The Issue The issues to be determined are whether Eddie Hundley (Respondent) violated: section 1012.795(1)(g) and (1)(j), Florida Statutes; and Florida Administrative Code Rules 6A- 10.081(2)(a)1.; 6A-10.081(2)(c)1.; 6A-10.081(2)(c)8.; and 6A-10.081(2)(c)9., as alleged in the Amended Administrative Complaint (AAC). If it is found that Respondent has committed any of the alleged statute or rule violations, the penalty that should be imposed must also be determined.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding,9/ the following findings of fact are found: The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Respondent holds Florida Educator Certificate 797607. Respondent has over 25 years’ experience as an educator and administrator. Respondent served the MCSD for approximately 15 years. From 2014 through June 2018, Respondent was the principal at Lincoln Middle School (LMS), located in Palmetto, Florida. Respondent became the principal at Lincoln Memorial Charter School (LMCS) in July 2018. Quentin Peterson (Peterson) worked for the MCSD at LMS in January 2016, as a substitute teacher, where Respondent served as principal. On or about April 6, 2016, Peterson executed a probationary contract for instructional personnel with MCSD.10/ Peterson was assigned to LMS for the period from January 19, 2016, through June 13, 2016, where Respondent served as principal. On April 7, 2016, the MCSD OPS opened an investigation into allegations that Peterson engaged in inappropriate conduct with an LMS female student. Respondent removed Peterson from the classroom to preclude him from having student contact while the investigation was ongoing. In addition to the OPS investigation, outside law enforcement (PCPD) and Manatee County Child Protective Services (CPS) investigated the allegations. At the conclusion of the investigation, the file was closed as unfounded. Respondent was notified of the investigation’s results. In late May 2016, Peterson entered an employment contract with the MCSD for the 2016-2017 school year. Peterson was assigned to work at LMS as a music teacher, again, where Respondent served as principal. On April 25, 2017, the MCSD OPS opened a second investigation into allegations that Peterson engaged in inappropriate conduct with a female student. Respondent removed Peterson from the classroom, and he was reassigned to the MCSD Transportation Office for the duration of the investigation. Both the PCPD and CPS investigated these allegations. There were inconsistent statements from the female student and witnesses regarding the allegations and the files were closed as unfounded. Respondent was notified of the investigation’s results. On April 28, 2017, following a meeting with the MCSD staff about the investigation, Peterson submitted his handwritten resignation from LMS to the MCSD. A telephone conversation ensued between Respondent and Dr. Greene. Dr. Greene understood Respondent to be very upset about Peterson’s resignation. Respondent believed Peterson’s resignation to be the result of pressure from the MCSD staff to do so. Respondent urged Dr. Greene to allow Peterson to retract his resignation, which Dr. Greene did. On May 4, 2017, Dr. Greene directed Respondent, via a letter,11/ to issue a letter of reprimand to Peterson for the conduct for which he was previously investigated. Dr. Greene felt “that something still was not right . . . these [two investigations] may have come back unfounded, but I believe that Mr. Peterson was using poor judgment or wasn’t delivering effective classroom management, that he put himself in these situations.” In the MCSD, a letter of reprimand is considered discipline. Roughly two weeks later, on May 17, 2017, Respondent executed the letter of reprimand to Peterson. It provided: Please allow this communication to serve as a letter of reprimand for what has been determined to be poor judgement and poor classroom management on your part in the matter of events taking place on April 25, 2017 (OPS case #2016-4147). While I am fully aware that the accusations made against you in this matter were determined to be unfounded by all three investigation agencies (OPS, CPS, PPD), it is the determination of the Superintendent that your actions warrant this reprimand. Please be advised that any recurrence of poor judgement or classroom management on your part could lead to further disciplinary action, up to and including termination. On May 18, 2017, Respondent presented the letter of reprimand to Peterson. A notation on the copy of the letter provided that Peterson wanted to speak with a union representative prior to signing the letter of reprimand. (See Pet. Ex. 6). Dr. Greene recalled Respondent notified her that the letter of reprimand was given to Peterson, but it is unclear whether Peterson, ever actually signed the letter of reprimand. Peterson’s annual contract for an instructional (teaching) position for the 2017-2018 school year was executed by an MCSD representative on May 15, 2017, and by Peterson’s signature on May 23, 2017, prior to a third investigation being opened. On May 24, 2017, the MCSD OPS opened a third investigation into allegations that Peterson engaged in inappropriate conduct with an LMS female student. Both the PCPD and CPS were notified of the allegations and investigated. That same day, Peterson was placed on temporary assignment away from LMS. As it was understood that this investigation would not be completed prior to the end of the school year (the last day for students being May 31, 2017), Peterson elected to use his personal days through the end of his contracted school term, June 2, 2017. Investigator Nelson met with Respondent and explained the allegations against Peterson. On May 25, 2017, Chief Tyler telephoned and spoke with Respondent about the status of the PCPD’s ongoing Peterson investigation. In early June 2017, PCPD investigators obtained and executed a search warrant at Peterson’s residence. There, they seized Peterson’s telephones and computer. The electronic devices were sent to the Florida Department of Law Enforcement (FDLE) for forensic analysis. On July 17, 2017, Chief Tyler received a call from Respondent. Chief Tyler and Respondent discussed the status of the PCPD’s ongoing Peterson investigation. On July 28, 2017, Respondent sent Investigator Nelson and DS Saunders an e-mail regarding information that the CPS investigation was closed. Based on the CPS closure, Respondent wanted Peterson returned to work.12/ DS Saunders directed MCSD General Counsel Teitelbaum to look into the matter. Mr. Teitelbaum communicated with Respondent several times on July 28, 2017. Mr. Teitelbaum explained to Respondent that even though the CPS investigation was closed, the PCPD investigation was still ongoing, as was the MCSD OPS investigation. MCSD’s position was (and remains) that CPS is an independent entity, as is the PCPD. If either of those entities (CPS or law enforcement) has an ongoing or open investigation, MCSD cannot close its file and return an employee back to work. Mr. Teitelbaum further explained to Respondent that a judge had issued a search warrant, and Peterson’s electronics had been seized and sent to FDLE for analysis. Additionally, on July 28, 2017, Mr. Teitelbaum, Investigator Nelson, and Respondent had a three-way telephone conversation regarding Peterson, the ongoing investigation, and Peterson’s status to return to work. Mr. Teitelbaum followed up with an e-mail to Respondent, which was copied to Investigator Nelson, which provided: As discussed, CPS’ closure of a file does not mean a case is closed. Palmetto PD has an open investigation. Awaiting forensic results from FDLE. There was enough probable cause for a judge to issue a warrant to confiscate all the electronics. We are doing everything possible to expedite the resolution in this matter. As of August 3, 2017, the PCPD had not received the results of the FDLE forensic evaluation of Peterson’s electronics. The MCSD teachers returned to work for the 2017–2018 school year on August 4, 2017. Dr. Greene issued a letter to Peterson on August 4, 2017, that temporarily reassigned him to the MCSD Transportation Department. Respondent was copied on the letter. The MCSD school year started for students on August 10, 2017. In mid-August 2017, Investigator Nelson became aware that the FDLE analysis of Peterson’s electronics had been received by PCPD. PCPD investigators notified Investigator Nelson that nude pictures of another female student were found on Peterson’s computer. Although the LMS student who filed the third complaint was not pictured in the photographs, this other female student was a minor attending a different MCSD school. Chief Tyler telephoned Respondent on August 17, 2017, and discussed ongoing PCPD Peterson investigation for approximately five minutes. After this call was completed, Respondent called Chief Tyler a few minutes later, and they again discussed the ongoing Peterson investigation for approximately four more minutes. Chief Tyler discussed with Respondent that the FDLE forensic analysis had come back, and photographs showing inappropriate conduct of Peterson with an underage female student were found. As a result of this information, on August 17, 2017, Dr. Greene issued Peterson a letter that placed him on paid administrative leave. The letter provided in pertinent part: Effective immediately you are being placed on paid administrative leave pending the outcome of our investigation of possible misconduct on your part. Do not make contact with or talk to employees of the District, potential witnesses and victims, or School Board members about this matter. Do not enter any property owned or operated by the School District during the period of this administrative leave without the consent of Executive Director of Secondary Schools, Jim Pauley. Respondent was copied on the letter, as shown by the “Cc” designation. On August 23, 2017, Investigator Nelson spoke with Respondent at LMS about the FDLE analysis. Investigator Nelson informed Respondent there was evidence that Peterson was engaged in inappropriate conduct with a female student. The female student in the photographs was not an LMS student, but she was an underaged MCSD student. Respondent was aware of the new evidence, but did not believe it was true. Respondent believed Peterson was innocent despite the photographs. In late August or early September 2017, based on the overall PCPD investigation and FDLE analysis, the PCPD determined there was probable cause that Peterson had inappropriate conduct with a minor female student, and a capias13/ was sent to the local State Attorney’s office. On September 1, 2017, Peterson tendered his resignation to the MCSD, effective September 12, 2017. Peterson agreed not to seek reemployment with the MCSD. On September 6, 2017, Investigator Nelson learned that Peterson was on LMS property, despite the direction in the August 17, 2017, directive from Dr. Greene. Investigator Nelson contacted Respondent who claimed he knew Peterson had resigned from the district. Investigator Nelson also told Respondent there was an “open police capias” for Peterson, and he was not to be on school property. Respondent’s position was that since he had not issued a trespass warning to Peterson, Respondent could not keep Peterson off the LMS campus. Investigator Nelson reiterated to Respondent that Peterson had resigned from the MCSD, that he was no longer allowed to work for the district, and that he was not to be on the LMS campus. In September 2017, Peterson applied for a substitute teacher position with the SCSD. Respondent was listed as a reference on Peterson’s completed SCSD application. On September 22, 2017, Respondent completed a generic computer- generated Sarasota County Public Schools Applicant Reference Form (form). Within the form, Respondent provided the dates of Peterson’s employment as “1/15-16 - 8/17.” For the relationship between the two, Respondent stated that he was Peterson’s “Current/Former Supervisor.” Also within the form, Respondent checked the “Superior (top 5%)” mark for all the inquiries under each category: “CLASSROOM TEACHER APPLICANTS ONLY”; “ADMINISTRATIVE APPLICANTS”; and “ALL APPLICANTS.”14/ Respondent also provided the following responses to questions: Would you employ/re-employ this person [Peterson]? X Yes _ No Do you have any reason that this person [Peterson] should not work with children? _ Yes X No If yes, please explain: On October 2, 2017, Chief Tyler called Respondent to discuss the PCPD’s ongoing Peterson investigation. Chief Tyler told Respondent that a capias was issued and the Peterson investigation had been referred to the State Attorney’s office for prosecution. This discussion included information that the LMS student who initiated the third investigation was not the student in the photographs. However, because the female in the photographs was an underaged MCSD student, the capias was issued. Around October 10, 2017, Peterson signed a contract to provide substitute teaching for the SCSD. In January 2018, Principal Breslin was working as an assistant principal (AP) at Booker High School (Booker) in Sarasota, Florida. Principal Breslin has known Respondent for several years. Prior to working in Sarasota, Principal Breslin worked as an AP at Palmetto High School and had occasions to interact with Respondent. After moving to the SCSD, Principal Breslin spoke with Respondent on several occasions. In January 2018, Booker was in need of a long-term substitute math teacher, and Peterson started working in this position. Peterson had the qualifications to work in the math field. Shortly thereafter, Booker moved forward to hire Peterson into a full-time teaching position. Principal Breslin reviewed Respondent’s September 