Findings Of Fact Respondent, Faye Norris, was employed by the School Board of Pinellas County as a bus driver in approximately September, 1978. While transporting children during the 1980-81 school year, Respondent frequently failed to completely stop at stop signs, drove at an excessive rate of speed for conditions, drove in excess of the applicable speed limit, and drove so fast turning corners that children almost slid off their seats and the bus left the road and drove across lawns. On a number of occasions, Respondent drove so fast that when she reached a bus stop, the bus did not stop until it had partially passed the bus stop. When loading children, Respondent frequently began to drive away from the stop before the children were seated, and on one occasion, a child was thrown to the rear of the bus. Respondent was "clocked" by grandparents of children on her bus, driving the bus at fifty-five miles per hour during rush-hour traffic in a thirty-five-mile per hour zone. Respondent regularly made fast starts and drove at an excessive rate of speed in the school yard at Norwood Elementary School and on one occasion almost ran over a teacher walking across the playground area. Frequently while Respondent was loading or unloading children she failed to activate the flashing lights on the bus and failed to extend the sidearm. On one occasion, Respondent stopped at a convenience store to make a telephone call. She left the door of the bus open and the engine running. The bus, which was full of children at the time had an automatic transmission. Some of the children on Respondent's bus were nervous about riding with her because of her speeding; and Lisa Hubbell, one of those children requested Respondent to drive more slowly because she was afraid. Parents of children riding the bus became frightened about the safety of their children. Mrs. Eatman contacted employees of the School Board on numerous occasions to complain about Respondent's driving habits, and Mrs. Robert Wallace contacted the School Board on two occasions. Jimmy M. Carlyle and Gail Edith Morrison principals at two of the schools to which Respondent transported children, received numerous telephone calls from parents complaining about Respondent's driving. Carlyle spoke to Respondent and cautioned her about speeding. Mitchell J. Kitchen, a route coordinator employed by the Petitioner, received telephone complaints about Respondent's excessive speed and discussed Respondent's driving with her on several occasions. Parris Lilly, Jr., a route supervisor, received complaints regarding Respondent's driving from principals, teachers, and citizens. He counseled Respondent on several different occasions. On March 27, 1981, Dr. Jerry C. Spears was driving through the residential neighborhood near his home when Respondent's bus came speeding toward him in his lane, and he had to drive off the street in order to avoid a head on collision. He began chasing Respondent's bus, which continued speeding and running stop signs. The bus was occupied by children. When Respondent stopped to load more children, Dr. Spears approached the bus to talk to the driver. Respondent slammed the door on his arm. Dr. Spears immediately contacted the Superintendent of Schools. Also on March 27, 1981, Respondent drove her morning route picking up children and transporting them to their schools without using the caution lights on the bus. The alternator was not working properly, and she was afraid that the bus was going to stall. Although she knows that school board policy requires that malfunctioning safety equipment be reported immediately and that the bus be driven no further, she failed to report that she was having a problem with the bus stalling until after she had driven a distance of approximately ten miles through downtown St. Petersburg during rush hour traffic. Bus drivers for the School Board of Pinellas County are required to activate the amber lights on the bus at least two hundred feet prior to the bus stop. Respondent activates those lights, if at all, fifteen feet before each stop. Walter M. Allison, III, Assistant Director of Transportation for the Petitioner, received complaints regarding Respondent's excessive speed. He told those persons complaining that their complaints needed to be reduced to writing and submitted to him. After receiving letters from several parents of children assigned to Respondent's bus and from Dr. Spears regarding his experience with Respondent, Allison reviewed Respondent's personnel file and scheduled a meeting at Bay Vista Elementary School on April 1, 1981, which meeting was attended by Respondent, a representative of Respondent's union, Mrs. Morrison, and Mr. Allison. The written complaints were reviewed with Respondent at that time. On April 2, 1981, the Superintendent of Schools wrote to Respondent advising her that she was suspended without pay effective April 2, 1981, because of her unsafe driving. He further advised her that he would seek School Board approval of that suspension and additionally would request that she be dismissed from her employment with the School Board of Pinellas County. Pursuant to Respondent's request that she be afforded an opportunity to face her accusers pursuant to a collective bargaining agreement with the School Board, a second meeting was held on April 7, 1981.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee based on the incident that occurred on May 16, 2007.
