered $296.69 05-21-00 Things Remembered $386.22 01-03-00 Wolfgang Puck Café $138.87 While Petitioner's personal decision to "wine and dine potential donors, supporters and campaign volunteers" at upscale restaurants may have been the genesis of the complaint that caused the Commission's investigation, no evidence was offered that suggested this to be an inappropriate expenditure of campaign funds. Sixteen checks were written by the campaign treasurer from the campaign account to Petitioner to reimburse him for the above expenditures. The campaign treasurer acknowledged that he had misdated one of the sixteen checks. Each check was written on the campaign accounts, was dated, was made payable to Petitioner, and each check listed that the purpose of the expenditure was to reimburse for non- specific campaign expense(s) as follows: Date Check No. Purpose Amount 10-29-99 1003 Reimb.-Campaign party expenses 11-02-99 1004 Reimb.-misc. campaign lunches 11-16-99 1005 Reimb.-misc. campaign lunches $968.38 $536.68 $350.24 11-30-99 1006 Reimb.-misc. campaign dinners 01-06-00 1008 Reimb.-camp. party expenses $509.68 $502.93 01-07-00 1009 Reimb.-misc. camp. dinners $496.50 03-03-00 1015 Reimb.-misc. camp. dinners $566.81 04-04-00 1019 Reimb.-camp. meeting expenses $565.32 04-11-00 1020 Reimb.-camp. party exp. $376.28 04-27-00 1021 Reimb.-misc. camp. dinners $799.23 5-16-00 1023 Reimb.-misc. camp. dinners $679.69 5-18-00 1024 Reimb.- misc. camp. lunches $462.58 5-22-00 1025 Reimb.-novelty items $368.22 5-24-00 1051 Reimb.-misc. camp. lunches $612.58 5-26-16 1054 Reimb.-camp. novelty items $376.16 06-09-00 1055 Reimb.-camp. meals/lunches $386.53 Each of the above-noted reimbursements to Petitioner was listed as an expenditure on Petitioner's campaign treasurer's reports filed with the Division of Elections as follows: Date Name and Address of Purpose Amount Person Receiving Reimbursement 10-29-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $968.38 11-02-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $536.68 11-16-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $320.24 11-30-99 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $509.68 01-06-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $502.93 01-07-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $496.50 03-03-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $566.81 04-04-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign meeting expenses $565.32 04-11-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement for campaign party expenses $376.28 04-27-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $799.23 05-16-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign dinners $697.69 05-18-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $462.58 05-22-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement campaign novelty items $386.22 05-24-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $612.58 05-26-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign novelty dinners $376.16 06-09-00 Alan H. Schreiber 855 Orchid Drive Plantation, FL 33317 Reimbursement misc. campaign lunches $386.53 While the campaign treasurer's report accurately reports reimbursements to Petitioner, because the reimbursements are non-specific and aggregated, it is impossible to determine the actual expense for which reimbursement is made. Stephen Michaelson served as the campaign treasurer for Petitioner's 2000 reelection campaign and had served as deputy treasurer of Petitioner's 1996 campaign. Mr. Michaelson has served a number of candidates in a similar fashion. Prior to filing papers to open the 2000 reelection campaign account, Mr. Michaelson and Petitioner discussed whether it was permissible under Florida law for a candidate to be reimbursed from his campaign account for legitimate, campaign-related expenditures made by him personally in the course of the campaign. Petitioner had experienced difficulty writing campaign checks at restaurants during the 1996 campaign. After the 1996 campaign, Mr. Michaelson had researched the issue and informed Petitioner that he had discovered a "reimbursement statute." Mr. Michaelson also found a 1994 Division of Elections opinion that he believed "to be right on all fours," i.e., the opinion dealt specifically with the issue. The 1994 Division of Elections opinion [DE 94-07] referred to by Mr. Michaelson provides, in pertinent part, as follows: It is also permissible for a candidate to make a purchase with his own personal check or currency if the candidate intends to seek reimbursement from his campaign. However, the purchase does not become a campaign expenditure until such time as the reimbursement is made by campaign check or petty cash through the candidate's campaign treasurer. In 1999, prior to opening his campaign account, Petitioner and Mr. Michaelson again discussed the "reimbursement issue." Mr. Michaelson checked Chapter 106, Florida Statutes, that had been in effect when the 1994 Division of Elections opinion [DE 94-07] had been issued and noted no changes in the statute. In addition, he did a computer search on Florida Statutes Annotated of District and Supreme Court cases and found nothing dealing with the subject that, in his opinion, would warrant a change in the Division of Elections opinion. He checked the Division of Elections website to see if the 1994 opinion was still there and concluded that it was. He did a computer check to see if there were any subsequent Division of Elections opinions that referred to expenditures; finding none, he concluded that the 1994 opinion was still in effect. Based on his review, he advised Petitioner that Petitioner could seek reimbursement from the campaign account for legitimate campaign expenditures that he paid with personal funds. Mr. Michaelson has been a campaign treasurer or deputy campaign treasurer on seven occasions, has, himself, been