The Issue The issue in this case is whether the Respondent, School Board of Broward County, Florida (Respondent or Board) may require bidders to comply with specifications and conditions for a bid solicitation that pertains to audiovisual, photographic equipment and related supplies, and computer peripherals as set forth in, and identified as, Invitation to Bid No. 27-040N. The Petitioner, Audio Visual Solutions Corporation (Petitioner), timely filed a challenge to the bid specifications and conditions for the subject acquisition.
Findings Of Fact The Petitioner is a corporation that deals, resells and provides audio, video, and conferencing equipment to various entities throughout the state. The Petitioner represents a number of trade names in the electronics industry and serves educational and governmental markets in the State of Florida. The Petitioner holds contracts to provide electronic equipment to the Respondent at the present time. As part of its ongoing operation, the Petitioner routinely responds to bid invitations and solicitations such as the one at issue. The Petitioner’s standing to challenge the specifications in the instant matter is not disputed. In the instant matter, the Petitioner received the ITB for the Respondent’s bid No. 27-040N and began a detailed review of the general, special, and other specifications set forth in the ITB. The Petitioner determined it would evaluate the overhead expenses required, labor and documentation, invoicing, delivery, and other specifics that would play a part in pricing the products for response to the ITB. At all times material to the allegations of this protest, the Respondent was the entity charged with the responsibility of acquiring goods and services to support the operation of the public schools in Broward County, Florida. Respondent was the appropriate entity with whom the protest should have been filed as it was the procuring entity for ITB No. 27-040N. The Respondent bears the ultimate burden for all procurement necessary to operate the public schools for Broward County, Florida. The review process used by the Petitioner in this case is the same process it has utilized in the past when it has successfully obtained contracts with the Respondent. The bid evaluation Petitioner performs is necessary to determine whether the ITB is within the scope of its operations. On or about April 24, 2006, the Petitioner forwarded a Notice of Intent to Protest regarding certain Special Conditions of the subject ITB. The Petitioner filed its notice within 72 hours of receipt of the ITB. On May 4, 2006, as the wording for the disputed Special Conditions remained unresolved, the Petitioner filed a Formal Written Protest to contest the conditions and specifications of ITB No. 27-040N. The Respondent has not disputed the timeliness of the instant protest. Throughout the pre-hearing process, the parties met and continued efforts to resolve the disputed points. As set forth in the Joint Pre-Hearing Stipulation, disputes regarding Special Conditions 22, 23, 28, 29, 31, 32, 33 and 34 were resolved during the School Board Bid Protest Meeting or immediately prior to the formal hearing. The findings and resolutions set forth regarding the challenge to each of those Special Conditions are set forth in the Joint Pre-Hearing Stipulation and are adopted here by reference. At hearing, left unresolved were the Petitioner’s challenges to Special Conditions 3, 18, 20, and 27 of ITB No. 27-040N. In the ITB at issue, “SBBC” refers to the Respondent. The Petitioner challenged Special Condition 3 for several reasons. That provision stated: AWARD-For Bid Items 1 through 38: In order to meet the needs of the school system and SBBC, each ITEM shall be awarded to one primary and up to two alternate responsive and responsible bidders meeting specifications, terms and conditions. The lowest awardee in an item or group shall be considered the primary vendor and should receive the largest volume of work. SBBC reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) it is in the best interest of SBBC to do so regardless of reason. For Bid Item 39: In order to meet the needs of SBBC, awards will be made to all bidders who submit a catalog and offer a discount or net pricing from the most current vendors catalog/price sheet. These bidders shall then be in a favorable position to compete for the Board’s business, and those who offer lowest net prices for those items, that comply with the specifications and otherwise meet requirements, should obtain the largest volume of business. After award of this bid, any bidder receiving an award who violates any specification, term or condition of this bid can be found in default of its contract, have its contract canceled, be subject to the payment of liquidated damages, and be removed from the bid list and not be eligible to do business with this School Board for two years, as described in General Conditions 22, 23 and 53. (Emphasis in original). At hearing, the Respondent agreed that the words “regardless of reason” in the first section of Special Condition 3 would be deleted. The other concerns regarding this provision were not resolved. Thus, for the items to be procured the remaining terms of this provision would be applicable. The ITB sought responses for various items of equipment by unit price. For example, Item 1 of the ITB identified the equipment sought as “Multi-Media Projector: UltraPortable Low-End.” The bid summary sheet provided that an approved model for the item would be an Epson E3. Further, the quantity listed was for 2000. A bidder would be expected to provide the unit price, the total price (presumably applying that unit price to the volume sought), and then disclosing what percentage the unit price has been discounted off the manufacturer’s list price. For each of the 38 items identified by the ITB, a bidder would be required to provide all of the requested information. As to Item 38, the bidder was required to include quotes for multiple components of the item. The Petitioner maintains that Special Condition 3 does not conform to the Florida Administrative Code. Specifically, Petitioner believes that an award to multiple bidders violates Florida Administrative Code Rule 6A-1.012. The Petitioner also believes that Special Condition 3 violates a policy of the Broward County Purchasing Policy rules. Specifically, Petitioner argues that Respondent’s policy set forth in Purchasing Policy 3320 requires a single award. Essentially, the Petitioner contends that multiple awardees are not acceptable as the Respondent is required, by law, to award the contract to the lowest and best responsible and responsive bidder. When multiple awards are made the Respondent is not selecting the lowest and best. Therefore, for each item identified the Respondent should select the lowest and best responsible and responsive bid. Similarly, as it relates to Special Condition 3, Item No. 39, an award will be made to all bidders who submit a catalog and offer a discount on pricing from the most current vendor’s catalog/pricing sheet. Again, if all bidders are accepted, no one bidder will be identified as the lowest and best responsive and responsible bidder. Additionally, since some vendors use the same catalog, the lowest (or greatest percentage discount) bidder is not well served since all bidders will know the percentages (once the bid is opened). Disclosing the percentage will not assure that the Respondent will receive the item at the lowest possible price since the Respondent is not obligated to use the catalog of the lowest priced bidder. Further, a vendor using a catalog that has prices that are higher (for the same item) can offer a higher percentage discount and not affect the overall net to them. For every purchase the Respondent would have to compute the item price and apply the discount before the real cost could be known. The Petitioner challenged Special Condition 18. In pertinent part, that provision stated: VOLUME DISCOUNT: Through history, it is known that SBBC purchases the same item in high volume. In order for SBBC to leverage a pricing advantage, bidders are to provide, on the bid summary sheet, the lowest net price for purchasing a minimum of one. Additionally, SBBC will release quotes to awardees for volume purchasing and request the best and the lowest net price for