Findings Of Fact Respondent, Julius Balogh, has been employed with Petitioner, Lee County School Board ("the District"), since October 17, 2002. He is currently assigned as a Bus Operator in the Transportation Department. Respondent's annual contract with Petitioner was renewed for each of the school years: 2003- 2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. Since Respondent commenced working for Petitioner in October 2002, he has received five annual performance assessments. With the exception of Respondent's first year when he received three scores of "inconsistently practiced" out of 32 areas targeted for assessment, Respondent always scores at an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 06/07 performance assessment stated he was "a good worker, helpful, dependable and a joy to work with." On his 05/06 assessment, the assessor wrote in the "comments" section "Great job. Julius takes personal satisfaction in job and cares about his students. Continues to grow." During the five years Respondent has been employed with Petitioner, he has had a perfect attendance record. Aside from the present charges, he has never before been the subject of any disciplinary action. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statues (2007), and is governed by the Collective Bargaining Agreement between the School Board and the Support Personnel Association of Lee County ("SPALC"). The standard for the discipline of support personnel is "just cause," pursuant to Article 7 of the SPALC Agreement. On May 16, 2007, Respondent reported for duty at 4:49 a.m. He completed his morning shift at 10:07 a.m. He was then required to submit to a random drug and alcohol screening, which he passed. After dropping-off all students at their bus stops, Respondent was returning to the bus compound while following his regularly-scheduled route. While on duty and in uniform, Respondent parked his bus in front and entered the San Carlos Package Store. Respondent's stated reason for entering the store was for the intended purpose of purchasing an herbal extract product called St. Hubertus for his wife. St. Hubertus is an herbal product that Respondent's wife administers to herself daily, in her evening cup of tea, to alleviate digestive problems and stomach pain resulting from various medications she is prescribed. St. Hubertus is 35 percent alcohol by volume. Respondent and his wife regularly purchase St. Hubertus while visiting their country of origin, Hungary. Edith Balogh returns there annually for medical treatment. Edith Balogh's Hungarian physician first recommended St. Hubertus for her some 10 to 15 years ago to relieve her stomach pain. Edith Balogh had exhausted her annual supply of St. Hubertus sometime prior to May 2007. Although she and Respondent were scheduled to fly to Hungary on May 21, 2007, she was experiencing severe stomach pain and related symptoms. She, therefore, had asked her husband to attempt to procure the product locally. Respondent unsuccessfully sought to obtain the product at several stores prior to May 16, 2007. Ultimately, Respondent was told by a pharmacist that he might be able to find the product at the San Carlos Package Store. Since the San Carlos Package Store was located on Respondent's direct route to the bus compound, and because the weather was intemperate, Respondent did not want to backtrack after concluding his shift. Respondent decided to stop at the San Carlos Package Store for the purpose of purchasing the St. Hubertus product. Before stopping at the package store that day, Respondent had not used either of his two 15 minute breaks. He stopped at the store at approximately 6:45 p.m., clocked out of work at 7:17 p.m., and drove the approximately four miles from the store to the compound before clocking out. Respondent thus did not exceed the personal time Petitioner otherwise allowed its employees for their daily breaks. When Respondent inquired about the availability of St. Hubertus, the sales clerk advised him that he would have to order it and it would take three to six weeks to receive it. Respondent explained the urgency of obtaining the product, and the clerk recommended a similar product called "Jagermeifter." Respondent purchased two 50 ml bottles of Jagermeifter. The label on the bottles of Jagermeifter were in German and English. Respondent speaks German. The label described the product in German as "noble herb tea extract." The label also stated, in English, that the product contained 35 percent alcohol by volume (70 Proof). Respondent purchased the two bottles of Jagermeifter, placed them in a ziplock bag, secured them in his briefcase, and returned to his bus. Respondent then drove directly to the bus compound. As Respondent was pulling into the compound he received a cell phone call from the afternoon supervisor, Robert Schwartz, advising him that he was observed purchasing liquor and that he was suspended from operating the bus. Respondent clocked out and went home. Joe Howard, another supervisor, checked Respondent's bus for open alcohol containers the following day and found no such evidence. As had previously been approved, Respondent did not return to work prior to his departure for Europe. Respondent took the Jagermeifter product home with him on May 16, 2007, and presented it to his wife. Edith Balogh used the Jagermeifter as a substitute for St. Hubertus, and