The Issue Whether Petitioners' protest should be sustained?
Findings Of Fact Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program. SMSC is a Delaware corporation authorized to do business in the State of Florida. McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients. Garcia & Ortiz, P.A., is a Florida professional association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.) Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services."). On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC." The Request for Proposals On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years." The RFP contained the following statement of "purpose:" The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services: Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . . Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State; Process inquiries from holders and distribute information to holders of unclaimed property; Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners; Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department; Process claim forms received from apparent owners of unclaimed property; Process and issue payment on approved claims to the owners; Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial; Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . . Provide a security plan which protects the information on the ADPB [Abandoned Property Database] from unauthorized access or change, and; Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes. Provide an accounting of funds, reports and claims to the Department's satisfaction. The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made. Section V.E) of the RFP set forth various "special conditions," including the following: 2. Mandatory Requirements The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition. The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator. In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal. 5. Non-Valid Proposals, Non-Responsible Respondents Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible. Legal Requirements Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. 14. Assignment of Contract The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated. No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract. Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows: The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP. Section VI.A) was entitled "Award Notice" and provided as follows: Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract. Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows: Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes. Section VI.C) was entitled "evaluation team" and provided as follows: The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required. Section VI.D) was entitled "Evaluation Sheet" and provided as follows: The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared. The "evaluation sheet . . . found in Appendix I" listed the following awards:" "evaluation criteria" and "possible [point] ITEM POSSIBLE AWARD 1) References 2 2) Experience of Principals 2 3) Financial Statements 1 TECHNICAL SUBMISSION Notification of Holders and Holder Seminar 2 Holder Information 2 Annual Reports 2 Penalties and Extensions 2 Holder Information and Inquiries 2 Receipt of Reports & Reconciliation 3 Record Retention of Reports 2 Contacting Apparent Owners 1 Handling Inquiries 2 Origination of Claims 1 Receipt of Claims 1 Initial Processing of Claims 2 Processing and Payment of Claims 3 Exceptions 1 Tracking 1 Records 2 Automation 4 Security Plan 3 Implementation Plan 2 Disaster Recovery Plan 2 Reports Processing Flow Chart and Narrative Procedures 3 Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows: The evaluation process will take place in five phases: Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation Phase IV- Public Opening and Evaluation of Fee Schedules Phase V- Posting of Final Results Phase I Mandatory Documentation Worth 0 Points Total During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate. Phase IIA. Technical Evaluation Worth 50 Points Total During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP. Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators. B. Minority Business Participation Worth 10 Points Total If twenty-four percent or more of the Contract value- 10 points. If less than 24 percent, proposed percentage divided by twenty-four, times []103 No participation by Certified Minority Business Enterprises (CMBEs), no points The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting: Minority Business Advocacy and Assistance Office 107 Gaines Street Tallahassee, Florida 32399-0950 Telephone (904) 487-0915 The Contract Manager will average the points for each respondent upon completion of Phase II. Phase III Oral Presentations Worth 10 Points Total An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas: Vendor Qualifications (Project experience/project team qualifications) Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison) The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members. Phase IV Worth 30 Points Total The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97." When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)). The instructions for filling out the form are as follows: The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area; 16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process. For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and the proportional cost of equipment, supplies and maintenance. The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections. The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount. It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded. Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G. Comparison between Respondent[]s will take place at the bottom line (Block G) Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D. The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date. The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison. LC/PC x 30 = points for fee schedule In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider. In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K) The instructions for filling out the form are as follows: Example: Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points Phase V Posting Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350 Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows: For purposes of uniformity among proposals, documents must be arranged in this order. Original Form- PUR 7033 State of Florida- Request for Proposal Contractual Services Acknowledgment Designated Spokesperson for RFP The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP. Proof of Legal Entity Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency. Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda. Conflict of Interest This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation. Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place. The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner. The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization. The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project. Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity. Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II. Security plan Implementation plan in accordance with Appendix E Disaster recovery plan Reports and receipts processing flow chart and narrative procedures. Depict separation of duties. Claims processing and payment flow chart and narrative procedures. Depict separation of duties. Proof of insurability to $1,000,000.00 per employee theft or malfeasance. Drug Free Workplace Certification Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference. Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97" Addendum Acknowledgment Forms Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows: IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1. In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program. In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal. As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements. Offerors's Name: Signature Name- Typed or Printed Date Bidders' Conference A bidders' conference was conducted by the Department on February 4, 1997. Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4 Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference. The following discussion concerning the subject of subcontracting took place at the conference: Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP? Only those specifically addressed with Department approval. Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval? Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal. SMSC's Proposal SMSC submitted one of the two proposals the Department received in response to the RFP.5 SMSC's proposal contained the following statement concerning "minority business participation:" SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below. The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center. Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract. The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost." The Other Proposal The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was "[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6 Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company." The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows: McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . . Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . . McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . . Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . . State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . . Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:" I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. Section B. of the MGS Proposal contained the following statement: Designated Spokesperson for RFP Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7 In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street), in this section of the proposal. The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal: Compliance With Terms and Conditions of RFP I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda. Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows: Conflict of Interest Conflicts We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes. We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies. We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent (5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank. We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement. Litigation McGladrey & Pullen, LLP: . . . Garcia & Ortiz, PA: . . . State Street Bank: . . . The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal. Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows: Designated Work Site Within Florida We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award. Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling. Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations. Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success. Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee. In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location. Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm. In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal. Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal. The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal. Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section J. as "a division within State Street Bank & Trust Company.")8 In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided. Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank." Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement: The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A. Evaluation of the SMSC and MGS Proposals Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997. Phase IIA. A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit. SMSC's proposal received scores of 23, 48, 49, 50 and 47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure." The MGS Proposal received scores of 50, 45, 50, 50 and 44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48. Phase IIB. In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to $480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by 10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding." If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of the RFP, 4.16 points for Phase IIB. Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB. Phase III Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP. The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure." The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III, "rounded up" the MGS score (of 7.6) to 8. Phase IV Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure." Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.") Total Points for Phases IIA., IIB., III and IV According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal. Had the Department not used the "rounding" provisions of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal. Notice of Intended Award On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP. The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively. Petitioners' Protest On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet. On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.