2017 reference form for Peterson. Principal Breslin and the two other SCSD evaluators for the full-time position noted that Respondent had given Peterson “all superior ratings,” and considered that to be “a very good reference.” As they moved through the hiring process, SCSD required phone interviews to check with references. Principal Breslin contacted Respondent and discussed Peterson’s application. Prior to actually speaking with Respondent, Principal Breslin e-mailed Respondent, seeking a reference for Peterson. Principal Breslin asked Respondent to respond via e-mail or by telephone. Respondent provided the following e-mail: Me [sic] Peterson was an excellent employee here at Lincoln. A willingness to go above and beyond for the School was common place. Congrats on a good hire. On February 23, 2018, Principal Breslin spoke with Respondent. Using the SCSD telephone reference form, Principal Breslin asked the following questions. Although the questions were not all phrased specifically as provided in the telephone form, Respondent provided the following responses15/: Question Yes No Did this person work for you? Y If “YES”, please provide exact dates of employment: From: 01/2016 To: 8/2017 If Yes, in what capacity? Intern Was this person recommended for Continued employment? Y If “NO”, explain: How was this person’s job performance?: Great – always organized and prepared Do you know any reason why this person should not work with students? N If “YES”, explain: Why did this person stop working with you? Relocation[16/] Was this person ever disciplined? N If “YES”, explain: Was this person ever terminated? N If “YES”, explain: Did this person ever resign in lieu of termination? N If “YES”, explain: Was this person ever referred to a State licensing/certifying authority? N If “YES”, explain: If you had a position available, Would you re-hire this person? Y If “No”, please explain: Is there any other person who can provide additional information about the candidate? N If “YES”, list name, title, and phone number: (Emphasis supplied). Respondent did not offer any information about the ongoing investigation to Principal Breslin. Respondent did not provide Principal Breslin with information about the letter of reprimand that Respondent executed and provided to Peterson on May 18, 2017. Given the details that were not provided, Respondent’s statements were false and misleading. Based on the positive reference remarks, Principal Breslin and the committee hired Peterson. SCSD would not have hired Peterson if Respondent had shared the totality of the Peterson investigations. On or about February 28, 2018, Peterson began a full- time teaching position at Booker. On April 24, 2018, Peterson was arrested and charged with possession of child pornography. Following Peterson’s arrest, Dr. Bowden contacted Dr. Greene to express that there “were issues out there that I believe professionally we [SCSD] should have been made aware of.” SCSD has a responsibility to put “quality individuals in contact with” SCSD students on a daily basis. The SCSD considers a letter of reprimand to be discipline, and Respondent should have provided that he, Respondent, issued a letter of reprimand to Peterson. That information was important in making a determination about whether or not to hire someone. Dr. Bowden placed “great weight” on Respondent’s position as a principal, a position that Dr. Bowden holds “in high regard.” Dr. Bowden provided that Respondent “had information that . . . should have caused [Respondent] to come to the opinion that [Peterson] could no longer work with school kids, . . . that he was not fit, that you should not rehire him. . . that he had in fact been reprimanded before.” If Respondent had answered “yes” to the questions regarding a reason that Peterson should not work with kids, or that Peterson had received disciplinary action, SCSD would not have hired him. On May 2, 2018, Dr. Greene issued Respondent a letter of reprimand. This letter provided: The purpose of this letter is to reprimand you for your actions involving the false and inaccurate employment references given by you for former Lincoln Middle School employee Quentin Peterson regarding his employment applications to the Sarasota School Board as both a substitute teacher and full time teaching position. In reviewing the attached Reference Forms, you indicated that he used professional judgment and “ethical behavior.” Mr. Peterson was under investigation for having sexual relations with a student and that fact was personally known to you. You also indicated that you knew of no reason why he could not work with children. This was blatantly false. Mr. Peterson resigned during an OPS investigation for misconduct. In addition, you provided another false and inaccurate reference for Mr. Peterson. You specifically indicated that this person was recommended for continued employment. Mr. Peterson was not recommended for reemployment. He resigned and agreed never to seek reemployment with the School District of Manatee County. You also indicated that he was never disciplined. You were personally directed by me and did personally issue Mr. Peterson a Letter of Reprimand. Your statement was blatantly false. You also failed to disclose additional information when asked. Rule 6A-10.81(c)(9) states that an Administrator “Shall not make any fraudulent statement or fail to disclose a material fact in . . . another’s application for a professional position.” This matter will be escalated to the Office of Professional Practices Services at the Department of Education for further action. It is expected that there will be no recurrence of the behavior on your part that necessitated this reprimand. In the event there is a recurrence, you will subject yourself to further disciplinary measures, including a possible recommendation for your termination. In July 2018, Respondent resigned from the MCSD to become the principal at a newly constituted charter school (LMCS). Respondent’s position is that he gave the positive references for Peterson because that is what his “belief was at the time.” Respondent’s claim is not credible. Respondent knew of three investigations of Peterson, all involving allegations of inappropriate conduct with a female student. While there is some merit in not dwelling on the first two investigations that were “unfounded,” the issuance of the letter of reprimand was a disciplinary action taken by Respondent, and the third investigation was far from over when Respondent gave the first recommendation to SCSD. When the third investigation started, Respondent was told by Investigator Nelson of the specific allegations. A month or so later at separate times, individually or together, Chief Tyler, Mr. Teitelbaum, and/or Investigator Nelson shared information with Respondent about the status of the Peterson investigation as it was ongoing. When the FDLE analysis was returned in August 2017, Investigator Nelson again informed Respondent of the investigation status. When it was determined that the underaged student, in the photographs found on Peterson’s electronics, was not the complaining student at LMS, the PCPD investigation did not end. Respondent knew Peterson resigned when Investigator Nelson spoke with him early September 2017. Red flags should have been going off in Respondent’s head that something was not right. It is simply not credible to suggest otherwise. Dr. Bowden contacted Dr. Greene to express his concern that information was not shared with SCSD regarding Peterson, and the information that was shared, was false. Petitioner has established through clear and convincing evidence that in his official capacity, Respondent provided misleading and false information regarding Peterson, as an applicant for instructional positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated the statutes and rules listed above, and that Respondent’s educator’s certificate be revoked for five years, followed by five years of probation with terms and conditions established by the Education Practices Commission, which shall include the requirement that he take and successfully complete a course in ethics, and pay a fine of $2,400.00 ($300.00 per each count violated), to be paid within one year of the date of the Final Order. DONE AND ENTERED this 8th day of March, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of March, 2019.
The Issue The issue is whether the talent agency license held by Respondent should be disciplined for exercising undue influence on an artist for financial gain, and failing to provide clients with copies of contracts which list the services to be provided and fees to be charged and which state that the agency is regulated by the Department.
Findings Of Fact Jane Daniels has been licensed as a talent agency in the State of Florida, doing business as T.J. Norris Co., Inc., and holds license TA-0000015. Ms. Daniels is married to Bill Daniels, a photographer. Their offices are in Fort Lauderdale. Each has a separate entrance, but the suite of offices connect internally. Terri Bjorklund took her infant son, Glenn, to the T.J. Norris agency in February, 1988, responding to one of the advertisements seeking babies and toddlers for advertising work during the Christmas season. Ms. Bjorklund showed Art Feldman, an employee of the T.J. Norris agency, two 8x10 photographs and a photo card bearing three smaller pictures of her son during her interview. Mr. Feldman told Ms. Bjorklund that the pictures of the baby "belong in the garbage," and made the baby "look like an amputee." Mr. Feldman told Ms. Bjorklund that she needed a professional photographic portfolio for her son to obtain work, and he suggested a photographer right in the building who was, in fact, Bill Daniels. Ms. Bjorklund paid $170 to the T.J. Norris agency; $30 was a registration, and $140 was a down payment on the photographic portfolio, which would cost $295. Ms. Bjorklund was told that the balance due on the portfolio could be paid from work the agency obtained for the baby. Ms. Bjorklund was not able to pay any more money for the photographs because her husband had been hurt in a motorcycle accident, was not able to work, and the family was on food stamps. She emphasized that if she could not "work off the balance" through work obtained for the baby, she did not want to pay the $140 that day. Based upon Ms. Daniels' assurances about the payment arrangement, Ms. Bjorklund had the photographs taken by Bill Daniels. When Ms. Bjorklund called the T.J. Norris agency on several occasions to see if there was work available for her son, she was told that no work would be found until Ms. Bjorklund paid off the balance of the portfolio in full. When Ms. Bjorklund stated that she intended to complain to the Department of Professional Regulation or to a local television station because their agreement was not being honored, she was given appointments to take the baby to castings. These were always cancelled, except for one, where the part required the child to speak; this was useless because the child was only 8 months old. The application filed with the T.J. Norris agency disclosed the child's age. Ms. Bjorklund ultimately took her son to other talent agencies, and obtained work for her son through them. In obtaining this work, Ms. Bjorklund used the card with the pictures Mr. Feldman had derided. Those photographs were adequate for use in obtaining bookings for a young child. Expensive photographic portfolios are not ordinarily done for young children because they change quickly as they grow. Ms. Bjorklund never received a copy of the contract she signed with the T.J. Norris agency when she paid the $30 registration fee at the agency. Jonathan Ferrara went to the talent agency on July 12, 1988. He submitted head shots and resumes in order to obtain modeling or acting work through the T.J. Norris Agency. Mr. Ferrara uses the stage name Mark Love. Mr. Ferrara was interviewed by Art Feldman, an employee of the T.J. Norris Agency. Mr. Ferrara never received a copy of the contract with the agency, although he had paid a $30 registration fee, and an additional $15 to make a master card, which is sent to movie companies for use in casting. Jodi Lewine went to the T.J. Norris Agency to obtain modeling or acting work on August 5, 1988. She had no prior experience. She was interviewed by Art Feldman, who told her she would have to have photographs taken before the agency could solicit work for her. Feldman suggested that the photographs be taken by the photographer whose studio was in the same building, the studio of Bill Daniels. Mr. Feldman never told Ms. Lewine that she could have photographs taken by another photographer, but there is no evidence that he required Ms. Lewine to have the work done by Mr. Daniels. (Tr. 43, 1. 16-19, and Tr. 49, 1. 9) Models do not ordinarily acquire portfolios of photographs until after they have worked on several jobs through collecting the photographs taken on those jobs. Ms. Lewine never received a copy of the contract which she signed with the T.J. Norris Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Professional Regulation finding T.J. Norris Co., Inc., to have violated Section 468.402(1)(t), on two occasions and Section 468.410(3), on three occasions, and imposing an administrative fine of $2,000. DONE and ENTERED this 27th day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1990.
The Issue The issue in this case is whether Respondent, Pro Quality Enterprises, LLC (“Pro Quality”), should have a penalty assessed against it by Petitioner, Department of Financial Services, Division of Workers’ Compensation (the “Department”), for failure to have workers’ compensation insurance in place, and, if so, the amount of such penalty or assessment.
