The Issue The matter for consideration in this case concerns Petitioner's challenge to the Respondent, Department of Health and Rehabilitative Services', award of a contract for services to provide treatment of youth in the Juvenile Alternative Services Projects (JASP) for Hillsborough and Manatee Counties. In particular, Petitioner contends that it did not receive due and fair consideration in accord with the criteria established by law. Petitioner stipulated, during the hearing, that it was not challenging the sufficiency of the Request for Proposal (RFP) pursuant to which bids were submitted nor the sufficiency or propriety of the criteria contained within the RFP. WITNESSES AND EXHIBITS Petitioner presented as witnesses Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc.; Mr. Jack F. Wood, Program Supervisor, Children, Youth & Families (HRS); Mr. Patrick Keefe, District VI Intake Supervisor for HRS; Judge James P. Calhoun, Circuit Judge for the Thirteenth Judicial Circuit; Mr. John Benito, Assistant Public Defender for the Thirteenth Judicial Circuit; and Mr. Andrew Alexandre, District VI Intake Supervisor for Respondent (HRS). By stipulation of counsel, the direct testimony of Mr. Benito and Mr. Alexandre were presented by deposition and counsel for Respondent had the opportunity to cross examine those two (2) witnesses during the hearing. Respondent called as its witnesses Mr. Larry Lumpee, an employee of Respondent and Mr. William F. Bowman, Director of Bay Area Youth Services, Inc. The parties presented twelve (12) joint exhibits. Joint Exhibit I was the Request for Proposal for the Manatee County JASP and Joint Exhibit 2 was the Request for Proposal for the Hillsborough County JASP. Joint Composite Exhibits 3 and 4 were the proposals or bids of Bay Area Youth Services, Inc., for Manatee and Hillsborough Counties respectively. Joint Composite Exhibit 5 was the proposal or bid of Boy's Club of Manatee County, Inc., for the Manatee County JASP. Joint Composite Exhibits 6' and 7 were the proposals or bids of Juvenile Services Program, Inc., for Manatee County and Hillsborough County respectively. Joint Composite Exhibit 8 was the rating sheets of the selection committee for Hillsborough County and Joint Composite Exhibit 9 was the rating sheets for the selection committee for Manatee County. Joint Exhibits 10, 11 and 12 were the letters of notification of action dated May 28, 1982, from the Respondent to Boy's Club of Manatee County, Inc., Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., respectively. Those exhibits were admitted. Petitioner also offered the depositions of Mr. John Benito and Mr. Andrew Alexandre and with agreement of counsel for Respondent, these were admitted as Petitioner's Exhibits 1 and 2. Petitioner had marked for identification its letter of protest dated June 10, 1982. This was not admitted as an exhibit. Respondent offered no exhibits other than the Joint Exhibits listed above. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact are not adopted in this Recommended Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Department of Health and Rehabilitative Services has, since 1979, operated the Juvenile Alternative Services Project. The program provides diversion and treatment for first-time less serious juvenile offenders prior to an adjudication of delinquency by the courts. The JASP program came into existence in 1979, through a pilot program in HRS Districts V, VI and VII. The pilot program in District VI was operated by Youth Program Services, Inc., based in Orlando, Florida. The JASP pilot program in District V was operated by Juvenile Services Program, Inc., the Petitioner in this case. The contract for District VI, which consists of Manatee and Hillsborough Counties, was re-bid annually. The Requests for Proposal used in the years 1980, 1981, and 1982, except for very minor changes, were virtually identical. The contracts which are the subject of this case were let for bid pursuant to two (2) Requests for Proposals (hereafter RFP) dated April 23, 1982. (Joint Exhibits 1 and 2) These two (2) RFPs advertised for two (2) separate contracts for the Manatee County JASP and Hillsborough County JASP. Proposals under both RFPs were required to be submitted no later than May 14, 1982, at 5:00 P.M. The Boys' Clubs of Manatee County, Inc.; Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., submitted timely proposals for the Manatee County program. (Joint Exhibits 3, 5 and 6) Timely proposals for the Hillsborough County program were received from Juvenile Services Program, Inc., and Bay Area Youth Services, Inc. (Joint Exhibits 4 and 7) The proposals were evaluated by selection committees for each county. Members of the selection committee for Hillsborough County were Judge James Calhoun, Marcia Leonard Bailey, John Benito, Jack Wood, Patricia Moran, Andrew Alexandre and Patrick Keefe. These persons included a Circuit Judge, Assistant State Attorney, Assistant Public Defender, a citizen at large, and three (3) HRS employees. A similar committee performed the evaluation for Manatee County. In addition to reviewing the written proposals, the committees heard oral presentations from those parties which had submitted written proposals. Following the oral presentations, the committee members rated the various proposals by filling out rating sheets containing the various criteria contained in the RFP and used by the selection committee in arriving at a recommendation. (Joint Exhibits 8 and 9) The criteria were: A programmatic expertise; Prior experience--personnel history; Organization abilities; Qualifications of personnel--abilities to hire qualified personnel; Budget in cost effectiveness program; and Overall adequacy of personnel. The committee for Hillsborough County rated the Petitioner and Bay Area Youth Services, Inc., very closely, with Bay Area Youth Services, Inc., receiving 677 total points and Juvenile Services Program, Inc., receiving 668 points. Following their evaluations, the committees recommended Bay Area Youth Services, Inc., as the entity to provide JASP programs for both Hillsborough and Manatee Counties. Thereafter, Juvenile Services Program, Inc., timely and properly filed its protests and requested a formal hearing pursuant to Florida Statutes, Section 120.57(1). Both Juvenile Services Program, Inc., and Bay Area Youth Services, Inc., were qualified to perform the services requested by the RFPs. No evidence was presented relating to the selection process in Manatee County and there was no evidence that the Petitioner did not receive a full, fair, and proper evaluation of all criteria in the RFP for the Manatee County program. All five (5) committee members from the Hillsborough County selection committee who were called as witnesses testified that both the Petitioner and Bay Area Youth Services, Inc., were well qualified. The major contention of the Petitioner focused on the fact that Bay Area Youth Services, Inc., was a new corporation and would not be able to perform the administrative and financial functions of the JASP programs as well as Juvenile Services Program, Inc., which had been in existence since 1976. There was no evidence presented which showed that the selection committees failed to evaluate each and every criterion established by the RFP. This was borne out by the rating sheets as well as the five (5) committee members called as witnesses by Petitioner. Dr. Peter Parrado, Executive Director of Juvenile Services Program, Inc., also testified about the inquiry by the committee into the various criteria during the oral presentations. Both the Petitioner and Bay Area Youth Services were evaluated by the committee in all criteria areas. The committee specifically inquired into the fact that Bay Area was a new organization, incorporated in April, 1982, and was satisfied that that would not interfere with the proper performance of the services requested by the RFP. Mr. William F. Bowman, Director of Bay Area Youth Services, Inc., and one (1) of the members of its Board of Directors appeared before the selection committee. The entire existing District VI staff of Youth Programs, Inc., was to continue in place with Bay Area Youth Services. Both Dr. Parrado and Mr. Bowman had been involved in the JASP program since its inception in 1979. Dr. Parrado was executive director of the Petitioner which had had the JASP contract for District V since the pilot program in 1979. Mr. Bowman, as a former employee of Youth Program Services, Inc., was the program director for the JASP program in District VI and had performed that function since the pilot program in 1979. Both men were well qualified to supervise the JASP programs for District VI. There was a specific requirement that the providers submitting proposals be able to have the projects operational by July 1, 1982. The committee was concerned with the ability of Juvenile Services Program, Inc., to step inland take over a program with which it was not familiar. The JASP program in District VI operated differently than the program in District V where Juvenile Services Program was already operating JASP. Mr. Bowman and the staff of Bay Area Youth Services were the same staff that had previously operated the JASP program in District VI for Youth Programs, Inc. Mr. Bowman and his staff were thoroughly familiar with the operation and procedures of the JASP program in District VI. The Committee was also concerned with continuity of the existing JASP operations in District VI and Dr. Parrado had not given assurance as to what, if any, of the existing staff would be retained if Juvenile Services Program, Inc., was awarded the contract. Bay Area Youth Services already had its staff and physical operation in place and would be less disruptive of the program'5 continuity if awarded the contract. The key individuals in the supervision and operation of JASP in District VI by the two (2) bidders would have been Dr. Parrado and Mr. Bowman. JASP in District VI would be the only program operated by Bay Area Youth Services and Mr. Bowman would be giving one hundred percent (100 percent) of his time to that program. On the other hand, Dr. Parrado's organization would have been operating JASP in three (3) other districts as well as several other youth programs in other counties. The budget submitted by Juvenile Services Program reflected that Dr. Parrado would spend fifteen percent (15 percent) of his time supervising the District VI JASP. Dr. Parrado testified that he would give as much time to District VI required but gave the committee no firm estimate as to how much of his time he would be able to be personally involved in District VI. The witnesses rated the performance of Mr. Bowman and his staff as excellent for the previous years they had operated JASP in District VI. Some administrative problems had developed while Youth Programs, Inc., provided JASP services in District VI. These were in the nature of late payrolls and delays in paying bills. The problems emanated from the Orlando office and were not attributable to Mr. Bowman and the staff in District VI. Because of the problems which had occurred with the large organization of Youth Programs, Inc., the committee was concerned that the same types of problems might arise with Juvenile Services Program, Inc., which is also a large organization. To aid in handling the administrative details of JASP, Bay Area Youth Services had retained an outside firm to do the payroll and tax and other payroll-related functions. A local accounting firm had been retained to monitor and take care of accounting and bookkeeping functions. The committee was satisfied that Mr. Bowman's organization would be able to adequately handle the administrative details of JASP in District VI. Although much of the administrative and personnel matters under Youth Programs, Inc., were handled out of the Orlando Central Office, Mr. Bowman had for three (3) years been responsible for all hiring, firing, and supervision of personnel in the District VI JASP. He also did all local buying of supplies and related items. He also was responsible for locating and obtaining office space and equipment. The director of the program in District VI performs a liaison function between the provider and those entities using the services such as the State Attorney's office, Public Defender's office, and the Circuit Judges responsible for juvenile matters. Mr. Bowman had developed good rapport and credibility with each of these entities as well as HRS counselors in District VI and had done an excellent job in selling the JASP program to these agencies.
