The Issue The issue is whether the Department of Revenue (DOR) acted fraudulently, arbitrarily, illegally or dishonestly in the award of contracts for legal services regarding Child Support Enforcement (CSE) proceedings to R. Craig Hemphill, the Intervenor in this consolidated proceeding.
Findings Of Fact Stipulated Facts The following facts in paragraphs 1-8 were set forth by the parties in a prehearing stipulation. The Solicitation of Proposals was advertised in Duval, Clay and St. Johns counties in a timely manner. Each of the applicants that requested in writing Solicitation of Proposals packages timely received a complete package from DOR containing instructions and documents to be submitted for consideration. The completed proposals were required to be submitted by May 12, 1995, at 3:00 p.m. to: Jean B. Long Richard P. Daniel Building 111 Coastline Drive East Suite 508 Jacksonville, Florida 32202 The proposals were opened on May 12, 1995. A DOR committee, comprised of Clara Cross, Joan Zimmerman, and Richard Humphries, determined that Intervenor would be awarded the contract in all three county areas. DOR issued its Notice of Intent to award the contracts for CSE legal services for the three counties to Intervenor on June 12, 1995. By its terms, the CSE contract is for an annual period to begin July 1, 1995 and extend through June 30, 1996. Petitioner was an unsuccessful applicant for the CSE contract in each of the three county areas. Additional Facts Effective July 1, 1994, DOR became the agency responsible for administering the Child Support Enforcement Program of the State of Florida. On or about April 1, 1995, DOR advertised its intention to award a contract to provide legal services for Child Support Enforcement ("CSE"), in Duval, Clay and St. Johns Counties. Reference to Duval County includes the areas of Duval, Nassau, and Baker counties. On or about April 10, 1995, DOR issued to prospective legal service providers its Solicitation of Proposals for Legal Service Contract for Child Support Enforcement Program (Functional Cost Base), (Solicitation). The Solicitations for Duval, Clay and St. Johns counties were identical with exception of identification of the separate geographical areas to be served under the three respective contracts. The purpose of the Solicitations was to obtain legal services for the three separate geographic areas because the existing contract for these areas with the firm of Schulman, Howard and Hemphill was to expire June 30,1995. The Solicitation documents set forth a description of the CSE program; a statement of need describing the services to be provided; a notification of manner and method for making inquiries of DOR; a schedule of events; and the criteria to be used in evaluating proposals submitted in response to the Solicitation. Each Solicitation informed prospective legal service providers that their proposals would be evaluated according to the criteria contained in Section V, paragraphs A through G, pages 3-7 of the Solicitation documents. Each Solicitation further informed prospective providers that the ". . . proposers with the top three scores will be interviewed by the evaluation committee. Scores will be ranked from the highest to the lowest, and the rankings will be given to the Program Administrator who will award the contract." In the "Statement of Need" section of each Solicitation, DOR advised prospective providers: Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while insuring free and open competition among prospective proposers. To that end, the Department has departed from the hourly rate billing approach in favor of a fee for service approach in which the attorney will bill for services rendered at a specified rate per activity regardless of the amount of time actually spent. The Department has identified 22 separate functions which are more fully described in Attachment I in this package. The appropriations will place a cap on the amount the Department can pay for each of these functional classifications, and you are cautioned that any amount for which the proposal to perform services is made must not exceed that cap in any functional activity category. Any proposal in excess of any one of these caps will result in automatic rejection of the entire proposal. Each Solicitation contained a list of nine mandatory requirements in Attachment V. Those requirements were not awarded any points in the evaluation process. However, should a proposal fail to satisfy the mandatory requirements, it would be deemed unresponsive and would not be further considered. The Solicitation documents, under the criteria for "Technical Information and Cost," provided a form for the rating of proposals and the award of a maximum of 100 points in the following format: Provide a specific and detailed plan which clearly demonstrates the ability to handle the anticipated volume of cases and perform repetitive work. (0-10) Consideration as to Geographic Area (0-4) Firm Resources (0-15) Computer/Software to Manage High Volume Caseload (0-7) Forms (0-4) Telephone System/Fax/Courier (0-4) Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Customer Services and Accessibility to CSE Staff (5) Minority Ownership (0-5) References (0-5) Evaluation of Cost (0-21) Formula X * A = Z _ N A = 21 (Total Possible Points) X = Lowest Proposal N = This Proposal Z = Points awarded * = multiplication The above formula will be used to calculate the total points for each proposal using the total proposed cost in Attachment VI of the solicitation packet. TOTAL POINTS Beside each section or subsection of the foregoing form, a blank space was provided for the rating individual to write the numerical value selected. A maximum of ten additional points could be awarded as the result of personal interviews of offerors. In this regard, each Solicitation provided that ". . . only the top three candidates will be selected for an interview." Under the terms of the Solicitation, prospective legal service providers were required to provide a detailed written plan demonstrating ability to process referrals or case establishment activities. Each Solicitation specifically provided that this ". . . detailed plan must identify existing resources and proposed resources." Id. This section of each Solicitation also required that proposals include resumes ". . . on all firm attorneys who will be assigned to the contract . . . ." Id. There was no requirement in any Solicitation or evaluation criteria that attorneys to be assigned to the contract actually be employed by a prospective legal service provider at the time of the submission of its offer. The portion of the evaluation criteria dealing with "Consideration as to Geographic Area" required an explanation of a prospective provider's ". . . present office location and/or proposed office locations. " There was no requirement that a prospective legal service provider have actually secured a specific office location at the time of submitting an offer. The Solicitation contained an evaluation category entitled "Firm Resources" which was allocated a total of 15 points in the evaluation process. A maximum of 7 points was allocated to the category "Computer/Software to Manage High Volume Caseload" which required prospective providers to include a description of ". . . any automation or special equipment which you will utilize or which you will secure for use under this contract if your proposal is accepted." Nothing in the Solicitation or the evaluation criteria required that a prospective legal service provider actually own any automation or special equipment described in its offer at the time the offer was submitted. The "Firm Resources" category also allocated 4 points for "legal forms," and the Solicitation in this regard provided as follows: Identify legal forms that are presently available to be used to perform child support work. Include family law legal forms or other legal forms that are presently computer generated. If you do not presently have computer generated capabilities, demonstrate your ability to obtain computer generated forms. Finally, the Firm Resources category accorded 4 points for "Telephone System /Fax /Courier" services. Prospective providers were requested to indicate the number of telephone lines available, and whether a prospective provider had the capability to provide fax and courier services for delivery of legal documents. The evaluation criteria provided a maximum of 40 points for "Time and Personnel to be Devoted to Child Support Work." Of this 40 points, a maximum of 10 points was awarded according to staffing ratio of attorneys to paraprofessionals. Twenty-five points was awarded based on the level of attorney experience in child support, family law, enforcement and collection and trial or appellate experience. A maximum of 5 points was also allowed for customer services and accessibility to child support staff. Nothing in the Solicitation or the evaluation criteria required that legal or nonlegal staff actually be employed by a prospective legal service provider at the time his offer was submitted. The evaluation of costs was governed by a specific formula set forth in the Solicitation. However, the Solicitations for Duval, St. Johns and Clay County areas each contained a total reimbursement cap which could not be exceeded by prospective legal services providers without having their proposals deemed nonresponsive. Under