The Issue The issue in this case is whether Respondent, The Exchange Club Center for the Prevention of Child Abuse of the Treasure Coast, Inc. ("Respondent" or "Exchange Club"), is liable to Petitioner, Tiffany L. Rusinko ("Petitioner" or "Ms. Rusinko"), for employment discrimination and retaliation.
Findings Of Fact Respondent was a child abuse prevention agency that provided services to families in Martin, St. Lucie, Indian River, and Okeechobee Counties. Among other things, Respondent sought to prevent child abuse and neglect through education and parenting skills classes to parents of at-risk children. All of Respondent’s programs were funded by outside sources including grants and fundraising. Respondent ceased operations in September 2020. Petitioner was hired by Respondent on March 1, 2013, as a "Parent Educator" with Respondent’s Safe Families Program on a full-time basis. Petitioner understood that during her employment with Respondent, she was required to adhere to the Human Resources Personnel Policies & Procedures Manual ("Policies & Procedures"), as well as the Code of Ethics of the National Association of Social Workers ("Code of Ethics"). Upon hiring, Petitioner received copies of the Policies & Procedures and the Code of Ethics. Petitioner was required to sign and acknowledge receipt and review of both. On February 27, 2017, Petitioner was promoted to the position of "Program Supervisor" for the Safe Families Program. Her salary in that position was $40,000. This was also a full-time position and, as part of her responsibilities as a Program Supervisor, Petitioner supervised four parent educators. In June 2017, Petitioner agreed to take on the role of a Supervisor in Respondent’s PAT Program in addition to her role as a Program Supervisor for Respondent’s Safe Families Program. Petitioner remained a full-time employee of Respondent and her salary was increased to $44,000. Between July 27, 2017, and August 11, 2017, Petitioner was late or did not report to work as required due to various personal matters. On or about September 27, 2017, Respondent hired a "Program Manager" to manage Parent Educators in the Safe Families Program. The new Program Manager was paid a higher salary than Petitioner, which Petitioner believed was due to Respondent discriminating against her because of her race and gender. Thereafter, Petitioner sent a text message to Respondent’s Executive Director expressing her displeasure with her responsibilities and her rate of pay. Petitioner demanded a salary increase commensurate with what Petitioner believed she should be paid. Petitioner communicated with Andrea Medellin about her responsibilities and salary, which contravened Respondent’s Policies & Procedures. Andrea Medellin was the Executive Director of an agency that funded one of Respondent’s programs. On February 12, 2018, Petitioner submitted a grievance to Respondent claiming that she was the subject of discrimination based on race and gender. Specifically, she claimed that her salary and job responsibilities varied from those of a co-worker who was a Black male, but who had a similar title and experience. On February 13, 2018, Respondent issued a Corrective Action Notice to Petitioner, which resulted in Petitioner being placed on probation for ninety days. Based on her prior demand, Respondent gave Petitioner a cost-of- living increase that commenced in her February 16, 2018, paycheck and continued until her termination. In February and March 2018, Petitioner had several e-mail exchanges with her supervisor, Respondent’s Human Resources Director, and Respondent’s Executive Director, wherein she raised concerns about her salary and job responsibilities. On March 13, 2018, Petitioner submitted another grievance to Respondent reiterating her prior allegations of discrimination and claiming that she was the subject of a campaign of harassment and retaliation. Respondent subsequently became aware that Petitioner was making disparaging remarks about Respondent on social media, in violation of Respondent’s Policies & Procedures. Petitioner also allowed Respondent’s clients to be present in her home in violation of the Code of Ethics. Although several witnesses testified that Petitioner was a dedicated employee, Respondent ultimately determined that her termination was appropriate based on her violations of the Policies & Procedures and Code of Ethics. Respondent terminated Petitioner’s employment on March 26, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Gary Shendell, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Tiffany Rusinko 615 Southeast Eighth Avenue Okeechobee, Florida 34974 Seth A. Kolton, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431
The Issue Whether the agency statement listed on the Department of State's (DOS or the Department's) webpage under "Frequently Asked Questions" regarding translation of petitions for constitutional amendment is an unpromulgated rule.
Findings Of Fact DOS has general supervision and administration of Florida's election laws. As Florida's chief election officer, the Secretary of State has a responsibility to obtain and maintain uniformity in the interpretation and implementation of the election laws. This function is accomplished through the Division of Elections. Hometown Democracy is a Florida corporation and political action committee. It is the sponsor of a citizen's initiative to amend the Florida Constitution, with an approved petition serial number 05-18 (the Petition). DOS is responsible for the content of the website at http://election.dos.state.fl.us/initiatives/faq.shtml. The website contains a section entitled "Frequently Asked Questions." One of the questions (and answer) included on the website is the following: Can we print our petition in Spanish? Yes. However, the Division of Elections does not proof it; that is the committee's responsibility. On or about March 24, 1994, the Division of Elections issued Advisory Opinion DE94-06. In that Advisory Opinion, the Division stated in part: As to your second question, a Spanish translation of a previously approved initiative petition in English need not be submitted in writing to the Division for format review. The Division has neither the responsibility nor the authority to verify that the wording of the Spanish translation is the same as the English version. That responsibility rests with the sponsor of the initiative. To reduce potential differences in interpretation that could result from