The Issue Whether the proposed award of Request for Proposal No. P2021 to Psychotherapeutic Services of Florida, Inc. (hereinafter "Psychotherapeutic Services"), is contrary to Respondent, Department of Juvenile Justice's (hereinafter "Department"), governing statutes, rules or policies, or the proposal specifications.
Findings Of Fact On January 22, 2007, the Department issued RFP P2021 to solicit proposals for a Department Detention Screening Unit in the Circuit 17 Juvenile Assessment Center. The contract for RFP P2021 was for an initial three-year period, with the possibility of renewal for an additional three-year period. Two prospective providers, Petitioner, Juvenile Services Program, and Psychotherapeutic Services submitted responses to RFP P2021. Sarah Smith (hereinafter "Ms. Smith"), acting as the Department's contract administrator, evaluated the proposals for compliance with the mandatory requirements of RFP P2021. Based on Ms. Smith's review of the proposals and her determination that the proposals met the mandatory requirements of the RFP, the Department accepted both Petitioner's proposal and Psychotherapeutic Services' proposal as responsive to the RFP. The RFP consisted of the following three proposals, all of which were evaluated and scored by the appropriate evaluators: (1) the Technical Proposal, which comprises two sub-parts, Management Capabilities and Program Services; (2) the Financial Proposal, which comprises two sub-parts, Price and Financial Capabilities; and (3) the Past Performance Proposal. The maximum allotted points for each of the proposals were as follows: 160 b. Program Services 400 100 b. Financial Capabilities 100 3. Past Performance (Part I) 200 Technical Proposal Management Capabilities Financial Proposal Price The Technical Proposals were reviewed, evaluated, and scored by three evaluators, Loretta Bright, Lucille Rapale and Terria Flakes. Each evaluator scored each proposal separately and independently without consulting and conferring with the other evaluators. All three evaluators were Department employees who were trained and randomly selected to evaluate the proposals. The scores of the three evaluators who evaluated the Technical Proposal were averaged. Based on those averages, Petitioner was awarded 117.33 points for the Management Capabilities sub-part and 278.33 points for the Program Services sub-part. Psychotherapeutic Services was awarded 108.80 for the Management Capabilities subpart and 276.67 for the Program Services subpart of the Technical Proposal. The Financial Proposal was evaluated by Ms. Smith, an operations and management consultant in the Department's Contract Administration Office, Bureau of Contracts. Based on her evaluation of the Financial Proposals, Ms. Smith awarded 200 points each to Petitioner and Psychotherapeutic Services. The Past Performance Proposals of the RFP were evaluated and scored by Paul Hatcher, a senior management analyst with the Department. Based on Mr. Hatcher's review and evaluation of this section, he awarded 173.75 points to Petitioner and 192.50 points to Psychotherapeutic Services. After calculating the total points awarded for the three proposals/sections of the RFP, Psychotherapeutic Services, with a total score of 777.97, was ranked as the highest scored proposal. Petitioner, with a total score of 769.42, was ranked second. On April 3, 2007, the Department posted the notice of its intended decision to award the contract for RFP P2021 to Psychotherapeutic Services. This decision was based on Psychotherapeutic Services' proposal having a higher point total than Petitioner's proposal. General Instructions for Completing RFP P2021 RFP P2021 is comprised of a one-page transmittal letter and several attachments and exhibits, some of which are in the 47-page printed RFP P2021, and others which, according to the RFP, are available electronically. Relevant to this proceeding are terms contained in the transmittal letter and in Attachments A, B, C, D, G and J. Several provisions in RFP P2021, including the transmittal letter and Attachments A and B, give general instructions for preparation of the proposal. The transmittal letter provides that "prospective providers shall fully comply with the instructions on how to respond to the RFP." Attachment A, General Instructions to Respondents, provides that "respondents to the solicitation are encouraged to carefully review all the materials contained herein and prepare responses accordingly." Attachment B, Section XVIII, "General Instructions for the Preparation and Submission of Proposals," provides in relevant part the following: The instructions for this RFP have been designed to help ensure that all proposals are reviewed and evaluated in a consistent manner, as well as to minimize costs and response time. INFORMATION SUBMITTED IN VARIANCE WITH THESE INSTRUCTIONS MAY NOT BE REVIEWED OR EVALUATED. * * * Failure of the prospective Provider to provide any of the information required in either Volume 1 (the Technical Proposal), Volume 2 (the Financial Proposal), or Volume 3 (Past Performance) portions of the RFP proposal shall result in no points being awarded for that element of the evaluation. Attachment B also provides the general instructions for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021. Those instructions are described and discussed below. Notwithstanding the general instructions for completing the RFP, Attachment A, paragraph 15, gives the Department the right to waive any minor irregularities. According to that provision, "[t]he Department reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State's best interests." The RFP deems certain requirements as mandatory. Attachment B, Section V, sets forth those requirements and the consequences for a prospective provider's failing to comply with those requirements. Attachment B, Section V, provides in pertinent part the following: Mandatory Requirements The following requirements must be met by the prospective Provider to be considered responsive to this RFP. Although there are other criteria set forth in this RFP, these are the only requirements deemed by the Department to be mandatory. Failure to meet these requirements will result in a proposal not being evaluated and [being] rejected as non-responsive. [Emphasis supplied.] It is MANDATORY that the prospective Provider submit its proposal within the time frame specified in the Calendar of Events (Attachment B, Section IV.) It is MANDATORY that the prospective Provider draft and submit a fully completed, originally signed Transmittal Letter that contains all the information required by Section XVIII. A. It is MANDATORY that the prospective Provider submit a complete and signed Attachment J that proposes an annual contract dollar amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed annual contract dollar amount exceeding the annual maximum contract dollar amount will be rejected. Attachment D, "Evaluation Criteria," sets forth the evaluation criteria and the scoring methods for proposal. Attachment D also provides that failure to meet the mandatory requirements "that are specified in Attachment B, Section V," will result in the proposal not being evaluated and being rejected as non-responsive. The Financial Proposal Attachment B, Section XVIII, D.1., provides in pertinent part the following: The prospective Provider shall provide a price for the program by returning a completed and signed Attachment J-Price Sheet. The price evaluated is the "proposed Annual Contract Amount." The price must include all services, material and labor necessary to complete the Scope of Services (Exhibit 1) as described in this RFP and the prospective Provider's proposal. A renewal price shall also be entered on Attachment J. It is MANDATORY that the prospective Provider submit a completed and signed Attachment J that proposes an annual contract amount at or below the annual maximum contract dollar amount stated in the RFP. Any proposal without a completed and signed Attachment J or with a proposed dollar amount exceeding the annual maximum contract dollar amount will be rejected. RFP P2021 established the "annual maximum contract dollar amount" as $473,594.16 and the "maximum contract dollar amount" as $1,420,782.48 (three times the annual maximum contract amount). Attachment J had three lines on which the prospective provider was to list: (1) the "proposed annual dollar amount"; (2) the "proposed annual dollar amount for each renewal year"; and (3) the "renewal dollar amount proposed."1/ Attachment J also included directions for completing the form and a line for the prospective provider's signature. A pre-printed statement above the signature line indicated that "[b]y submission and signature of this form, the prospective provider agrees to all the terms and conditions of this RFP and commits to the prices stated." In lieu of submitting the Amendment J form that was attached to the RFP, Psychotherapeutic Services submitted its re-created version of Attachment J. The Department recognized that the page titled Attachment J in Psychotherapeutic Services' proposal was re-created by Psychotherapeutic Services. However, the re-created version of Attachment J and submission of that document does not in itself constitute a non-responsive response. In the Department's view, the significant factor is whether the relevant and required information indicated as mandatory in the RFP is provided on the re-created version of the form. By consistent practice, the Department routinely accepts re-created forms and/or attachments in responses from prospective providers for the convenience of respondents. In accordance with this practice, the Department accepted the re-created Attachment J submitted by Psychotherapeutic Services. On the re-created version of Attachment J, Psychotherapeutic Services did not include: (1) the instructions for completion of the form; and (2) the language that by signing and submitting the form, Psychotherapeutic Services agrees to all the terms and conditions of the RFP and commits to the prices stated. However, Psychotherapeutic Services included on the re-created Attachment J all the relevant and required information as indicated by the mandatory requirements in the RFP. The mandatory requirements related to the Financial Proposal are that the provider "submit a completed and signed Attachment J that proposes an annual contract dollar amount that is at or below the maximum contract dollar amount stated in the RFP. See paragraphs 21 and 23 above. The mandatory requirements for the Financial Proposal do not require the "renewal terms" to be included in the re-created version of Attachment J, but require that the proposed annual contract amount be at or below the annual maximum contract amount. Similarly, there is no mandatory requirement that omission of the "renewal terms" must result in a finding that the proposal is non-responsive. At most, if such language were required and not provided, no points should be awarded for that section. Here, the evaluation criteria for the Financial Proposal does not include or require consideration of the "renewal terms" on Attachment J.2/ See Attachment A, paragraph 9(i) and (j); Attachment B, Section XIV; and Attachment G, Part IV, C. The re-created version of Attachment J, as completed by Psychotherapeutic Services, is as follows: ATTACHMENT J - PRICE SHEET JUVENILE ASSESSMENT CENTER SERVICES PROPOSED ANNUAL DOLLAR AMOUNT: $473,593.47 PROPOSED ANNUAL DOLLAR AMOUNT FOR EACH RENEWAL YEAR: $473,593.47 *PROPOSED ANNUAL MAXIMUM CONTRACT $1,420,780.41[3/] DOLLAR AMOUNT for all Services in thie [sic] RFP multimplied [sic] by the number of initial years (3) of the contract + [sic] $1,420,782.48 *THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE MULTIPLIED BY THE NUMBER O FYEARS [sic] IN THE INITIAL TERM OF THE CONTRACT FOR THE PURPOSES OF SCORING THE PRICE SECTION OF THIS PROPOSAL. THE PRICE STATED ON THIS SHEET (ATTACHMENT J) WILL BE USED FOR DETERMINIATION [sic] OF POINTS AWARDED TO EACH PROSPECTIVE PROVIDER. TERMS OF LESS THAN ONE YEAR SHALL BE PRO-RATED. RENEWAL TERM DOLLAR AMOUNT PROPOSED: $473,594.16[4/] Psychotherapeutic Services' proposed annual contract dollar amount of $473,593.47 is below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Therefore, it met the mandatory requirement for the price category of the Financial Proposal. Ms. Smith testified credibly that the Department's focus, as reflected in the evaluation criteria, is to ensure that the proposed annual contract dollar amount does not exceed the annual maximum contract dollar amount stated in the RFP. Ms. Smith evaluated and scored that Psychotherapeutic Services' proposal in accordance with the provisions of the RFP. Based on her evaluation, Ms. Smith properly awarded Psychotherapeutic Services the maximum 200 points for its Financial Proposal. Of those points, 100 points were for the "price" category. Ms. Smith also awarded Petitioner's Financial Proposal the maximum 200 points for its Financial Proposal, including 100 points for the "price" category. Petitioner was awarded 100 points for the "price" category, even though its proposed annual contract amount was higher than that of Psychotherapeutic