the heading "Copyright and Right to Data," the Solicitations provided as follows: Where activities supported by this contract produce writing, sound recordings, pictorial reproductions, drawing or other graphic representation and works of any similar nature, the department has the right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the department to do so. If the materials so developed are subject to copyright, trademark, or patent, [then] legal title and every right interest claim or demand of any kind in and to any patent trademark or copyright or application for the same will vest in the State of Florida Department of State for the exclusive use and benefit of the state . . . Each prospective legal services provider was required to sign a certification agreeing to "be available for consultation with the department and the current providers, as needed, for at least 30 days prior to the effective date of the contract in order to accomplish a smooth transfer of files and data." Under terms of each Solicitation, all proposals were to be evaluated by a "committee of qualified persons who are familiar with child support services." Further, the Solicitations directed that "[t]he committee will review, analyze and complete a rating sheet for each proposal." Both Petitioner and Intervenor timely submitted offers in response to the Solicitations for Duval, Clay and St. Johns Counties. In addition, the firm of Upchurch & Parsons and John Galleta, Jr. also submitted proposals for St. Johns County. In evaluating offers in response to the Solicitations, DOR developed a set of Evaluation Committee Procedures. These procedures established a protocol which dealt with appointment of evaluation committee members; election of a chairperson; distribution of proposals to evaluation committee members; review for compliance with mandatory requirements; meetings regarding compliance with mandatory requirements; independent evaluation of proposals; recording of evaluation proposals; references; overall scoring of proposals; interviews; points for interviews; and contract award. The Evaluation Committee Procedures, in the category of "overall scoring of proposals," provided that: After all members of the evaluation committee, including the chairperson, have independently completed their evaluations of the proposals, the chairperson will collect all the evaluations, calculate the average score for each proposal, and rank them in order from highest to lowest. Further, the Evaluation Committee Procedures provided, after fully evaluating proposals received in response to the Solicitations, that: [S]cores which result must be ranked from the highest to the lowest and the chairperson (if other than the Program Administrator) must then give the rankings to the Program Administrator who will issue the letter . . . giving notice of the decision to award the contract. The award shall be given to the highest ranked proposer . . . . DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Duval as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 103.67 Schulman, Howard 99.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 105 99 Rick Humphries 104 98 Joan Zimmerman 102 100 Averages 103.67 99 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for St. Johns County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 97.67 Schulman, Howard 93 John Galletta, Jr. 59 Upchurch & Parsons, P.A. 84 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG SCHULMAN JOHN UPCHURCH HEMPHILL HOWARD GALLETTA & PARSON Clara Cross 99 93 61 83 Rick Humphries 98 92 57 82 Joan Zimmerman 96 94 59 87 Averages 97.67 93 59 84 DOR's Evaluation Committee reviewed, evaluated, scored and ranked the proposals received in response to the Solicitations for Clay County as follows: RESPONDENT AVERAGE SCORE Craig Hemphill 99.67 Schulman, Howard 95.0 INDIVIDUAL SCORES TEAM MEMBERS R. CRAIG HEMPHILL SCHULMAN, HOWARD Clara Cross 101 95 Rick Humphries 100 94 Joan Zimmerman 98 96 Averages 99.67 95 By letter dated June 12, 1995, DOR furnished Petitioner and Intervenor with notice of its intent to award the legal services contract for Duval to Intervenor. By letter dated June 12, 1995, DOR furnished notice of its intent to award the legal services contract for St. Johns County to Intervenor. By letter dated June 12, 1995, DOR gave notice of its intent to award the legal services provider contract for Clay County to Intervenor. On or about June 13, 1995, Petitioner filed a civil action against Intervenor alleging breach by Intervenor of alleged common law fiduciary duties owed to Petitioner attendant upon Intervenor's response to the Solicitation. In that action, Petitioner seeks "compensatory damages" and other equitable relief. The law firm of Schulman, Howard and Hemphill, P.A. was formed in 1987. Since October 1, 1987, the firm has provided legal services for child support enforcement for Clay, St. Johns, Nassau, Baker and Duval Counties. The firm is currently providing services for this geographic area under contracts scheduled to expire June 30, 1995 but which, as a result of Petitioner's protest of the award to Intervenor, have been extended through August 31, 1995. Since 1987, the principals in the Petitioner law firm were Warren Schulman, Joseph W. Howard, and R. Craig Hemphill. In March, 1995, Warren Schulman became seriously ill with a brain tumor requiring surgery. Schulman's last day of work was March 29 1995, and he continues to be unable to work. As a result of Schulman's illness, serious doubts arose between Howard and Hemphill as to whether the firm would continue. Negotiations between Howard and Hemphill as to whether the firm would continue commenced in April and culminated in a letter of May 5, 1995 from Hemphill to counsel for Petitioner indicating Hemphill's intention to terminate his association with Petitioner on May 9, 1995. As early as April 14, 1995, Howard was aware that Hemphill might submit his own independent offer in response to the Solicitation. Consequently, Howard began preparation of an offer on behalf of Petitioner, and Hemphill began preparation of his own independent offer. On May 12, 1995, Howard submitted an offer in response to the Solicitations on behalf of Petitioner, and Intervenor submitted his independent offer in his own name. Prior to submission of the offers on May 12, 1995, Howard, on April 22, 1995, and again on May 10, 1995, submitted copies of Petitioner's draft offers to Hemphill. These drafts were voluntarily furnished to Hemphill by Howard, and were furnished notwithstanding Howard's perception that Hemphill would likely submit a separate proposal independent of Petitioner. Both draft proposals were incomplete, and only the draft of May 10, 1995, contained a copy of Petitioner's cost proposal. Both Petitioner and Hemphill bid the maximum allowable cost under the Solicitations, and Howard concedes that Hemphill obtained no competitive advantage as the result of having been furnished a copy of Petitioner's cost proposal prior to the offer submission date of May 12, 1995. Further, as evidenced by dissimilarities in the remaining portions of their offers and the virtually identical similarity of Petitioner's offers to the offers it submitted in 1992 (now a matter of public record subject to access by any prospective legal service provider), Hemphill did not obtain any competitive advantage by his receipt from Howard of copies of Petitioner's draft proposals prior to May 12, 1995. This finding is buttressed by Howard's concession that the low-cost portions of Intervenor's offer were "much more detailed" than those of Petitioner because Intervenor "had more knowledge about those areas, and there was a lack of information on my drafts." In his offers, Hemphill indicated that his office location would be 337-C East Bay Street, Jacksonville, Florida, or an "alternative location . . . across the street from the Duval County Courthouse in the event a new location becomes necessary." There was office space available for lease at 337 East Bay Street, Jacksonville, Florida, on May 12, 1995. As established at the time of final hearing in this cause, which by definition precedes the 30 day transition period provided for in the Solicitations, Intervenor had secured office space at 10 South Newnan Street, Jacksonville, Florida; a location which Petitioner concedes would serve as well to service the contracts as the location at 337-C East Bay Street. In his offer, Intervenor listed a variety of computer generated legal forms which he proposed to utilize in servicing the contracts. Petitioner concedes that all computer generated legal forms identified in Intervenor's offer are the property of the State of Florida and could have been obtained by Intervenor from public records. In response to the Solicitation request that offerors identify any automated or special equipment which would be utilized or which would be secured for use under the contract, Intervenor described a system which he had utilized over a number of years. As noted previously in these findings of fact, potential service providers were not required to own any computer or other special equipment at the time of the submission of an offer. Further, as conceded by Petitioner, Intervenor could easily purchase on the open market the equivalent of the computer equipment described in Intervenor's offer. In his offers, Intervenor listed the names of several paraprofessional