Findings Of Fact The Department is the State agency responsible for, inter alia, insuring that all businesses operating in this State have workers’ compensation insurance coverage. Pro Quality is a duly-formed and validly-existing limited liability company in the State of Florida. The company was formed on April 23, 2012, for the purpose of conducting any and all lawful business. At the time of its formation, Gabor Albok and Jaco Kotze were the named managers of the company. Mr. Albok was also the registered agent. Mr. Albok created the company when he first came to the United States from his native Hungary. He envisioned using the entity for some business purpose, i.e., perhaps shipping automobiles back to Europe. When that venture did not pan out, Mr. Albok came up with the idea of being a referral source for businesses engaged in the construction industry, e.g., painters, carpenters, lawn services, roofers, etc. On January 14, 2014, Jose Bird, a compliance investigator with the Department, conducted an investigation at 47 Lake Walk, Palm Coast, Florida. Upon arrival at the site at around 11:30 a.m., Mr. Bird saw a person (later identified as Mr. Albok) “doing touch-up work” with a paint brush and then cleaning the brush. Mr. Bird approached Mr. Albok, identified himself as an investigator for the Department, and asked Mr. Albok to identify himself. Mr. Albok complied with the request, including the name of his company, Pro Quality. Mr. Albok did not attempt to hide from the investigator or avoid his questions; he was fully cooperative at all times. Mr. Bird then asked Mr. Albok to provide proof of identity, so Mr. Albok went to his car to retrieve his wallet. At that time he realized he had left his wallet somewhere, so he hurriedly left in his car to return to the 7-11 store he had visited that morning to see if they had his wallet. Meanwhile, Mr. Bird used the information he had received from Mr. Albok to begin his investigation as to whether Pro Quality had workers’ compensation insurance coverage required by someone in the painting business. He found that it did not have such coverage after checking the Department’s compliance and coverage automated system. Mr. Bird, operating under the assumption that Mr. Albok was a painter, provided his findings to his supervisor and was directed to issue an SWO and request for business records. He prepared the documents and they were sent via certified mail to Mr. Albok at his address of record. Mr. Albok responded by providing such business records as he could locate, but maintained that he did not have workers’ compensation insurance coverage because he was not engaged in an activity that required such insurance. Specifically, Mr. Albok explained that he was not a painter, had never been a painter, had never employed a painter in his business, and could not understand why the Department thought otherwise. Mr. Albok was not engaged in any construction-related business. Pro Quality was a company that attempted to help persons building a new home to find professionals who might assist in the development and maintenance of the new home. Pro Quality would then get a referral fee from the companies if they were hired. He was not an employee of any of the companies and performed no services for them nor were the professionals he referred employees of Pro Quality. At the time Mr. Bird arrived at the work site in Palm Coast, Mr. Albok was talking to a painter at the house who he had referred to the homeowner. He touched up a spot on a windowsill and was helping the painter clean his brushes as they talked. He had wiped a brush on the windowsill and was bending down to spray it off as he talked. He had not been painting and the painter was not under his employ, nor was he under the painter’s employ. Mr. Albok’s testimony was credible and is accepted as true. The Department did not provide any evidence to refute Mr. Albok’s assertions in this matter. Mr. Bird’s short observation and minimal inquiry to Mr. Albok was insufficient to establish that Mr. Albok was a painter working at the job site. The Department nonetheless found that Pro Quality was engaged in the business of painting, issued a penalty assessment based on that presumption, and calculated a penalty of $20,727.38, later reduced to $15,215.68. Based upon the determination that Mr. Albok and Pro Quality were not engaged in the business of painting (or other work requiring workers’ compensation insurance), there is no basis for calculating a penalty assessment or imposing a penalty against the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rescinding the Stop-Work Order entered against Pro Quality Enterprises, LLC, and all penalties assessed therefrom. DONE AND ENTERED this 4th day of August, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2016.
The Issue DOAH Case No. 11-5494TTS: The issue is whether Respondent, Joseph Fayed (Fayed), committed the violations alleged, and, if so, what penalty should be imposed. DOAH Case No. 11-5495TTS: The issue is whether Respondent, Walt Petters (Petters), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is a district school board created by Article IX, section 4, of the Florida Constitution. As such, Petitioner’s authority and responsibilities extend to personnel matters, and include the power to hire, suspend, and dismiss Board employees. At all times material to these cases, Petitioner’s organizational structure designated Maintenance as the department responsible for repairs and upkeep to all School District property. Maintenance was charged to budget for and complete repairs and improvements to hundreds of school sites and other Board properties. At all times material to these cases, Petitioner kept a list of vendors who could be called upon by Maintenance to complete work that could not be performed by Board personnel. Maintenance’s system allowed it to assign work previously approved or contemplated by the budget to a vendor and then submit a purchase order to the Board’s purchasing department so that the vendor would be paid at the conclusion of the work. At all times material to the allegations of this matter, Respondent Fayed was employed by the Board on an annual contract and served as supervisor of central services in the Maintenance Department. Fayed oversaw maintenance work performed within his service area. It is undisputed that the annual contract held by Fayed could be non-renewed without cause. Therefore, at the conclusion of the 2011-2012 school year (presuming his contract ended concurrent with the school year), Petitioner was not obligated to retain Fayed. By history, Fayed worked for Petitioner for well over 30 years, completed his DROP time, and separated from the School District. After remaining out of the system for some period of time, Fayed returned to work for the School District and continued to do much of the same type of work he had done prior to retirement. At all times material to the allegations of this matter, Respondent Petters was employed by Petitioner on an annual contract. Petters was the director of Maintenance. His responsibilities required him to supervise all employees within the School District’s Maintenance Department. Fayed served under Petters’ supervision. As director of Maintenance, Petters oversaw all of the geographical service areas for the School District. All outside vendors who performed maintenance work for School District properties were directly tied to Petters’ department. The Controversy Prior to August 15, 2011, Board employees raised concerns of improprieties committed by Petters and Fayed in connection with the performance of their duties in the Board’s Maintenance Department. An internal investigation of the School District’s maintenance department suggested that there were 25 separate instances of improper activity. Based upon the investigation, Petitioner procured an independent audit to be performed by RSM McGladrey, Inc. (McGladrey). McGladrey was tasked to review the 25 claims, review all pertinent records of the Maintenance Department, and present a detailed report to the School District’s Superintendent. That report, dated September 23, 2011, formed the basis for the charges against Petters and Fayed. The McGladrey report was attached to letters from the Superintendent dated October 5, 2011, that advised Petters and Fayed that their employment with the School District would be recommended for termination at the Board’s October 11, 2011, meeting. At that meeting, Petters and Fayed were terminated subject to their administrative rights to contest the action. Respondents timely sought a formal administrative hearing in connection with the charges of misconduct, willful neglect of duty, and/or being incompetent. The Vendors SMG SMG Coatings, Inc. (SMG), is a painting company operated by Tim Tillotson (Mr. Tillotson). Although, technically owned by Mrs. Tillotson, the company’s day-to-day field operations are directed and supervised by Mr. Tillotson. At all times material to the allegations of these cases, SMG routinely bid on contracts for the School District. It also competed for the “primary contractor” designation. Petitioner used two methods of procurement for maintenance work to be performed by outside vendors. One method, “primary contractor,” was for minor projects that did not exceed $5,000.00, in value. Vendors designated as the “primary contractor” were utilized to do these minor jobs without additional bidding. When a job exceeded $5,000.00, all vendors on a list of approved vendors were allowed to bid on the project. These vendors are known as “continuing contract” holders in this record. Vendors on the “continuing contract” approved list were to receive notice of the job and be given an opportunity to successfully bid the work. Although the threshold amount was later raised, and the method of evaluating contractors was later changed from an hourly rate to a unit measure for the type of painting work, the underlying concerns regarding how SMG received the Board’s work remain the same. At all times material to these cases, SMG was a “primary contractor” on the approved “continuing contract” vendor list. The allegations of these cases aver SMG received preferential treatment not afforded other vendors doing business with the School District. Sena-Tech Sena-Tech, LLC (Sena-Tech), is an electrical contractor that first became authorized to do School District work during 2008. Steve Terry (Mr. Terry) is the president of Sena-Tech. The allegations of these cases aver Sena-Tech received preferential treatment not afforded other electrical vendors doing business with the School District. The Relationships Petters and Fayed are long-term employees of the School District, who have forged friendships with each other and with vendors doing business with the Board. Specific to these cases are the friendships between Petters, Mr. Tillotson, and Mr. Terry. It is undisputed that at all times relevant to the allegations of these cases, Petters and Mr. Tillotson ate lunch together many times a month. Petters vacationed with Mr. Tillotson on one or more occasions. Petters and Mr. Tillotson made no effort to hide their close friendship. Similarly, Fayed is friends with Mr. Tillotson. Although they are not as close as Petters and Tillotson, it is undisputed that Fayed also lunched with Mr. Tillotson on a regular basis. Given his work history, Fayed is familiar with painting contractors doing business in the school district. There is no evidence that Fayed made any effort to encourage other painting vendors to compete with SMG for the Board’s business. Fayed has also known Steve Terry for years. Mr. Terry has been to Fayed’s home in the past and considers Fayed a friend. Petters and Mr. Terry are also well known to one another. Mr. Terry has joined Fayed and Petters for lunch. Neither Fayed nor Petters acknowledged that forging friendships with vendors doing business with the School District gave the appearance of impropriety to persons looking at the situation from outside of the Maintenance Department. The Jobs Sena-Tech Prior to 2008, Sena-Tech did not have standing as a “continuing contractor” or vendor approved to do work for the School District. Nevertheless, Sena-Tech received jobs and was paid for work done prior to its inclusion on the list. Purchase Orders (POs) were approved by Petters for payment to Sena-Tech in connection with nine specific jobs. Petters was required to sign-off on jobs and to submit POs so that the vendor would be paid. A purchase order is the written document formalizing the transaction between the Board and the vendor. In this case, all POs were initiated by Maintenance and paid by Petitioner’s Purchasing Department. The weight of the credible evidence confirms that nine jobs given to Sena-Tech prior to 2008 were electrical in nature and should have gone to a contractor on the approved list or, if not technically “electrical” due to the voltage of the work, should have been given to a vendor that successfully bid the jobs. In either instance without competent supporting documentation, Sena-Tech would not have automatically received the work. There is inadequate evidence that the work performed by Sena-Tech resulted in a higher cost to the Board, however, because the process, by which work should have been distributed to vendors, was circumvented in connection with the nine Sena- Tech POs approved by Petters. There is no evidence that Petters personally benefitted from the work given to Sena-Tech. There is insufficient evidence to establish that Fayed was personally involved in the disputed Sena-Tech POs, or that he participated in the selection of that company for the disputed work. There is no evidence that Fayed personally benefitted from the work given to Sena-Tech. SMG The weight of the credible evidence established that SMG circumvented the Board’s bidding process by submitting false information. SMG obtained work based upon unrealistically low hourly rates. To calculate the labor cost for a job required a simple formula: hourly rate multiplied by the number of hours to complete the job. Theoretically, all vendors would take the same amount of time to complete a job. Because the hourly rate would be multiplied by the number of hours the job required, the job labor cost would be correct. In these cases, that did not happen. Instead, SMG inflated the number of hours for the job and thereby assured itself a payment greater than its hourly rate would have afforded had the rate been applied to the actual hours worked for the