Services. Ms. Smith determined that this was appropriate because the difference in the price proposed by Petitioner and Psychotherapeutic Services was less than ten percent. Psychotherapeutic Services submitted a signed and completed Attachment J that included a proposed annual contract dollar amount, $473,593.47, which was below the annual maximum contract dollar amount stated in the RFP, $473,594.16. Having met the mandatory provisions of the RFP, related to Attachment J, the Department appropriately did not reject the Psychotherapeutic Services, but instead properly evaluated that proposal. The Technical Proposal The Technical Proposal required prospective providers to prove that they were registered to do business in Florida. The general instructions for preparation of the Technical Proposal of the RFP are set forth in Attachment B, Section XVIII, C.2., which provides in relevant part: a. Management Capability * * * 3) This section shall provide proof that the prospective Provider is registered to do business in Florida evidenced by Articles of Incorporation or Fictitious Name Registration or Business License and, if applicable, a copy of the most recent Certification of Good Standing. (This information may be obtained from the Secretary of State's Office) . . . . Psychotherapeutic Services did not submit as part of its proposal Articles of Incorporation, Fictitious Name Registration, or Business License to prove that it is licensed to do business in the State of Florida. However, Psychotherapeutic Services submitted an untitled document that appeared to be a certificate from the State of Florida, Department of State, which had the electronic signature of the Secretary of State and was dated May 13, 2006. Petitioner submitted its Articles of Incorporation, as well as the untitled document from the Department of State. (The latter document was the same type of certificate Psychotherapeutic Services submitted with its proposal.) That referenced untitled document stated in relevant part the following: I [Secretary of State] certify from the records of this office that PSYCHOTHERAPEUTIC SERVICES OF FLORIDA, INC. is a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, qualified on December 4, 1996. * * * I further certify that said corporation has paid all fees due this office through December 31, 2006, that its most recent annual report was filed on May 10, 2006, and its status is active. I further certify that said corporation has not filed a Certificate of Withdrawal. The document was identified at hearing by Petitioner's executive director as a Certificate of Good Standing. However, there was nothing on the document to indicate what the document was. The Technical Proposals were rated on a scale of zero to five, based on criteria established in the RFP. The rating system for the Technical Proposal was as follows: Score Evaluation Description 5 The proposal exceeds all technical specifications and requirements for the component specified. The approach is innovative, comprehensive, and complete in every detail. 4 The proposal meets all technical specifications and requirements for the component specified. The approach is comprehensive and complete in every detail. The proposal approach contains some innovative details for some of the components specified. 3 The proposal meets all technical specifications and requirement for the component specified. 2 The proposal does not meet all technical Specifications and requirements for the component specified, or it does not provide essential information to substantiate the provider's ability to provide the service. 1 The proposal contains errors and/or omissions in the area of the component specified. 0 The provider's proposal fails to demonstrate the ability to provide the service. The evaluation criteria for Criterion No. 2, which relates in part to prospective providers being registered to do business in the State of Florida, required the evaluators to rate the proposal on the following: Does the proposal reasonably, logically, and clearly identify an organizational structure with the capability to perform the services specified and required by the RFP? Petitioner contends that Psychotherapeutic Services failed to respond fully to the Technical Proposal by not submitting the Articles of Incorporation, Fictitious Name Registration, or Business License, whichever was applicable. By failing to submit any of the other named documents, Petitioner contends that Psychotherapeutic Services' Technical Proposal was non-responsive. The untitled documents submitted by both Petitioner and Psychotherapeutic Services, described in paragraph 42, appeared to be issued by the State of Florida. The evaluators' credible testimony was that they interpreted and considered the certificate from the Department of State as the Business License, and/or one of the other acceptable means of proof that the prospective providers were registered to do business in Florida, as required in the RFP. In light of their review and interpretation of the document from the Department of State, the evaluators awarded Psychotherapeutic Services' proposal and Petitioner's proposal the following scores for Evaluation Criterion No. 2: Psychotherapeutic Services Juvenile Service Program Evaluator Bright 4 4 Evaluator Flakes 3 4 Evaluator Rapale 3 3 Petitioner contends that because Psychotherapeutic Services did not submit its Articles of Incorporation, Fictitious Name Registration, or Business License as required by the RFP,5/ it should not have received scores of three or above for Criterion No. 2. The RFP required the prospective providers' proposals: to include a work plan for the collaboration and coordination of operations with other agencies providing services at the Circuit 17 Juvenile Assessment Center; and to specify procedures for collaboration and coordination with the local Department office in certain cases. Evaluation Criterion No. 3 provides as follows: Does the proposal reasonably, logically, and clearly identify the providers' intended interaction with local service resources as specified and required by the RFP? There is no dispute that both Psychotherapeutic Services' and Petitioner's proposals addressed the issues noted in paragraph 50 above. In addition to complying with those requirements, Petitioner submitted three letters of support to supplement its response to the requirement regarding the involvement of local agencies. As to Evaluation Criterion No. 3, Psychotherapeutic Services' proposal was awarded two scores of three and one score of four. Petitioner's proposal was awarded scores identical to those of Psychotherapeutic Services' scores. Petitioner argues that it should have been awarded more points and/or Psychotherapeutic Services should have been awarded fewer points for Evaluation Criterion No. 3, because it submitted three letters to indicate community support and no such letters were provided by Psychotherapeutic Services to support its bid proposal. The RFP neither prohibited, nor required, prospective providers from submitting letters to supplement their responses related to collaborating and coordinating with local agencies. Accordingly, no points were awarded or required to be awarded based on the submission of letters of support. The three evaluators' scores were based on their individual review and evaluation of the proposals submitted by Petitioner and by Psychotherapeutic Services. No proposal was scored against each other, but rather each proposal was scored separately and not compared to each other. Past Performance The general instructions for preparation of the Past Performance section of the RFP are provided in Attachment B, Section XVIII, E., which states in relevant part the following: 1. The purpose of this section is for the prospective provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on the enclosed Attachment C, Part I, II, and/or III and all required supporting documentation. On the forms provided (Attachment C, Part I, II and/or III), the prospective Provider shall provide, if applicable, information regarding its past performance in the State of Florida, information regarding programs operated by the prospective Provider that have attained professional accreditation, and information regarding past performance in the United States outside of the State of Florida. The prospective Provider shall complete Attachment C and attach dated supporting documentation for Part II and/or III, if applicable. Failure to complete and return Attachment C for this RFP or supporting documentation, if applicable, shall result in a zero (0) score for Past Performance. All documentation provided for Parts II or III of Attachment C must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation must state that the program is a non-residential juvenile [program] and that is run by the prospective Provider. The Department is not responsible for research to clarify the prospective Provider's documentation. Prospective providers shall include the Attachment C, Part I, II and/or III for this RFP and the required supporting documents in Volume III. Failure to include these documents in Volume III shall result in zero (0) points being awarded for Past Performance. Further instructions on how to complete this section may be found in Attachment C. Attachment C provides in relevant part the following: If the prospective Provider has received Florida Department of Juvenile Justice Quality Assurance (QA) Reviews for its Non-Residential programs, that prospective Provider shall complete Parts I and III. Only scores from Parts I and III shall be considered for these prospective Providers. A prospective Provider who is operating or has operated Non-Residential program(s) in Florida must complete Part I of Attachment C. To complete Part I of Attachment C, the prospective Provider shall list all non-residential program information requested for each category. Failure to submit the attached Part I shall result in a score of zero (0) for this section. Part I of other RFP's will not be considered. All other prospective Providers shall complete Parts II and III. . . . The RFP required prospective providers to provide information regarding their past performance of juvenile justice non-residential programs on Attachment C, which consists of the following three parts: Part I, "Data Sheet: Past Performance on Non-Residential JAC [Juvenile Assessment Center] Programs; Part II, "Evaluation Questionnaire for Past Performance in the United States Outside of Florida"; and Part III, titled "Evaluation Questionnaire for Professional Accreditation in the United States." Psychotherapeutic Services was required to complete Attachment C, Part I, because it had experience operating a non-residential juvenile justice program in the State of Florida. However, because the programs Psychotherapeutic Services operated in Florida did not have professional accreditation, it was not required to complete Attachment C, Part III. Attachment C, Part I, required each respondent to provide the following information about non-residential programs it operates, or has operated, in the State of Florida: the program(s) that it had contracts to administer; the contract number(s); the program type; the beginning date of the contract; the ending date of the contract; the most recent quality assurance performance score of the program; and the most recent quality assurance compliance score of the program. For each category on Attachment C, Part I, there was a corresponding footnote, which provided the rationale and/or explanation regarding the requested information. Relevant to this proceeding are the categories contract number, the most recent quality assurance (QA) performance score, the most recent QA compliance score, and the footnotes related thereto. The footnote that corresponds to the category "contract number" provides the following: "This information is only to aid the Department in identifying the program named." The footnote that corresponds to the category "most recent quality assurance performance score," provides the following: "Quality Assurance Performance score for current year. If not evaluated yet and the program was reviewed last year, use last year's score." The footnote that corresponds to the "most recent Quality Assurance compliance score" provides the following: "Quality Assurance compliance score. If not evaluated yet and the program was reviewed last year, use last year's score." Psychotherapeutic Services did not submit the Attachment C, Part I, form that was included in the RFP. Instead, Psychotherapeutic Services prepared a re-created version of that form which was completed and submitted as part of its proposal. Except for a notation explaining its responses to the categories related to QA performance and compliance scores, Psychotherapeutic Services' re-created version of Attachment C, Part I, was almost identical to the Department's Attachment C. On the re-created Attachment C, Part I, Psychotherapeutic Services listed the one non-residential program it was operating in Florida and provided responses to the specified categories as follows: Category Response Program Name Intensive Delinquency Diversion Services (IDDS) Contract Number R601 Program