ordering the quantity of items indicated on released quotes. The awardee that offers the lowest cost will be awarded that quote. This provision is offensive to the Petitioner because it allows the second bite of the apple. That is, by requiring the bidders to disclose their pricing for this ITB and then allowing all awardees to come back after-the-fact with a second “quote” does nothing to assure that the competitive pricing inherent in the bid process has been protected. Any awardee could, after seeing the pricing offered by the competition, know the discounts applied by the competition. This process according to the Petitioner defeats the purpose of finding the lowest bidder at a fixed point in time. The ITB responses merely create a pool of potential winners. So long as a bidder was lowest on one item, it will be assured an opportunity to “quote” on all purchases (and will do so having the competition’s best numbers). Who would offer their best prices on all items in response to this ITB? No one. The bidder that offers (at whatever low price) the best price on any single item is designated an “awardee” and gets to try to defeat the competition on each “quote” subsequently announced. Moreover, the “quotes” are not guaranteed the same protections as the sealed bid process. Consequently, the Respondent may purchase thousands of dollars of items without being assured that they were given the lowest and best price. The “quotes” may exceed $25,000. Special Condition 20 was also challenged by the Petitioner for the same reason. That provision states, in pertinent part: QUOTES: SBBC anticipates the procurement of bundled classroom solutions with installation. Therefore, SBBC reserves the right to solicit quotes for these solutions at any time during the contract period. The quotes will only be released to awardees of this contract. The models that become components of the solution must be the same models that were awarded as a specific item. However, there is no guarantee that an awardee of a model of a component of the solution will be the awardee of the quote. SBBC is opening competition to all awardees of this contract to offer the best pricing for these solutions. Section 5, Additional Information, Bundled Classroom Solutions includes a form that bidder is to complete and return with the bid. Bidder is to state if it wants to receive quotes, and if it has the capability to provide the necessary licensing and certifications associated with installation and wiring, not to include, high voltage electrical installation. Awardee of the quoted solution will be solely responsible for any issues related to the installation and minimum three [sic] warranty period of the bundle. Additionally, bidder must have an established working relationship with an SBBC awarded high voltage electrical company. This form is a questionnaire that is for informational purposes and will not be considered in determining award. Special Condition 27 provides: BALANCE OF LINE ITEM DISCOUNT (ITEM 39): SBBC encourages all awardees for this item to offer SBBC additional discounts for volume purchases of like items. SBBC reserves the right to release quotes for large catalog volume purchases. Bidders are required to offer a balance of line single, fixed percentage discount for equipment ($1000.00 or greater) and supplies (under $1000.00) off bidders catalog for any Audiovisual, Photographic Equipment and Related Supplies, and Computer Peripherals not itemized on the Bid Summary Sheets. This percent must be stated in the Bid Summary Sheet. An omission from this entry will be considered as a 0% discount offered from catalog. The single fixed percentage discount quoted by bidder shall apply to the catalog list price for all catalog items. This percentage discount does not include the itemized equipment listed on the Bid Summary Sheet. Items excluded from single fixed percentage discount should be listed on a separate piece of paper. These items will be excluded and should not be purchased. In the event a bidder handles catalog items that carry a little or no percentage, this fact shall be taken into consideration and percentages offered shall be a single fixed percentage discount for each category (supplies and equipment) and catalog. Awardees may offer SBBC additional educational discounts at any time and invoice SBBC at a greater discount than their bid discount. According to the Petitioner, bundled solutions have the possibility and the likelihood of exceeding $25,000. If so, the requirement for sealed bids by allowing only quotes would be circumvented. The Respondent seeks to obtain the needed equipment at the lowest possible cost to the School Board. By using the “quotes” procedure it believes it will achieve a lower cost per item purchased. The “quote” procedure to be used does not, however, allow entities not within the “awardee” group to participate. If the purpose of the “quote” is to secure the lowest possible price at a fixed point in time (at a point in time future to the ITB opening), the possible savings available through another entity outside those within the “awardee” class is lost. Further, members of the “awardee” class have no incentive to provide their lowest price for all items bid in response to this ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order amending the specifications challenged to assure that the award of the items will be to a single lowest and best responsible and responsive bidder. The Petitioner’s challenge to the provisions must be sustained as a matter of law. S DONE AND ENTERED this 30th day of October, 2006, in Tallahassee, Leon County, Florida. D. PARRISH 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 October, 2006. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mitchell D. Adler, Esquire Greenspoon Marder, P.A. Trade Centre South, Suite 700 100 West Cypress Creek Road Fort Lauderdale, Florida 33309-2140
The Issue Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, Florida Statutes, for alleged sale of marijuana, as set forth in Petition, dated May 11, 1979. The parties stipulated to the expected testimony of Petitioner's witnesses, and Respondent did not call any witnesses at the hearing. The parties further stipulated to the admission of Petitioner's Exhibits 1-5 and to Respondent's Composite Exhibit 1. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on an allegation the Respondent sold marijuana to a police officer on September 1, 1978. The matter was reported by the Superintendent, Polk County Public Schools, to Petitioner by letter of February 21, 1979. (Petitioner's Exhibit 3) The Petition herein was thereafter filed pursuant to directions of the State Commissioner of Education who on May 11, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by Answer, dated May 22, 1979. Respondent filed a prehearing Motion to Strike the Petition on the grounds that the Polk County Superintendent improperly referred the matter to Petitioner on the basis of Respondent's nolo contendere plea in a criminal proceeding, and had suspended her from employment without an evidentiary hearing. The motion further alleged that Petitioner based its probable cause finding upon hearsay evidence and that it has no authority to make a finding of criminal guilt without a judicial adjudication of the same. Respondent's Motion is denied. Petitioner's Rule 6A-4.37, Florida Administrative Code, prescribes procedures for revoking or suspending certificates. It provides, inter alia, that when a superintendent has "cause to believe" that a certificate holder is "guilty of any offense" for which the penalty is revocation or suspension, it is his duty to file a "signed report" with any supporting documentation with Petitioner. Such a report merely triggers an investigation by Petitioner's staff for consideration by its Executive Committee and ultimate finding of probable cause by the Commissioner of Education. All of these procedures are preliminary in nature. No definitive action can be taken against a certificate holder and no final adverse action may be taken without an opportunity for an adversary hearing. The cases cited by Respondent in support of the notion deal with evidentiary standards for the issuance of final orders and do not relate to such preliminary matters. Petitioner observed the requirements of its rules procedurally in this case.