and nonlegal staff and five attorneys whom he proposed to utilize in servicing the contracts. Specifically, this portion of Intervenor's offer provided that: Proposed staffing is based upon receiving contracts to perform child support enforcement legal services for the Department of Revenue in a five county area . . . In the event that fewer than all five counties are granted, fewer attorneys will be assigned to the contract, but the staff will essentially be the same, with fewer hours assigned to performing the contract. Although several of the nonlegal staff, and two attorneys listed in Intervenor's offer are currently employed by Petitioner, Petitioner has never had employment contracts with any of its legal or nonlegal personnel. As a result, there is no contractual bar to their employment by Intervenor. Two attorneys employed by Petitioner and listed by Intervenor in his offer, have indicated a willingness to work for Intervenor should he be awarded the contracts. Without consideration of these two attorneys, from the standpoint of scoring under the evaluation criteria, Intervenor still received the maximum number of points allowable for attorney experience. There was no evidence presented as to nonavailability of any of the legal and nonlegal staff identified in Intervenor's offers in the event of contract award to Intervenor. Intervenor's offer responded in all material respects to the Solicitation and DOR's proposed award of the contracts to Intervenor has not been shown to be inappropriate. Petitioner concedes, through deposition testimony of Howard, that it is unaware of any conduct by any member of the Department's Evaluation Committee in reviewing, evaluating, scoring and ranking the responses to the Solicitations that would constitute fraud, dishonesty or illegality.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that DOR enter a Final Order dismissing Petitioner's Formal Notice of Protest and awarding the CSE Legal Service Contracts for St. Johns County, Clay County and Duval/Nassau and Baker Counties to R. Craig Hemphill. DONE AND ENTERED this 11th day of September, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-10. Accepted. 11.-12. Rejected, subordinate to HO findings. 13.-17. Rejected, relevance. Accepted as to first two sentences, remainder rejected as not relevant and speculative. Rejected, not supported by weight of the evidence, relevance and hearsay. Rejected, subordinate to HO findings. Rejected, relevance. Rejected, subordinate. Rejected, argument, relevance. Rejected, legal conclusion. Rejected, argumentative, legal conclusion. Respondent's Proposed Findings: 1.-11. Adopted, not verbatim. Rejected, subordinate to HO findings. Rejected, relevance. 14.-25. Accepted. Intervenor's Proposed Findings: 1.-46. Accepted, though not necessarily verbatim. COPIES FURNISHED: William G. Cooper, Esquire 6900 Southpoint Drive, North Suite 500 Jacksonville, FL 32216 Patrick Loebig, Esquire Brian McGrail, Esquire Gene Sellers, Esquire Office of the General Counsel Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32301 William E. Williams Huey, Guilday, & Tucker, P.A. 106 East College Avenue, Suite 900 Tallahassee, FL 32301 H. Michael Madsen, Esquire Messer, Vickers, et al. 215 S. Monroe Street, Suite 701 Tallahassee, Florida 32302 Kenneth C. Pollock, Esquire 1401 Peachtree Street, Suite 500 Atlanta, GA 30309 Linda Lettera, Esquire Department of Revenue 204 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100 Larry Fuchs, Exec. Dir. Department of Revenue 104 Carlton Building 501 South Calhoun Street Tallahassee, FL 32399-0100
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 November, 2008.
The Issue The issues presented are whether Petitioner is entitled to an award of (1) the reasonable attorney's fees and costs he incurred in DOAH Case No. 95-3137BID pursuant to the Florida Equal Access to Justice Act and (2) his attorney's fees and costs incurred in this proceeding pursuant to Section 120.569(2)(c) [formerly 120.57(1)(b)5], Florida Statutes.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated professional practice through which he practices law. Petitioner's principal office and his domicile are located in Stuart, Florida. At all times relevant hereto and at the time the underlying proceeding was initiated, Petitioner had fewer than 25 full-time employees and a net worth of less than $2,000,000, including both business and personal investments. Petitioner submitted his proposal in response to the Department's solicitation on Petitioner's law firm's letterhead and clearly represented the offeror to be "Douglas Reymore, Attorney at Law. The words "my law firm" appear throughout Petitioner's proposal. The proof of insurance submitted was "for the firm". The required lobbying and public entity crime certifications identified the organization as "Douglas E. Reymore, Jr., Attorney at Law". Further, the proposal included resumes for the law firm's paralegals, clerks, and secretaries who would be assigned to perform work pursuant to the contract if the contract were awarded to Petitioner's law firm. The Department evaluated Petitioner's proposal based upon a number of firm-based factors, including the attorney and non-attorney personnel who would be performing services for the Department if Petitioner were awarded the contract. The formal written protest filed by Petitioner in DOAH Case No. 95- 3137BID was on Petitioner's law firm's letterhead and identified Petitioner in that proceeding as "Douglas Reymore, Attorney at Law". Petitioner's status as a "small business party" within the meaning of the Florida Equal Access to Justice Act was not a condition of the contract to perform CSE services or of the award of the contract and was, therefore, not at issue in the underlying proceeding. The Department's Solicitation Package and Instructions to CSE Regions provided to the Department's evaluation committee identified certain "Mandatory Requirements" and provided that a proposal was not to be considered if it failed to meet any mandatory requirement. The proposal submitted by Thomas and Associates represented that under certain circumstances that law firm would hire additional attorneys to perform work under the CSE contract. Yet, the proposal failed to identify those attorneys and failed to include resumes or certificates of good standing from The Florida Bar for those additional attorneys as dictated by the Mandatory Requirements of the Department's solicitation. Another Mandatory Requirement was for each proposal to include references from three persons for whom the proposer had rendered CSE services. The Thomas and Associates proposal included no references for the additional attorneys and only two references for one of the identified attorneys who would perform services under the Department's contract. The Department's evaluation committee evaluated the Thomas and Associates proposal even though it did not include the mandatory references or the mandatory resumes and certificates from The Florida Bar for each attorney who would perform work under the CSE contract. Because the Thomas and Associates proposal did not meet the mandatory requirements, that proposal should not have been evaluated by the Department's evaluation committee. It should have been rejected as being non-responsive. The Department's Final Order in the underlying proceeding adopted the conclusion of law in the Recommended Order that the Department acted arbitrarily in determining that it would award the CSE contract to a proposer whose proposal was not responsive to the Department's solicitation package. The instructions the Department gave to its evaluation committee were unclear with respect to how to score the proposals in the areas of references, minority ownership, and attorney experience. Further, the instructions contained contradictory or "hidden" directions for awarding points for attorney experience. The evaluation committee asked the Department for clarification and guidance as to points to be awarded for minority ownership, but none was given. Conversely, the evaluation committee failed to follow the instructions it was given when it awarded points to Thomas and Associates based upon letters of recommendation rather than personal interviews. The Department's Final Order in the underlying proceeding adopted the conclusion in the Recommended Order that the Department acted arbitrarily in awarding the CSE contract to Thomas and Associates due to the manner in which that proposal was scored. The evaluation committee was not composed of qualified persons familiar with the provision of services under the Department's CSE contract. None of the members was an attorney, none was familiar with a high-volume CSE practice, and none had computer expertise. The lack of qualifications of the evaluation committee members resulted in the Thomas and Associates proposal being awarded points not supported by the facts or by logic. The Department's Final Order in the underlying proceeding adopted the conclusion in the Recommended Order that the evaluation committee arbitrarily awarded Thomas and Associates a substantial number of points. The Department's Final Order in the underlying proceeding adopted the Recommended Order, found that the Thomas and Associates proposal was non- responsive, and awarded the CSE contract to Petitioner. The Final Order adopted each of the determinations that the Department