job. In some instances, SMG billed the job at a higher hourly rate than its contract allowed. According to Fayed and Petters, so long as the bottom line (the ultimate cost to the School District) was reasonable, the process was adequate and had long been in place. Fayed and Petters did not acknowledge that the method used by SMG might have resulted in a higher cost to the Board. Based upon their professional experience in the Maintenance Department, both Respondents claimed that the amounts charged by SMG and paid for by Petitioner were appropriate. In truth, the process was not appropriate because vendors who bid actual (as opposed to illusory) hourly rates did not have the opportunity to obtain jobs. Vendors who bid the hourly rates that would be applied to the real hours of work could not compete with SMG’s unrealistically low rate. SMG was assured of “primary contractor” status without meaningful competition so long as its hourly rate was less than its competitors. At all times material to these cases, SMG was the preferred painting vendor. Fayed and Petters knew the system was flawed. In fact, Petters claimed that he told superiors that the system should be changed. When the threshold amount of jobs was increased from $5,000.00, to $20,000.00, the hourly rate method was still used. More important, neither Petters nor Fayed required SMG to bill only its actual hours for a job. There are a number of ways to track time on a given painting job. Outside vendors could be required to sign in and out at a job location. A site supervisor could verify the daily hours worked at a given location. No reasonable effort to verify the actual hours spent on a job was used when it came to SMG. Petters and Fayed knew or should have known that the hours submitted by SMG were false. Whether the Board could have or should have paid less for the SMG jobs is unknown. Another vendor working fewer hours at a higher rate might have cost the School District the same amount. Because the hours billed by SMG were false, it is impossible to calculate what the jobs should have cost. For the jobs that SMG billed a higher hourly rate than their contract allowed, it would be possible for the Board to calculate an overpayment. At the heart of this matter is the indifference displayed by Fayed and Petters to hold SMG accountable for the actual hours worked. The dispute might have been avoided if SMG had either bid fair hourly rates or billed actual hours worked. SMG did neither. Petters knew what was going on and did not intervene to stop the fiction. Recapping Board payments made to SMG, pursuant to the 2004-2005 paint contract, shows that of the $772,467.13, spent for painting jobs, only $8,200.00, went to a vendor other than SMG. Of the projects that exceeded $5,000.00, $276,614.68 went to SMG without meaningful bids from other vendors on the approved list. All approved paint vendors were entitled to submit proposals for the projects that exceeded $5,000.00. Of the ten projects that met the $5,000.00 threshold, a competing vendor was able to submit a proposal on only three of the jobs. When the threshold was raised to $20,000.00 in 2008, SMG’s competition had fewer opportunities to obtain work from the School District. As the primary vendor (again using a false hourly rate), SMG was able to capture more jobs because the Maintenance Department did not have to offer work to another vendor unless the amount exceeded $20,000.00. Fayed and Petters supported the higher threshold and Fayed lobbied for its approval. Board payments made during the 2008 paint contract requested by the Maintenance Department totaled $1,246,184.37. The entire amount went to SMG. Whether the Board could have obtained the work for a lesser amount is unknown. A review of the 2008 paint jobs established that no bids were obtained for work that exceeded the $20,000.00 threshold. No serious effort was made to secure outside bids or vendors to compete against SMG. Had Petters or Fayed brought the lack of competition to the Board’s attention (or to any supervisor in the school system), it is unknown whether SMG would have obtained the volume of work it was paid for during this time. The Other Claims SMG was allowed to use Board equipment and fuel without cost. It is unknown whether other vendors could have saved these expenses when presenting their bids for School District work. Arguably, Petters and Fayed would have let other successful vendors use Petitioner’s equipment and fuel. As SMG secured the work, the question cannot be resolved. Petitioner’s policy allows personnel to use School District transportation when their work duties require travel to more than one work-site. Fayed’s duties required travel to job sites throughout the central area. Vehicles provided for official business may not be used for personal activities. The weight of the credible evidence established that Fayed used his School District vehicle to attend to personal matters such as doctor visits, stops at his personal residence, and a trip to Patrick Air Force base. See Policy 8651. Petitioner’s ethics policy is designed to create a culture of honesty and integrity. See Policy 4210. Fayed and Petters ignored the reality that their close friendship with a vendor caused the honesty and integrity of the Maintenance Department to be brought into question. Petters defiantly insisted that SMG retain “primary contractor” status when another company prevailed on the 2010 paint contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter Final Orders as follows: As to DOAH Case No. 11-5494TTS, finding there is just cause to terminate the employment of Joseph Fayed effective October 11, 2011. As to DOAH Case No. 11-5495TTS, finding there is just cause to terminate the employment of Walt Petters effective October 11, 2011. DONE AND ENTERED this 6th day of September, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of September, 2012. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Dr. Brian Binggeli, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Russell Corporation, has a plant located in Marianna, Florida. The work done at the Marianna plant consists of sewing pre-cut cloth into a finished garment. Shirley Melton is a middle-aged black woman who had been employed at Russell Corporation's, Marianna, Florida plant for 4 years as a sewing machine operator. She was one of the plant's best workers and until this incident, her supervisors had never had any trouble with her. On September 30, 1985, Ms. Melton filed a discrimination complaint against Russell Corporation, alleging that Respondent had discriminated against her on the basis of her race. The charge was based on the fact that Ms. Melton did not receive a sewing job she was interested in. The sewing position she sought was a temporary job. Ms. Melton did not know the job was temporary. While the job was originally discussed with Ms. Melton, the decision was made to place Clarice Moats, a white woman in the temporary job. Ms. Moats was chosen because (1) her original job had been eliminated; (2) she had more seniority; (3) little training was required because her prior job was similar; and (4) Ms. Melton was currently in a permanent job. The Human Relations Commission found no probable cause in Ms. Melton's complaint and took no further action regarding the complaint. After that date, but before July 16, 1986, Ms. Melton had gotten in a personal dispute with Carolina Myrick. The dispute was outside of work and did not relate in any way to work. Carolina Myrick was a quality control inspector for Russell Corporation and was related to Ms. Melton. On July 16, 1986, Ms. Melton and Ms. Myrick had worked most of the day without incident. However, beginning about 3:55 p.m., Ms. Melton learned that Ms. Myrick had "red tagged" a bundle of items she had sewn. A red tagged bundle is a bundle of sewn items which have not passed the quality control inspection Ms. Myrick performs on the bundle. Ms. Myrick then returns the rejected bundle to the appropriate employee's supervisor. A red tagged bundle can subject an employee to disciplinary action if the employee receives too many red tags. In this instance, Carol Hall was the floor supervisor over Ms. Melton. Ms. Melton went to see Carol Hall about the bundle "all the women on the line were talking about." While walking to Ms. Hall's desk, she passed Ms. Myrick and stated that she was going to whip Ms. Myrick's tail if she got another red tagged bundle. Upon arriving at Ms. Hall's desk, Ms. Hall informed Ms. Melton that it was her bundle that had been tagged. Ms. Melton left Ms. Hall's desk and began to walk out of the building since the quitting bell had rung. Ms. Melton was quite upset about the red tagged bundle. She believed Ms. Myrick was picking on her because of their earlier personal disagreement. Ms. Melton was in front of Ms. Myrick on the way out when she turned and said that she was an old witch and that "the Lord took the wrong one, it should have been you," referring to Ms. Myrick's sister Christine McGriff, who had suddenly and unexpectedly died of encephalitis a few weeks earlier. Ms. Myrick became upset over Ms. Melton's words and complained to the supervisor, Carol Hall. Carol Hall then took Ms. Myrick in to speak with Doris Durden, the floor supervisor. Ms. Durden then went to talk to Claude Nall, the plant manager. All three people believed that Ms. Melton's action was unusually cruel and it was their policy not to allow such behavior in the plant, particularly where a quality control person was involved. All three individuals testified that they had never had such extreme language used in the plant. The next day, Ms. Melton was suspended, pending an investigation. After a full investigation, during which Ms. Melton admitted making the above statements, it was decided to terminate Ms. Melton for gross insubordination towards a fellow employee and willful verbal abuse by making degrading remarks about the employee's job performance and about her family. It was the willful aspect of this misconduct which formed the basis for the discharge. At the time the termination was decided, Mr. Nall, the plant manager, did not even know about Ms. Melton's earlier complaint, because he had been transferred to the Marianna plant sometime after the earlier complaint had occurred. The decision to terminate was reviewed and approved by the personnel office in Alexander City, Alabama. Ms. Melton was formally terminated on July 21, 1986. Ms. Melton instituted the review proceedings the plant had established for employee disciplinary actions taken by plant supervisors. She appeared before a review board consisting of four (4) people from various other corporate offices and plants. The hearing was held on July 29, 1986. At the hearing, Ms. Melton again admitted making the alleged statements. However, even in the face of these admissions, Ms. Melton, at the hearing, maintained she never said she "would whip Ms. Myrick's tail." Respondent presented sufficient evidence to show that Ms. Melton's denial is incorrect. Ms. Melton asserted at the hearing that there were other incidents of a similar nature at the plant for which termination was not the end result. However, she presented no evidence, other than uncorroborated hearsay, that such incidents had in fact occurred. The witnesses called by Respondent flatly denied that any similar incidents had ever occurred which would be comparable to the extreme nature of Ms. Melton's conduct. Other than these hearsay statements by Ms. Melton, there was absolutely no evidence presented that Respondent discriminated against Ms. Melton in retaliation for her earlier filed discrimination action. Ms. Melton had the right to subpoena the persons involved in the allegedly similar conduct to testify to those matters. However, she did not exercise her right to do so.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition against respondent, Russell Corporation, be dismissed. DONE AND ORDERED this 6th day of May, 1988, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4132 Petitioner did not number her paragraphs in her recommended order. I, therefore, have numbered the paragraphs in her recommended order sequentially and utilize those numbers in this appendix. Petitioner's proposed finding of fact contained in paragraph 1, have been adopted, in so far as material, except the finding regarding Ms. Melton having more experience and the finding regarding retaliation. The evidence did not show these two (2) facts. Petitioner's proposed finding of fact in paragraph 2, have been adopted, in so far as material, except the evidence did demonstrate Ms. Melton said that she would whip Ms. Myrick's tail... and had admitted saying such at least two (2) times prior to the hearing. Because of the prior admissions the evidence demonstrated more than just a swearing match between Ms. Myrick and Ms. Melton. Petitioner's proposed finding of fact contained in paragraph 3 have been adopted as to the admissions. The rest of paragraph 3 is immaterial and uncorroborated hearsay Petitioner's proposed finding of fact contained in paragraph 4 are immaterial and evidence demonstrated admissions by Petitioner. Respondent's proposed finding of fact numbers 1, 4, 6, 9, 10, 11, 13, 22, 24, 25, 26 and 27 have been adopted, in substance, in so far as material. Respondent's proposed finding of fact number 2 was not shown by the evidence. Respondent's proposed finding of fact number 3 have been adopted, in substance, except the last sentence in paragraph 3, which was not shown by the evidence. Respondent's proposed finding of fact number 5 have been adopted, in substance, except evidence showed Ms. Melton's initial statement to Ms. Myrick was on her way back to supervisor's desk and not outside work area. Respondent's proposed finding of fact numbers 7, 8, 16 and 28 are immaterial. Respondent's proposed finding of fact number 12 have been adopted, in substance, except for leaving work area. Respondent's proposed finding of fact number 14 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact number 15 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact numbers 17, 18, 19, 20, 21 and 23 are subordinate. COPIES FURNISHED: Shirley Melton Star Route Box 98 Gordon, Alabama 36343 Carol Sue Nelson, Esquire CONSTANGY, BROOKS & SMITH 1015 First National Southern Natural Building Birmingham, Alabama 35203 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to section 112.313(7), Florida Statutes, and Florida Administrative Code Rule 34-5.0291; and, if so, in what amount.