Findings Of Fact Respondent Judy A. Cain holds Florida Teaching Certificate No. 339186, Post Graduate Rank II, valid through June 30, 1983, covering the areas of English and junior college. She was employed in the public schools of Polk County at Wahneta Elementary School as a teacher in September, 1978. (Stipulation) During the evening of September 1, 1978, a police officer of the City of Dundee, Florida, who was working in an undercover capacity, had a conversation with a woman later identified as Respondent and another woman named "Candy" at Walker's Bar in Dundee. They told the officer that they were going to buy a "bag" and get "high." The officer asked if they knew where he could pick up a "bag," and Respondent told him that she would have to have money to get it herself. The officer gave Respondent $20.00 and the two women left the establishment. They returned a short time later, and the woman known as Candy took a plastic bag containing a brownish vegetable matter from her purse and both women stated that it was "dynamite dope." Thereafter, laboratory tests established that the bag contained 18 grams of marijuana. (Stipulated testimony of Castro, Petitioner's Exhibit 1) On October 17, 1978, Respondent was arrested for the offense of sale of marijuana. On February 8, 1979, upon Respondent's plea of nolo contendere to sale and possession of a controlled substance, in the Polk County Circuit Court, an order was issued by the Court withholding adjudication of guilt and placing the Respondent on probation for a period of three years. Respondent was dismissed from employment by the School Board of Polk County on May 21, 1979, for immorality based on the sale of marijuana. Evidence concerning the foregoing disposition of judicial and school board proceedings was received at the hearing upon stipulation of the parties, but will not be considered herein for purposes of determining grounds for disciplinary action under Section 231.28, F.S. (Stipulated testimony of Castro, Wilson, Petitioner's Exhibits 1- 2, 5) In the opinion of Respondent's former principal, the Polk County School Board Director of Employee Relations, the Chairman of the School Board, and several parents, a teacher who commits the offense of sale of marijuana would thereby set an improper example for students and seriously reduce the teacher's effectiveness as an employee of the school system. (Stipulated testimony of Miles, S. Wilson, Qualls, D. Wilson, Aggelis, supplemented by Petitioner's Exhibit 4) During the school year 1975-76 in the Polk County School System, Respondent received a "satisfactory" rating on her annual teacher assessment report. She received the highest rating of "good" during the 1976-77 school year, and a "satisfactory" rating for the 1977-78 year. (Respondent's Composite Exhibit 1)
Recommendation That Respondent's teaching certificate be revoked for a period of two years. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1980. COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Wallace L. Storey Post Office Box 796 Bartow, Florida 33830 Hugh Ingram, Administrator Professional Practices Council 319 West Madison Street Tallahassee, Florida 32301
The Issue The issue to be determined is whether the Division of Administrative Hearings has jurisdiction to determine whether Florida Administrative Code Rule 6B-4.009 is an invalid exercise of delegated legislative authority in violation of section 120.52(8)(d), Florida Statutes (2013).
Findings Of Fact Petitioner, Donna Burney (Petitioner or Ms. Burney), is a teacher in Duval County. She is also the subject of an Administrative Complaint in DOAH Case No. 13-4958PL, by which the Education Practices Commission seeks to discipline her educator certificate pursuant to section 1012.795, Florida Statutes. The Administrative Complaint alleges that Petitioner is incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school. Respondent, the State Board of Education, is the chief implementing and coordinating body of public education in Florida. The Board adopted the rule which is the subject of this proceeding. At all times material to the issues alleged in the Administrative Complaint in DOAH Case No. 13-4958PL, Florida Administrative Code Rule 6B-4.009 was the rule applied in those cases where alleged conduct forming the basis for dismissal from employment or discipline against an instructor’s license occurred prior to the amendment to and transfer of the rule in 2012. Rule 6B-4.009 provided definitions for the basis of charges upon which a district school board could pursue a dismissal action against instructional personnel. “Incompetency” is one of the bases for charges defined by rule 6B-4.009. Incompetency was defined as follows: Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following: Inefficiency: (1) repeated failure to perform duties prescribed by law (section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization. The specific authority for and law implemented by the rule are all provisions from chapters 229 and 231, Florida Statutes. Section 231.09, referenced in the rule, as well as all of chapters 229 and 231, were repealed in 2002. § 1058, ch. 2002-387, Laws of Fla. At the time of rule 6A-4.009’s final amendment in 1983, section 231.09, Florida Statutes (1983), provided: Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Prior to its repeal in 2002, section 231.09, Florida Statutes (2001), provided: The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board. The rule was not amended between 1983 and 2012 to address the repeal of section 231.09. Nor was it amended to provide new statutory authority or law implemented. Rule 6B-4.009 on its face applied to actions by district school boards seeking to dismiss instructional personnel, as opposed to cases brought by the Education Practices Commission seeking to discipline certified educators. However, administrative law judges have referred to the definition of incompetency in educator certificate discipline cases. While section 1012.795(1)(c) authorizes discipline for incompetence, rules 6B-4.009 and 6A-5.056 appear to be the only rules adopted by the State Board of Education to define the term. Effective July 8, 2012, rule 6B-4.009 was transferred to rule 6A-5.056 and amended. Rule 6A-5.056 presently defines incompetency as follows: “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. “Inefficiency” means one or more of the following: Failure to perform duties described by law; Failure to communicate appropriately with and relate to students; Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents; Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or Excessive absences or tardiness. “Incapacity” means one or more of the following: Lack of emotional stability; Lack of adequate physical ability; Lack of general educational background; or Lack of adequate command of his or her area of specialization. Petitioner has not challenged rule 6A-5.056.
The Issue As to Case 95-3362RX: 1. Whether the portion of School Board Rule 6Gx13-3C-1.08 pertaining to vendors who have defaulted on contracts for commodities is an invalid exercise of delegated legislative authority. 2. Whether the instructions to bidders issued by the School Board as part of its invitation to bid on commodities constitute inadequate, unpromulgated rules. As to Case 95-4834Rx: Whether an amendment to School Board Rule 6Gx13-3C-1.08 (adopted July 12, 1995) that purports to disqualify as bidders for 14 months the principals of defaulted vendors is an invalid exercise of delegated legislative authority.