had acted arbitrarily in several different ways in scoring the facially non-responsive Thomas and Associates proposal and announcing its intent to award the CSE contract to Thomas. Each of the actions determined by the Department in its Final Order to have been arbitrary was known to the Department at the time it announced its decision to award the CSE contract to Thomas and Associates, the preliminary agency action which initiated the underlying proceeding. The total attorney's fees and costs incurred by Petitioner in the underlying proceeding were $52,950.96. Petitioner initiated this proceeding to seek reimbursement for those attorney's fees and costs. The Department's Response to Petition for Attorneys' Fees and Costs filed in this cause does not raise any disputed issues of material fact and does not purport to raise any factual issues. Other than setting forth the procedural history of this cause, the Department's Response contained only legal arguments as to two issues: whether Petitioner is a small business party due to the capacity in which Petitioner appeared in the underlying proceeding and whether the Department was substantially justified in initiating the underlying proceeding. The Department did not dispute any of the factual allegations as to Petitioner's small business status alleged in the Petition for Attorneys' Fees and Costs. On March 28, 1996, after expiration of the time period during which the Department could request an evidentiary hearing, the Department filed a Request for Evidentiary Hearing. On April 2, Petitioner filed and served by hand-delivery his Motion to Strike and for Other Prehearing Relief and Request for Award of Attorneys' Fees and Costs. On April 22, the Department filed its Response to the Petitioner's Motion to Strike and for Other Prehearing Relief and Request for Award of Attorneys' Fees and Costs, and Petitioner filed his Motion to Strike the Department's Response. Both of Petitioner's Motions to Strike the Department's untimely pleadings were granted. On April 17, 1996, the Department served its First Set of Interrogatories to Petitioner and its "Notice of Request to Produce". Neither party has filed a copy of the Department's Interrogatories or any answers thereto. The Department's request to produce, however, was filed. That request seeks production of records of the law firm representing Petitioner in this and in the underlying proceeding, pertaining to other clients of the law firm and not Petitioner. On July 3, 1996, the Department served its Motion to Correct Order, Motion for Reconsideration, and Motion for Clarification. That single Motion raised no argument which had not been previously rejected and failed to set forth any alleged error contained in the Order to which the Motion was directed. On July 9 Petitioner filed his Response to that Motion. Petitioner incurred reasonable and necessary attorney's fees and costs in the amount of $4,946 in this proceeding as a result of the Department's Response to Petition for Attorneys' Fees and Costs. Petitioner incurred reasonable and necessary attorney's fees and costs in the amount of $555.50 in this proceeding as a result of the Department's Request for Evidentiary Hearing. Petitioner incurred reasonable and necessary attorney's fees and costs in the amount of $1,104.50 in this proceeding as a result of the Department's Notice of Request to Produce. Petitioner incurred reasonable and necessary attorney's fees and costs in the amount of $178 in this proceeding as a result of the Department's First Set of Interrogatories. Petitioner incurred reasonable and necessary attorney's fees and costs in the amount of $1,105 in this proceeding as a result of the Department's Motion to Correct Order, Motion for Reconsideration, and Motion for Clarification.
The Issue Is Hardee County statutorily authorized to submit payment to upgrade service credit for a former member of the Elected Officers' Class (EOC), Florida Retirement System (FRS), when the member held office after his subclass, EOC, was established, and opted for membership in a class other than EOC, within the purview of Subsection 121.052(5)(a), Florida Statutes (2000)?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Division is the agency of the State of Florida that is charged with regulating and administering the FRS, both the Regular Class and EOC. In November 1988, Bryant was elected to the County Commission of Hardee County, Florida. Upon being elected in 1988, Bryant was given the option under Chapter 121, Florida Statures, to participate in either the Regular Class or EOC of the FRS. On November 28, 1988, Bryant signed a Division of Retirement Personal History Record (FRS-M10) designating his wife, Mary B. Bryant, as the primary beneficiary of his retirement benefits. The portion of the FRS-M10 to be completed by the employer indicated the reason for submitting the FRS-M10 was for enrollment and the Plan chosen was FRS Regular. The distribution on the FRS-M10 indicated that the employee (Bryant) was to receive a copy. On December 6, 1988, Bryant signed a document entitled: "Ballot For Elected County Officials" (Ballot). In pertinent part the executed Ballot provides: As an elected officer who is eligible for optional membership in the Elected State Officers Class (ESOC) of the Florida Retirement System (FRS), I hereby select membership as follows: I wish to join the Elected State Officer's class, or X I wish to participate in the FRS Regular Class, or ___ I wish to participate in the FRS Special Risk Class (elected sheriffs only), or ___ I do not wish to participate in the FRS in any manner. In addition, the Ballot included the following cautionary language: I understand the provisions of the different classes and that my selection will be effective on the first day of the month during which my employer changes my payroll records. Elected county officers will have one year from date they assume office after election or reelection to make the above selection. If the elected county officer did not make a selection within the one-year time period, the member would be automatically placed in the Regular Class of FRS. Marilyn A. McCready, Personnel/Payroll Aide for Hardee County, completed the employer's portion of the Ballot and forwarded the Ballot to the Division on December 6, 1988. On the upper right hand corner of the Ballot is the notation: "OK/RH/He will upgrade if Re-elected." Robert Henning (Henning), an employee of the Division, testified that the initial RH was his, and that he had made the notation on the Ballot. Henning's testimony, which I find to be credible, was that, during this time period, when an elected officer selected to participate in the Regular Class rather than the EOC, it was his policy, and the policy of the Division, to contact the employer and, if possible, the elected officer to verify the elected officer's choice. In this case, Henning does not have a present recollection of having talked to either the employer or to Bryant concerning this matter. However, the notation indicates that he either talked to the employer or to Bryant, or to both. In any event, Henning was advised by one or the other that Bryant would upgrade his selection if re-elected. Bryant contends that he did not make the selection of FRS, Regular Class on the Ballot which he signed on December 6, 1988, but that someone in the Personnel Office of Hardee County inadvertently designated FRS, Regular Class as his choice. However, Bryant also testified that he did not normally sign blank documents, which would indicate that the Ballot had been marked by Bryant or someone else before Bryant executed the document. If the Ballot had been marked by someone other than Bryant before Bryant signed the Ballot, then Bryant would have, or should have, had knowledge of the selection of FRS, Regular Class as his choice even though he may not have personally marked the Ballot. Bryant was re-elected to the Hardee County Board of County Commissioners in November 1992. In December 1992, a change of plan from Regular to EOC was executed and Bryant became a member of the EOC. There is insufficient evidence to establish facts to show that someone in the Hardee County Personnel office marked an "X" on the Ballot indicating that Bryant wished to participate in Regular Class rather than participate in the EOC. Bryant knew, or should have known, at the time he signed the Ballot, that an "X" had been placed on the Ballot indicating his wish to participate in the Regular Class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that the Division of Retirement enter a final order denying Petitioner the relief sought in his Petition for Hearing and Appeal of Final Agency Action DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 23rd day of October, 2001. COPIES FURNISHED: William J. Roberts, Esquire Nabors, Giblin & Nickerson, P. A. Post Office Box 11008 Tallahassee, Florida 32302-3008 Larry D. Scott, Esquire Division of Retirement Department of Management Services Post Office Box 3900 Tallahassee, Florida 32315-3900 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue Whether statements issued by the GEO Group, Inc. (GEO), a private company under contract with the Respondent, Department of Children and Family Services (Respondent or Department) to operate the FCCC constitute unpromulgated "rules" within the definition of Section 120.52, Florida Statutes (2007).