Findings Of Fact Ethics Complaint 15-174 On August 17, 2015, the Commission received a complaint against George Hanns (“Hanns”) filed by McDonald which alleged that Hanns, as a member of the Flagler County Commission (“County Commission”) and the Flagler County Canvassing Board (“Canvassing Board”), violated Florida’s election laws, the Government-in-the-Sunshine Law (“Sunshine Law”), and Florida’s Code of Ethics for Public Officers and Employees (“Code of Ethics”). Specific allegations in the complaint included that: A Special Canvassing Board meeting was held on September 12, 2014 in the Supervisor of Elections office bringing in a record crowd of voters. Commissioner Hanns and other county commissioner's behaviors and actions towards the Supervisor of Elections were criticized by Joe Kubusky. George Hanns became argumentative, stood up (in a threatening manner) and very unprofessionally verbally lashed back yelling at the public in a threatening manner. Many of the individuals present recorded the meeting, as did the Supervisor of Elections. Following the September 12, 2014 Special Canvassing Board meeting a scheduled County Commission meeting was held. It was at this time County Commission Chair/Canvassing Board member George Hanns brought up at the end of the County Commission meeting issues faced during Canvassing Board meetings. The alternate canvassing board member Barbara Revels and county attorney/canvassing board attorney Albert Hadeed were present. A discussion then took place at the County Commission meeting about the appointment of a canvassing board attorney along with other election related topics; all which were captured on audio by the staff member of the Clerk of the Court. It is believed that none of the election related topics were reflected on the meeting agenda, advertised to the public or reflected in the Board of County Commission meeting minutes. Furthermore, the other canvassing board members (including the Supervisor of Elections) were not noticed and provided the opportunity to be present to participate in the discussions. It would not be expected that election Canvassing Board issues be discussed at a Board of County Commission Meeting with only a canvassing board member and canvassing board alternates present. During the Board of County Commission meeting it was stated that action was to take place at the next scheduled election canvassing board meeting (October 17, 2014) for the county attorney Albert Hadeed (the board of county commissioners attorney) to be appointed the official canvassing board attorney, which in fact did occur during the October 17, 2014 Canvassing Board meeting as had been stated at the County Commission meeting and Commissioner George Hanns was the one to make the motion on the matter. From my perspective and other public attendees it seemed that this voting in of Hadeed had been prearranged! No such topic was discussed during the September 12th Special Canvassing Board meeting or at any other prior Canvassing Board meetings, therefore, it is believed a violation of the Florida Sunshine Law occurred. It was unknown by the Canvassing Board Agenda that a vote was going to take place at the October 17, 2014 canvassing board meeting as to who the canvassing board attorney would be. This September 12, 2014 Board of County Commission meeting appeared to be the prime opportunity for collaboration between commissioners (canvassing board member and alternates) and their staff to poll support from one another to manipulate and conquer the events of election canvassing board meetings to their advantage and liking, and to undermine and attack the supervisor of elections who is a constitutional elected officer who is independently elected by the people to preserve the integrity of the elections process.[9/] The complaint also alleged that: The County Commission also discussed election related issues on or about October 20, 2014 at a regularly scheduled Board of County Commission meeting, which too is believed to be a violation of the Sunshine Law as it was not advertised, was not on the meeting agenda, nor were other canvassing board members noticed or provided the opportunity to participate in the discussions. These occurrences of discussing the Canvassing Boards business take place with Commissioner George Hanns, Chair of the County Commission leading the meetings, and are done at the end of Board of County Commission meetings where the public would not expect such events. All discussions are captured on meeting audio though they may not be reflected in the Board of County Commission meeting minutes. The complaint further alleged that: The actions of George Hanns, the other county commissioners, and their staff have been done willingly, intentionally and with knowledge. They have used their position for personal gain- to remain in office, and to benefit other fellow commissioners to get re-re-elected so they too could remain in office to carry out agendas collectively. In the last two election cycles four of these commissioners have been narrowly elected. Hanns was a five term incumbent but won by 318 votes to a first time candidate, that was less than 1% but more than the .5% required to recount. Ericksen won by 120 votes and Meeker survived by 209 votes. They together retaliated against the supervisor of elections by conspiring together to harm the Supervisor of Elections reputation and their actions impacted our elections. Chair Commissioner George Hanns used his county employees to carry out his agenda relating to unethical practice and attacking the Supervisor of Elections for exposing his wrong doing and his dislike for being requested to remove himself from the county canvassing board. Commissioner Hanns and his fellow Commissioners are responsible for the actions and behaviors of the county administrator Craig Coffey and County Attorney Albert Hadeed. The removal of Commissioner George Hanns from the Canvassing Board left him powerless in the canvassing process and an embarrassment to our County. Discussions regarding the canvassing board took place at least twice at board of county commissioner meetings following the September 12, 2014 special canvassing board meeting and again on October 20, 2014. It is believed that both times canvassing board member and others have violated the Sunshine Law, and it is believed that those involved that are not canvassing board members or alternates were being a conduit to certain canvassing board members who were present. The complaint was reviewed by the Executive Director of the Commission who found the complaint to be legally sufficient to warrant an investigation: The complaint alleges that the [Hanns] and other members of the Board [of County Commissioners] or members of the canvassing board were involved in discussions which may not have been in compliance with the Sunshine Law, in order to manipulate canvassing board members or canvassing board conduct, that the Respondent was involved in placement of the County Attorney as attorney for the canvassing board (a placement objected to by the Supervisor of Elections), and that the Respondent was involved in other or related conduct, including retaliation against the Supervisor of Elections, apparently for the benefit of a particular candidate the Respondent had endorsed, or for the benefit of others. This indicates possible violation of Section 112.313(6), Florida Statutes. As a result, the complaint was determined to be legally sufficient and the investigative staff of the Commission was directed to “conduct a preliminary investigation of this complaint for a probable cause determination of whether [Hanns] has violated section 112.313(6), Florida Statutes, as set forth above.” The Commission’s Investigation The complaint was investigated by Commission Investigator K. Travis Wade. On February 19, 2016, the Commission issued its Report of Investigation, which found, as follows: Florida law provides that a county canvassing board shall be comprised of the Supervisor of Elections, a County Court Judge, and the Chair of the County Commission. Additionally, an alternate member must be appointed by the Chair of the County Commission. The Canvassing Board for the 2014 Election was made up of Hanns (then-County Commission Chair), Judge Melissa Moore-Stens, and then-Supervisor of Elections Weeks. Initially, the alternate member of the Canvassing Board was County Commission member Charles Ericksen, Jr. Minutes from the September 15, 2014 Flagler County Commission (“County Commission”) meeting indicate that during the “Commission Reports/Comments” portion of the meeting there was a discussion regarding who had the authority to appoint the Canvassing Board attorney, but no official action was taken at that time. The minutes indicate that County Attorney Albert Hadeed advised that it would be the Canvassing Board's decision as to who its legal counsel should be; and that County Administrator Craig Coffey suggested that the Canvassing Board resolve the issue at its next meeting. Current Flagler County Supervisor of Elections Kaiti Lenhart advised that her records indicate that either the County Attorney or an attorney from the County Attorney's Office has served as the Canvassing Board Attorney since 1998. Records preceding the 1998 election are not available. County Attorney Hadeed indicated that the County Attorney, or someone from the County Attorney’s Office, had served as the Canvassing Board Attorney for the past 25 years. Minutes from the October 17, 2014 Canvassing Board meeting indicate that Weeks made a motion that she be given authority to select the Canvassing Board attorney and that her motion died for lack of a second. The issue of Commissioner Ericksen's contribution to a candidate in the subject election was raised at the October 17, 2014 Canvassing Board meeting by Weeks. Commissioner Ericksen was not present at the meeting. Hanns indicated at the meeting that he would bring the issue to the attention of the County Commission at its next regular meeting, which was scheduled for October 20, 2014, thus alerting the members of the Canvassing Board that the issue would be publicly discussed by the County Commission. Minutes from the October 20, 2014 County Commission meeting indicate that there was a discussion regarding Commissioner Ericksen’s contribution to Meeker, who had opposition in his upcoming reelection, and that Commissioner Ericksen resigned as an alternate member of the Canvassing Board at that time. The Commission then voted to appoint Commissioner Barbara Revels as the alternate Canvassing Board member. All discussions by the County Commission regarding the Canvassing Board took place during the “Commissioner Reports/Comments” or “Commission Action” portion of duly noticed County Commission meetings. The only members of the Canvassing Board present at the October 20, 2014 County Commission meeting were Hanns and alternate member Commissioner Ericksen. The minutes from the October 20, 2014 County Commission meeting indicate that the County Commission reached a “consensus” to authorize the County Administrator to request the observer for the remainder of the election cycle. This request resulted from Hanns’ observations, while a member of the Canvassing Board, regarding the handling of absentee ballots by Weeks, whom he believed had close connections to at least one candidate in the election. County Administrator Coffey raised these concerns at the October 20, 2014 Commission meeting and requested County Commission permission to request an observer from the Division of Elections. County Administrator Coffey's October 21, 2014 letter to the Secretary of State, requesting an observer, indicates that the County Commission voted unanimously to authorize him to pursue the request. County Administrator Coffey stated in the letter that the community's confidence in the elections process is low due to both recent and past events involving the Supervisor of Elections. When asked about his allegation that Hanns was involved in other or related conduct, apparently for the benefit of particular candidates or others, McDonald indicated that he had no information regarding that allegation. Commission on Ethics Advocate’s Recommendation On March 7, 2016, Commission Advocate Elizabeth L. Miller recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by participating in discussions which may have been in violation of the Sunshine Law, or other related conduct regarding appointment of the County Attorney as attorney for the Canvassing Board in order to manipulate Canvassing Board members or to carry out a planned agenda for the benefit of particular candidates or others. In addition, the Commission Advocate recommended that there was no probable cause to believe that Hanns violated section 112.313(6) by retaliating against the then-Supervisor of Elections for her efforts to remove two County Commissioners from the Canvassing Board. On April 20, 2016, the Commission issued its Public Report dismissing McDonald’s complaint against Hanns for lack of probable cause. McDonald’s Knowledge of the Falsity of His Sworn Allegations McDonald filed a sworn complaint against Hanns. When he signed the complaint, McDonald executed an oath that “the facts set forth in the complaint were true and correct ” When he filed his complaint against Hanns, McDonald had access to the video of the County Commission meeting of September 15, 2014, posted on the County’s website and the published minutes of that meeting, also available online or by request. Video of the 2014 meetings of the County Commission are archived for public viewing on the Flagler County website. Minutes of all County Commission meetings are public record available to the public on the Flagler Clerk of Court’s website and upon request. Neither the posted video nor the minutes of the September 15, 2014 meeting of the Flagler County Commission indicate that any action was taken by consensus vote or by any other vote regarding who had the authority to appoint the attorney for the Canvassing Board. No vote was taken by the County Commission to designate the County Attorney as the attorney for the Canvassing Board. To the contrary, the County Commission determined that it was a matter for the Canvassing Board to select its own attorney. All meetings of the Canvassing Board are publicly noticed and open to the public and its records are