while it was not as effective as St. Hubertus, the Jagermeifter product did help to alleviate her stomach pain. Respondent testified that he believed he was purchasing a medicinal product, not an alcoholic beverage, when he bought the two small bottles of Jagermeifter. Respondent credibly explained that the reason he purchased the product was not for personal consumption, but for his wife's medicinal use. Respondent testified that he no longer consumes alcohol. Edith Balogh, Respondent's wife of 54 years, confirmed that Respondent does not drink alcohol and has not consumed any for approximately 45 years. Joe Howard's (Howard) testimony relating to Respondent's alleged admission that he would often purchase a "medicinal" product for his and his wife's consumption is not reliable. He did not make notes of the conversation, which occurred some eight months before the hearing. He offered conflicting testimony about who was present when the conversation occurred and was imprecise about whether Respondent admitted to regularly consuming Jagermeifter or whether he merely was admitting to intending to consume one of the bottles of the product purchased on May 16, 2007. Howard also failed to mention the alleged admission in the course of Petitioner's investigation. The greater weight of the evidence supports the testimony of Respondent and his wife that Respondent does not consume alcohol. Therefore, there is insufficient evidence to believe that Respondent intended to consume any of the Jagermeifter himself. Although Respondent's motive for purchasing the Jagermeifter product was for a medicinal purpose to alleviate his wife's chronic stomach pain, the product was not sold in a drug store as an over-the-counter medicinal product. The product was marketed and sold as an "alcoholic beverage" in a package store. The words on the label, "noble herb tea extract," were only written in German. Respondent parked the school bus in front of the package store, entered the package store while in uniform, purchased an alcoholic beverage, took it back to his bus, and returned to the bus compound, all while on duty. Respondent's stated reason that he did not first return the bus, clock out, and then return to the package store in his own vehicle was because it was raining and he was in a hurry to get the product home to his wife, is unsatisfactory. Respondent's effectiveness in the school system was impaired by purchasing the product while on duty and in uniform and returning with it on the bus to the compound. Respondent was in possession of alcohol under circumstances that would affect the efficient operation of the District's business or the safety of its employees and students or the public. Petitioner has adopted disciplinary guidelines for transportation employees. Under the facts of this case, the proper penalty for Respondent's misconduct in this case is disciplinary action up to and including termination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is Recommended that Petitioner, Lee County School Board enter a final order dismissing/terminating Respondent, Julius Balogh, from his position as an employee with the Lee County School District. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008.
The Issue The issues presented are whether Petitioner J. Ruiz School Bus Service, Inc., submitted the lowest responsive bid for school bus route 4606 and whether Petitioner A. Oliveros Transportation, Inc., submitted the lowest responsive bid for school bus route 7602.
Findings Of Fact Respondent School Board of Miami-Dade County issued its invitation to bid No. 053-ZZ07 seeking bids from private school bus companies for the School Board's school bus routes for the 1999-2000 school year, renewable for two additional one-year periods by agreement. Bid opening occurred on August 12, 1999. Twenty-one vendors responded to the School Board's invitation to bid. Four bids, including those of Petitioners, were rejected as non-responsive because they failed to include the required UCT-6 form. Petitioner Ruiz submitted the lowest bid for school bus route 4606, and Petitioner Oliveros submitted the lowest bid for school bus route 7602. At the School Board meeting on August 25, 1999, Ruiz' bid and Oliveros' bid were declared non-responsive to the bid specifications for failure to include the UCT-6 form and were rejected. School bus route 4606 was awarded to the next lowest bidder M & M Marroquin School Bus Services, Inc., and school bus route 7602 was awarded to the next lowest bidder Bestway Bus Service, Inc. (hereinafter "Bestway"). Those two vendors had submitted UCT-6 forms with their bids. Petitioners timely filed their notices of protest challenging the School Board's decisions. Rather than stopping the award process, the School Board entered into contracts with M & M and Bestway. The bid specifications contained the following provision under special condition numbered 3: The vendor will be required to submit, with the bid, the most recent copy of their [sic] Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, showing current employees and payroll amount. In lieu of the June 30, 1999, Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, a blank copy of the UCT 6 Form is provided and attached hereto for those vendors who do not have the June 30, 1999 quarterly report. This form must be completed in its entirety, with a copy