Findings Of Fact According to Part V of Chapter 394, Florida Statutes (2007), the Legislature determined that sexually violent predators generally have antisocial personality features that are not amenable to mental illness treatment. In response to a finding that such persons are likely to engage in repeated acts of criminal behavior, the Legislature created a civil commitment procedure for the long-term care and treatment of sexually violent predators. The FCCC was created as the appropriate facility to house and treat these individuals. See §§ 394.910 et seq., Fla. Stat. (2007). When a "sexually violent predator" is to be released from the incarceration portion of a criminal sentence, the person is committed to the custody of the Department for "control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that it is safe for the person to be at large." See § 394.917, Fla. Stat. (2007). The GEO Group, Inc. (GEO) is a private company that operates the FCCC under a contract with the Respondent. The contract ends on June 30, 2009. The contract dictates that GEO will: . . . fully implement all programs for FCCC residents which shall include a comprehensive sexual offender treatment program and all services necessary, including internal security, to support the full-time residential care of persons living in a secure facility, as described in the Program Description (attached as Exhibit H). The contract also directs GEO to: . . . be responsible for implementing a resident behavior management system that encourages good conduct, corrects misconduct, and generally promotes safety and security (as described in Exhibit H, Program Description). The contract specifies that resident behavior management would allow residents to earn or lose privileges in accordance with their conduct at FCCC; would list specific acts and types of misconduct, with a specific range of consequences associated with each act or type of misconduct; would secure confinement for residents whose conduct endangers the safe and secure operation of the facility; and would have an adequate due process mechanism for residents impacted by a behavior decision. The Respondent did not and does not dictate the specifics of how FCCC internal policies and guidelines are to be worded or developed. Timothy J. Budz, MSW, LCSW, is the FCCC facility administrator. Mr. Budz is responsible for the day-to-day operations at the FCCC and supervises employees and activities at the facility. He is also responsible for the development and implementation of internal policies and guidelines that GEO uses to comply with its contractual obligations with the Department. The Petitioner, Larry Phillips, is involuntarily committed to the FCCC. The record is not clear as to how long Mr. Phillips has resided at the FCCC. The Petitioner has challenged internal operating policies employed at the FCCC. Generally speaking, the operating procedures that are the subject of this proceeding are policies that held over from when the FCCC was operated by another company, Liberty Behavioral Health Corporation (Liberty). GEO took over this facility from Liberty in July 2006 and although it has attempted to revisit some of the policies (to include consideration of input from residents at FCCC, staff at FCCC, and the Respondent), the policies have not been completely reviewed or revised. Implicit in the testimony of Mr. Budz was a recognition that this Petitioner has been at the facility since (at least) July of 2006. The policies left by Liberty are not all enforced by GEO. The Petitioner challenges FCCC policy D-4. The policy (Respondent's Exhibit 9) states: It is the policy of the Florida Civil Commitment Center (FCCC) to ensure that residents will be able to send and receive mail and authorized packages. The "purpose" for policy D-4 states: To ensure that FCCC residents can receive and send mail and receive authorized packages in a timely manner while protecting against the introduction of contraband and other prohibited materials into the facility. FCCC policy D-4 was effective July 29, 2005. Attached to the three page policy were forms to be used in connection with mail that is received and sent. The Petitioner did not testify. There is no evidence that the Petitioner has been denied the ability to receive or send mail through the United States Postal Services (all mail and packages must be sent to residents via this method per the policy procedure). The Petitioner also challenged FCCC policy D-13. This policy provides: The Florida Civil Commitment Center will utilize restrictions on, or suspensions of, resident privileges in response to behavior that poses a danger to self, others, or property, or which is disruptive or otherwise interferes with the treatment milieu. The stated purpose of FCCC policy D-13 was: To limit or suspend privileges for residents who exhibit inappropriate or threatening behavior, until it is determined that the resident is able to exercise the privileges in a safe and proper manner. FCCC policy D-13 was effective March 3, 2003. Listed among its procedures are the restrictions and suspensions that are individualized to the resident and circumstance of the behavior reported. The Petitioner did not establish that any restrictions or suspensions of privileges had been enforced against him for any reason. At all times during the hearing of this cause the Petitioner and his qualified representative exhibited appropriate behavior and did not appear to be limited by any of the restrictions noted in policy D-13. The Petitioner challenged FCCC policy D-14. This policy states: The Florida Civil Commitment Center will impose restrictions on a resident's movement in response to inappropriate behavior, which is disruptive to the normal, efficient operation of the facility. The purpose of FCCC policy D-14 is: To limit exposure to external stimulation for residents who are disruptive and/or demonstrate a need to reduce their level of agitation. FCCC policy D-14 was effective March 3, 2003. Among the procedures noted for this policy is a provision of daily visits by a clinical therapist for a resident with movement restrictions. The Petitioner did not establish that he was ever subjected to movement restrictions. The Petitioner did not establish that he was ever denied a visit by a clinical therapist. The Petitioner did establish, however, that certain rooms used for residents whose movements are limited are the equivalent of a locked "cell" as that term is generally understood. The Petitioner challenged FCCC policy D-15. This policy was effective October 27, 2003, and has been identified as "under revision" by GEO. This policy, entitled "Behavior Intervention and Management," is one of the policies GEO is redrafting. In this regard GEO has sought input from the Respondent but is not governed by or dictated to follow any suggestions offered by the Department. Nevertheless, as adopted at the time of hearing, the policy provided: The Florida Civil Commitment Center will intervene when residents behave in a manner that jeopardizes their own safety or the safety of the facility, its staff, and/or residents; disrupts the orderly operation of the facility; and/or is inconsistent with the treatment goals established for the resident. Interventions will be based on the therapeutic and clinical needs of the resident, with due consideration given to the rights, consistent fair treatment, and well being of all residents and facility staff. The purpose of FCCC policy D-15 is: To establish a set of procedures whereby inappropriate behavior can be corrected or controlled in a reasonable and timely fashion, and the resident has a meaningful opportunity to participate in the behavior management process and seek review of the final disposition. The procedure for FCCC policy D-15 recognizes "minor misbehavior" that does not pose a significant threat and denotes its differences from resident behavior that does jeopardize security or safety. The Petitioner did not establish that he committed or was subject to either designation (minor misbehavior or otherwise). It is unknown if the policy has ever been enforced against this Petitioner. At hearing the Petitioner and his qualified representative conducted themselves in an appropriate, respectful manner and did nothing by word or act to suggest either has exhibited conduct within the governance of this policy. FCCC policy D-16 provides: The Florida Civil Commitment Center will utilize Secure Management in response to aggravated misbehavior, which jeopardizes the safety and security of the facility, its staff, and/or residents or seriously and maliciously disrupts the normal operations of the facility. The purpose for FCCC policy D-16 is: To restrict the mobility of a resident whose aggravated misbehavior demonstrates the need for a more secure environment until such time as the resident's mental status has returned to a manageable level and the resident no longer poses a risk to the safety or efficient operation of the facility. Under the procedures of this policy, the resident's liberty (mobility) and privileges may be limited. Again, as previously stated, the rooms wherein a resident who is subject to this policy may be confined are similar to "cells." Additionally, a resident subject to this confinement may be placed in hand and leg restraints. There is no evidence that the Petitioner has ever been subjected to this policy or is likely to be subjected to the terms of this policy. Further, there is no evidence that the policy would be applied to any resident not governed by the specific terms of the policy, ie. someone who must be placed in a locked room to prevent injury to others, damage to property, or threats to the security or normal operation of the facility. FCCC policy D-16 is currently under revision, but the version applicable to this case became effective March 3, 2003. The Petitioner challenged FCCC policy D-21 but it was not received in evidence. Petitioner's Exhibit H (not in evidence) purported to be this policy but is, on its face, outdated and has been superseded by another policy: FCCC policy D-4. As previously discussed, the receipt of packages by residents is governed by the "Packages and Mail" provision found in FCCC policy D-4. FCCC policy G-10 was also not admitted into evidence. It is entitled "Pornography, Prohibited and Inappropriate Materials." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit L. The Petitioner did not present any evidence regarding this policy. FCCC policy G-24 was also not admitted into evidence. It is entitled "Resident Computer Lab." It was marked for identification (but not offered) as Petitioner's pre-filed Exhibit N. The Petitioner did not present any evidence regarding how he has been adversely or positively affected by this policy. The Petitioner may have sought to challenge FCCC policy D-5. This policy (admitted into evidence as Respondent's Ex. 12) is entitled "Resident Communications, Complaints and Grievances." FCCC policy D-5 was effective June 23, 2003. The reason it is unclear whether this is the policy Petitioner sought to challenge is due to the numbering of policies. The FCCC policy included with Petitioner's pre-filed exhibits, Petitioner's Exhibit P, was numbered "G-5" however that provision purportedly dealt with "Supervision of Resident Movement." As to either policy, the Petitioner did not present any evidence to establish he had been adversely affected or would likely be affected by the policies. As previously indicated, the Petitioner abandoned his challenge to FCCC policy E-6, Use of Medical Seclusion and Restraints (Petitioner's Pre-filed but not offered Exhibit I). The Petitioner's pre-filed Exhibit K [FCCC policy G-6 entitled "Facility Searches"] was not admitted into evidence. The Petitioner offered no evidence to support a challenge to this provision. The Petitioner also challenged the FCCC Resident Handbook. The handbook was revised August 1, 2005, and portions of it are being revisited by GEO. A copy of the Handbook is provided to the FCCC resident upon arrival. It is also available to FCCC residents within the dormitories. The handbook gives an overview of the various FCCC operational policies and affords the resident a concise, quick reference for topics also addressed during the resident's orientation. One of the problems in this case stems from a general confusion as to what policy will govern a particular situation. In this regard GEO has not provided current editions of policies to the Petitioner or his qualified representative. In some instances it may be that the policy is still under consideration. The Respondent does not have control over the terms of the policies that have been or will become effective. The FCCC internal operating policies are ultimately determined by GEO and its staff. Presumably, GEO will provide updated versions of all policies to the Petitioner (and others at FCCC) when the handbook and policies are completed. The ability of a resident to review internal policies would undoubtedly prove instructive as to the types of behaviors and consequences likely to result from them. Additionally, as a grievance procedure will be provided it should afford residents with an outlet to vent their disagreements with any policy.