open for public inspection. When asked by the Commission’s investigator whether Hanns was involved in other or related conduct, for the benefit of particular candidates or others, McDonald indicated he had no information regarding that allegation. The allegations in the McDonald’s complaint against Hanns, which the Commission found material to investigate, were known by McDonald to be false, or filed by McDonald with reckless disregard for whether they were true or false. Malicious Intent to Injure Hanns Whether the claims against public officials were “motivated by the desire to [impugn character and injure reputation],” is a question of fact. Brown v. State, Comm’n on Ethics, 969 So. 2d 553, 555 (Fla. 1st DCA 2007). The evidence adduced at the hearing established that McDonald worked in concert with other individuals to maliciously injure the reputation of Hanns by filing complaints containing false allegations material to the Code of Ethics with the Commission on Ethics and other agencies. This group, formed in 2009 or 2010, was known formally as the Ronald Reagan Republican Association, informally as the “Triple Rs.” Members of the group included McDonald, Richter Sr., John Ruffalo, Carole Ruffalo, Ray Stephens, William McGuire, Bob Hamby, and Dan Bozza. The Triple Rs were trying to influence the outcome of elections in Flagler County. They did this by fielding candidates against incumbent members of the Flagler County Commission. McDonald ran against and lost to Meeker in the 2012 and 2014 elections. In 2014, Richter Sr. ran against and lost to Commissioner McLaughlin. The Triple Rs also tried to influence the results of the elections by filing complaints with multiple agencies against various elected and appointed Flagler County officials. McDonald was the de facto spokesperson of the Triple Rs. McDonald was such a frequent visitor to Weeks’ office between the 2012 and 2014 election cycles that Weeks’ husband expressed concern to Commissioner McLaughlin about McDonald’s influence over her. This group filed 25 complaints against Flagler County officials, individually and collectively, including complaints against Hanns, all members of the 2014 County Commission, the County Attorney, and the County Administrator. The complaints were filed with the Commission on Ethics, the Florida Elections Commission, The Florida Bar, and the State Attorney for the Seventh Judicial Circuit. Certain members of the Triple Rs formed a limited liability company--the “Flagler Palm Coast Watchdogs”--and also filed suit against the County Commission to block renovation of the old Flagler Hospital into the Sheriff’s Operation Center, alleging violations of the Code of Ethics. At least 12 of the complaints filed by the group specifically alleged or referenced the false allegations which are at issue in this case: that members of the County Commission discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, improperly selecting the Canvassing Board attorney, and advancing a hidden agenda. In addition to alleging that Hanns violated Florida’s ethics laws and Sunshine Law, the complaint filed with the Commission alleged that Hanns violated Florida’s campaign finance law in several respects. The allegations that Hanns discussed Canvassing Board matters in violation of the Sunshine Law with the goal of manipulating elections, selected the Canvassing Board attorney, and advanced a hidden agenda were crucial to the ethics complaint which McDonald filed against Hanns. These allegations formed the basis for the Commission’s finding that the complaint was legally sufficient and order that it be investigated. Had Hanns been found to have violated Florida ethics and elections law, it would have damaged his reputation in the community. The totality of these findings, including the number of complaints, the collaboration among the various complainants, and the inclusion of similarly false allegations in complaints filed by different complainants with different agencies, lead to no reasonable conclusion other than Ethics Complaint 15-174 was filed with a “malicious intent” to injure the reputation of Hanns, and create political gain for the Triple Rs and Weeks. The totality of these findings constitutes clear and convincing evidence that McDonald’s complaint was filed with knowledge that, or with a conscious intent to ignore whether, it contained one or more false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that McDonald showed “reckless disregard” for whether his sworn complaint contained false allegations of fact material to a violation of the Code of Ethics. The totality of these findings constitutes clear and convincing evidence that the true motivation behind the underlying complaint was the political damage the complaint would cause Hanns, with the corresponding benefit to the Triple Rs and Weeks, rather than any effort to expose any wrongdoing by Hanns. Attorneys’ Fees and Costs Upon receipt and review of the complaints filed against Hanns and others in late 2014, Flagler County informed its liability insurance carrier and requested that counsel experienced in ethics and elections law be retained to defend against those complaints. At the specific request of the County, Mark Herron of the Messer Caparello law firm was retained to defend these complaints. Mr. Herron is an experienced lawyer whose practice focuses almost exclusively on ethics and elections related matters. Mr. Herron was retained by Flagler County on the understanding that the Messer Caparello firm would be compensated by the County’s liability insurance carrier at a rate of $180 per hour and that the County would make up the difference between the $180 per hour that the insurance carrier was willing to pay and the reasonable hourly rate. The rate of $180 per hour paid by the County’s liability insurance carrier to the Messer Caparello firm is an unreasonably low hourly rate for an experienced practitioner in ethics and election matters. Expert testimony adduced at the hearing indicated that a reasonable hourly rate would range from $250 to $450 per hour. Accordingly, $350 per hour is a reasonable hourly rate to compensate the Messer Caparello firm in this proceeding. The total hours spent on this case by Messer Caparello attorneys is reasonable. The billable hourly records of the Messer Caparello law firm through May 14, 2017, indicate that a total of 73.54 hours were spent in defending the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of Messer Caparello costs and attorneys’ fees records after May 14, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Messer Caparello law firm indicate that a total of 58.33 hours were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $1,919.21 incurred by the Messer Caparello law firm through May 14, 2017, are reasonable. Costs of $424.90 incurred by the Messer Caparello law firm after May 14, 2017, are reasonable. The total hours spent on this case by the Flagler County Attorney’s Office is reasonable. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 13.20 hours of attorney time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. Time records of the Flagler County Attorney’s Office through May 15, 2017, indicate that a total of 22.20 hours of paralegal time were spent assisting in the defense of the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding. The record remained open for submission of costs and attorneys’ fees records after May 15, 2017, through the date of submission of the Proposed Recommended Order. These additional records of the Flagler County Attorney’s Office indicate that a total of 6.60 hours of attorney time, and a total of 2.10 hours of paralegal time were spent in seeking costs and fees for that defense at the formal hearing in this cause and in preparation and submission of the Proposed Recommended Order. Costs of $168.93 incurred by the Flagler County Attorney’s Office law through May 15, 2017, are reasonable. Costs of $292.00 incurred by the Flagler County Attorney’s Office after May 15, 2017, are reasonable. A reasonable hourly rate for the time of Flagler County Attorney in connection with this matter is $325 per hour. A reasonable hourly rate for the time of the paralegal in the Flagler County Attorney’s Office in connection with this matter is $150 per hour. Based on the findings herein, Hanns established that he incurred: (i) reasonable costs in the amount of $2,346.11 and reasonable attorneys’ fees in the amount of $46,154.50 for the services of the Messer Caparello law firm in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding; and (ii) reasonable costs in the amount of $461.92 and reasonable attorneys’ fees in the amount of $10,080.00 for the services of the Flagler County Attorney’s Office in defending against the underlying complaint filed with the Commission and in seeking costs and fees in this proceeding.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanns’ Petition for Costs and Attorneys’ Fees relating to Complaint 15-174 in the total amount of $59,042.53. DONE AND ENTERED this 21st day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 21st day of September, 2017.
The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 23rd day of January, 2019.
The Issue The issue is whether Petitioner may terminate the employment of Respondent for misconduct in office.
Findings Of Fact Respondent graduated in 1963 with a degree in accounting. He earned his juris doctor degree in 1967. He has practiced public accounting and also been employed by W. R. Grace & Company and Getty Oil Company. For most of the 1970s, Respondent was employed as head of construction for the City of Baltimore. In this capacity, he assumed significant responsibilities in the construction of a major convention center and aquarium, as well as over 50 schools. For most of the 1980s, Respondent ran a construction management company. From 1988-92, Respondent developed residential homes. From 1992-96, Respondent was the executive director of the Port of Bridgeport. From March 1996 to January 2000, Respondent was employed as the executive director of the Port of Palm Beach. While so employed, Respondent directed a $100 million redevelopment project for the Port. Following the conclusion of his employment with the Port of Palm Beach, Respondent was employed for a short period in Tampa. Wanting to return to West Palm Beach, Respondent applied for the position of Respondent's Chief Operating Officer. Then-Superintendent Ben Marlin hired Respondent in July 2000. Superintendent Marlin was implementing a School Board plan that divided the District into academic and business sections. As Chief Operating Officer, Respondent headed the business section. As Chief Academic Officer, Dr. Arthur Johnson headed the academic section during the last six months of Superintendent Marlin's tenure, which ended in February 2001. Dr. Johnson succeeded Dr. Marlin as the new superintendent and was a member of the School Board when it adopted the plan dividing the District into academic and business sections. The creation of a separate business section within the District facilitated the implementation of efficient business and management practices. The School Board designed the new organizational plan to obtain greater productivity from the business side of the District and to maximize the academic benefit from available revenues. Currently the 14th largest school district in the United States, the Palm Beach County School District administers a $2 billion annual budget in the service of 157,000 students in 150 schools. Half of this $2 billion outlay is devoted to operational expenses; most of the remainder is devoted to capital expenditures and debt service. The District operates the largest food service and bus company in Palm Beach County. At the time of the hearing, the District was constructing three high schools, three middle schools, and ten elementary schools-- with a total construction value of over $250 million. Striving to meet the needs of a large, but still fast-growing community, the District will open twelve schools in August 2002. Just over half of the District's 17,000 employees are noninstructional. Hired shortly before Respondent, on June 1, 2000, William Malone became Chief of Facilities Management Services. Mr. Malone graduated with a degree in civil engineering in 1971. His prior experience consisted of 21 years with the United States Army Corps of Engineers and 13 years with the South Florida Water Management District. For the last five and one- half years with the South Florida Water Management District, Mr. Malone oversaw the district's construction projects. He left the district shortly after trying unsuccessfully in 1999 to be appointed as the executive director of the South Florida Water Management District. Upon assuming the duties of the Chief Operating Officer, Respondent analyzed all of the divisions reporting to him. An immediate problem was maintenance. The District had just fired Service Master, and the maintenance department was leaderless and in some disarray. Respondent decided to split off maintenance from Mr. Malone's responsibilities. Respondent contacted three Port employees who had worked under him when he was Executive Director of the Port of Palm Beach: Martin Mets, Michael Scheiner, and Lauriann Basel. On July 17, 2000, Respondent hired Mr. Mets as the Director of Maintenance and Plant Operations. At about the same time, Respondent hired Mr. Scheiner as a business manager and Ms. Basel as the liaison between the maintenance department and the schools. As evidenced in part from the fact that he continues to serve as Director of Maintenance and Plant Operations, Mr. Mets has done a good job for the District. He previously handled similar duties for 19 years at the Port of Palm Beach. Among Mr. Met's responsibilities as Director of Maintenance and Plant Operations is the duty of approving all invoices to be paid by the District. Mr. Scheiner continues to serve as a business manager for the District, although, at the time of the hearing, he testified that his contract might not be renewed. After serving as capital projects coordinator with the Port of Palm Beach, Mr. Scheiner, who has a degree in accounting, implemented the orders of Mr. Mets and Respondent to document all maintenance invoices before submitting them to accounting for payment. To perform this task, Mr. Scheiner had to