Type Probation/Community Service Contract Begin Date 9/15/2003 Contract End Date 9/14/2009 Most Recent QA Performance Score 90 percent or Above Most Recent QA Compliance Score 90 percent or Above Psychotherapeutic Services included a notation on the re-created Attachment C, Part I, to explain the responses of "90% or above" that were listed as the most recent QA performance score and the most recent compliance score. The notation stated, "To maintain 'deemed status' all scores must be 90 percent or above. We do not have an exact number score." Petitioner contends that Psychotherapeutic Services' Past Performance Proposal is non-responsive to the RFP. First, Petitioner contends that Psychotherapeutic Services failed to submit the required information on the Attachment C form that was attached to the RFP, but submitted its information on the re-created version of Attachment C. The Department acknowledged that Psychotherapeutic Services re-created Attachment C, Part I. However, as previously indicated, the Department does not penalize respondents for re-creating required forms for their convenience. Rather, the information required by the forms must be provided in the response to obtain the proper score or evaluation. In response to the category related to the contract number of the program it was currently operating, Psychotherapeutic Services incorrectly listed the contract number as R601. The correct contract number of the non-residential program Psychotherapeutic Services was currently administering is RK601. The Department acknowledged that there was a typographical error or mistake on the re-created Attachment C, Part I, in listing the contract number of the program operated by Psychotherapeutic Services. However, the Department determined that this error was not critical with regard to the information that was to be provided.6/ Attachment C requires a respondent to provide performance and compliance scores for its most recent QA review of any programs currently run by the prospective provider. Instead of providing an exact score for the QA reviews, Psychotherapeutic Services provided and inserted a score of "90% or above" as their most recent QA performance and compliance scores on its Attachment C, Part I form. By way of explanation, Psychotherapeutic Services included a notation that the score was based on its "special deemed status." In accordance with the RFP, Psychotherapeutic Services submitted a report from the Department's Bureau of Quality Assurance as supporting documentation for information regarding its QA performance and compliance scores. The report confirmed Psychotherapeutic Services' responses regarding its most recent performance and compliance scores. The report from the Department's Bureau of Quality Assurance reflected that Psychotherapeutic Services' program received QA scores in 2003, but had not received any scores since then. As a result of its QA scores in 2003, Psychotherapeutic Services received "deemed status" by the Department. Psychotherapeutic Services had not received QA scores during the current year or the year prior to responding to the RFP. Therefore, Psychotherapeutic Services retained its special "deemed status" every year since 2003. The supporting documentation explained that to retain "deemed status," a provider must obtain a score of 90 percent or above each year at program review. The Department will no longer be using "deemed status" in the future, but that decision does not affect a provider/program currently holding this status. Thus, the status and scores as reported by Psychotherapeutic Services on the re-created version of Attachment C were properly reported at the time the proposal was submitted, verified, and scored. It is the Department's practice to verify the scores provided by the prospective providers who complete Attachment C, Part I, by accessing the information on the Department's Bureau of Quality Assurance website. This website is not limited to use by the Department, but is also available for use by the general public. Prior to scoring Past Performance proposals, the evaluator, Mr. Hatcher always verifies the QA information provided by any prospective provider using the official Department QA reports on the Department's Bureau of Quality Assurance website. He does not and has never viewed this practice as research, but as verification. The QA scores listed on the Department's official reports are the scores used by Mr. Hatcher in scoring the Past Performance Proposals. Consistent with his usual practice, Mr. Hatcher verified the responses given in Psychotherapeutic Services' proposal by accessing the Department's Bureau of Quality Assurance website. Mr. Hatcher used the scores on the official report posted on that website to evaluate the Past Performance Proposals. The information on the Department's Bureau of Quality Assurance website confirmed that Psychotherapeutic Services' performance and compliance scores were 90 percent or above. Psychotherapeutic Services' performance score was 95 percent, and its compliance score was 100 percent. Mr. Hatcher also utilized the Department's Bureau of Quality Assurance to verify the information provided by Petitioner and confirmed that Petitioner's most recent average QA performance and compliance scores were 82.5 percent and 100 percent, respectively. These were the QA scores Petitioner provided on Attachment C, Part I, of its proposal for the average of its most recent QA performance and compliance scores. The "90% or above" figure provided by Psychotherapeutic Services, while accurate, is not a specific numbered percent score that could be used in calculating Psychotherapeutic Services' overall score for its Past Performance Proposal. Therefore, the evaluator appropriately did not use those figures. Instead, he used Psychotherapeutic Services' QA performance and compliance figures, 95 percent and 100 percent, that were on the Department's Bureau of Quality Assurance website. To determine the score for the Past Performance Proposal, the evaluator had to apply the required formula. The formula required that the most recent average performance score be multiplied by 1.5 and the most recent average compliance score be multiplied by 0.5. The score for the Past Performance Proposal is the sum of those numbers. By applying the required formula, Psychotherapeutic Services was awarded 142.5 points for its performance score and 50 points for its compliance score. This resulted in Psychotherapeutic Services being appropriately awarded a total score of 192.50 points for its Past Performance Proposal. By applying the required formula, Petitioner was awarded 123.75 points for its performance score and 50 points for its compliance scores. This resulted in Petitioner's being appropriately awarded a total score of 173.75 points in the Past Performance Proposal. The evaluators for the Technical Proposal, the Financial Proposal and the Past Performance Proposal of RFP P2021 properly and adequately evaluated those proposals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, Department of Juvenile Justice, issue a final order dismissing the Juvenile Services Program, Inc.'s, Petition. DONE AND ENTERED this 31st day of October, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2007.
The Issue The issue in this case is whether the suspension without pay of Respondent, Deborah Peterson, by Petitioner, Escambia County School Board (the “Board”), was justified or appropriate.
Findings Of Fact The Board is responsible for hiring, supervising, and firing all employees within the Escambia County School system. This responsibility includes taking administrative action when an employee violates any rule or policy created by the Board. Respondent is employed by the Board as a cafeteria worker at Westgate School, a K-through-12 school for special needs students. She is not an instructional employee, but she does have direct contact with students. Respondent has had no prior disciplinary or negative administrative action taken against her. She is considered a very good employee and would be welcomed back to work once she is eligible. By letter dated August 29, 2017, Respondent was notified that “you are placed on suspension with pay effective August 18, 2017, pending the outcome of an arrest for a disqualifying offense.” The letter did not identify the disqualifying offense nor did it cite to any authority supporting whether the alleged offense was disqualifying in nature. It merely stated that Respondent had been arrested and that the arrest was for a disqualifying offense. On the same day, Respondent was notified by way of another letter from the Superintendent of schools that he was recommending to the Board that Respondent’s suspension be without pay. Although the Superintendent can suspend an employee, only the Board has authority to do so without pay. The letter said the matter would be brought up at the upcoming Board meeting on September 19, 2017. Once again, the letter did not identify the specific facts, stating only that “[t]he conduct at issue involves an arrest for a disqualifying offense.” The letter did not cite to any authority for the proposed action. The letter did, however, include a statement that Respondent could “review any and all documentation and records that support this action.” Respondent was subsequently notified (via letter dated September 21, 2017) that the Board had approved the Superintendent’s recommendation for suspension without pay. The letter stated in pertinent part that, “[Respondent] is suspended without pay beginning Wednesday, September 20, 2017, based on conduct as more specifically identified in the notice letter to the employee.” At no point did any of the correspondence to Respondent specifically identify the disqualifying offense. However, as noted above, Respondent was invited to meet with Ms. Oakes, the Board’s director of personnel services, after the August 29, 2017, letters were provided to Respondent. Respondent did meet with Ms. Oakes, who explained that the disqualifying offense alluded to in the letters was Respondent’s arrest for theft in the State of Alabama. Respondent was, therefore, orally notified as to the disqualifying offense at issue. This fact was established by Ms. Oakes during her testimony at final hearing. Respondent did not testify at final hearing or otherwise attempt to contradict Ms. Oakes’ testimony. According to documentary evidence presented at final hearing, Respondent had been arrested for illegally redeeming a “Redemption ticket” at a casino in Armore, Alabama. The value of the ticket, which belonged to one of Respondent’s friends, was $1,180.89. After her arrest for the theft, Respondent entered into a pre-trial diversion agreement with the State of Alabama. Pursuant to the agreement, Respondent admitted to the crime as charged, waived her right to a speedy trial, consented to six months’ supervision by the Court, agreed to pay an assessment of $750, was to make restitution to the victim, was to refrain from the use of alcohol or drugs, agreed to not violate any federal or state laws, was to maintain gainful employment, and would have no further contact with the victim. Once the terms of the pre-trial diversion agreement were completed, all charges against Respondent would be nolle prossed. As of the date of final hearing, the pre-trial diversion agreement was still in place. No competent, substantial evidence was introduced as to how Respondent is progressing in her pre-trial diversion. The Board does not consider the action taken against Respondent to be disciplinary in nature. From the Board’s perspective, only actions taken as a result of an employee’s violation of their school-related duties are deemed disciplinary. Other actions, such as in Respondent’s case or in the case of a teacher allowing their certification to lapse, for example, are not deemed disciplinary. Rather, they are “administrative” actions. The action taken by the Board does not divest Respondent of her status as an “employee” of the Board. She is suspended, but not terminated from employment. This fact is important as Respondent has apparently been engaged in training to become a school bus driver. However, she was purportedly notified by someone from the school that she could not finish her training because of her suspension.1/ Respondent is required under her pre-trial diversion contract to either be gainfully employed or in a training or educational setting. Respondent challenges the action by the Board on two bases: 1) that the notice she received was deficient because the letters did not contain a specific statement as to the disqualifying offense; and 2) that the crime of theft cannot be used by the Board for disciplining an employee because the crime does not appear in the list of disqualifying offenses set forth in chapter 1012, Florida Statutes. The offense is included in chapter 435, but Respondent asserts that chapter does not apply to school boards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Escambia County School Board, upholding the decision to suspend Respondent, Deborah Peterson, without pay. DONE AND ENTERED this 1st day of March 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March 2018.