being submitted with the bid and the original retained by the vendor for filing with the state. Failure to submit this report/form will cause the vendor to be considered non-responsive. Effective September 30, 1999, UCT 6 forms will be required to be submitted to Mr. Robert Newell, at the Office of Risk and Benefits Management on a quarterly basis. The UCT 6 form shall reflect all drivers currently certified and on file with the Department of Transportation. Failure to do so shall result in fourteen (14) months loss of route. Special condition numbered 4 provided that the School Board reserved the right to reject any and all bids and to waive irregularities. Special condition numbered 5 required that a copy of the occupational license be submitted with the bid and further provided that: "The information on the occupational license (name, address, etc.) shall be identical to the information submitted on the Bidder Qualification Form." A number of bidders who were not declared non- responsive submitted occupational licenses and bidder qualification forms where the names on the licenses and forms were reversed, technically a violation of special condition numbered 5. Further, one bidder not declared non-responsive submitted an occupational license in the name of an individual but submitted a bid in the name of a corporation, a violation of that special condition. Another bidder not declared non- responsive submitted a bidder qualification form and an occupational license with different addresses, and one more submitted a bidder qualification form and occupational license with different corporate names. The reasons for requiring vendors to file a UCT-6 form were to verify the vendor's current number of employees, to ascertain if the named employees were certified by the School Board's transportation department, and to determine whether the bidder was in compliance with State of Florida requirements for unemployment compensation and worker's compensation insurance. As to the number of employees, the vendor application forms also contained questions as to the number of employees. The occupational licenses required to be submitted with the bids also advised as to the number of employees. Twelve of the seventeen bidders who were not declared non-responsive submitted conflicting information as to the number of their employees in their vendor applications, their UCT-6 forms, and their occupational licenses. As to the UCT-6 form itself, the bid specifications required submittal of the bidder's most recent form, which would normally be for the quarter ending June 30, 1999. The bid specifications, alternatively, allowed completion of a blank form for a quarter ending subsequent to bid opening and bid award, which forms might not ever be filed with the State or which might be filed with different information on them. The completion of the blank forms would not necessarily verify the information desired by the School Board. One bidder not declared non-responsive submitted a form for the quarter ending March 31, 1999, thereby not appearing to comply with either alternative. Moreover, the bid specifications required the UCT-6 forms to be completed in their entirety. Nine bidders who were not declared non-responsive submitted forms which were not completed in their entirety, missing such information as payroll amounts, dates, account numbers, and the quarter covered by the form. These bidders violated special condition numbered 3. There is no real difference between failing to submit a required form and failing to complete the form as required by the bid specifications. Failure to submit the UCT-6 form was not a material deviation from the bid specifications but rather was a minor irregularity. The School Board waived that minor irregularity by its failure to deem non-responsive those other bidders who had filed the wrong form or who had failed to complete the form. Petitioners' failure to include the UCT-6 form in their bids did not affect the price of their bids, confer upon them an economic advantage over the other bidders, or give the School Board any reason to doubt that Petitioners could perform any contract award. The School Board's acceptance of incomplete UCT-6 forms, a form for an earlier quarter, and forms containing information extending into a future time period, while rejecting Petitioners' bids for not including a form, was arbitrary and capricious. Declaring Petitioners non-responsive but accepting equally non-responsive bids was also clearly erroneous and contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Petitioner J. Ruiz School Bus Service, Inc., school bus route 4606 and awarding to Petitioner A. Oliveros Transportation, Inc., school bus route 7602. DONE AND ENTERED this 24th day of March, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 March, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jose I. Valdes, Esquire Marlow, Connell, Valerius, Abrams, Adler & Newman, P.A. 2950 Southwest 27th Avenue, Suite 200 Miami, Florida 33133-3765 Twila Hargrove-Payne, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carlos Garcia, Esquire Niurka R. Piedra, Esquire Garcia, Perez-Siam & Associates 265 Sevilla Avenue Coral Gables, Florida 33134
The Issue The issue addressed in this proceeding is whether Respondents committed any acts which would subject them to termination of employment or disciplinary action.