Findings Of Fact THE PETITIONERS Petitioners Mary Ann Talmadge and Dunbar Electric Supply, Inc., are vendors who have bid on invitations to bid (ITBs) issued by the School Board. Ms. Talmadge is an officer and principal shareholder of Dunbar. Thomas W. Talmadge is the husband of Ms. Talmadge and is also a principal shareholder and officer of Dunbar. The Petitioners have standing to bring these rule challenges. THE SCHOOL BOARD - GENERAL AUTHORITY The Respondent is a duly constituted school board with the authority to enact rules, including those relating to the procurement of commodities. Article IX, Section 4, Florida Constitution, provides, in pertinent part, as follows: 4.(a) Each county shall constitute a school district. . . . In each school district there shall be a school board. . . . (b) The school board shall operate, control and supervise all free public schools within the school district. . . . Section 230.03, Florida Statutes, provides, in pertinent part, as follows: The district school system shall be managed, controlled, operated, administered, and supervised as follows: * * * SCHOOL BOARD. - In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall operate, control, and supervise all free public schools in their respective districts and [may exercise any power except as expressly prohibited by the State Constitution or general law.] [Emphasis added.] Section 230.22(2), Florida Statutes, confers rulemaking authority on school boards as follows: ADOPT RULES AND REGULATIONS. - The school board shall adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system. SCHOOL BOARD PURCHASES - IN GENERAL Section 230.23(2), Florida Statutes, confers upon school boards the authority to contract, to sue, and to purchase commodities as follows: The school board, acting as a board, shall exercise all powers and perform all duties listed below: * * * CONTROL OF PROPERTY. - Subject to regulations of the state board, retain possession of all property to which title is now held by the school board and to obtain possession of and accept and hold under proper title as a body corporate by the name of "The School Board of County, Florida," all property which may at any time be acquired by the school board for educational purposes in the district; manage and dispose of such property to the best interests of education; [contract, sue, receive, purchase], acquire by the institution of condemnation proceedings if necessary, lease, sell, hold, transmit, and convey the title to real and personal property, all contracts to be based on resolutions previously spread upon the minutes of the school board; receive, hold in trust, and administer for the purpose designated, money, real and personal property, or other things of value granted, conveyed, devised, or bequeathed for the benefit of the schools of the district or any one of them. [Emphasis added.] Section 237.02(1)(a), Florida Statutes, pertains to purchases by school boards and provides as follows: PURCHASES. - Each district school board shall develop and adopt policies establishing the plan to be followed in making purchases as may be prescribed by the state board. The state board rule pertinent to this proceeding is Rule 6A-1.012, Florida Administrative Code, which provides, in part, as follows: Purchasing Policies. Each district school board shall establish purchasing rules which shall include but not be limited by the following: * * * (6) Except as authorized by law or rule, bids shall be requested from three (3) or more sources for any authorized purchase or contract for services exceeding ten thousand (10,000) dollars. . . . The school board shall have the authority to reject any or all bids and request new bids. In acceptance of bids, the school board shall accept the lowest and best bid from a responsive and responsible bidder. . . . The School Board's Department of Procurement Management is responsible for administering and managing all of the purchases of materials and services for the school district of Dade County, Florida. School Board Rule 6Gx-3C-1.14 designates the Department of Procurement Management as the official purchasing agency for the School Board and requires it to make such purchases in compliance with Florida Statutes, State Board of Education Rules, School Board Rules, and administrative directives and manuals. The School Board has the authority to determine which bidders are responsible, the authority to reject bids from irresponsive bidders, and the authority to enact rules pertaining thereto. THE CHALLENGED RULE Rule 6Gx13-3C-1.08, is styled "Performance and Payment Security, Declining a Bid Award, and Bonding Company Qualifications". The rule, initially adopted in 1974 and subsequently amended, was adopted pursuant to the authority of Section 237.02(1)(a), Florida Statutes, and Rule 6A-1.012, Florida Administrative Code. The rule is divided into three parts. Part I pertains to performance security on construction bids and awards. Part II, the portion of the rule being challenged in this proceeding, pertains to performance security on awards other than construction. Part III pertains to bonding company qualifications. The rule, as amended on July 12, 1995, has been duly adopted by the School Board following all pertinent rulemaking procedures. The rule reasonably relates to one subject matter, protecting the School Board against defaults by parties who have been awarded contracts. Prior to its amendment on July 12, 1995, School Board Rule 6Gx13-3C-1.08 provided for performance security on awards other than construction, in pertinent part, as follows: Bid security is not required. However, a bidder who declines an award shall either (1) pay a bid default penalty of five percent of the unit price bid times the quantity, or $10, whichever is greater, or (2) lose eligibility to transact new business with the Board for a period of 14 months from date of award by the Board. A bidder who accepts an award but fails to perform shall either (1) pay a performance default penalty of 25 percent of the unit price of the item(s) awarded times the quantity, or $25, whichever is greater, (where partial ship- ment of items awarded has been made, the default penalty shall be applied to the balance remaining after items received have been deducted from the estimated quantity(ies),) or lose eligibility to transact new business with the Board for a period of 14 months from date of the cancellation of award by the Board. The School Board amended Rule 6Gx13-3C-1.08 on July 12, 1995, to provide as follows: Bid security is not required. However, a bidder who declines an award shall either (1) pay a bid default penalty of five percent of the unit price bid times the quantity, or $10, whichever is greater, or (2) lose eligi- bility to transact new business with the Board for a period of 14 months from date of award by the Board. A bidder who accepts an award but fails to perform shall either (1) pay a performance default penalty of 10 percent of the unit price of the item(s) awarded times the quantity, or $25, whichever is greater, (where partial shipment of items awarded has been made, the default penalty shall be applied to the balance remaining after items received have been deducted from the estimated quantity(ies),) or lose eligibility to transact new business with the Board for a period of 14 months from date of the cancellation of award by the Board. [The ineligibility shall be applicable to the principals individually and the entity, as well as any other firm in which a principal of a defaulting firm is a principal. For purposes of this rule principal is defined as an executive officer of a corporation, partner of a partnership, sole proprietor of a sole proprietorship, trustee of a trust, or any other person with similar supervisory functions with respect to any organization, whether incorporated or unincorporated]. [Emphasis added.] THE AUTHORITY OF THE SCHOOL BOARD TO IMPOSE LIQUIDATED DAMAGES OR TO DISQUALIFY DEFAULTED VENDORS FOR FOURTEEN MONTHS A provision for liquidated damages is not against public policy and is not prohibited by law or by state board rules. Pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes, the School Board has the authority to provide for liquidated damages in its purchasing contracts. A provision