The Issue The consolidated cases present two issues for resolution. For both Respondents, Erica Adams-Brown and Joe Nathan King, the issue presented is whether they should remain suspended without pay pending the disposition of criminal charges that are disqualifying offenses under Section 1012.315, Florida Statutes. The second issue, relating only to Respondent Joe Nathan King, is whether there is just cause for his suspension without pay for five days based upon allegations of misconduct.
Findings Of Fact Petitioner, Escambia County School Board, is a duly-constituted school board charged with the duties of operating, controlling, and supervising all free public schools within the School District of Escambia County, Florida. Petitioner has the authority to discipline employees pursuant to Subsection 1012.22(1)(f), Florida Statutes. Petitioner has implemented the Ethics in Education Act (the "Act"), as passed by the Florida Legislature effective July 1, 2008. Under the Act, multiple enumerated offenses constitute "disqualifying offenses" from employment in a position requiring contact with students. Among the disqualifying offenses is the offense of battery when the victim is a minor. Petitioner has implemented the Act by suspending without pay, instructional personnel who are charged with disqualifying criminal offenses under Section 1012.315, Florida Statutes. While that provision does not disqualify a teacher unless convicted or found to have committed the criminal offense, Petitioner finds it appropriate to suspend teachers without pay pending the final disposition of disqualifying criminal charges. Petitioner does not suspend teachers with pay pending the disposition of criminal charges because of the inability to recover compensation paid for services not provided in the event the teacher is convicted or found to have committed the offense. Petitioner does provide full restoration of back pay and benefits in the event teachers who are suspended without pay pending the disposition of criminal charges are exonerated of those charges. When a teacher is accused of striking a student, both the Department of Children and Family Services, as well as the school resource officer are informed. If a criminal investigation is warranted, a school resource officer from another school conducts the investigation in order to avoid a conflict of interest. Respondent Joe Nathan King has been employed as a teacher with Petitioner since 1974. At all times material to this proceeding, Mr. King taught mathematics classes under a professional services contract at Woodham Middle School and coached basketball. Mr. King was charged with striking a student and causing injuries. The Superintendent of Schools recommended to Petitioner that Mr. King be suspended without pay for five days. Between sixth and seventh period classes on March 16, 2009, Mr. King was on hall-duty, as was usual. Based upon a surveillance camera (employing two frames per second intervals rather than continuous video) mounted in the hallway, a student, later identified as A.D. (the student's initials will be used to protect the student's identity) was seen to have struck Mr. King from behind, causing his eyeglasses to fall from his head and scatter down the hall by the lockers. After being struck from behind by A.D., Mr. King testified that he reflexively reached back and grabbed A.D. to prevent further contact and to restrain him. Mr. King also appeared to push A.D. away from him. Once A.D. was restrained and the situation defused, Mr. King told A.D. to go to class. A.D. complied. Four different teachers witnessed at least part of the confrontation between Mr. King and A.D. Ms. Christy Wilcox was in the hallway about 10-15 feet away from Mr. King. She described in a statement that she saw Mr. King strike A.D. about the head and neck. She did not see the original altercation that led to Mr. King striking A.D. Ms. Whitney Meadows, a teacher, also witnessed the March 16 event. She saw two boys run out of Ms. Read's room and run into Mr. King, knocking his glasses off. She then saw an altercation involving pushing and shoving. Ms. Mary Catherine Coyle is another teacher who witnessed the March 16 event. She was standing at the doorway of Ms. Read's and Ms. Meadows' classroom. She witnessed a student striking Mr. King from behind. She saw Mr. King turn around and strike the student with his left hand. Ms. Denisha Read, a teacher, also witnessed the events of March 16. She heard Mr. King make a comment about his glasses. She heard a student say words to the effect of "it was not me." She saw Mr. King strike the student near the shoulder area with a "closed fist." She described the student as being "very upset." She tried to calm the student who was crying. She reported the matter to the principal. The video images from the camera that recorded the incident, are consistent with a composite version of the four teacher witnesses to the event. Mr. King appears to have been struck from behind by a young student, identified as A.D., knocking his eyeglasses to the floor. Mr. King then acted reflexively to defend himself and first pushed A.D. away, then grabbed him by the arm and had words with him. A.D. then went into Ms. Read's classroom, his seventh period class. After the incident, A.D. left Ms. Read's classroom and was seen standing alone in the video by the student lockers. Ms. Read took him a tissue because he was crying, then went to report the matter to the principal. The video tape offered into evidence does not show Mr. King striking A.D. with either an open or a closed fist. Mr. King appears to be pushing A.D. away from him after the contact that knocked his glasses off his head. Mr. King had been subject to a written reprimand in 1993 for slapping a student, which he denied at the time. No other evidence of disciplinary action taken by Petitioner against Mr. King during the course of his teaching career was offered at hearing. Mr. King acknowledged that he was arrested on March 24, 2009, and charged with a criminal offense of battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes, and that the charge remained pending at the time of the hearing on October 5 and 6, 2009. He did not have a date for its resolution at the time of the hearing. Mr. King was suspended without pay on June 22, 2009. He was still under suspension without pay at the time of the hearing in October. Mr. King testified that he got along reasonably well with the teachers who testified that he struck a student. He was not aware of any reason why the teachers would testify untruthfully regarding his actions on March 16, 2009. At all times material to this proceeding, Respondent Erica Adams-Brown taught reading classes under a professional services contract at Woodham Middle School. Ms. Adams-Brown was accused of striking student J.M. and causing injuries after her seventh period class on April 3, 2009, the day before the start of spring break. On April 3, 2009, the principal of Woodham Middle School, Marsha Higgins, was called at home and notified of allegations that Ms. Adams-Brown had struck a student. Ms. Higgins returned to school and met with the parents of the child who was allegedly struck. A pre-disciplinary meeting was held with Ms. Adams- Brown in attendance. Petitioner investigated the matter along with Ms. Higgins and concluded sufficient evidence did not exist to discipline Ms. Adams-Brown. She was authorized to return to the classroom with pay pending Petitioner's investigation on April 7, 2009. However, Ms. Adams-Brown was contacted at home during spring break and was informed she would not be allowed to return to her classroom to teach after the break, but would be reassigned with pay. Ms. Adams-Brown was informed of a proposed disciplinary action by Petitioner on April 23, 2009. Petitioner concluded its investigation on April 29, 2009, and found the allegations of battery on a student to be unfounded. On April 30, 2009, Ms. Adams-Brown was arrested and charged with battery on a minor pursuant to Subsection 784.03(1)(a), Florida Statutes. Ms. Higgins played no role in Ms. Adams-Brown being charged with a crime by the Office of the State Attorney. Ms. Adams-Brown was reassigned with pay on that date pending the outcome of the law enforcement investigation and criminal charges. Ms. Adams-Brown was suspended without pay pending disposition of the criminal charges on July 22, 2009. Ms. Adams-Brown remained under suspension without pay as of the date of the hearing. She did not know when the criminal matter would be resolved. Ms. Adams-Brown believed that Mr. King's and her suspensions were racially motivated. She and several other teachers, including a teachers' union representative met with Assistant School Superintendent Dr. Alan Scott on April 29, 2009, to discuss these allegations of racial discrimination. The testimony at hearing concerning the substance of the April 29, 2009, meeting with School District officials did not support a claim of racial discrimination or disparate treatment as the basis for Petitioner's role in the incidents involving Mr. King and Ms. Adams-Brown. Petitioner has consistently implemented its policy of suspending teachers without pay pending the disposition of criminal charges. No exceptions have been made. Of the six teachers identified by Dr. Scott who were suspended by Petitioner since July 21, 2008, on the basis of pending criminal charges for disqualifying offenses, all were suspended without pay. Concerning the issue of race, three of those suspended were white and three were African-American. Ms. Adams-Brown testified she was not aware of other teachers who were charged with disqualifying criminal offenses who were not suspended without pay pending the disposition of those charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order affirming the suspension without pay of Respondents pending the disposition of disqualifying criminal charges, and the suspension without pay of Respondent, Joe Nathan King, for five days for engaging in misconduct, including striking a student. DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2009. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Longoria, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Christine C. Hardin, Esquire 3 West Garden Street, Suite 204 Pensacola, Florida 32502 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Malcolm Thomas, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502
Findings Of Fact A. Introduction Briefly this case concerns itself with the measures taken by Respondent to effectuate its suspension of petitioner without pay during July 29, 1975, 2/ through August 22. The suspension letter dated August 8, advises the Petitioner that the disciplinary action taken against him was based on information furnished him in a letter dated July 29, 1975. (See joint exhibit #1 received and made a part hereof by reference). In essence the July 29th letter indicated that based on the results of a meeting held in Hanni's office numerous incidents involving alleged willful violations of agency rules, regulations and policies were reviewed and that while Petitioner was aware of such rules, regulations and policies, because of philosophical differences, he circumvented them. Present at that meeting on Respondent's behalf were William Clark, Pat DeNoyer, Joe Davis, Grace Scarberry and Petitioner. The Letter advised that although he received a satisfactory performance evaluation effective February 23, 1975, during that evaluation period he engaged in numerous violations of agency rules, regulations and policies. Specifically, the letter referred to an incident wherein he altered a form, DYS143, which changed the recommendation for issuance of a petition to a recommendation of no petition. That alteration, as the letter reads, was made after the supervisor had initially approved the original recommendation for issuance of a petition. This, as the letter alleges, was without the supervisor's attention and/or recommendation. The July 29th letter also indicates other instances in which pre-dispositional reports were not completed prior to court hearings on approximately three occasions and that he was issued an oral reprimand for using profanity in speaking to a neighbor who was known to Petitioner as a former DYS client on July 14; that he violated DYS rules by authorizing the release of a child from detention in violation of a judge's "hold-in-custody" order and against the judge's express wishes and instructions; that he did not notify a court psychologist of the change of a hearing date from July 16 to July 10 even though he had full knowledge that the psychologist had done a court ordered evaluation which was standard procedure which resulted in violation of State Department of Health and Rehabilitative Services, Division of Youth Services Employee Rules of Conduct and Guidelines for disciplinary action, offense no. 24, in willful violation of rules and regulations of policy. For engaging in the conduct as alleged, Petitioner was dismissed from his employment effective 5:00 P.M., July 28, 1975. During a telephone conversation on August 8, Petitioner was advised by Hanni that his supervisors had reviewed the circumstances surrounding his termination on July 28, and based on further review, it was felt that the disciplinary action taken against him resulting in termination should be reduced to a suspension without pay. Thus the initial termination was reduced to a suspension effective July 29. The Petitioner, Warren F. Shaw, holds a B.S. Degree from Florida Atlantic University and was initially employed by Respondent in June, 1973. He received permanent status in August, 1974, and was placed in the intake unit. He was initially hired by T. Waldren and was placed in Grace Scarberry's unit after she (Scarberry) had been a supervisor for approximately five months. During the time that he was employed in Mrs. Scarberry's unit, he submitted two transfer requests. When Petitioner returned to work on August 22, he was evaluated by Mrs. Scarberry on August 26 and at that time he was placed on conditional status. On that date, Mrs. Scarberry explained to Mr. Shaw the reasons why his performance was rated conditional (allegedly due to his inclination to circumvent established procedures and policies in critical areas). The letter of explanation indicated that during the early portion of his rating, he performed within satisfactory limits, however, during the latter period there was a general decline in his overall performance. It went on to state that he (Shaw) found it difficult to meet acceptable standards of performance in the areas of dependability, relationships with people, quality of work and adequate utilization of his job knowledge. It cited one occasion when he failed to place vital social information in a PDR which was allegedly "known to him" and pointed out to his supervisor resulting in an unnecessary court continuance and detention for a child. Further it cited