Findings Of Fact In February, 1984, Respondent herein, Lorenzo Thomas, sought and received official permission to seek the office of Manatee County Commissioner pursuant to Section 110.233(4)(a), Florida Statutes. He thereafter filed for election and was defeated. At the time, Respondent was serving as a volunteer coordinator with District VIII, a full-time Career Service position, and the office sought was a partisan office. The office held by Respondent at the time, that of volunteer coordinator, was at least partly funded by federal funds and under the provisions of the Federal Hatch Act, he was precluded from seeking partisan public office. This determination, however, was not communicated to the Respondent even though it was contained in a memorandum dated August 22, 1984 from C. T. Clagett, District Personnel Officer, and addressed to the Respondent at his office symbol. Respondent, therefore, believed that his application had been approved without qualification. In January, 1988, Respondent decided to again run for election to the office of Manatee County Commissioner, a position which remained a partisan political office. At the same time, he continued to occupy his position as a volunteer coordinator with the Department. His position was funded at least 25%, from federal funds. Respondent did not submit a request to his District Administrator, Ms. Dry, but discussed the matter with his immediate supervisor, Mr. Ward, and with several other coworkers and individuals. No one to whom, he spoke, indicated to him or raised the possibility that he would be ineligible to run because of the partial federal funding of his position or that if he ran for partisan political office, he would, by operation of law, be deemed to have resigned. Department regulation 60-30, dated November 15, 1982, which deals with political activities at subparagraph 4c(6), identifies as prohibited political activity, candidacies for partisan elective office by employees of the Department whose principal employment is in connection with an activity which is funded wholly or in part by federal funds or grants and subject to the Federal Hatch Act. Relying on the mistaken belief that his prior application had been properly approved, and believing that none of the circumstances which pertained at the time of the 1984 application had changed, Respondent failed to submit a new application relating to his new campaign for office in 1988. On July 20, 1988, Delores Dry, the District VIII Administrator, while in Tallahassee, received information that Respondent had initiated a campaign for local partisan office and on her return to her office on July 21, 1988, met with Respondent concerning it. When Respondent indicated he contemplated filing for office she informed him that he occupied an office covered by the Hatch Act and since the office sought was a partisan political office, he might be precluded from lawfully running. She also advised him that if she had the authority to do so, she would grant him a waiver, but that she did not have that authority. She advised State Senator Woodson of the same thing. Woodson, in turn, passed this information on to Thomas. July 22, 1988, was the last day for filing for election and on that date, prior to receipt of approval from his supervisor, Mr. Thomas filed for election to the Manatee County Commission and submitted his request to Ms. Dry through his immediate supervisor, Mr. Ward. Mr. Ward, in turn, forwarded the application with a recommendation for approval. The application was received by Ms. Dry on July 26, 1988 and Ms. Dry, who had done her research in the interim, denied the application and returned it to Respondent by mail that same day. She is satisfied he did not intend to violate the rules and that his mistake was an honest one. At no time was Mr. Thomas advised by anyone in authority that his application had been or would be approved. He believed, that his prior application approval, which he had not been advised was erroneously approved, would pertain again. However, the 1988 election was a separate election entirely from that for which he had received prior approval. He did not apply until the day of filing and his filing was accomplished prior to receipt of approval from Ms. Dry. He was not misled by anyone in authority with the Department, nor could he reasonably believe, based on his conversations with Ms. Dry or Senator Woodson, that approval was forthcoming
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, LORENZO THOMAS, be deemed to have resigned his position with the Department of Health and Rehabilitative Services effective upon receipt of the District VIII Administrator's memorandum to him of August 1, 1988. RECOMMENDED this 12th day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4585 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted herein. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein Accepted and incorporated herein Petitioner advised his agency in writing of his candidacy the day he filed for election. & 6. Accepted and incorporated herein 7. & 8. Accepted and incorporated herein FOR THE RESPONDENT 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein 5. - 7. Accepted and incorporated herein 8. & 9. Accepted in part but rejected as to the finding that Ms. Dry agreed to unequivocally grant Petitioner a waiver. Her agreement was conditioned upon her having the authority to waive, which she did not have. Accepted in part. Petitioner was not assured of any waiver. His interpretation of Ms. Dry's comments in that light was unjustified. Rejected in that Petitioner's reliance on the 1984 letter and the comments of Mrs. Dry and Mr. Ward was not reasonable. The rule clearly requires advance approval. He did not have it. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire District Legal Counsel HRS District VIII Post Office Box 06085 Ft. Myers, Florida 33906 Layon F. Robinson, II, Esquire 442 Old Main Street Bradenton, Florida 34205 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Did Respondent, Highlands County Board of County Commissioners (County), discriminate against Petitioner, Annette Whitner, on account of her age?