disqualifying vendors for a reasonable period of time based on prior performance is not uncommon in government contracts. The period of disqualification for defaulted vendors was for a one year period when the rule was first adopted. In 1987, the period of disqualification was extended from one year to fourteen months. The notice of intended action pertaining to this amendment provided, in pertinent part, as follows: PURPOSE AND EFFECT: This amendment extends the period of time a vendor is penalized for failing to accept a bid award or performing (sic) after a bid award has been made. This will give the Board more leverage in penalizing a vendor when necessary. SUMMARY: This amendment extends the penalty period for declining a bid award or failing to perform once a bid is awarded, from the current one (1) year period to a fourteen (14) month period, which will result in the vendor being precluded from the current contract and the subsequent contract. Such a provision disqualifying vendors for a reasonable period of time is not against public policy and is not prohibited by law or by state board rules. The period of fourteen months is a reasonable period for the term of disqualification. The School Board selected a period of fourteen months because many of its contracts are for one year terms. The rationale was to prevent a defaulted vendor from bidding on the ensuing year's contract. Pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes, the School Board has the authority to provide for the disqualification of defaulted vendors for a fourteen month period. The determination that a bidder has failed to perform the terms of a contract is initially made by a buyer in the School Board's Department of Procurement Management. Efforts are made to bring a defaulted vendor into compliance with the contract. If that cannot be done, the defaulted vendor is informed that it may either perform the contract, pay liquidated damages, or face disqualification. If the vendor performs or pays liquidated damages, the matter is ended. If the vendor refuses to perform or to pay liquidated damages, the School Board determines whether the vendor should be disqualified. A vendor who is subject to disqualification has the opportunity to address the School Board on that matter and has the right to challenge the agency action pursuant to Section 120.57(1), Florida Statutes. A principal of a disqualified vendor who is also being disqualified also has the right to address the School Board on that matter and has the right to challenge the agency action pursuant to Section 120.57(1), Florida Statutes. 2/ LIQUIDATED DAMAGES OR PENALTY Petitioners assert that the provision that gives a defaulted vendor the option to pay a sum equal to 10 percent of the bid price of undelivered commodities constitutes a penalty and is void. 3/ In support of their position, Petitioners correctly assert that the rule itself refers to this provision as a "default penalty." Notwithstanding that reference, the greater weight of the competent evidence in this proceeding established that the purpose of this provision of the challenged rule is to provide for reasonable liquidated damages so that the School Board can recoup its damages when a contract is breached. That the School Board has made an effort to set a reasonable amount is established by the research done by Mr. Carter in reviewing similar provisions in other government contracts and by the action of the School Board on July 12, 1995, in reducing the percentage from 25 percent to 10 percent. What has been referred to as a defaulted vendor's Option 1 is the payment of liquidated damages, not the payment of a cash penalty. The default provision serves three valid School Board purposes. First, it discourages vendors from defaulting on contracts. Second, it provides for liquidated damages if a vendor wants to keep its good standing as a vendor. Third, it prevents a vendor that has defaulted on its contract and thereafter has declined to pay the School Board's liquidated damages from securing other School Board contracts for at least 14 months following the default, thereby ensuring that the School Board will not have to deal with such a vendor during the period of disqualification. THE EXTENSION OF THE DISQUALIFICATION TO PRINCIPALS OF DEFAULTED VENDORS The extension of the disqualification to the principals of a defaulted vendor was enacted in response to problems the School Board experienced with the principals of certain vendors who, having defaulted on contracts in the name of one bidding entity, thereafter obtaining contracts under other vendor names and defaulted on the subsequent contracts. The extension of the disqualification serves a valid School Board purpose in that it prohibits the individuals who control various bidding entities from defaulting on a contract by one bidding entity while continuing to bid on other contracts through other entities. The amendment was duly adopted. The rule provides a definition of the operative term "principal" so that it is not vague and does not vest unbridled discretion in the School Board. It is within the School Board's authority to adopt this amendment pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes. Petitioner, Thomas Talmadge, has failed to demonstrate that the amendment is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. THE INSTRUCTIONS TO BIDDERS Each ITB contains "Instructions to Bidders" that become part of the contract once the contract is awarded. Pertinent to this proceeding, the Instructions to Bidders that accompany each ITB for commodities, contain "instructions" as to the filing of objections to bid specifications (Section I.C.2.), the place, date, and hour for the submission of bids (Section II.C.), the method for filing objections for the award of bids (Section IV.D.), and the default provision (Section IV.F.). Section I.C.2. contains an agency statement of general applicability that is not found in any promulgated rule as follows: 2. OBJECTION TO BID/SPECIFICATION. Any objections to specifications and/or bid conditions must be filed in writing and must be received by the Superintendent of Schools no later than 9:00 A.M. on the date specified for acceptance of bid. Section II.C. contains an agency statement of general applicability that is not found in any promulgated rule as follows: PLACE, DATE AND HOUR. Bids shall be submitted by U.S. Mail, Courier/Express Service, or deposited in the BID receiving slot located in Room 352, 8:00 A.M. to 4:30 P.M., Monday through Friday, SCHOOL BOARD ADMINISTRATION BUILDING, 1450 N.E. Second Avenue, Miami, Florida 33132. Bids received after the date and hour specified in the BIDDER QUALIFICATION FORM will not be considered. Section IV.D. contains an agency statement of general applicability that is not found in any promulgated rule as follows: FILING OF OBJECTION. Any objections to an award by the Board must be filed in writing and must be received by the Superintendent of Schools no later than 9:00 A.M. on the first Monday following the award. 4/ Section IV.F. contains three sentences. The first two sentences merely repeat the default provisions contained in School Board Rule 6Gx13-3C-1.08. The final sentence, however, contains an agency statement of general applicability that is not found in any promulgated rule. The rule does not state that the vendor will be disqualified if it does not pay the liquidated damages within fifteen days of the default. Section IV.F. of the Instructions to Bidders is as follows: F. DEFAULT: In the event of default, which may include, but is not limited to non- performance and/or poor performance, the awardee shall pay to the Board as liquidated damages an amount equal to 10 [percent] of the unit price times the quantity, or $25, whichever amount is larger. Where partial shipment of items awarded has been made, the default penalty shall be applied to the balance remaining after the items received have been deducted from the estimated quantity(s). [Where no performance bond or check has been acquired (sic), each awardee who fails to pay the penalty within 15 days after it is invoked shall lose eligibility to be awarded new business by the Board for a period of 14 months from the date of cancellation of award by the Board]. [Emphasis added.]