an incident wherein another child was released from detention in violation of a court order. Also mentioned were his critical attitude regarding his relationship with people including the clerical and professional staff and clients which had been the subject of an earlier oral reprimand. See Appellant's Exhibit #2, received and made a part hereof by reference. Grace Scarberry, a camp specialist of District 10, HRS, since June 30, 1976, was initially hired in September, 1972 as a youth counselor II. Sometime during late March, 1974,she was made supervisor for youth counselors and was assigned to supervise the Petitioner sometime during September, 1974. Essentially intake counselors receive referral applications from policemen by juvenile offenders. During June 1975, the Division of Youth Services established a unit to handle juvenile matters at the Broward County Courthouse. A PDR is a summary of arrests records, impact forces, family background and generally data relative to how a child fits into his family. It is used to assist the presiding judge on the disposition of juvenile offenders. Mrs. Scarberry testified that standard rules and regulations require counselors to submit PDR's prior to the court hearing absent extraordinary circumstances. Mrs. Scarberry related the incident regarding the alleged alteration of an order by the Petitioner wherein he recommended that a petition be filed in a case which she approved and that Petitioner thereafter changed the recommendation. When the change was discovered, she counseled Petitioner. She expressed her knowledge and familiarity with the disciplinary procedures and testified that on July 22 she evaluated the Petitioner as being a satisfactory employee. She also related other instances wherein PDR's were not filed prior to the hearing and circumstances wherein social files contained inaccurate and incomplete material. She also indicated the problem regarding the lateness in which the Petitioner submitted files which normally should be completed approximately two to three days after a judge's order is entered and received. For this alleged infraction, Petitioner was asked to write a memo explaining his lateness in filing reports and in that memo he replied that such was occasioned by his heavy case load and other pressing matters. Scarberry also related the incident wherein Petitioner allegedly violated a judge's holding order by releasing a child who was ordered to be retained until he was transferred to a drug program. She testified that Petitioner explained that the judge had ordered the youth released on the date in which the release occurred. She requested that Petitioner file a memo explaining his actions regarding the release whereupon she explained to him that although he violated the rules, no disciplinary action would be taken. Frank William Schueler, a police information officer for Ft. Lauderdale, testified that his son is the subject of the Petitioner's alleged violation of the judge's "hole-in-custody" order. He was somewhat vague in his testimony but generally indicated that he was of the opinion that the Petitioner followed the judge's order in releasing his son. H. Squier Hanni, Regional Director for the Division of Youth Services during times material, testified that he terminated Petitioner on July 29, 1975. He testified that on or about July 16, he along with Petitioner, Mrs. Scarberry, DeNoyer and others, during a meeting determined the basis for the charges. At that meeting, Mrs. Scarberry stated that the Petitioner circumvented rules, policies and procedures whereupon he reviewed the reports of his work in certain cases. A further meeting was held on July 28 and at that meeting, Petitioner, according to him, wanted the matter ended. Accordingly, the allegations were read to him and he responded that they were ridiculous. When the allegations were read to him, Petitioner indicated that he followed the rules and regulations and in certain instances wherein there was a departure, he should be compared to Kennedy and other employees who had not consistently followed procedures as they were "standardized". Thereafter, Petitioner was excused from the room and the parties jointly agreed that he was guilty as alleged and various options were discussed among them. One option discussed was to have Petitioner placed in the conditional status for approximately 30 to 45 days. That option was not utilized and they decided to terminate him. On or about August 8 the dismissal was substituted for a suspension based on consultation with Art Adams, Personnel Director for the Division of Youth Services, who persisted that the action warranted suspension rather than termination. He explained to Hanni that attitude should not be an operative factor in a disciplinary action. On cross examination, he testified that he was aware of no other employee who had been reprimanded for the conduct allegedly engaged in by the Petitioner and that he did not point out to Petitioner when specifically requested by him, the rules and regulations which he allegedly violated. He admitted that philosophical differences without question played a factor in his reasons for dismissing the Petitioner. He further admitted that Petitioner requested to be transferred to another unit and he refused. Joe Davis, Staff Developmental Trainer-Consultant since April 15 testified that he was aware of the Petitioner's alleged violation of a hold-in- custory order which was stated as one of the reasons for his separation. He spoke to the judge who indicated that the order was predated to prevent Petitioner from "getting into trouble". Pat DeNoyer, a Program Specialist, testified that she prepared a list of all employees who were to attend training meetings. Petitioner was not included on the list to attend training meetings in her opinion due to a clerical mistake. (See Exhibit A, received and made a part hereof by reference). She related the problems regarding social file discrepancies and admitted that no corrective action was taken to correct this problem and further that there were discrepancies in almost all of the files that were reviewed. She failed to recall having voiced this to Petitioner or indicating that he should institute some corrective action to see that the discrepancies did not continuously occur in social files. She admits to having received two transfer requests from Petitioner and was aware of his special evaluation in which he was rated above satisfactory on June 17, 1976. She expressed the opinion that Tom Waldren is an experienced supervisor. Jean Tillman, a District Intake Specialist, also related the problems regarding social file discrepancies. She recalled that verbal requests for corrective actions regarding the social file discrepancies were made by Mr. W. H. Clark. She indicated that the social files were considered late if they were not presented by 8:00 A.M. on the day prior to the court hearing. Several employees testified, including James Robinson, Kate Woodby, and Betty A. Conrad who was employed through January 31, 1976 as an employee in the VISTA program which was then connected with DYS. She testified that Petitioner went over and above his call of duty by assisting her and performing special counselling for the VISTA program. Tom Waldren, a youth counselor supervisor and the person who originally hired the Petitioner, testified that he rated Petitioner above satisfactory. He also indicated that it was not uncommon for interchanges to occur verbally at times when a social file was not timely presented. Ronald Nelson, a youth counselor since approximately April of 1972, testified that he has known Petitioner for approximately three years. He has worked along with Petitioner on numerous felony cases and indicated that he and Petitioner have been criticized for handling judicial cases. He worked very closely with the Petitioner since July of 1975 and would rate his work performance above satisfactory. Shaw testified that he submitted the two transfer requests because of the philosophical differences that he and Mrs. Scarberry had. He related his being placed on conditional status when he returned to work on August 26, 1975, and at that time he requested that he be transferred. He indicated that on or about July 28 the problem of PDR's was raised for the first time and he admits that he had been orally spoken to about the lateness in which he filed PDR's. In explaining his conduct surrounding the change in the recommendation, he indicated that he first made the recommendation to Scarberry that a recommendation be filed in the case. He testified that he was asked to go see the then assistant state attorney, John King, who was not in at the time. Upon reflection of the matter, he changed his recommendation and the matter was brought to King's attention who did not file a petition. He testified that this change in the recommendation centered around the fact that is was a sex case involving two neighbors who were, in his opinion, being vindictive. He spoke to Scarberry about the change sometime in January. He indicated that he was baffled by Scarberry's continuous indication that while he was being orally reprimanded, the reprimands continuously turned up in his personnel file. Regarding his alleged failure to have a court psychologist present, he explained that court psychologists were not needed in all cases and that he was unaware of any rule that required the presence of a court psychologist in the cases such as the particular case in question. As regards the alleged violation of the judge's "hold-in-custody" order, Petitioner testified that when he spoke to the judge, he concurred with his disposition of this matter. Specifically, he testified that he called the drug program to see if the subject juvenile could be expedited into the drug program. Upon learning that the juvenile could be expedited into the drug program, he released him to the father, and he was then placed in a "hold- release" situation. During his exit interview, Petitioner testified that Hanni related the problems which essentially were his dissatisfaction with the philosophical differences existing between he and Scarberry. He talked to Art Adams the day prior to his reinstatement and Adams indicated to him that he initially felt that Hanni was correct but upon reconsideration, determined that the action taken was a bit harsh for the alleged infractions of the various rules, regulations and policies. Petitioner was unaware of any rule which required that PDR's be in writing prior to submission of the case to court for hearing. He was requested to, and prepared a document explaining his actions surrounding the alleged violation of the judge's "hold-in-custody" order. In explaining his alleged withholding of cases, Petitioner indicated that for the majority of his cases, he submitted them to the supervisor within two or three days following the close of the hearing. He testified that his case files did not always include rules of probation due to other pressing reasons, for example other cases which were in court for final hearing. As regards the reprimand that he received for using profanity, he denied that he made any profane statements in the presence of a female. He testified that it was in his opinion, up to the counselor's discretion to see what manner or means a youth should be transported to a detention center. Finally he testified that the judge authorized the release to the juvenile's father. In resolving the issue posed here, the undersigned has examined the documentary and other evidence and viewed such in light of the Respondent's alleged reasons cited for prompting the Petitioner's suspension. In so doing, I am forced to conclude that the suspension was caused, at least in part, based on Petitioner's philosophical differences with his supervisor, Grace L. Scarberry. H. Squier Hanni, the Deputy District Administrator who ordered the suspension admitted as much in his testimony. In fact he testified that the philosophical differences existing between Petitioner and Scarberry played a major part in his decision to discharge Petitioner. Thereafter on the following day, Hanni consulted with HRS Personnel Director, Art Adams, who correctly pointed out that philosophical differences should not play any part in a decision to discharge an employee. When Hanni was persuaded to reduce the disciplinary action to a suspension, the undersigned is of the opinion that the appropriate corrective action was not taken for the following reasons. By his own admission, Hanni indicated that Petitioner's philosophical differences unquestionably played a factor in his decision to discharge Petitioner. The evidence also reveals that the alleged violations of rules, policies etc., which formed the basis of the decision to terminate Petitioner were the same type conduct which other employees engaged in without any disciplinary action being taken against them for such conduct. This is clearly disparate treatment and lends support for a conclusion that the cited reasons for the discharge were pretextual and the real reason was the philosophical differences. Even if it was less clear that other employees had engaged in the kind of conduct which led to Petitioner's suspension without any disciplinary steps taken, the suspension is still suspect in view of Hanni's forthright testimony that the philosophical differences played a major part in his decision which ultimately led to Petitioner's suspension. Further support for this conclusion rests in an examination of the remarks contained in Scarberry's letter to Petitioner indicating that while he had been performing satisfactorily, his critical remarks were part of the reasons that she evaluated his performance as conditional (See Appellant's Exhibit #2). This evaluation was made immediately following Petitioner's return to work and after the suspension. At that time, Petitioner again requested a transfer which was denied. He was finally permitted to transfer in mid- September, 1975, and he was evaluated above satisfactory in November 1975, by his supervisor, Tom V. Waldren. Based on the above and the entire record in this case, I find that Petitioner was suspended at least in part due to his philosophical differences with supervisor Grace L. Scarberry. Inasmuch as the suspension rested in part on this fact, I therefore conclude that the suspension was improper and should have been retracted. I shall so recommend. 3/
Recommendation Based on the above findings of fact and conclusions of law, I recommend that Respondent make whole its employee, Warren Frederick Shaw, for any loss in earnings plus reasonable attorney fees and costs as provided in Chapter 110.061(3), F.S., that he suffered during the above referenced period in which he was suspended. I further recommend that his personnel records be expunged of any material relative to the suspension. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1976.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2011.