a candidate, is a lawyer who has practiced criminal defense law for 23 years, and, during his testimony at this formal hearing, demonstrated competency and understanding of the Florida election law/campaign financing law. He gave Petitioner advice on Florida election law/campaign financing law knowing that Petitioner would rely on his advice. Petitioner's reliance on Mr. Micahelson's advice was warranted. In the same general time period during which he opened his reelection campaign account, Petitioner spoke to David Bogenschutz, an attorney in Fort Lauderdale, and asked whether a candidate could incur campaign expenses and then seek reimbursement from his campaign account. Mr. Bogenschutz is a lawyer who has known Petitioner since 1971, whose practice is devoted largely to criminal defense, who had previously advised and represented candidates and public officials in proceedings related to the Florida's election law/campaign financing law, had himself been a candidate, and was believed by Petitioner to be knowledgeable regarding Florida election law/campaign financing law. While Mr. Bogenschutz was reluctant to acknowledge that he was an "expert" in Florida election law, his testimony at this formal hearing demonstrated a satisfactory working knowledge of Florida election law/campaign financing law; it was appropriate for Petitioner to seek his counsel and to be guided by his advice. Mr. Boganschutz advised Petitioner that he saw nothing wrong with his reimbursing himself from his campaign treasury for authorized campaign expenses. He further advised that he would research the matter and advise if he saw anything wrong. Mr. Boganschutz reviewed Section 106.021(3) and Subsection 106.07(4)(a)7, Florida Statutes, and Florida Statutes Annotated. He concluded that Subsection 106.07(4)(a)7, Florida Statutes, permitted a candidate to be reimbursed for authorized campaign expenditures from the campaign account and so advised Petitioner. In giving his advise, he did not review Division of Elections Opinion DE 94-07 or a later opinion, DE 97-06, because, while other Division of Elections opinions are found in Florida Statutes Annotated, neither of the referenced opinions is listed in Florida Statutes Annotated. In addition, he felt that the statute regarding reimbursement was so clear that there was no need to do further research. In addition to his discussions with Mr. Michaelson and Mr Bogenschutz, Petitioner conducted his own research and concluded that it was appropriate to pay vendors personally for campaign-related expenses and then be reimbursed from his campaign account for those campaign-related expenses. The qualifying period ended on July 21, 2000, with Petitioner having drawn no opposition. At about the same time, a local newspaper article questioned Petitioner's campaign spending habits and quoted a Division of Elections official saying Petitioner should have been using campaign checks. After reading the newspaper article, Mr. Michaelson called the local Supervisor of Elections who advised him that Division of Elections opinion DE 94-07 had been rescinded by Division of Elections opinion DE 97-06. This caused Mr. Michaelson obvious concern; the qualifying period had ended and, for Petitioner, the election was over. It appeared that he had incorrectly advised Petitioner regarding the propriety of paying campaign-related expenses personally and then seeking reimbursement. Mr. Michaelson then checked his research in an effort to understand how he had missed the rescission of Division of Elections opinion DE 94-07 and discovered that the Division of Elections website did not indicate that opinion DE 94-07 had been rescinded. The Division of Elections, Department of State, maintains a website which includes "Formal Opinions of the Division of Elections." This website lists all opinions from 1987-2000. Intermittently throughout the list of opinions is the notation "rescinded" in highlighted type, indicating that the particular opinion has been rescinded. No such notation appeared in reference to opinion DE 94-07. The 1997 Division of Elections opinion DE 97-06 indicates "Rescinding DE 76-16, 78-2, 88-32, 90-16, and 94-7." This is presented in the same type as the rest of the text and is not highlighted. Mr. Michaelson then used his web browser to search the Division of Elections website that lists these advisory opinions for the words "expenditure" or "reimbursement," the website did not direct him to the 1997 opinion DE 97-06. Division of Elections opinion DE 97-06, which, in part, rescinds Division of Elections opinion DE 94-07, provides in pertinent part, as follows: We held that candidates could make unlimited purchases by personal check as long as they intended for such expenditures to be reported as in-kind contributions. The opinion also stated that the "candidate cannot make such purchases as a campaign expenditure except by means of a campaign check . . . made through the candidate's campaign treasurer." This reasoning has resulted in some confusion as to when and under what circumstances a campaign expenditure or in-kind contribution occurs. Therefore, we rescind DE 94-07. Except for petty cash expenditures allowed under section 106.12, Florida statutes (1995), the only way that a candidate may make a campaign expenditure is by means of bank check drawn on the primary campaign depository, pursuant to section 106.11(1), Florida Statutes (1995). Having said this, we recognize the applicability of section 106.07(4)(a)7, Florida Statutes (1995), which requires that candidates report any reimbursements of authorized expenses from the campaign accounts to themselves. We believe that the purpose of this provision is to cover rare occurrences where the campaign must make an expenditure, but the campaign check book is not available. Such a situation could occur when a bill must be paid and the campaign