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found. Miami-Dade Community College is a public educational institution operated by the District Board of Trustees. Its North Campus has an enrollment of approximately 14,000 students, and employs approximately 340 professional faculty and administrators and 300 clerical personnel. At all times relevant to this proceeding, Respondent Joseph T. King was employed on an annual contract basis as an instructor in the Division of Occupational Careers, Business Data Processing Department, at the North Campus. As pertinent here, his latest annual contract was for the period from August 1984 to August 2, 1985. That contract has not been renewed and did not create the expectancy of employment beyond August 2, 1985. As pertinent to this proceeding, the organizational administrative structure of the North Campus, in descending order, is as follows: the President of the College, the Campus Vice-President, the Dean of Academic Affairs, the Associate Deans of the various divisions, the department Chairpersons and instructors. The North Campus Vice-President is the chief administrative officer at that campus and is responsible for providing broad leadership and administrative direction for all of the campus programs and services. The Dean of Academic Affairs is the chief academic officer and is responsible for the faculty and for providing the planning, development, implementation, monitoring, and evaluation of the various instructional divisions. During the time periods relevant herein, Dr. Lukenbill was the Dean of Academic Affairs and Dr. Kelly was the North Campus Vice-President. Dr. Lukenbill had been employed at the college since 1972 and was appointed as the North Campus Dean of Academic Affairs on January 28, 1985. Dr. Kelly, having served in various levels of college administration for 23 years, was appointed as the North Campus Vice-President during the first week of February 1985. The Acting Associate Dean of the Division of Occupational Careers was Blanca Gonzalez. Within this Division is the Department of Business Data Processing, chaired by Lincoln Andrews. The Respondent King was an instructor in that Department. From January 30, 1985 through February 17, 1985, Respondent was unable to work due to medical reasons. On February 11, 1985, Respondent was advised by telegram from the Director of Personnel Services that he would be required to present a physician's statement to the Associate Dean of his Division substantiating that he is physically able to resume his duties. During the period between January 30, 1985 and February 17, 1985, Respondent did hand-deliver a letter from himself to the College President on January 30, had one dinner engagement, made two visits to a former faculty member's home and had one faculty member in his home. February 18 was a school holiday. At approximately 8:00 a.m. on February 19, 1985, Respondent returned to the North Campus and reported to Associate Dean Gonzalez' office for the purpose of providing documentation regarding his ability to return to work. With him was Harry Forster, a former faculty member who had been terminated and had been asked not to return to the campus. Respondent presented Ms. Gonzalez with certain documentation from his physician and requested her to sign a receipt for the documents. Ms. Gonzalez signed and returned the documents to the Respondent and the conversation between them concluded. At that point, Mr. Forster told Ms. Gonzalez that he wanted to speak with her about the Chairperson of the Business Data Processing Department. Ms. Gonzalez then telephoned Mr. Lukenbill, the Dean of Academic Affairs, and asked him to come to her office to join the meeting because she felt the Academic Dean should be a part of the discussion which Mr. Forster desired to initiate. Having been recently appointed as Academic Dean, and Respondent having been on sick leave since January 30, 1985, Dr. Lukenbill had not met Respondent prior to February 19, 1985. As he walked into Ms. Gonzalez' office, he introduced himself to the Respondent and shook his hand. A discussion thereafter ensued between Dr. Lukenbill, Mr. Forster and Ms. Gonzalez, with the Respondent taking no part in the discussion. The matters discussed by Mr. Forster related to his concerns or beliefs regarding certain activities and personnel at the College. They did not involve the Respondent, though both the Respondent and other administrators had previously heard the allegations made by Mr. Forster. At the conclusion of the discussion between Forster, Lukenbill and Gonzalez, Dr. Lukenbill turned to the Respondent and stated that he would like to have a few words with him and asked if he had a few moments. His purpose in initiating that discussion was a combination of courtesy, to establish a rapport with a faculty member he had just met, and to assure himself that Respondent was physically able to resume his duties as an instructor. It was not unusual for Dr. Lukenbill to speak directly with faculty members, in spite of the organizational it chain of administrative command. In response to Dr. Lukenbill's invitation to talk together, Respondent produced his attorney's business card and responded that he would not speak with Dr. Lukenbill. Respondent then left Ms. Gonzalez' office with Mr. Forster, and attended his scheduled classes. For some time prior to February 19, 1985, Respondent had been involved in a contract dispute with the College concerning his salary. His retained attorney had written a letter dated February 14, 1985, to President McCabe regarding this matter and had requested a response within five days. Respondent was of the impression that he should not speak to college administrators concerning his contract dispute or the Forster allegations in the absence of his attorney. When Dr. Lukenbill asked to speak with the Respondent on the morning of February 19, neither he nor the Respondent mentioned Respondent's salary or contract dispute with the College. Dr. Lukenbill had no knowledge of the February 14 letter from Respondent's attorney to President McCabe. While Respondent testified that he would have spoken to Dr. Lukenbill had Dr. Lukenbill advised him that he wished to discuss academic matters with him, the evidence is clear that Respondent did not express this to Dr. Lukenbill nor did he inform Dr. Lukenbill that he only did not feel at liberty to discuss his salary dispute or the Forster allegations in the absence of his attorney. Dr. Lukenbill did not intend to speak with Respondent concerning either Respondent's contract dispute with the College or the allegations made by Mr. Forster. He had previously heard those allegations and felt that they concerned matters unrelated to the Respondent. Dr. Lukenbill was concerned that Respondent's refusal to speak with him created a situation whereby he, as the Dean for Academic Affairs, could not fulfill his responsibilities of managing the assignment of faculty and the conduct of classes. For this reason, he contacted Vice- President Kelly after the February 19 incident and expressed his concern that Respondent's refusal to speak with him impaired his ability to carry out his responsibilities. Dr. Kelly was also concerned and puzzled about Respondent's refusal to talk with the Dean, and agreed that the situation needed to be immediately resolved. At approximately 11:00 a.m. on February 19, 1985, Dr. Lukenbill instructed Ms. Gonzalez to deliver a note to Respondent requesting him to come to Dr. Kelly's office to meet with Dr. Kelly and Dr. Lukenbill at 11:30 a.m. Ms. Gonzalez had a memorandum prepared and attempted to have it delivered to Respondent's lab. The evidence is conflicting as to the time of the attempted delivery and as to the Respondent's schedule of classes and/or labs on that particular day and time. Respondent did attend two of his classes on the morning of February 19. In any event, the memorandum of February 19 was not delivered to the Respondent. On the morning of February 20, 1985, Dr. Lukenbill again requested Ms. Gonzalez to prepare and deliver a note to Respondent requesting him to meet with Dr. Lukenbill and Dr. Kelly in Dr. Kelly's office at 12:15 p.m. Ms. Gonzalez prepared the memo and attached the similar memo of the previous day. Neither memo stated the reason or purpose of the scheduled meeting. The February 20 memo and attachment were delivered to the Respondent during his scheduled class, and Respondent appeared at Dr. Kelly's office at the scheduled time. Vice-President Kelly had never met Respondent prior to February 20, 1985. He was aware that there had been some problems with faculty members missing classes in the Respondent's Department and had heard the Respondent's name in this regard. His concern, however, on February 20 was to attempt to understand and remedy the Respondent's refusal to speak with his Academic Dean on February 19. Dr. Kelly had no knowledge of Respondent's contract dispute with the College and perceived no connection between Mr. Forster's allegations and the Respondent. Respondent appeared at the February 20 meeting with Dr. Kelly and Dr. Lukenbill and the three individuals sat at a small conference table. Respondent immediately