a language translation, however, it is suggested that the Spanish language version be printed on the reverse side of the approved English language form. DOS provided the text of proposed constitutional amendments, including citizens' initiatives, to various Florida newspapers for publication prior to the 2004 general election. The citizens' initiatives were those for which the requisite number of signatures had been collected and which had been approved for placement on the ballot. DOS has published the text of proposed constitutional amendments being placed on a statewide ballot in both English and Spanish, including citizens' initiatives where the sponsor has not submitted a Spanish version of the petition to the Department of State for review. On or about September 22, 2005, Floridians for Stem Cell Research and Cures, Inc., submitted a Spanish version of a citizens' initiative, serial number 05-22, to the Division of Elections. On December 13, 2005, the Division of Elections responded to the Floridians for Stem Cell Research and Cures, Inc., that it would not undertake review of the format of the Spanish version of citizens' initiative serial number 05-22. The Department of State has adopted Florida Administrative Code Rule 1S-2.009, "Constitutional Amendment by Initiative Petition." The Rule was adopted to implement Sections 100.371 and 101.161, Florida Statutes, and has been in existence in some form since 1979. Relevant portions of the current version of the Rule state: 1S-2.009 Constitutional Amendment by Initiative Petition. Submission of Initiative Petition. Any proposed initiative amendment to the State Constitution to be placed on the ballot shall be submitted by the sponsoring political committee to the Division of Elections for approval as to format prior to circulation of the proposed initiative amendment. Such submission shall be in writing and shall include a copy or a facsimile of the proposed form to be circulated. No initiative petition form for signatures may be circulated unless approved by the Division of Elections. Requirements and Approval of Initiative Form. The Division shall review the initiative petition form solely for sufficiency of the format and shall render a decision within the seven (7) days following receipt. The Division shall not review the petition form for legal sufficiency. The format of the petition form is deemed sufficient only if the petition form: Is printed on separate cards or individual sheets of paper. The minimum size of such forms shall be 3 inches by 5 inches and the maximum shall be 8 1/2 inches by 11 inches. Is clearly and conspicuously entitled at the top of the form "Constitutional Amendment Petition Form." Includes adequate space for the signee's name, legal residential street address, city, county, date of birth, signature, and date of signature. Contains the ballot title that shall not exceed 15 words and the ballot summary of the proposed amendment or other public measure that shall not exceed 75 words in length as prescribed in subsection (4). Conspicuously contains the full text of the amendment being proposed including the article and section being created or amended, preceded by a ballot title and ballot summary. If the text must be printed on both sides of the form, it shall be clearly indicated that the text is continued or begins on the other side. Contains space for only one elector's signature. The Division will not approve petition forms providing for multiple signatures per page. Is marked, in accordance with Section 106.143, F.S., governing political disclaimers, with "paid political advertisement" or contains the abbreviation "pd. pol. adv." and identifies the name of the sponsoring political committee, and the name of the entity paying for the advertisement if different from the name of the sponsoring political committee. Contains space, in accordance with Section 106.19(3), F.S., for the name and address of a paid petition circulator, in the event the petition form is gathered by a paid petition circulator. In 2006, Rule 1S-2.009 was amended to include the following subsection: (7) Changes. Any change to a previously approved petition form shall be submitted to the Division of Elections for review. No person or entity other than the sponsoring political committee of the previously approved petition form can submit a change or changes to the previously approved petition form. The Division of Elections must approve any material change to a previously approved petition form. A material change constitutes a change in the wording of the text of the proposed amendment, the ballot title, or ballot summary, or a change in punctuation or layout, or a change to the political disclaimer. Any material change submitted for approval to a previously approved initiative petition constitutes a request for approval of a new petition form and shall be assigned a different serial number upon approval by the Division of Elections. [Emphasis supplied.] The description of a "material change" contained in subsection (7) does not include a translation of a previously approved citizens' initiative. After the adoption of subsection (7), a political action committee seeking to circulate a translation of a previously submitted citizens' initiative would need to submit the translation to the Division because it would constitute a change, but a translation, standing alone, would not constitute a material change. Hometown Democracy hired a professional translation service to prepare a certified Spanish translation of the Hometown Democracy Petition. Hometown Democracy made an inquiry of the Division of Elections to determine the accuracy of the Spanish translation of the Petition. On August 30, 2006, Hometown Democracy submitted the Spanish translation of the Petition, seeking approval to circulate it for signatures of registered voters and for verification by Supervisors of Elections in order to qualify for the general election ballot. On or about September 8, 2006, the Director for the Division of Elections responded to Hometown Democracy's August 30, 2006, letter and stated in part: The format of the Spanish version of this petition appears to follow the format of the originally approved petition, with no evident material change. No review of the legal sufficiency of the text of the proposed amendment has been nor will be undertaken by the Division of Elections. The Division has never approved a Spanish translation of an approved citizens' initiative petition form. As of the date of hearing, there has been no challenge to the accuracy of the translation secured by Hometown Democracy.