design and implement internal controls to ensure, among other things, that vendors were doing the work in a satisfactory manner for which they were to be paid. One of Mr. Scheiner's first discoveries were that the District did not maintain the records he needed to ensure that the District had received the goods and services for which it was being invoiced. Prominent among the missing information were purchase orders showing that the District ordered goods or services and identifying the specific goods and services. Also prominent among the missing information was documentation showing that someone from Maintenance and Plant Operations physically visited the site that had purportedly received the goods and services to confirm that the goods and services were supplied and they were satisfactory. At the same time that Mr. Scheiner was undertaking the substantial task of designing and implementing much-needed internal controls to cover future operations, he also had to address the deficiencies that had arisen during past operations. Noticing a number of invoices for the installation of vinyl flooring in which the vendor had agreed to reductions in the amount due, Mr. Scheiner suggested to Mr. Mets that he ask Lung Chiu, the District Internal Auditor, to conduct an audit of these vendors. In August 2000, Mr. Mets submitted a request to Mr. Chiu that he conduct an audit of the District's two vinyl flooring installers. Mr. Chiu has served as the District Internal Auditor for eight years. He has a master's degree in accounting, and he is a certified public accountant and a certified internal auditor. Typically, Mr. Chiu reports to the School Board through the Audit Committee. His method of reporting is through the presentation of a final audit to the Audit Committee. Pursuant to Mr. Mets' request, Mr. Chiu conducted an audit of the two vinyl flooring installers from August to October 2000. Having completed his field work, in October 2000, Mr. Chiu prepared a draft audit report and submitted it for comment to Mr. Mets, as head of the maintenance department, and his counterpart in charge of the purchasing department. The draft audit report is dated November 17, 2000, and addressed to the School Board, Superintendent Marlin, and the Audit Committee because, if finalized in time, Mr. Chiu intended to present the final report to the Audit Committee at its next meeting, which was November 17, 2000. On November 6, 2000, Mr. Chiu reported by memorandum to Mr. Mets that he had found an error in the earlier version of the draft audit report dated November 17, 2000. After the correction, the draft audit report, as revised through November 1, 2000, found vendor overbillings (and, presumably, District overpayments) by the two vinyl flooring installers. According to the draft audit report, Buy the Square Yard, Inc. (Square Yard), overbilled the District $2.29 million, and Padron Brothers overbilled the District $2000. The earlier draft audit report had found that Square Yard had overbilled the District by $2.932 million. The tentative findings in the draft audit report caused District administrators to ask District legal counsel to consider various legal questions concerning the possible recovery of these apparent overpayments. In a nine-page legal memorandum dated November 10, 2000, to Interim Chief Counsel Bruce Harris marked "UNFINISHED PRELIMINARY AND TENTATIVE DRAFT FOR INITIAL DISCUSSION PURPOSES ONLY," Randall Burks discussed without resolution several legal issues concerning such a potential claim. At this point, Mr. Chiu referred the matter to the District police department for the purpose of a criminal investigation into the overbillings. In the spring of 2001, the District police department concluded that insufficient evidence existed to pursue criminal charges. In the meantime, in December 2000, Mr. Chiu considered the accounting error that had necessitated the amendment of the draft audit report. After more work, he concluded that his audit conclusion for 1995-99 was "questionable" due to incomplete billing and accounting records. This conclusion had a major impact on his earlier audit conclusions concerning Square Yard, which had tentatively found overbillings of $1.719 million in 1995-99. In May 2001, after the police investigation had concluded, Mr. Chiu resumed the audit work. He reduced the overbillings by Square Yard by removing the 1995-99 data and making another, much less important change. In May 2001, Mr. Chiu finalized the draft. As revised through June 8, 2001, the draft audit report found overbillings by Square Yard of about $387,000. According to a memorandum dated November 5, 2001, from Mr. Chiu to the Audit Committee, in May and June 2001, he "briefed" the committee members about ongoing projects, including the audit of the vinyl flooring vendors. District policy requires Mr. Chiu to update the Audit Committee about his audits, but Mr. Chiu ordinarily does not share with the committee any of the details of any audits, unless he has already submitted to the Audit Committee a finalized draft report. The District Internal Audit Charter outlines the responsibilities of the Audit Committee and District Auditor, although the charter, as contained in this record, does not address confidentiality. However, the premature release of a draft audit would impair the ability of the District Auditor to conduct effective audits. Given his background and service as a member of the Audit Committee, Respondent clearly understood the importance of confidentiality to the integrity of an ongoing audit. In early July 2001, Mr. Chiu shared his updated findings with the maintenance department and purchasing department, again for the purpose of obtaining their responses to the proposed audit findings and possibly incorporating these responses into the draft audit report. On August 2, 2001, Mr. Chiu received the responses of the maintenance department, by way of Mr. Mets' memorandum of the same date. This memorandum largely restates his response several months earlier to an earlier draft of the audit report. Mr. Mets' counterpart in charge of the purchasing department submitted her response in September 2001, and Mr. Chiu submitted the final draft of the audit report to the Audit Committee in November 2001. On August 3, 2001, Respondent attended a breakfast meeting at a motel restaurant with Henry Harper, Sr., the principal of Square Yard, and Isaac Robinson, the President of the City Commission of West Palm Beach. Commissioner Robinson had arranged the meeting so Respondent and Mr. Harper could try to resolve the problems that Mr. Harper felt that he was having with Respondent. Respondent's relationship with Superintendent Johnson was not as good as Respondent's relationship had been with Superintendent Marlin, who had announced his resignation in January 2001. In April 2001, Dr. Johnson switched Respondent and Mr. Malone's jobs. Superintendent Johnson claims to have been concerned about Respondent's interpersonal skills, but evidence of shortcomings in this area are anecdotal and unpersuasive. Superintendent Johnson also claims to have been concerned about Respondent's performance when he failed to produce a requested $50 million reduction from the business side. However, the record fails to establish sufficient details concerning this matter, which Superintendent Johnson did not pursue with Respondent at the time. Mr. Malone had unsuccessfully applied for the Chief Operating Officer position when Superintendent Marlin had selected Respondent. It appears that Respondent and Mr. Malone enjoyed different sources of support, and the replacement of Superintendent Marlin with Superintendent Johnson was an adverse development for Respondent and a favorable development for Mr. Malone. Also, at this time, a member of the School Board, who had strongly supported Mr. Malone's application for the Chief Operating Officer position, had been exploring the possibility of obtaining a position as the administrative assistant to the Chief Operating Officer and preferred to work under Mr. Malone, rather than Respondent. At some point, this factor was mooted when the School Board member secured a position as the director of a newly formed education commission in West Palm Beach. When switching the jobs of the two men, Superintendent Johnson also transferred to Mr. Malone's new position the responsibility for construction that he had previously borne as Chief of Facilities Management Services. At minimum, Superintendent Johnson preferred that this important responsibility remain in a person with whom he was more comfortable. However, Superintendent Johnson was not trying to rid the District of Respondent, as evidenced by his renewal of Respondent's one-year employment contract on June 30, 2001. Sometime after switching jobs with Mr. Malone, Respondent decided to run for the Commission of the Port of Palm Beach. The election is in November 2002, and, although most of the vote campaigning takes place within two weeks of the election, candidates often file early so that they can open campaign accounts and line up support. Campaign expenditures for each seat, which are all at-large, typically range from $30,000 to $40,000. On July 3, 2001, Respondent filed the paperwork to become a candidate for a seat on the Port Commission and advised Mr. Malone of his candidacy for public office. A few days later, Respondent briefly met with Mr. Mets, Mr. Scheiner, and Ms. Basel and informed them of his filing and warned them that they were not to involve themselves with his candidacy while on District time. Shortly after these conversations, Respondent went on a two-week vacation, from which he returned on July 24. Within a few days after returning to work, Respondent presented to Mr. Mets, Mr. Scheiner, and Ms. Basel three identical letters, all dated July 5, 2001. These letters reiterated Respondent's direction not to conduct any campaign business on District time. Each letter had a place for each of the three employees to sign and add the date. As instructed by Respondent, each employee signed his or her name and wrote in the date of July 5, 2001. The evidence does not establish that, in backdating the letters, any of these employees felt intimidated or coerced by Respondent or felt that they were doing anything wrong. None complained about the request at the time. In an abundance of caution, not inconsistent with feelings of blamelessness, Mr. Mets and Ms. Basel later memorialized the backdating of their letters. More likely than not Respondent had these employees backdate the "July 5" letters in late July. Although there is a conflict in the evidence whether the date on which Mr. Mets and Ms. Basel signed their letters was in late July or late August, it appears more likely that Respondent, in acceding to his wife's wishes to get these letters signed, did not delay in performing this task. It also appears less likely, for reasons discussed below, that Ms. Basel would have backdated such a letter in late August after Respondent's difficulties had surfaced. Mr. Scheiner did not testify to any discomfort in backdating the letter, but Mr. Mets and Ms. Basel testified that they felt discomfort at signing their letters. The most obvious objective distinction between Mr. Scheiner, on the one hand, and Mr. Mets and Ms. Basel, on the other hand, is that Mr. Scheiner believes that his continued employment with the District is already in doubt. This distinction is important in evaluating the testimony of Mr. Mets on this point and Ms. Basel on this and other points. Respondent had been the sponsor of all three of these employees, and they may reasonably have felt that their future with the District was tied to Respondent. Mr. Mets is near retirement. He is also understandably irritated at Respondent because Mr. Mets left his former, higher-paying job at the Port in reliance upon Respondent's unfulfilled promise to raise his pay with the District within a reasonable time after the commencement of his employment. Although Mr. Mets proved a credible witness in many regards, his testimony concerning discomfort at backdating the letter was unpersuasive. Ms. Basel suffers obvious anxiety concerning her continued employment with the District. She eagerly treated her obligation to testify as an opportunity to display her fealty to the District, which had already conducted an unsuccessful investigation against her for improperly requesting leave. Ms. Basel never harmonized her decision to join Respondent at the District with her portrayal of him as an easily angered supervisor. It is impossible to credit her proffered justification that Respondent had told her that he had changed; it is unlikely that she would ever work again with the overbearing man whom she describes. Ms. Basel's claims that Respondent intimidated her at work is also impossible to harmonize with her close relationship with Respondent and his wife and Ms. Basel's frequent expressions of loyalty toward Respondent--prior, of course, to his current difficulties with the District. Ms. Basel's lack of credibility undermines her testimony of intimidation, as well as her unsupported testimony concerning a couple of occasions on which Respondent, in her opinion, asked her to do campaign tasks on District time and property. One of her two recollections of conducting political business on District time and property involved her playing back a message from a District telephone answering machine and finding that someone had called Respondent to confirm a meeting and that a check--presumably a campaign contribution--was in the mail. Petitioner did not offer any evidence that Respondent conducted political business in connection with the call--only that someone, presumably a campaign supporter, had called Respondent at work. From the lack of evidence concerning other such recorded messages, this would appear to have been an isolated incident over which Respondent had no control. In any event, Ms. Basel's testimony on this matter does not suggest that Respondent conducted political business on District time or property. The other incident lacks detail. Ms. Basel testified that Respondent directed Ms. Basel to call a union president to get the union's support and 20 minutes later asked her if she had done so. Ms. Basel's evident desire to assist Petitioner's case inspires no confidence in the existence or details of the brief