placed a tape recorder on the table and asked if there were any objections to the meeting being taped. Drs. Kelly and Lukenbill both indicated they had no objection. Respondent turned on the tape recorder, taped some background information and then indicated to the others that they could proceed with the discussion. It is undisputed that the discussion began with Dr. Kelly stating that they wished to speak with the Respondent about what occurred on the previous day. What Dr. Kelly was referring to, and what Dr. Lukenbill understood to be the purpose of the meeting, was the Respondent's refusal to speak with his Academic Dean on February 19. In response to Dr.,Kelly's opening statement, Respondent threw his attorney's business card on the conference table and refused to speak to the Vice-President or the Academic Dean. Dr. Kelly explained to the Respondent that he considered Respondent's behavior, both then and on the previous day, to be inappropriate, intolerable and a very serious matter. He informed the Respondent that if he were not going to speak with Dr. Kelly or Dr. Lukenbill, there would be no way Respondent could remain on campus and that he would recommend his suspension to the College President. Respondent inquired as to whether Dr. Kelly was ordering him to leave the campus; Dr. Kelly responded that he was requesting him to leave the campus and Respondent then left Dr. Kelly's office. Respondent offers the explanation that, since the notice of the February 20 meeting did not set forth the subject matter or reason for the meeting, he had no way of knowing what Dr. Kelly meant by stating that he wished to discuss what occurred on February 19. This explanation is not credible and does not justify his conduct of refusing to speak to his college administrators. First, even if Respondent had been instructed by his attorney not to discuss his contract dispute in her absence, there is a conflict in the evidence as to whether Respondent's contract or salary dispute was ever mentioned during the February 20 meeting. Dr. Kelly was not even aware of such a dispute. While Respondent testified that he himself inquired as to whether the meeting had anything to do with his contract, he further testified that Dr. Kelly responded that he did not want to talk about a contract dispute but instead wanted to talk about what happened with Dr. Lukenbill the previous morning. Thus, even accepting the Respondent's versions of the February 20 meeting, it is clear that Respondent understood, at some point in time, that the intended purpose of the meeting was to discuss Respondent's refusal to speak with Dr. Lukenbill. Respondent never offered any explanation to Dr. Kelly or Dr. Lukenbill as to why he would not speak to them. It is clear that the meeting started and ended with the key administrators of the North Campus expressing their desire to have Respondent explain to them and change his position concerning his unprofessional behavior on that day and the previous day. Respondent's own fears or concerns regarding either his contract dispute or the Forster allegations do not excuse his willful and continued failure to communicate with the top two administrators responsible for his employer's functions and operations. By telegram dated February 20, 1985, Dr. McCabe, Petitioner's President, advised Respondent that he was suspended without pay pending Dr. McCabe's recommendation for dismissal to the District Board of Trustees. By letter dated March 1, 1985, Dr. McCabe advised Respondent that he would recommend Respondent's termination at the March 26, 1985, District Board meeting based upon the charge of gross insubordination. At that meeting, the District Board suspended Respondent without pay pending the termination proceedings. The Petition and Notice for Dismissal was served on April 2, 1985, and Respondent requested a formal hearing.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Respondent Joseph T. King be dismissed from employment retroactively to the date of his suspension for gross insubordination. Respectfully submitted and entered this 20th day of December, 1985. DIANE D. TREMOR 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 December, 1985. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent have been approved and/or incorporated in this Recommended Order, except as noted below: Petitioner: 7 and 8. Rejected as to date of February 19, 1985, due to evidence to the contrary. 32. Partially rejected, no competent, substantial evidence regarding Respondent's schedule between 11:00 and 11:30 a.m. 51. Rejected, irrelevant and immaterial. Respondent: P. 3, last full sentence Rejected, not a factual finding. in last paragraph. Last paragraph beginning Rejected, not a factual finding on P. 3. And irrelevant and immaterial. COPIES FURNISHED: Donald M. Middlebrooks, Esquire and Nancy E. Swerdlow, Esquire Steel, Hector and Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Neil Flaxman, Esquire Flaxman and Flaxman, P.A. 2600 Douglas Road, Suite 311 Coral Gables, Florida 33134 Dr. Robert H. McCabe, President District Board of Trustees Miami-Dade Community College 11011 Southwest 104th Street Miami, Florida 33176
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (FAMU) for final agency action. Pursuant to FAMU Regulations 10.120 and 10.302, Respondent requested a formal administrative hearing on or about November 17, 2012 to contest his dismissal from employment. Respondent's request for administrative hearing was referred to the Division of Administrative Hearings (hereinafter "DOAH") on November 29, 2011. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for January 30-31, 2012. Respondent filed a Consented Motion for Continuance on January 26, 2012. DOAH issued an Order on January 19, 2012, granting the Continuance and requesting that the parties advise of the status by February 1, 2012. Upon Respondent's failure to provide a status report, DOAH issued an Order Closing File and Relinquishing Jurisdiction on April 12, 2012. Accordingly, it is hereby ORDERED and ADJUDGED that the Petition for Formal Administrative Hearing in this matter is dismissed in its entirety. DONE and ORDERED this 16th day of April, 2012. ounaa {rons Ammons, President Filed with the Agency this day of April, 2012. Agency Clerk
Other Judicial Opinions Petitioner may seek judicial review of this Final Order pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days of the final University decision. If you seek review with the court, you must also provide a copy of the petition to the following university office or official: Agency Clerk, Office of the General Counsel, 1601 South Martin Luther King Jr. Boulevard, 300 Lee Hall, Tallahassee, Florida 32307. Copy: Tyreece Brown, Respondent Nellie C. Woodruff, Assistant Vice President, Human Resources Claudia Llado, DOAH Agency Clerk Avery D. McKnight, Esq. Robert E. Larkin, III, Esq.
The Issue Whether there exists just cause to terminate Respondent from his employment with the Broward County School Board.
Findings Of Fact The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, and for otherwise providing public instruction to school-aged children in the county. James had been employed by the School Board for 11 years prior to being placed on unpaid leave in June of 2011. During the time relevant to the instant case, he was employed as a Behavior Specialist and as the head football coach at Boyd Anderson. He also served as the Athletic Director at Boyd Anderson for the 2009-2010 school year. Edden Merchandise During the 2007-2008 school year, Christopher Edden (Edden), owner of Edden Clothing Company, began to call local schools to develop some business in the Broward County schools. He spoke with James at Boyd Anderson because he was the head football coach, and made his sales pitch. James spoke with Rayfield Henderson (Henderson) and Joan Ferguson, the co-principals at Boyd Anderson, and explained that Edden could create spirit gear for the students. Ferguson and Henderson thought it was a good fundraising idea, because James told them that Edden was producing the spirit gear on a consignment basis. James told Henderson that Edden would produce the gear, and Boyd Anderson would only have to pay for the gear as they sold it. Henderson thought it would be a good idea to set up a "spirit gear store" at the school, and for any profit to go into the athletic department. Henderson approved the spirit gear project, and because of his belief that the spirit gear was being given to the school on a consignment basis, and no money needed to be put forth to purchase the items, he did not instruct James to complete a purchase order. Edden and James exchanged e-mails regarding the colors and design for the logo and mascot. James indicated the items he was interested in ordering, placed the order with Edden, and signed the order form. Edden told James that he required full payment within 30 days after delivery; Edden invoices state "due on receipt." James knew that payment would be due within thirty days of receipt of the items; Edden made the terms of payment clear to James. Edden created the merchandise, and delivered 30 to 40 boxes of clothing and other spirit gear to Boyd Anderson. The