Findings Of Fact Bettye Gates has been employed by the Bay County School Board since 1983. Ms. Gates was employed as a bus driver from 1983 through 1984. In 1985, Ms. Gates was promoted to District Route Specialist and worked in the Transportation Department's office. In that capacity, She supervised the bus drivers. However, she did not have any responsibility for travel vouchers and their reimbursement. In 1987, because Ms. Gates did not like her new job, she elected to transfer back to being a bus driver. Ms. Gates has maintained her position as a bus driver through the present time. Since 1983, Ms. Gates has had only two or three overnight field trips in her capacity as a bus driver. None of these trips were similar enough to the overnight field trip in this case to permit any inferences as to Ms. Gates' knowledge or intent in regards to her alleged attempts to improperly seek reimbursement for travel expenses she did not incur. Shelby Finch has been employed by the Bay County School Board since 1987. She was employed as a bus driver. Ms. Finch has maintained that position through the present time. She had not participated in any overnight field trips prior to the overnight field trip involved in this case. She, therefore, had no experience regarding reimbursement procedures for such trips. /1 Ms. Gates' employment extended back to a time period during which Malcolm Murphy was the Supervisor of Transportation and supervised the bus drivers. During that time period, several bus drivers slept in their buses on overnight field trips. Mr. Murphy did not like bus drivers sleeping on their buses and instituted a policy that bus drivers had to stay in motel rooms or with friends when on overnight trips. In order to insure compliance with his policy, Mr. Murphy required that bus drivers bring back a receipt or some type of evidence that they had in fact stayed in a motel room and the time period during which they had stayed. This new policy and its requirements were communicated to all the bus drivers in a meeting held in early 1980. Since the time of Mr. Murphy's policy, other administrators have come and gone in the Bay County School System. The current supervisor is Leonard Conway. Mr. Conway never instituted a policy similar to Mr. Murphy's. He was never even aware of such a policy. More importantly, however, for purposes of examining the intent of Respondents, Mr. Murphy's policy was never rescinded during any of the later administrations, including Mr. Conway's administration. As far as the bus drivers were concerned and these particular Respondents were concerned, Mr. Murphy's policy was still in full force and effect. The Bay County School Board maintains a system of employee reimbursement for expenses incurred by an employee on behalf of the school system. There are two types of reimbursement plans which can be requested. The two plans are known as per diem reimbursement and expenses reimbursements. Per diem reimbursement reimburses the employee at a flat per day rate. The rate varies according to the amount of time the employee is away from his or her base of employment. Expenses reimbursement reimburses the employee for the actual expenses incurred while away from his or her base of employment. Per diem reimbursement does not require receipts to be submitted to obtain the reimbursement. 2 Expenses reimbursement does generally require receipts to be submitted for reimbursement. The reimbursement plan which nets the employee the most money is the one which the School Board follows for payment of the employee. In order to claim reimbursement for travel expenses, each bus driver, prior to going on an out of town field trip, fills out a Temporary Duty Assignment (TDY) form. Each driver fills out only a portion of the TDY form. The portion the driver completes includes a decision as to whether the driver intends to claim reimbursement for actual expenses or per diem expenses. When the driver returns from the out of town trip, the driver fills out a travel reimbursement voucher. Again the driver only fills out a portion of the reimbursement voucher. In essence, the driver fills in the dates, times and destination of travel and signs the form essentially in blank. These forms are physically located in the hallway outside the Transportation office. The directions for filling out these forms are also located in this hallway. However, because there is a general belief in the Transpotation Department's office that the bus drivers are incapable of understanding the expense forms or the travel policies, the Transportation Department has essentially remove the bus drivers from direct responsibility for properly filling out these travel forms and has placed that responsibility in an overworked confidential secretary named Amber Bullard. If the driver brings in receipts then Ms. Bullard will determine the best method of reimbursement for the bus driver, regardless of whether the bus driver has indicated a method of reimbursement on the TDY form. In fact, if the driver has indicated a certain method of reimbursement on the TDY form and Ms. Bullard determines that the driver would receive more money under the other method of reimbursement she will change the drivers TDY form to request the method she believes is more appropriate and submit the altered paperwork to the finance office for payment to the driver. Ms. Bullard makes the decision to alter the driver's forms without consultation with the driver. On April 25, 1990, Ms. Finch and Ms. Gates drove two buses to Orlando, Florida for a Latin Club field trip. The trip lasted from April 25, to April 28, 1990. Prior to leaving on the field trip, Ms. Finch and Ms. Gates filled out Temporary Duty Assignment forms requesting reimbursement for overnight expenses. The portion of