Findings Of Fact At the time of the alleged discrimination, Ms. Whitner was 71 years old. Ms. Whitner claims that the County discriminated against her by not interviewing her for its business services director position due to her age. Ms. Whitner claims that she was discriminated against because the position required an applicant to be a Certified Public Accountant (CPA). She argues that older people are less likely to hold a CPA certification. The weight of the credible evidence did not establish this claim. Ms. Whitner did not establish any connection between possessing a CPA certification and age. On November 10, 2014, the County posted the position online. It was a newly created position, established as part of a reorganization by the County. Because of previous audit errors and the departments the position would oversee, the County determined the minimum qualifications for the position should be: Bachelor’s degree with major course work in public administration, business administration, accounting, finance or related field and possession of Certified Public Accountant (CPA) professional certification or equivalent is required. Master degree in business administration, finance management, public administration, or related discipline is preferred. In determining the equivalent to a CPA, the County referred to the Guide for Certifications for Accounting, Finance and Operations Management (Guide). This was a reasonable non- discriminatory decision. Based on the Guide, the County determined a Certified Government Auditing Professional, Certified Governmental Financial Manager, and Certified Internal Auditor would constitute an equivalent to a CPA certification. The certifications were deemed equivalent because they required similar education, experience, and completion of an examination, similar to one taken for a CPA certification. The closing date for all applicants was December 15, 2014. Ms. Whitner submitted her application near midnight of December 15. Ms. Whitner is not a CPA. In addition, Ms. Whitner did not follow the instructions on the application. She scratched out the instructions on the application and wrote “first” above where it read “current or most recent employer.” Ms. Whitner’s application contained typed and handwritten information. Ms. Whitner’s application did not provide her complete work history as the application instructed. In one of the fields of employment, after 1992, Ms. Whitner wrote “various employers.” Ms. Whitner’s application left an unexplained gap in work history, from 1992 to the present. Ms. Whitner’s application included copies of her Bachelor of Science in Business Administration degree, Master of Public Affairs degree, certification as a Certified District Manager, Certificate of Recognition from the Indiana Executive Program, and a letter of reference from Al Grieshaber, General Manager at Sun ‘N Lake of Sebring, dated February 8, 2010. Ms. Whitner’s application indicated she had a certification as a Certified Professional Government Accountant. Ms. Whitner asserts that a certification as a Certified Professional Government Accountant should be equivalent to a CPA certification. However, the Guide does not include a certification for a Certified Professional Government Accountant as a CPA equivalent, nor does the County consider it equivalent. Additionally, Ms. Whitner did not attach a copy of her certification or provide persuasive evidence of the certification criteria and their similarity to CPA criteria. The County could not determine if Ms. Whitner had worked since 1992. Ms. Whitner argues that her letter of reference from Al Grieshaber demonstrated her employment since 1992. However, the letter did not include the dates Ms. Whitner worked, the position held, or her duties and the type of work she performed at Sun ‘N Lake of Sebring. Randal Vosburg, Assistant County Administrator, was involved in the hiring and selection process for the position. The primary criteria he was looking for when reviewing the applications was whether the applicant had a CPA. Mr. Vosburg did not have any contact with Ms. Whitner and did not know her age when reviewing her application. Mr. Vosburg did not consider Ms. Whitner’s age when reviewing her application. The County did not select Ms. Whitner for an interview because she was not a CPA and did not possess a certificate that is equivalent to a CPA certification. Additionally, Ms. Whitner presented an unprofessional application, did not provide a complete work history so that there appeared to be more than a twenty-year gap in employment, and did not follow the instructions on the employment application. These were all reasonable non-discriminatory bases for deciding not to interview Ms. Whitner. On January 5, 2015, Ms. Whitner submitted an addendum to her employment application. This was after the application deadline and after the County had selected candidates to interview. Ms. Whitner’s addendum did not provide documentation or certification that she possessed a CPA certification or the equivalent. The County selected Tanya Cannady and Stanoil Raley for interviews. Both possessed CPAs. Both were reasonably deemed to be more qualified than Ms. Whitner. A panel of three people interviewed Ms. Cannady and Mr. Raley. Randal Vosburg, June Fisher, County Administrator, and Mark Hill, then-Development Services Director, served on the panel. Ms. Cannady performed much better than Mr. Raley during the interview. Additionally, Ms. Cannady’s work experience was more relevant to the position than Mr. Raley’s work experience. The County selected Ms. Cannady for the position because she met the requirement of having a minimum of five-years of progressively responsible relevant experience, was a CPA, and was more qualified than Mr. Raley and the other applicants. The County offered the position to Ms. Cannady. She did not accept the offer and withdrew her application. On August 5, 2015, the County re-posted the position online. The county changed the CPA requirement from “required” to “preferred” because the County was having trouble finding CPA applicants. Ms. Whitner did not reapply for the position. The County conducted additional interviews and selected Tasha Morgan. Ms. Morgan was female and was a CPA. The preponderance of the credible, persuasive evidence did not establish that the County discriminated against Ms. Whitner due to her age. The preponderance of the credible, persuasive evidence established that the County had legitimate non-discriminatory reasons for not interviewing Ms. Whitner.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The Department adopts and incorporates in this Final Order the Statement of the Issues in the Recommended Order.
Findings Of Fact Each counsel presented a stipulation of facts signed by both counsel. While the facts to which the stipulations relate appear to be fundamentally the same, the approach to each fact agreed to is different to some degree and based upon the relative position of the parties. The parties agreed that CCS is a not-for-profit corporation organized under the laws of the State of Florida, with its principal business located in Tampa, though it operates offices in Hillsborough, Hernando, Manatee, Sarasota and Lee counties. It is qualified as a non-profit corporation pursuant to Section 501(c)(3) of the United States Internal Revenue Code. Its primary purpose is to provide education and counseling services to individuals and families who lack the basic knowledge of budgeting and financial management in order to render them self-sufficient. It is an organization recognized by the United Way and currently receives funding through that organization in Hillsborough, Hernando and Lee counties. All such funding received from the United Way is utilized exclusively for educational purposes. It is also a member of the National Foundation for Consumer Credit Counseling. The functions of CCS consist primarily of four types of services. These include educational programs, individual budget counseling, debt management, and referral services to agencies that provide other services or benefits such as food, clothing, shelter, mental health services, marital and parenting counseling and drug and alcohol abuse counseling to needy individuals. None of the clients are charged for any of the services provided by CCS. Until January 1, 1995, CCS held consumer sales tax exemption number, 39-22-124883-56C. Its prior number was 06-0138-00-39. The prior exemption was granted to CCS in January, 1975. On November 8, 1994, Diane L. Trithart, then President and CEO of CCS, submitted an application for renewal of CCS' certificate of exemption. Included with the application was a background history of the organization containing the charter, by-laws, certificates of incorporation and registration with the state, financial statements and statements of agencies to which CCS refers clients and from which clients are referred to CCS. After the submittal of that application package, on March 16, 1995, the Department issued an Administrative Complaint seeking to revoke CCS' certificate of exemption on the basis that the organization was not a charitable organization with a sole or primary purpose which fulfilled one of the seven criteria outlined in Section 212.08(7)(O)2.b., Florida Statutes. By letter dated January 13, 1995, prior to the preparation of the Administrative Complaint ultimately filed herein, Patricia M. Chin, Chief of the Department's Bureau of Registration and Records in the Division of Tax Processing, conveyed to Ms. Trithart the Department's position that CCS no longer qualified for its exemption. This opinion was based upon the provisions of Section 212.08(7)(o)2.b., Florida Statutes, which defines the requirements which an organization must satisfy in order to be deemed a "charitable institution" exempt from sale and use tax. It was the Department's position that the primary purpose of CCS was to provide credit counseling which was not one of the statutorily defined services, and on that basis, the exemption could not be renewed. The functions of CCS in detail are varied and extensive. The parties agreed and stipulated that in 1995, CCS expended approximately twenty-one percent of its budget in direct educational programs which were offered through a number of other agencies such as Head Start, Salvation Army, Lighthouse for the Blind, AARP and other similar organizations. The relationship between CCS and these agencies is a collaborative effort in which all agencies seek to meet the needs of the client. In 1995, of the target audience for the educational programs which were conducted by CCS, seventy-two percent fell below federal poverty guidelines, and in addition, in 1995, CCS conducted sixty-six programs for in excess of twenty-eight hundred school age children in Hillsborough County which focused on basic money management and budgeting. Another thirty-seven percent of CCS' expenditures was devoted to budget counseling for clients in individual