amount ordered totaled approximately $32,000.00. After invoices were sent and remained unpaid, James informed Edden that he was not receiving payment for the merchandise because Henderson was not willing to pay the amount due. Edden then started to communicate with Henderson directly, and Henderson maintained that he would somehow pay Edden the amount owed to him. In the Spring of 2008, Edden wrote letters to Henderson, indicating that he had yet to be paid, that he had tried numerous times to contact James with no response, and that he demanded payment in full. The school made many efforts to sell the merchandise, but those efforts were largely ineffective. Ultimately, Edden hired an attorney, and sued the School Board. The School Board settled the case, paying Edden approximately $25,000.00. James misled Henderson when presenting the terms of the agreement with Edden. Henderson approved a fundraising project that was flawed from its inception, due entirely to James's misrepresentations. Due to the misrepresentation made to Henderson, School Board policy 3320, which mandates a specific process for purchases over $5,000, was not followed. Basketball game In November 2010, when James was the acting Athletic Director, he was approached by the Bank Atlantic Center about having the Boyd Anderson basketball team play Monarch High School after two collegiate games on the evening of December 18, 2010. On November 29, 2010, James submitted a Project Approval Form, which is used when any member of the faculty or administration is seeking approval of a project or event. The form was approved and signed by both Assistant Principal Evans, and the principal at that point, Mr. Almanzar. The athletic event was intended to be a fundraiser for Boyd Anderson. Boyd Anderson would purchase 150 tickets to the event for $17.75 each, and then re-sell the tickets to the student body and Boyd Anderson families and faculty for $22.75 each. Half of the tickets were to be given to Monarch High School to sell to their school community. James entered into the contract on behalf of Boyd Anderson, signing the contract with Bank Atlantic Center. Unfortunately, while the two high schools were attempting to sell these tickets, the Orange Bowl Committee was simultaneously providing free tickets to the Broward County schools. Thus, it became very difficult to sell tickets. Only a few tickets were actually sold, and Boyd Anderson ultimately paid for 136 tickets, totaling approximately $2,399.00. There is no evidence that James kept any money from the sale of the tickets, or that he stole or lost any tickets. Transcripts On June 7, 2011, a letter of reprimand was issued to James. It accused James of having asked the school registrar to enter transcripts into the school system, and bypass the process by which transcripts are validated. There was no direct evidence establishing that James committed the acts he was accused of in the reprimand letter. Ultimate Findings The greater weight of the evidence establishes that James is guilty of immorality and of misconduct in office, by failing to maintain honesty in his professional dealings and by violating the Code of Ethics. His misrepresentations led to a violation of School Board policy 3320, as the proper procedure for purchasing merchandise that totaled approximately $32,000.00 was not followed. The greater weight of the evidence establishes that James is not guilty of moral turpitude, or of violations of School Board policy 3411, or 6301.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board terminate Respondent's employment. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 31st day of July, 2012. COPIES FURNISHED: Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast 13th Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com Patrick A. Santeramo Broward Teachers Union 6000 North University Drive Tamarac, Florida 33321 Melissa C. Mihok, Esquire Kelly and McKee, P.A. Suite 301 1718 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638 mcm@kellyandmckee.com Gerard Robinson, Commissioner Department of Education Suite 1514 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Suite 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue Whether Petitioner had a contractual obligation, which it breached, to employ Respondent during the 2009-2010 school year, and, if so, what damages should be awarded.
Findings Of Fact The following is a verbatim recital of the Joint Stipulation of Facts filed by the parties on June 8, 2012: Lurana Hillard (Respondent) was employed by the St. Lucie County School District (Petitioner) as a Program Specialist for School Psychology and School Psychologists beginning in the 2005/2006 school year. Respondent was a participant in the Florida Retirement System ("FRS") and its Deferred Retirement Option Program (hereinafter "DROP"). Respondent's initial 60-month period of DROP was from July 1, 2002 through June 30, 2007. In January 2007, Respondent signed a document requesting to extend her participation in DROP beyond the initial 60- month period. A true and correct copy of the Form is attached as Exhibit B.[1/] Barbara Casteen is the Director of Student Services and Respondent's supervisor. On January 12, 2007, Barbara Casteen sent Steve Valencia, Director of FTE/Position Control, an email with a copy to Respondent regarding DROP extension. A true and correct copy of that email is attached as Exhibit A.[2/] On January 16, 2007, DROP Extension forms [sic] prescribed by the Florida Retirement System were executed by Respondent and Steve Valencia. A true and correct copy of the Form is attached as Exhibit B. Mr. Valencia had the authority, as the Superintendent's designee, to execute the form advising that that the School Board stipulates that the Respondent was eligible to participate in DROP beyond the initial 60- months. On January 23, 2007, at a regularly scheduled School Board meeting, the Board approved the Personnel Agenda which included DROP extension for Respondent.[3/] Attached is a true and correct copy of the Personnel Agenda for the January 23, 2007 meeting and minutes from the same.[4/] The Board has taken no subsequent formal action regarding Respondent's DROP status. On May 26, 2009, Barbara Casteen sent Respondent a letter advising that she would not recommend her for reappointment for the 2009-2010 school year. A true and correct copy of this letter is attached as Exhibit C. On June 30, 2009, Respondent signed a Notification of Separation from Employment Form. A true and correct copy of that Form is attached as Exhibit D. On July 29, 2009, the School Board approved Respondent's retirement. A true and correct copy of a letter from Shelby Baker, Personnel Records Specialist and Employer Notification of Employment Termination are attached as Exhibit E. Respondent initially submitted a letter of resignation pursuant to the DROP statute dated June 30, 2007. Based on request to extend DROP, Respondent submitted another letter of resignation dated June 30, 2010 pursuant to the DROP statute. Respondent received from FRS a Revised Notification of DROP Extension Benefits which is attached as Exhibit F. Attached is a true and correct copy of the FRS DROP Termination Notification as Exhibit G. Apart from the documents referred to herein, Respondent was issued no documents by the St. Lucie County School Board reflecting her employment status during the period of her DROP extension. The body of the January 12, 2007, email from Ms. Casteen to Mr. Valencia attached to the parties' Joint Stipulation of Facts as Exhibit A (1/12/07 Email) read as follows: I am approving the DROP extension for Lurana Hillard for 3 years from 7/1/07 to 6/30/10. If you need any further information, please feel free to contact me. The "Form" attached to the parties' Joint Stipulation of Facts as Exhibit B is a completed Department of Management Services, Division of Retirement (Division) form--Form DP-EXT (05/05) (DROP Extension Form)--signed in January 2007, by Ms. Hillard and by Mr. Valencia, as the Superintendent's "designee".5/ On this completed and signed DROP Extension Form (Executed Extension Form or Form), Ms. Hillard indicated that her "DROP begin date" was July 1, 2002; that her "DROP termination and resignation date" was June 30, 2007; and that she was "requesting to extend [her] DROP participation through 6/30/10 with the approval of [her] employer." The "Employer Certification" section of the Form contained the following statement made to the Division by Mr. Valencia, as the Superintendent's designee: This is to certify that the St. Lucie County School Board (agency name) has rescinded the resignation of the above named member whose position meets the definition of an instructional position. The agency has approved a new termination date of 6/30/10. This agency stipulates that this member is eligible to participate in the DROP beyond 60 months and the member will continue working in a regularly established position as a School Psychologist.[6/]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Lucie County issue a Final Order declining to award Ms. Hillard the relief requested in her Petition. S DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 July, 2012.