the form they filled out gave the date and time that they would be gone, the number of nights they expected to be out and the type of reimbursement they were requesting. Both Respondents requested per diem reimbursement. They did not request reimbursement for actual expenses. Also, prior to the field trip, another driver warned Ms. Finch to be careful because the administration would be watching Ms. Gates. Ms. Finch informed Ms. Gates about the warning and Ms. Gates told Ms. Finch that she had felt the administration had been watching her closely ever since she returned to being a bus driver after being Route Supervisor. The two women determined to be sure that all of their paperwork was accurate regarding the field trip, including compliance with Mr. Murphy's policy. While in Orlando, Ms. Hazard, the teacher in charge of the field trip, allowed the bus drivers to lodge in the teachers rooms during the field trip. Ms. Gates stayed with Ms. Hazard and Ms. Finch stayed with Ms. Marks. Ms. Gates attempted to get a receipt from the hotel in order to comply with Mr. Murphy's rule. The hotel changed the name on the room from Ms. Hazard to Ms. Gates. The evidence did not disclose whether Ms. Gates requested the name change or whether the hotel took it upon itself to change the name given Ms. Gates' request for a receipt. Ms. Hazard discovered the name change and had the hotel change the name back. Ms. Hazard informed Ms. Gates of her action. Ms. Gates then told Ms. Hazard about Mr. Murphy's policy and requested that Ms. Hazard obtain a receipt for her. Ms. Hazard asked the hotel desk clerk to prepare a statement showing that Ms. Gates had stayed in the room. The hotel prepared a receipt with Ms. Gates' name on it but with no room charges on it. The second receipt only reflected one nights stay. Although Ms. Hazard had no authority to determine the sufficiency of the second receipt, Ms. Hazard believed this document to be sufficient and delivered it to Ms. Gates. Ms. Gates believed she needed a document which showed she had stayed in the room for the three nights she was in Orlando and resolved to obtain the type of receipt she believed she needed herself. The same evening, Ms. Gates again approached the hotel's desk clerk and discovered that a receipt for all three nights could not be generated by the hotel until the final bills were posted. She was told she could pick up such a receipt the next morning when all the receipts would be placed on a table for pickup. At the conclusion of the field trip, Ms. Gates picked up the both her receipt and Ms. Finch's receipt from the table set up by the hotel. They were in envelopes and she did not immediately ascertain the information that was on them. Ms. Gates took Ms. Finch's envelope and delivered it to her at her bus. Ms. Finch never reviewed the receipt for accuracy but accepted it from Ms. Gates believing it was what she needed to comply with Mr. Murphy's policy. The receipts reflected the Respondents' names, the hotel rooms in which they stayed and the number of nights they had stayed in the hotel rooms. The receipt also reflected the charges for the room in which the Respondents stayed. The evidence was clear that Ms. Finch did not have any input into obtaining the receipts nor into the information that was placed on the receipts. Again the evidence did not disclose whether Ms. Gates told the hotel to prepare room receipts with room charges on them or whether the hotel placed such information on the receipts through its own volition. Without such crucial evidence it is impossible to determine whether Respondents had a fraudulent intent in obtaining these receipts. Certainly, no such intent was demonstrated in regards to Ms. Finch since she never attempted to obtain any of these receipts from the hotel but left it up to the more senior Ms. Gates to obtain the proper documentation for her. Upon their return, the Respondents filled out a reimbursement voucher. Each of them filled out the left side of the form indicating the dates of travel, places of travel and times of travel. They then signed these forms leaving the remainder of the forms blank. Along with these forms both Respondents submitted the receipt for their room along with other miscellaneous receipts. Ms. Bullard decided, without informing the Respondents, that they should be reimbursed under the expenses reimbursement method. She marked out both Respondents requests for reimbursement under the per diem method and substituted her judgment that they be reimbursed under the expenses method. Ms. Bullard took this course of action because she assumed that because Respondents had turned in their hotel receipts, they were requesting reimbursement for the same. The evidence regarding the precise course of events and the precise conversations held between Ms. Bullard and Respondents is in conflict. This conflict is most likely due to the relative parties point of view and ability to remember portions of these events which were more important to that individual, as well as, that protagonists interpretation of what someone else meant during some conversation. Suffice it to say, that neither version or a combination thereof demonstrates with any probability that Respondents intended to bilk some money out of the School Board. All of the evidence was highly equivocal. Therefore, the Petitioner has failed to demonstrate that Respondents are guilty of any conduct which would subject them to discipline or termination from employment. The Respondents should be reinstated with backpay.
Recommendation It is accordingly, RECOMMENDED: That the School Board of Bay County enter a Final Order reinstating Respondents with backpay. DONE and ORDERED this 10th day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 10th day of May, 1991.