The Issue The issue is whether the Florida Commission on Human Relations has jurisdiction to determine whether Respondent committed an unlawful employment act against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a black female who was employed by Respondent as a press finisher. Petitioner worked for Respondent from January 1999 through June 4, 1999. Petitioner's work attendance was sporadic due to personal problems. Petitioner eventually developed a medical condition requiring surgery. At Petitioner's request, Respondent allowed Petitioner to work part-time. In March 1999, Petitioner's doctor performed a biopsy on Petitioner. When Petitioner returned to work, she jokingly commented that the doctor had taken a chunk of meat out of her. Respondent's manager responded in a similar tone by asking Petitioner if she felt lighter. Petitioner was insulted by the manager's comment. The next week, Petitioner confronted Respondent's manager about the comment. Respondent's manager sincerely apologized for hurting Petitioner's feelings. Respondent subsequently reprimanded the manager for her insensitive remarks. On or about April 5, 1999, Petitioner filed a complaint with the Escambia-Pensacola Human Relations Commission. Petitioner alleged that Respondent had engaged in racial discrimination for the following reasons: (a) Respondent's manager made rude comments to Petitioner concerning her biopsy; (b) Respondent's manager called a customer an "ignorant nigger" in Petitioner's presence on one occasion and refused to wait on black customers on other occasions; and (c) Respondent's manager cut Petitioner's hours, then became angry when Petitioner wanted to leave work as scheduled. Petitioner underwent bladder surgery in April 1999. Petitioner's doctor released her to return to work on May 3, 1999. Petitioner returned to work part-time on May 4, 1999. On or about May 20, 1999, Petitioner filed a form entitled Additional Information Form for Potential Charging Party with the Escambia-Pensacola Human Relations Commission. The form alleges that Respondent's staff was harassing her, discriminating against her on the basis of race, and engaging in retaliation by calling her mother's home. Petitioner indicated on the form that she had no direct evidence to support her claim of discrimination. The greater weight of the evidence indicates that Respondent called Petitioner's mother because Petitioner provided Respondent with that number. Respondent made the telephone calls to determine why Petitioner had not called or shown up for work. Petitioner continued to work part-time for Respondent until June 4, 1999. At that time, Petitioner advised Respondent's manager by telephone that she would no longer be able to work due to her health. There is no evidence that Respondent treated Petitioner differently from other employees regardless of their race. The greater weight of the evidence indicates that Respondent did not discriminate on any basis against Petitioner, other employees, or Respondent's customers. At all times relevant to this proceeding, Respondent never employed more than 15 people. In fact, Respondent employed ten full-time, on-site employees and two officer/administrator employees who reside out-of-state. Even with a high turnover of part-time/short-time employees, Respondent did not have a payroll in a single week of more than 15 employees from January 1998 through June 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief based on a lack of jurisdiction. DONE AND ENTERED this 2nd day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gloria Hackworth 712 West Laura Street Pensacola, Florida 32501 Charles G. Johnson, President Debonair Cleaners, Inc. Post Office Box 55594 Jackson, Mississippi 39296 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 5th day of September, 2018.
The Issue Whether Petitioner is entitled to licensure as a Class "D" Security Officer.
Findings Of Fact Respondent is the agency of the State of Florida responsible for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers. Petitioner applied for licensure as a Class "D" Security Officer. Pending the processing of that application, Petitioner became employed as a security guard for approximately five months. By letter dated February 21, 1996, Petitioner was notified by Respondent that his application for a Class "D" license was, subject to his due process rights, going to be denied based on his conviction of battery in St. Lucie County in September 1993. Respondent asserted that the conviction was of a crime directly related to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. Respondent also asserted that the facts relating to that conviction establish that Petitioner had committed an act of violence or used force on another person which was not for the lawful protection of himself or another within the meaning of Section 493.6118(1)(j), Florida Statutes. On September 14, 1993, Petitioner was convicted by a jury of a misdemeanor count of battery. The victim of the battery was Thomas Coburn. Petitioner was adjudicated guilty and sentenced to 15 days in the county jail, one year probation, and 50 hours of community service. At all times pertinent to this proceeding, Thomas Coburn was employed by the City of Port St. Lucie, Florida, as a city code enforcement officer. The code enforcement division is administered by the City of Port St. Lucie Police Department. Mr. Coburn was not a sworn law enforcement officer. On Sunday, May 16, 1993, Mr. Coburn was acting in his official capacity as a city code enforcement officer. He was wearing a badge, name plate, and collar pins with the initials P.S.L. He was in an official uniform that had patches with the inscription "Port St. Lucie, Fla. Police." He was driving a marked vehicle that reflected he was with the city code enforcement department. Shortly after noon on May 16, 1993, Mr. Coburn went to the personal residence of the Petitioner for the purpose of serving upon Petitioner a notice to appear pertaining to several alleged code violations. Petitioner was home with his wife, his teenage stepson, and his five year old son. When Mr. Coburn arrived, Petitioner