The Issue The issue is whether Respondent's decision to reject all bids in DJJ Solicitation Number: RFP# P2043 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties DJJ is a state agency whose mission is to reduce juvenile delinquency. One of the methods used to attempt to attain this goal is through the provision of community-based intervention services programs for boys and girls. EYA and the White Foundation, both of whom are not-for- profit foundations, are contractors who are in the business of providing community-based intervention services for boys and girls. There are about 320 to 360 contracts between DJJ and private contractors. Both EYA and the White Foundation, at all times pertinent, had contracts with DJJ. The White Foundation operates only non-residential programs. EYA operates both non- residential and residential programs. Background In RFP#R2043 dated April 30, 2008, DJJ solicited requests for proposals for a contract to provide, "A 120-slot community based intervention program for boys and girls in Circuit 5 (Marion, Citrus, Hernando, Sumter, and Lake Counties, as described in the Scope of Services (Exhibit 1)." EYA is the current operator of the program and continues to operate the program pursuant to an extension of their current contract. That extension is set to expire December 31, 2008. The program sought can be further described as a nonresidential, service-oriented intervention program with comprehensive case management services for department-served youth through the development of a provider designed, developed, implemented, and operated intervention program for youth. The program is to serve youth on probation, conditional release, or post-commitment probation, and is to include supervision of youth transitioning from a residential commitment program, released from residential commitment program for post-commitment services, or placed on probation. The RFP provided that "The Department reserves the right to accept or reject any and all bids, or separable portions thereof, . . . if the Department determines that doing so will serve the State's best interests." EYA and the White Foundation submitted timely, responsive proposals. Proposals were also submitted by Gulf Coast Treatment Center, Psychotherapeutic Services of Florida, Silver River Mentoring & Instruction, Community Action Foundation of Citrus County, and Taylor Human Services. No responder availed themselves of the opportunity to ask questions about the RFP. On June 20, 2008, DJJ published its notice of intent to award the contract to EYA. On June 25, 2008, DJJ published a notice of its withdrawal of its previous decision on the RFP and its intended decision to re-issue the solicitation for the program. On June 26, 2008, the White Foundation timely filed a notice of intent to protest DJJ's intended decision. On July 9, 2008, the White Foundation timely filed a formal bid protest challenging DJJ's intended decision. Evaluation generally The language contained in the RFP is boilerplate language that is repeated with little change in all solicitations for both non-residential and residential programs, with the exception of the scope of services portion. Attachment D of the RFP is entitled, "Evaluation Criteria." It provides that the proposals are to be evaluated and scored in three categories: technical proposal (referred to as "Volume 1"), financial proposal (referred to as "Volume 2"), and past performance (referred to as "Volume 3"). Generally, at DJJ, an evaluation panel of three to five evaluators reviews Volume 1, the programmatic elements, or the technical proposal. In this case, three evaluators scored Volume I. The financial proposal, or Volume 2, was a mathematical formula that essentially required no subjective analysis. A single evaluator simply determined the lowest price that was under the maximum amount the RFP permitted. The evaluation of the third part or Volume 3, past performance, was accomplished by Senior Management Analyst II, Paul Hatcher, acting alone. Mr. Hatcher has been an employee of DJJ for 23 years and has been an evaluator of RFPs for seven years. His role in evaluating the RFP was intended to be objective. In other words, he was tasked with reviewing the information provided and ensuring that it met the requirements of the RFP. His evaluation was not supposed to be subjective or judgmental. Typically, and in this case, subsequent to the evaluation of the parts, the DJJ Contract Administrator enters the various scores into a bid tabulation sheet to determine the high scorer. It is DJJ's intention in all cases to award the contact to the prospective provider whose proposal receives the most points. In this case, on June 19, 2008, the contract administrator determined that EYA received 817.22 points and the White Foundation received 785 points. Other responders scored lower. To the extent the controversy is concerned with which party should have been awarded the most points, the focus is on the past performance evaluation. The past performance category addresses the prospective provider's knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category, Volume 3, are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and part III - Evaluation for Professional Accreditation in the United States. Attachment C further states that if the prospective provider has received DJJ Quality Assurance (QA) reviews and recidivism rate results for its non-residential programs, the provider should complete only Parts I and III. Both the White Foundation and EYA had QA reviews and thus were required to address only Parts I and III. This information was available to all parties through access to DJJ databases. Part I of Attachment C - Past Performance of Non-Residential Programs Part I of Attachment C permitted the assignment of 100 points for "Average QA." For programs receiving a quality assurance review prior to 2007, responders could receive up to 75 points for performance scores and up to 25 points for compliance scores. Part I provided a grid entitled, "Attachment C-1 Part I, Data Sheet: Past Performance of Non-Residential Programs." (past performance data sheet). The past performance data sheet has columns labeled "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," and "Failure to Report." There is also a column entitled "Number of Completions during FY 2005-2006" in which is recorded the number of youths who complete the programs. A final column is labeled, "2005- 2006 Recidivism Rate." The "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2005-2006," and "2005-2006 Recidivism Rate," are found in databases available from DJJ. This form is quite similar to the forms in RFPs for the residential programs. Ashley Nevels, an accountant, and vice-president of administration for the White Foundation, reviewed all of the records pertaining to the responses to the RFP. Mr. Nevels found Volumes 1 and 2 to be essentially correct. He found errors in Volume 3. Though not qualified or considered as an expert witness, his testimony was helpful in illuminating the forms and procedures used in evaluating the responses. Mr. Nevels carefully reviewed responses in Volume 3 submitted by the White Foundation and EYA. With regard to the past performance data sheet, he found that there was information provided by EYA that was erroneous and information that was omitted. He found that Mr. Hatcher had corrected the erroneous information supplied by EYA, but did not consider whether or not it was complete. Mr. Nevels concluded that the White Foundation was correct in its report as presented on the past performance data sheet. Laura Moneyham, an employee of DJJ, working in its purchasing section, also reviewed the past performance data sheet. She found that EYA should have been awarded only 813.04 total points instead of the 817.22 that Mr. Hatcher awarded. In other words, EYA received 4.18 more points than it should have received. Her findings generally comported with Mr. Nevels, except he believed EYA received slightly more underserved points than reported by Ms. Moneyham. Based on the testimony of Mr. Nevels, the figures derived by Ms. Moneyham, and a review of the data contained in the exhibit, it is found as a fact that EYA should have received at least 4.18 fewer points on the Attachment C-1 Part I, Data Sheet, than was awarded by Mr. Hatcher. It is further found that the White Foundation's data was correct. The errors found on the past performance data sheet would have not affected the outcome of the award. After corrections, EYA would still have enough points to prevail. However, there was also an error in scoring the Part III accreditation portion of Attachment C. As Ms. Moneyham found on her re-scoring, and as Mr. Nevels had found, the White Foundation was entitled to 30 more points than it received in that category. Part III of Attachment C - Evaluation for Accreditation It was DJJ's policy, through the accreditation section that was denominated in Part III, to reward providers with points in the procurement process for achieving accreditation status. This was DJJ's policy because accreditation is a qualified endorsement by an outside, objective party that confirms that an organization conforms to recognized service standards. Ten points were to be awarded for each accredited program submitted in the response to the RFP. Both EYA and the White Foundation submitted information on three accreditations. Both responders were eligible to receive 30 points in this category. Attachment C provides, with regard to Part III - Evaluation for Professional Accreditation in the United States, found at page 16 of 63 of the RFP, as follows: All documentation provided . . . must include the start and end dates, be current dated and valid at least through the start date of the Contract that results from this RFP. The documentation shall also state that the program cited is a non-residential juvenile program and that it is run by the prospective Provider. The Department will verify all information received but is not responsible for research to provide information not submitted and documented by the prospective Provider. Failure to provide the required supporting information for Parts II or III of the attachment shall result in a score of zero (0) for that section. EYA responded to Part III by providing a copy of page 24 of the RFP and providing copies of three certificates from the Council on Accreditation (COA) indicating that EYA was accredited in Circuits 6, 7, and 11; a letter from the copies of Bureau of Quality Assurance Performance Rating Profiles; and an explanation that the three programs are operated in the United States under DJJ contract, are non-residential programs, and are operated under the CBIS program model. The EYA certificates did not indicate start dates. Nevertheless, Mr. Hatcher awarded 30 points to EYA. The White Foundation responded to this section by providing copies of pages 20-23 of the RFP and three certificates from the Commission on Accreditation of Rehabilitation Facilities (CARF) that indicated that the White Foundation was accredited. Mr. Hatcher awarded no points to the White Foundation in