counseling sessions, each lasting between one and a half to two hours, and in which individuals and families are taught the basic skills of prioritizing needs so that they can be self-sufficient and provide for their basic needs in the area of food, clothing and shelter. In this category, 5489 various counseling appointments were met, and of the individuals and families who received this budget counseling, ninety-five percent were also referred to another agency or source for food assistance; sixty-one percent were referred to other agencies for additional help and services; seventy-one percent were either unemployed or on reduced income; fifty-three percent constituted separated, divorced or single individuals, many with minor children; and many were in need of other services for the prevention of or the rehabilitation of alcoholism, drug abuse, suicide prevention or the alleviation or mental, physical or sensory health problems. Many of these individuals faced the immediate prospect of losing their homes or having utility service disconnected, and their financial difficulties were having severe, adverse effects on their marital and family relationships. In 1994, forty-eight percent of the individuals or families who received budget counseling fell below the federal poverty guideline. In 1995, thirty-nine percent fell within that category. Of those individuals who received budget counseling, only twenty percent went on a debt management plan pursuant to which CCS acted as an intermediary between the client and the creditor and assisted the individual in paying off the outstanding debt. In 1995, approximately twenty-four percent of CCS' expenditures were devoted to service debt management plans, and eighteen percent of those expenditures were for administrative purposes. Less than one half of one percent of CCS' income was derived from interest on money deposited by clients into trust accounts and which was thereafter distributed by CCS to the clients' creditors. In addition, in 1995, CCS assisted 708 families in retaining their homes and avoiding foreclosure, with a success rate of ninety-eight percent. The most common cause of the family financial problems in those cases was loss of employment or reduced income. In that regard, CCS participates in the Florida Department of Labor's Rapid Response Program which provides counseling and educational services to employees who are losing their jobs as a result of corporate lay-offs or down-sizing. It is not, however, the primary purpose of CCS to assist individuals in establishing or re-establishing credit. As was stated previously, CCS operates educational programs in conjunction with other service organizations. One of these is The Women's Resource Center of Sarasota, a Section 501(c)(3) organization which serves women of a certain age who are seeking to enter the job market as a result of divorce, widowhood or other non-self-caused conditions. The majority of these clients find themselves unable to provide their own basic necessities and facing an uncertain future. They are lacking in the financial skills to manage their limited resources and many are facing the loss of their home. A large percentage have minor children, and the Center helps these women provide for themselves and their children by giving them the basic skills they need to survive. As a part of this program, CCS teaches classes in basic budgeting skills, money management, credit and spending, and provides assistance in avoiding foreclosure. CCS also instructs these clients on accessing other community resources which might help, but the fundamental goal of both agencies is to teach the clients to handle their finances and to be able to provide for themselves. These consumer credit services are provided at no cost to the client, and though no direct aid, such as food, clothing or shelter is provided by CCS, the education assists the client in learning to provide for herself. Similarly, CCS operates a collaborative educational program with The Spring of Tampa Bay, also an exempt organization. The Spring is a domestic violence center which provides comprehensive services to violent families, the majority of whom are brought in by law enforcement agencies. These clients are almost uniformly poor who come to The Spring with nothing but their immediate belongings in a garbage bag. Approximately one third of the clients are victims of aggravated battery and all are in immediate danger and have no place else to go. CCS offers a series of monthly programs to clients of The Spring. These programs are designed to assist the women in becoming functional so that they can get back on their feet and move toward leading normal lives. The courses are designed to teach the women how take care of themselves, and CCS educates the women in the management of their personal finances. The emphasis is decidedly not on reestablishing credit. Any client who can establish credit is not a suitable candidate for The Spring or, thereby, CCS. Neither The Spring nor the client pays CCS anything for its services. A third collaborative effort of CCS is that with The West Tampa Neighborhood Service Center, operated by Hillsborough County's Department of Social Services. This is a multipurpose human service facility that provides help to low income families including direct assistance in medical treatment, utility and rent payments and emergency assistance in the form of blankets, heaters, fans and food. All of the clients of West Tampa fall within the federal poverty guidelines. West Tampa has identified core agencies which it wants housed in its facility to promote a team approach to addressing the needs and services required by its low income clients. CCS workshops are a part of this team effort made up of other agencies providing such things as indigent care, medical assistance and the like. The concept of the West Tampa program is to develop the individual to allow that person to help himself, and CCS provides basic budget instruction to the individuals who seek assistance from West Tampa. These individuals are experiencing severe financial problems as a result of poor money management or poor budgeting skills, and need basic information in budgeting, in financial planning, in establishing a bank account and in avoiding the stigma of being characterized as a low income individual who lives off the system. CCS has also collaborated with the Family Services Association of Greater Tampa which provides counseling and psychotherapy to individuals, couples or families suffering from alcoholism, drug abuse or other difficulties. This organization also addresses marital and parent/child issues and unemployment/financial issues, and it is in that latter area that CCS participates. The individuals at risk have problems with daily living because of an inability to find or keep a job as a result of lack of skill, insufficient technology and inability to cope. Approximately fifty percent of the individuals in this category serviced by this agency fall below the federal poverty guidelines. The services provided by CCS, in conjunction with the agencies listed above, are comparable with similar programs in which it participates with several other agencies in the geographical area serviced and described previously herein. In all of its efforts and in the programs it presents CCS does not, as its sole or primary function, provide or raise funds for organizations which provide medical aid for the relief of disease, injury or disability. It does not, as its sole or primary function, provide or raise funds for organizations which provide regular physical necessities such as food, clothing or shelter. On the other hand, CCS does provide education and counseling services to individuals who lack the basic knowledge of budgeting and personal financial management so that they can provide for their own food, clothing and shelter, and it constantly acts as a referring agency to other agencies that do provide food, clothing and shelter. CCS does not, as its sole or primary function, provide or raise funds for organizations which provide medical research for the relief of disease, disability or injury, and it does not, as its sole or primary function, provide or raise funds for organizations which provide legal services. By the same token, it does not, as its sole or primary function, provide or raise funds for organizations which provide food, shelter or medical care for animals, or adoption services, cruelty investigations or education programs concerning animals. It also does not, as its primary function, provide or raise funds for organizations which provide adoption, placement, child care or community care for the elderly. Article II of CCS' By-Laws, as approved in October 1994, defines its community service as, "delivering professional consumer credit education, confidential counseling and debt reduction programs," such services rendered to "all segments of the community regardless of ability to pay." While CCS has no income guidelines for its clients, consistent with the terms of its by-laws, it will counsel anyone, regardless of ability to pay. The funds which CCS receives from that small percentage of clients who are eligible for debt management plan participation, (only twenty percent of those seen in 1995), are deposited in an interest-bearing account. Distributions to creditors are made from this account twice a month, timed to coincide with receipt of the bulk of client funds. Any interest earned on the deposited funds is used by CCS to offset the cost of providing services. This earned interest amounts to less than one half of one percent of CCS' revenue. Though CCS provides its services without charge, some clients voluntarily donate funds as able. These donations, along with the interest earned on client deposits, are also used to offset the costs of the debt management programs and the educational and counseling programs made available without charge to all segments of the community. By far the greatest amount of revenue received by CCS in 1992 and 1993 came from contributions from business creditors of CCS' clients. Business creditors are presented with an invoice with payment, but the creditor is under no obligation to contribute. Nonetheless, during those years, that income constituted eighty-five percent of revenue while client contributions constituted only nine percent one year, and slightly more than ten percent the next.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order dismissing the Administrative complaint filed herein and approving the application for consumer sales tax exemption submitted by Consumer Credit counseling Service of the Florida Gulf Coast, Inc. as a charitable institution. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 4th day of June, 1996. COPIES FURNISHED: Kent L. Weissinger, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Leslie E. Joughin, III, Esquire Post Office Box 3273 Tampa, Florida 33601-3273 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