was about to begin a barbecue. When the stepson came to the door in response to Mr. Coburn knock on the door, Mr. Coburn asked to speak to Petitioner. The teenage stepson went inside to get the Petitioner. Mr. Coburn did not see the stepson or another member of Petitioner's family after the Petitioner came to the door. When Petitioner came to the door, Mr. Coburn identified himself as a code enforcement officer and told Petitioner he was there to deliver the notice to appear. Mr. Coburn's vehicle was parked on the street so that Petitioner could see the markings on the vehicle. Petitioner became irate and shouted profanities at Mr. Coburn. Petitioner told Mr. Coburn that he could not serve official papers on a Sunday and ordered him off his property. There is a conflict in the evidence as to what next occurred. Petitioner testified that Mr. Coburn bumped him in the chest as the two of them argued. Mr. Coburn testified that he backed away from Petitioner and began to leave the premises. The more credible version of the events is that given by Mr. Coburn. Consequently, it is found that there was no physical contact initiated by Mr. Coburn. As he was backing away and preparing to leave the premises, Mr. Coburn placed the notice to appear on the barbecue grill that was in the area where the two men were standing. After he placed the notice to appear on the barbecue grill, Mr. Coburn turned to walk away. Petitioner then kicked Mr. Coburn in the buttocks. It was Petitioner's act of kicking Mr. Coburn that resulted in his subsequent arrest and conviction. There was no one else in the area around Petitioner's front door at the time of this incident. There was insufficient evidence to establish that Petitioner was acting in defense of himself or of others when he kicked Mr. Coburn. Petitioner has not been convicted of any other crime. At the times pertinent to this proceeding, Petitioner was an approved process server within the Nineteenth Judicial Circuit of Florida. Petitioner worked as a security guard for the five months preceding the denial of his application. There were no incidents of violence during that five month period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order deny Petitioner's application for a Class "D" license. DONE AND ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: Michele Guy, Esquire Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Edward B. Galante, Esquire 789 South Federal Highway, No. 103 Stuart, Florida 34994 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue Whether Petitioner was constructively terminated from her employment with Respondent employer by virtue of an unlawful and discriminatory employment practice, i.e., failure to accommodate her alleged handicap/disability.
Findings Of Fact Petitioner filed, date not of record, a discrimination complaint with the Florida Commission on Human Relations. The Complaint was investigated. A "Determination: No Cause" was entered by the Commission on July 19, 2001. Petitioner filed, date not of record, a Petition for Relief. The cause was referred to the Division of Administrative Hearings for a disputed-fact hearing on or about August 7, 2001. Petitioner failed to respond to the Division's Initial Order herein. The case was scheduled for hearing in Ocala, Florida, on October 26, 2001, in accord with Respondent's Response to the Initial Order. Respondent moved for a continuance. Petitioner did not respond to the Motion. The unopposed Motion was granted by an Order entered October 4, 2001, and the case was rescheduled for final hearing in a new location, also in Ocala, Florida, on November 13, 2001. Respondent complied with the Order of Pre-Hearing Instructions. Petitioner did not. Respondent filed a Motion to Dismiss Petition or in the Alternative Motion to Exclude Petitioner's Witnesses and Exhibits, due to Petitioner's failure to comply with the Order of Pre-Hearing Instructions. At the time and place appointed for the final hearing on November 13, 2001, Petitioner did not appear. After the undersigned and all representatives of Respondent had been waiting at the designated location in Ocala, Florida, for a half hour, Respondent's counsel informed the undersigned that his Tampa office had just relayed a message to him, via cell phone, that Petitioner's husband had telephoned to say he and Petitioner were awaiting the hearing in a different location, but that the husband had left no information as to where he was nor any telephone number where he could be reached. The undersigned then telephoned her office. The secretary to the undersigned had received no phone call or other communication from Petitioner nor from anyone on Petitioner's behalf. In an abundance of caution, the secretary to the undersigned telephoned the location which had been previously scheduled for final hearing on October 26, 2001, by a Notice of Hearing entered and mailed on August 27, 2001, and determined that anyone who had been in that location had left it. At approximately the same time, Respondent's counsel was relayed a telephone message from his Tampa office that Petitioner's husband had again telephoned to say he was leaving "the conference room." When Petitioner had not appeared at the correct location fifty minutes after the time scheduled for the commencement of the final hearing, Respondent made an oral motion to dismiss because of Petitioner's failure to appear and failure to meet her burden of proof pursuant to Section 760.10, Florida Statutes. This oral motion, as well as Respondent's previous written Motion, was taken under advisement, pending responses to an Order to Show Cause. On November 14, 2001, an Order to Show Cause was entered, requiring Petitioner to show cause, in writing, filed with the Division of Administrative Hearings, within ten days, why she did not appear on November 13, 2001, as required by the Order entered October 4, 2001. That Order to Show Cause is attached and incorporated herein by reference as Exhibit A. Petitioner failed to timely show cause. She has filed no pleading or paper of any kind as of the date of entry of this instant Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