the accreditation category. Mr. Hatcher arrived at the White Foundation's score, or non-score, by referring to Part III of Attachment C of the RFP. In that section there appears a list of four accreditation organizations. Accreditation by one or more of these organizations can result in a responder receiving points for the section. Following the list of acceptable accreditation organizations, the form inquires, "Does the prospective provider currently operate or perform a non-residential juvenile justice organization/program/facility/service ('accredited entity') in the United States which is being offered as a part of its RFP proposal, and is that accredited entity in good standing and without restrictions by: . . . " and lists four accreditation agencies. The evaluator is to check "yes" or "no." Immediately following this language, the form recites 12 standards to be addressed if the responder answers "yes." These standards serve as the base requirements for a responder to have an acceptable "yes." Mr. Hatcher found that the White Foundation had not complied with standard eight of the 12 standards, which states, "Must provide documentation that establishes the accredited entity is offered as part of the prospective provider's proposal (i.e. RFP) proposal page and/or section reference)." Mr. Hatcher believed standard eight required documentation of the specific page and section of the RFP to which the accreditation would apply, and that was not provided by the White Foundation in Part III. He believed the White Foundation was required to provide a reference to a specific portion of Volume 1. Because the accreditations supplied did not provide a reference to a proposal page or section, Mr. Hatcher, using a strict interpretation of the requirement, found it to be noncompliant. Mr. Hatcher could have looked at Volume 1 of the White Foundation's response and found the information that was required. He did not look at Volume 1 because he believed that would be "research" of the type prohibited by the guidance found at page 16 of 63 of the RFP. Subsequent to the announcement of the agency decision revealing that EYA had prevailed, as noted, Mr. Nevels and Ms. Moneyham reviewed the evaluations for past performance. Lisa J. Eaton, a Senior Management Analyst II, who is employed by DJJ, also reviewed the evaluations for past performance. Interpreting the same language Mr. Hatcher used for guidance, they all arrived at the opposite conclusion with regard to accreditation and determined that the White Foundation should have been awarded 30 points. It is found as a fact that standard eight of the 12 standards, when read in conjunction with the guidance provided in the first paragraph of Attachment C, Evaluation of Past Performance for Non-Residential Programs, at page 16 of 63, provided guidance that could confuse an evaluator and could result in a decision with regard to accreditation that was contrary to DJJ policy that DJJ attempted to express in the RFP. Agency deliberations with regard to the decision to reject all bids It was brought to the attention of DJJ in December of 2007, by the Recommended Order in Eckerd Youth Alternatives, Inc. v. Department of Juvenile Justice, Case No. 07-4610BID (DOAH December 14, 2007), that the past performance portion of their RFP was infused with ambiguity. As a result, an attempt was made to clarify the type of information that was desired to satisfy the accreditation portion of the past performance part of the RFP. After the responses to RFP# P2043 were received and scored, the contract section of DJJ determined that Mr. Hatcher's scoring was inconsistent with the scoring that had been done on residential RFPs even though the two were 99 percent congruent. The evaluators of the residential programs would provide information omitted by a response, and correct information that was incorrect when submitted. Then they would score the response. Unlike the residential scorers, Mr. Hatcher did not count QA programs that were missing, but did correct information that was incorrect when submitted, if the contract numbers were correct. This meant that a potential vendor could choose to include their well-performing programs and not report programs that were performing poorly, and thereby gain an advantage. This did not comport with the desires of DJJ. DJJ staff also determined that Mr. Hatcher failed to score the accreditation portion in accordance with their policy objectives. Amy Johnson, Chief of the Bureau of Contracts, believed that Mr. Hatcher was confused by the language of the RFP and that accounted for his incorrect scoring. Upon reviewing the situation, Deputy Secretary Rod Love and Assistant Secretary Darryl Olson determined that all bids should be rejected and the process begun anew. It cannot be determined from the evidence whether that decision was made before the White Foundation protested, or after. As a result of the difficulties experienced in RFP# P2043, DJJ staff have attempted to further clarify that information that is omitted or inaccurate will be corrected and used. They have removed standard eight of the 12 standards that referred to the need to cross-reference. It was DJJ's intent to have consistent interpretations and scoring of proposals throughout the Department, and in particular, between bids for residential and non-residential programs. In order to carry out that intent, DJJ decided to reject the bids and initiate a new RFP for the desired project. There was no evidence that the actions of DJJ were illegal, dishonest, or fraudulent. For reasons that will be addressed below, the decision to reject all bids also was not arbitrary.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department of Juvenile Justice issue a final order dismissing the Petition and Formal Protest filed by Petitioner. DONE AND ENTERED this 27th day of October, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2008. COPIES FURNISHED: Donna Holshouser Stinson, Esquire M. Stephen Turner, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Tonja V. White, Esquire Department of Juvenile Justice Knight Building, Room 312L 2737 Centerview Drive Tallahassee, Florida 32399-3100 Martha Harrell Chumbler, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Frank Peterman, Jr., Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. O’Neill holds Florida Educator’s Certificate No. 470617, covering the areas of early childhood development and elementary education, which is valid through June 30, 2007. At all times material to this proceeding, Ms. O’Neill was employed as a third grade teacher at Lakemont Elementary School (Lakemont) in the Orange County School District (School District). Dr. Susan I. Stephens has been the principal at Lakemont for 12 years. Dr. Stephens was Ms. O’Neill’s supervisor at Lakemont. On September 30, 2005, Dr. Stephens received a call late in the afternoon from a student’s parent complaining that she had smelled alcohol on Ms. O’Neill’s breath during a teacher-parent conference a few days before the call. Dr. Stephens went to Ms. O’Neill’s classroom to discuss the issue with Ms. O’Neill, but Ms. O’Neill had left for the day. The following Monday morning, October 3, 2005, Dr. Stephens confronted Ms. O’Neill in her classroom before school started about the allegations made by the parent. At that time, Dr. Stephens smelled alcohol on Ms. O’Neill’s breath. When Dr. Stephens told Ms. O’Neill that the parent wanted the child removed from her class, Ms. O’Neill acted very nonchalant and began to talk about other things that were not responsive to the issue being discussed. Dr. Stephens has had training to detect the use of alcohol and was of the opinion that Ms. O’Neill was under the influence of alcohol. After her discussion with Ms. O’Neill, Dr. Stephens sent her assistant principal, Randall Hart, to talk with Ms. O’Neill and to observe her. Mr. Hart returned and reported to Dr. Stephens that he also smelled alcohol on Ms. O’Neill’s breath and thought that Ms. O’Neill had been “acting differently.” By the time Mr. Hart had returned from observing Ms. O’Neill, students were arriving in the classroom. Dr. Stephens sent Mr. Hart back to Ms. O’Neill’s classroom to remain in the classroom while the students were present. Dr. Stephens called the Employee Relations Office of the School District and was given the name of a principal in a nearby school, who was trained in the detection of the use of alcohol. Dr. Stephens contacted the principal, Suzanne Ackley, and asked her to come and observe Ms. O’Neill. Ms. Ackley and Dr. Stephens went to Ms. O’Neill’s classroom. The students in Ms. O’Neill’s class had been sent to other classes for art, music or physical education. Ms. O’Neill was “giggly” and was slurring her words. She talked about things which were not related to the issues raised by the two administrators. Ms. Ackley agreed that Ms. O’Neill was under the influence of alcohol. Dr. Stephens and Ms. Ackley went back to Dr. Stephens’ office and called the Employee Relations Office for guidance. They returned to Ms. O’Neill’s classroom, and Dr. Stephens asked Ms. O’Neill to accompany her to an alcoholic testing center. At first, Ms. O’Neill agreed to do so, but wanted to go home first and get her medications. Dr. Stephens refused to let her go home before going to the test center. Ms. O’Neill then refused to go for testing and left her classroom headed for her car. Dr. Stephens did not feel that Ms. O’Neill should be driving in her condition and followed Ms. O’Neill to her car. Dr. Stephens had called for the police officer who was the school resource officer to meet them at Ms. O’Neill’s car. The police officer, Lina Strube, had over nine years of experience and had been trained to detect when a person was under the influence of alcohol. By the time Officer Strube got to the parking lot, Ms. O’Neill was in her car driving toward Officer Strube. Before Ms. O’Neill could get to the gate of the parking lot, Officer Strube stopped her and asked her to roll down her window, which Ms. O’Neill did. Officer Strube could smell alcohol on Ms. O’Neill’s breath and told Ms. O’Neill that she wanted to talk to Ms. O’Neill. Ms. O’Neill became agitated, and Officer Strube had to call for assistance. Based on her experience and training, Officer Strube felt that Ms. O’Neill was under the influence of alcohol. As a result of the incident on October 3, 2005, Ms. O’Neill employment with the School District was terminated. Ms. O’Neill’s was under the influence of alcohol while in the classroom and such conduct seriously reduced her effectiveness as an employee of the School District and showed her failure to make a reasonable effort to protect her students from conditions that are harmful to learning and/or to the students’ mental health or physical safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(e) and revoking her educator’s certificate for two years. DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2008. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Michele O'Neill 110 Wigwam Place Maitland, Florida 32751 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida, 32399-0400