The Issue The central issue in this case is whether B&L is the lowest responsive bidder to HRS Medicaid transportation services RFP for fiscal year 1988-89.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On March 18, 1988, HRS issued a request for proposal (RFP) for contractual services, the Medicaid transportation services for fiscal year 1988- The proposals were to be opened April 15, 1988. The contract manager for the Medicaid Program Office was identified as Vera Sharitt. All questions pertaining to the provisions of the RFP were to be in writing addressed to Ms. Sharitt. The RFP identified seven categories of transportation which required response. In the instant case, NEMT, AAA, and B&L all submitted proposals for each of the categories. All proposals were first reviewed to determine whether or not they met the requirements set forth in the fatal items checklist. This review was performed by Vera Sharitt. All bid responses were deemed in compliance with the fatal items and were, therefore, submitted to the five member evaluation committee for further review. Committee members then used a ating sheet to determine which proposal was the most advantageous to the state. The evaluation committee weighed each proposal on the basis of five criteria: proposal requirements; response to statement of purpose/need project understanding; method of service provision; references; and rate analysis. The proposal receiving the highest total of points was deemed the most advantageous to the state. In each of the seven transportation categories, B&L received the highest total of points from the evaluation committee members. The evaluation committee met on May 16, 1988. Present at this meeting were: Kent Rice, Connie Klein, Magna Salas, Susan Pippitt, Urban Myers, Vera Sharitt, and Cathy N. D'Heron. In response to a suggestion made by Vera Sharitt, the committee members agreed to assign set points to the rate analysis portion of the rating sheet. Accordingly, the lowest rate was given 10 of the possible 10 points, the second lowest was given 5 of the possible 10 points, and the third lowest was given 1 of the possible 10 points. In the event of a tie, both proposals received the same points. The RFP had included a sample rating sheet which had specified that the rating analysis would be computed on a 0-10 scale. The committee determined that the proposed assignment of 10-5-1 was within the published range but that it would be unfair to give the highest rate 0 points. At no time during the evaluation committee meeting did Vera Sharitt improperly influence or attempt to influence the members' scoring of points. Ms. Sharitt did not interfere with the evaluation process nor did she attempt to favor one proposal over another. Further, there is no evidence which suggests that Ms. Sharitt improperly influenced or attempted to influence evaluation committee members outside of the meeting conducted on May 18, 1988. The fatal items checklist for the RFP asked six cuestions which related to information required to complete a proposal. The absence of any one of the required items would have resulted in the disqualification of the proposal. At issue in this case are the following provisions of the fatal items: Was the fatal items envelope received by the time and date specified in the RFP? Ambulatory Services: Did the proposer submit a copy(ies) of taxi and/or limousine permits? Did the proposer submit proof of registration from the Florida Division of Motor Vehicles? Wheelchair/Stretcher Van Services: Did the proposer submit a copy of county licensure? Did the proposer submit proof of vehicle liability insurance which included insurer name, address and phone number, policy number, vehicles covered as identified by vehicle identification number, liability limits and policy effective/expiration dates? Did the proposer submit a statement that the proposer agrees to all contract terms and conditions? Did the proposer submit the statement regarding no involvement? In reviewing the information submitted under the fatal items checklist, Vera Sharitt determined that if the information sought could be found in any of submitted materials, the proposer would be deemed qualified. Thus, in the case of B&L, Ms. Sharitt found that the insurance coverage for the vehicles, which named B&L as the insured, corresponded to the vehicles identified on the vehicle registrations submitted. Having made the connection to relate proposer to insurance and vehicles, the actual ownership of the vehicles (in this case in the name of a third or fourth entity) Ms. Sharitt deemed to be unimportant. The same approach was applied to the submittals made by AAA and NEMT. The RFP did not require that vehicles identified in a proposal be titled in the name of the proposer. No proposer challenged the terms of the RFP or the fatal items checklist. All three proposers, NEMT, AAA and B&L, complied with the fatal items requirements as consistently reviewed by Ms. Sharitt. Based upon the terms of the RFP and the fatal items checklist, Ms. Sharitt's review and finding that all proposers were qualified was reasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order awarding the contract for Medicaid transportation services, fiscal year 1988-89, to B & L Services, Inc. DONE and RECOMMENDED this 16th day of September, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 16th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3157BID, 88-3158BID Rulings on Proposed Findings of Fact submitted by Petitioner, NEMT: Paragraph 1 is rejected as contrary to the weight of the evidence submitted, argumentative and a conclusion of law erroneous to the facts of this case. Paragraph 2 is rejected as contrary to the weight of the evidence submitted. Paragraph 3 is rejected as contrary to the weight of the evidence submitted. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraph 5 is rejected as irrelevant, immaterial or contrary to the relevant evidence submitted. Paragraphs 6,7,8 and 9 (including all subportions therein) are rejected as irrelevant or contrary to the weight of the credible evidence submitted. Paragraph 10 is rejected as argument or conclusion of law erroneous to the facts of this case. Paragraph 11 is rejected. There is no evidence which would suggest B&L acted as a "front" for another entity or entities. Paragraph 12 is rejected as argument unsupported by the record in this cause. Paragraph 13 is rejected All parties waived any contest of the rating criteria by not timely challenging the terms of the RFP. Further, the terms as applied in this instance have not been arbitrarily or capriciously used to prejudice any proposer. Paragraph 14 is rejected as contrary to the weight of the evidence presented. Paragraph 15 is rejected as argument or a conclusion of law which, although correctly stated, is not applicable to the facts of this case. Paragraphs 16 and 17 are rejected as argument. Paragraph 18 is accepted to the extent it states Robert J. Siedlecki/NEMT Corp. was a qualified bidder; however, to the extent such paragraph concludes the bidder qualified was NEMT, the paragraph is rejected as contrary to the weight of the evidence presented. Rulings on NEMT's findings as to AAA: 1. Paragraphs 1-5 are rejected as contrary to the weight of the relevant and material evidence submitted. It should be further noted that NEMT does not have standing to contest the award to B&L given the finding that AAA did, in fact, comply with the fatal items checklist. Being a qualified proposer, AAA stood next in line to receive the contract not NEMT. The submissions made by NEMT with the proposed findings of fact have not been considered as evidence in this case. Rulings on the proposed findings of fact submitted by AAA: Inasmuch as this petitioner's proposed findings were not in numbered paragraphs, ruling has been made based upon the order of presentation. The first paragraph being considered paragraph 1. Paragraph is accepted as the applicable rule governing the fatal items checklist. Paragraph 2 is rejected as contrary to the weight of the evidence. Paragraph 3 is rejected as irrelevant, immaterial or contrary to the weight of the credible, relevant evidence. Paragraph 4 is rejected as irrelevant, immaterial or contrary to the weight of the evidence; additionally, such conclusion falls outside of the scope of this petitioner's contest. Paragraph 5 is rejected as contrary to the weight of the evidence. Ms. Sharitt also testified that the connection between B&L and the other entities was based upon insurance documentation submitted with the proposal. Paragraph 6 is rejected as a conclusion of law which, while correctly stately, is not a finding of fact and which has been erroneously applied. Paragraph 7 is rejected as irrelevant, immaterial or contrary to the evidence presented. The first five sentences of paragraph 8 are accepted. The balance of the paragraph is rejected as contrary to the weight of the credible evidence submitted. Paragraph 9 is rejected as unsupported by the record or contrary to the evidence submitted. Rulings on the proposed findings of fact submitted by HRS: Paragraphs 1-10 are accepted. To the extent paragraph 11 conforms with the findings made in paragraphs 5, 6, & 7 they are accepted. Otherwise the paragraph is rejected as contrary to the evidence presented. Paragraphs 12-14 are accepted. Rulings on the proposed findings of fact submitted by B&L: It is presumed the submittal reviewed below was from B&L; however, no identifying statement was included in the text of the proposal itself. The presumption is based on the fact that all other submittals were clearly identified by party name. Paragraphs 1-5 are accepted. Paragraph 6 is accepted see findings made in paragraph 8 as to the exact language of the fatal items checklist. Paragraph 7 is accepted. Paragraphs 8, 9, and 10 are accepted. The first two sentences of paragraph 11 are accepted; the balance of the paragraph is rejected as irrelevant or immaterial to the issues framed in this cause. COPIES FURNISHED: Robert J. Siedlecki 5890 Rodman Street Hollywood, Florida 33023 Brian M. Berman 2310 Hollywood Boulevard Hollywood, Florida 33020 Lawrence F. Kranert, Jr. Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 John M. Camillo 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