has not received its first order of checks from the bank, or where, during the course of campaign travel, tolls or other miscellaneous expenses must be paid in cash and the candidate has failed to take the money out of his petty cash fund for such purposes. During the 2000 campaign, Mr. Michaelson maintained possession of the campaign checkbook which was usually kept at his home. On occasion, he would have one or two campaign checks on his person. If Petitioner asked for a campaign check, and Mr. Michaelson had one on his person, he would give it to Petitioner. On occasion, Petitioner would return a campaign check to Mr. Michaelson, indicating that the check was not accepted by a particular vendor. Most of the reimbursements at issue are a result of Petitioner's not having a campaign check with him at the time of a transaction or the vendor's unwillingness to accept a check or campaign check. In most instances the transaction involved purchases by Petitioner at restaurants. TGI Friday's located in Plantation, Florida, does not accept checks. Petitioner made one campaign-related purchase at TGI Friday's for which he was reimbursed from the campaign account. Bimini Boatyard does not generally permit patrons to pay with checks, although exceptions have been made. Petitioner made six campaign related-purchases at Bimini Boatyard for which he was reimbursed from the campaign account. During his 1996 campaign, Petitioner wrote 15 checks directly to Bimini Boatyard for campaign expenditures from the campaign account. Café de Paris and French Quarter have a policy of not accepting checks except when personally approved by the owner or for a special party. The owner indicated he would not accept a campaign check. Petitioner made 20 campaign related-purchases at Café de Paris and three campaign-related purchases at French Quarter for which he was reimbursed from the campaign account. The Sage Restaurant accepts only cash, MasterCard and Visa from restaurant patrons; checks are accepted for catering. The owner opined that had Petitioner called ahead and advised that campaign laws required him to pay by campaign check, she would accept that form of payment. Petitioner made two campaign-related purchases at Sage Restaurant for which he was reimbursed from the campaign account. Bar Amici and Cathode Ray do not accept checks; however, if a candidate advised that the law required payment by campaign check, a check would be reluctantly accepted. Petitioner made one campaign-related purchase at Bar Amici and Cathode Ray for which he was reimbursed from the campaign account. Greek Island Taverna does not accept checks. Petitioner sought reimbursement for three campaign-related expenditures at Greek Island Taverna for which he was reimbursed from the campaign account. Padrino's Restaurant does not accept checks. The owner, who is seldom at the restaurant, indicated that he would accept Petitioner's check. Petitioner made one campaign-related purchase at the Padrino's Restaurant for which he was reimbursed from the campaign account. Andrew's, a Tallahassee restaurant, does not accept checks from restaurant patrons. The manager opined that, if prior arrangements were made, a campaign check might possibly be accepted, but an out-of-town campaign check made it more problematic. Petitioner made two campaign-related expenditures at Andrew's for which he was reimbursed from the campaign account. Connie Evans, Chief, Bureau of Election Records, Division of Elections, Department of State, who has been employed by Division of Elections for 22 years and a bureau chief for five years, was qualified as an expert witness "in the area of Chapter 106 of Florida Statutes," without objection. She opined that Chapter 106, Florida Statutes, requires full disclosure of all contributions and expenditures for the public benefit. Ms. Evans further opined that Division of Elections advisory opinions are only binding on the candidate or organization who sought the opinion. Ms. Evans further opined that the Division of Elections, in applying Division of Elections opinion DE 97-06, considers that it is appropriate for a candidate to seek reimbursement for personal payment of a campaign-related expense at a restaurant when the restaurant refuses to take a check, but that the candidate should not return to the same restaurant knowing that the restaurant will not accept a campaign check in payment. She acknowledged that there is no statutory authority in Chapter 106, Florida Statutes, for this opinion. Ms. Evans further acknowledged that Division of Elections opinion DE 97-06 refers to Subsection 106.07(4)(a)(7), Florida Statutes (which allows reimbursement for campaign- related expenses), and that both DE 97-06 and DE 94-07 advise that it is permissible for candidate to reimburse himself for campaign-related expenses. Ms. Evans opined that the Division of Elections website should have indicated that Division of Elections opinion DE 94-07 had been rescinded in bold type, as is done with the other rescinded opinions. Ms. Evans further opined that, if a candidate were to reimburse himself or another person for authorized campaign- related expenses, it is the position of the Division of Elections that the reimbursement must be made by a campaign check, must be reported on the campaign treasurer's report as an expenditure, and the amount, date, and the purpose of the expenditure must be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Alan Schreiber, did not violate the Florida Campaign Financing Law as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 19th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 19th day of September, 2001. COPIES FURNISHED: Mark Herron, Esquire Mark Herron, P.A. Post Office Box 1701 Tallahassee, Florida 32301-1701 Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?
Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.