statements from Respondent or the duration of the interval between the two statements, so as to preclude the possibility of an intervening break, during which Ms. Basel would not be on District time. However, the Administrative Law Judge credits Ms. Basel's emphatic denial that she ever did any political work for Respondent on District time or property. But her testimony fails to establish that Respondent conducted political business on District time or property. To the contrary, given Ms. Basel's obvious motivation to protect her job and her close proximity to Respondent, the absence of testimony from Ms. Basel concerning any substantiated incidents or even more unsubstantiated incidents suggest that Respondent did not conduct political business on District time or property. Respondent's purpose in attending the August 3 breakfast meeting is difficult to characterize, but the meeting did not take place on District time or property. Respondent claims that he viewed Mr. Harper merely as a disgruntled vendor, but this claim accounts for only a small part of Respondent's motivation in meeting with Mr. Harper. Respondent testified that he knew that Mr. Harper was trying to prevent other persons from supporting Respondent's bid for a seat on the Port Commission, so the possibility of a political purpose exists. However, Respondent also testified that he returned from vacation to find that Mr. Malone had settled the District's disputes with Square Yard at a meeting in July during which the District agreed to pay Square Yard about $43,000 on unpaid invoices and to try to give half of all future vinyl flooring work to Square Yard. As noted below, the omission of any mention of the $387,000 in overpayments is probably due to the fact that the District had already decided, or was in the process of deciding, not to pursue any overpayments. In fact, as Mr. Malone testified, he had negotiated this settlement at the direction of Superintendent Johnson, who misrecalled that Superintendent Marlin had decided to pay Square Yard $43,000 (a decision that, if Superintendent Johnson's recollection were accurate, would have inexplicably gone unimplemented until five months into Superintendent Johnson's tenure). Given these circumstances, Respondent, in an abundance of caution, might want to appease a person who had such apparent influence with Mr. Malone and Superintendent Johnson, just in case Respondent were not successful in his Port Commission election. Commissioner Robinson facilitated the August 3 breakfast meeting. He asked Mr. Harper to state his concerns. Mr. Harper blamed Respondent for certain problems of Square Yard with the Port of Palm Beach and the District. Respondent explained what he was doing at the Port and that, while with the District, he was merely following orders. Clearly addressing District business, Respondent also emphasized the internal controls that the District had recently implemented and underscored the importance of vendor compliance with these controls. None of the three men discussed Respondent's political campaign. While dealing with Mr. Harper's concerns about the District, Respondent showed him copies of a draft audit, as revised through October 25, 2000, and June 8, 2001, with Mr. Mets' response dated August 2, 2001. Commissioner Robinson asked Respondent if this was public record, and Respondent replied that it was because it had been brought to the attention of the District. Mr. Harper asked for a copy of these documents, and Respondent gave him one. Respondent did not give Mr. Harper copies of other documents, such as the November 10, 2000, unfinished legal memorandum. Mr. Harper likely obtained a copy of this document at the breakfast meeting from Respondent's files, perhaps due to the inadvertent shuffling of papers in the large stack that Respondent had brought with him to the meeting. The key question in this case is whether Respondent improperly supplied Mr. Harper with copies of the draft audits. Respondent testified that he believed that the audit had been completed because Mr. Malone had settled all pending disputes while Respondent had been on vacation. Respondent testified that he knew that the formal audit had been delayed from last fall, but Respondent testified that he thought that the delay was occasioned by the District's investigation during the first half of 2001 of Mr. Chiu for the possible conducting of a lichee nut business for his brother while on District time. Mr. Mets testified that Mr. Chiu told him on August 2, 2001, that Mr. Chiu had discussed the June 8 draft audit with some, but not all, members of the School Board. Evidently based on this discussion, the School Board had decided, according to Mr. Mets' testimony of his conversation with Mr. Chiu, not to pursue the overpayments to Square Yard. This testimony is largely credited. If the School Board could agree not to pursue the overpayments, the discussion with Mr. Chiu must have been more detailed than a mere briefing or updating. On the same day, after his conversation with Mr. Chiu, Mr. Mets told Respondent that Mr. Chiu had explained that the District was not able to pursue any 1995-99 overpayments because of the District's failures in documentation and internal controls and that Mr. Chiu wanted to close the matter promptly. Mr. Mets also told Respondent that Mr. Chiu had told Mr. Mets that Mr. Chiu had discussed the audit in detail with four members of the School Board and intended to discuss the audit in detail with the other three members by the end of the week. Mr. Mets added that the four members had agreed the District could not pursue any overpayments. Two District attorneys have consistently opined that otherwise-confidential audit materials lose their confidential status when distributed to members of the School Board or Audit Committee. One of the attorneys had concluded on June 19, 2001, not to pursue any overpayments for the reasons stated above and had instructed Mr. Chiu to bring the matter to a conclusion. Immediately after obtaining the documents from Respondent, Mr. Harper gave them to his attorney, who promptly returned them to Mr. Harris due to his concern that the release of the documents had been improper. In his cover letter, Mr. Harper's attorney strongly suggested that Respondent's delivery of the materials to Mr. Harper was improper and if the current administration (apparently of Superintendent Johnson) intended to correct the mistakes of the preceding administration, it had better do so quickly, or else its successor would correct those mistakes. On August 15, 2001, Mr. Malone summoned Respondent, falsely telling him that they needed to discuss a school maintenance matter. Mr. Malone prepared the ruse so that Respondent could not prepare untrue responses to the questions that Mr. Malone intended to ask Respondent. At the meeting, when shown some of the documents that Mr. Harper's attorney had sent to the District, Respondent told Mr. Malone that he had met with Mr. Harper, but the meeting had not been political in nature, and that he had given Mr. Harper some of the documents, but not all of them. A later disagreement arose between Mr. Harper and Respondent concerning what Respondent said at the August 15 meeting, but the discrepancies are not material. One week after the meeting, Mr. Malone recommended that the District Department of Professional Standards investigate the entire matter. Mr. Malone suggested that the investigators take testimony under oath because some of the apparent violations were criminal. The Director of the District Department of Professional Standards referred the entire matter to the District police department for investigation. Two District police department detectives interviewed witnesses, including Respondent on August 30, 2001. During his interview, despite being under oath, Respondent three times denied that he had asked Mr. Mets, Mr. Scheiner, and Ms. Basel to backdate their "July 5" letters. Immediately after the conclusion of the interview, Respondent told his attorney, who had accompanied him at the interview, of the misstatements and that he wanted to correct the record immediately. A short delay ensued because Respondent and his attorney had been instructed to go elsewhere immediately after the interview and did so. However, within 20 minutes after the conclusion of the interview, Respondent and his attorney caused the detectives to reconvene the interview, so that Respondent could correct his misstatement about backdating the "July 5" letters. At the reconvened interview, Respondent admitted to asking the three employees to backdate their letters. No evidence suggests that Respondent's 20-minute delay in admitting to the backdating request materially delayed Petitioner's investigation. After examining the facts of the case, the School Board voted on November 20, 2001, to terminate Respondent's contract, effective 15 days later, rather than not renew it when it expired on June 30, 2002. The charges that engendered this case are that Respondent disclosed confidential materials to Mr. Harper and that he did so for personal gain. Respondent gave Mr. Harper copies of two draft audit reports, but they were no longer confidential because Mr. Chiu had already discussed in detail the findings of his audit with a majority of the members of the School Board. The evidence suggests that Mr. Chiu did so to obtain the approval of the School Board to resolve its long- pending overpayment issue with Square Yard. The evidence fails to establish that Respondent gave Mr. Harper a copy of the other materials. As for the November 10, 2000, unfinished legal memorandum, this document was no longer confidential because, in June or no later than July 2001, the District had decided not to pursue possible overpayments to Square Yard. If the materials were no longer confidential, the motivation of Respondent in delivering them, during a breakfast meeting not on District time or property, loses its importance. Undoubtedly, Respondent was dealing with a disgruntled vendor, as Respondent claims. Undoubtedly, Respondent's underlying motivation was a mixture of concern for his political campaign and for his present job situation; mollifying Mr. Harper could help Respondent in both regards. Nor has Petitioner proved misconduct impairing Respondent's effectiveness in his handling of the three "July 5" letters. The record does not sustain the allegation that Respondent coerced or intimidated any of the three employees into backdating these letters. The letters themselves are not legally required documents, nor are they even significant documents. These letters are self-, or, if Respondent's testimony were credited, ally-serving documents whose effectiveness is undermined by their transparency. They have the force and effect of birthday cards. Backdating these ineffective documents inspires little confidence in Respondent's mental acuity or at least in his assessment of the mental acuity of those around him. At best, undisclosed backdating is a precarious practice, and Respondent's claim that backdating is prevalent in the District is beside the point. However, the insubstantiality of the letters themselves reduces their backdating to a meaningless self-indulgence. The closest issue in the case is Respondent's dishonest denial, under oath, that he had the three employees backdate the "July 5" letters. The insubstantiality of the letters themselves is irrelevant to this issue, which raises the question of Respondent's honesty. Respondent knew that he had asked the employees to backdate these letters, and he denied under oath doing so. The proper characterization of this incident does not permit consideration of Respondent's intention to protect his employees or Petitioner's failure to advise Respondent that he was under criminal investigation; these factors are entirely irrelevant. However, the proper characterization of this incident requires consideration of Respondent's near-immediate correction of his misstatement. The 20-minute delay arose due to logistics, not any delay on Respondent's part after the conclusion of the interview. Respondent had not expected questions concerning the "July 5" letters, nor, in retrospect, should he reasonably have expected such questions. When asked about the letters, Respondent panicked and denied three times that he had asked the employees to backdate them. The fairer characterization of this incident is that Respondent immediately corrected his admittedly intentional misstatements, rather than made the misstatements and later recanted. Not Respondent's most shining moment, his lapse from honesty, which obviously never impaired Petitioner's investigation, was short-lived to the point of being momentary, was not so serious as to impair Respondent's effectiveness in the school system, and factually did not rise to the level of misconduct constituting just cause for his termination. These findings do not imply acceptance of Respondent's assertion, in his proposed recommended order, that the "only plausible explanation" for Respondent's termination was Superintendent Johnson's desire to remove Respondent. This is a oversimplification and distortion of the facts of this case. Superintendent Johnson renewed Respondent's contract hardly one month prior to the August 3 breakfast meeting. Although Superintendent Johnson clearly wanted Respondent out of the position of Chief Operating Officer, he displayed no desire to terminate Respondent's employment with the District. From Superintendent Johnson's perspective, Respondent's August 3 meeting with Mr. Harper was ill-timed. The District had just worked out the long-pending dispute between it and Square Yard by paying $43,000 to the company and promising it more business. Superintendent Johnson's misrecollection--corrected by Mr. Malone--that Superintendent Marlin had decided on the $43,000 payment suggests the sensitivity of this matter. For nearly nine months, many persons within the District, and probably a number of persons outside of the District, had credited Mr. Chiu's preliminary findings that Square Yard owed the District over $2 million in overpayments-- an attractive receivable in times of tight revenues. This dramatic preliminary finding left a more lasting impression than the more thorough findings that the overpayments were less than $400,000, poor District recordkeeping during the earlier period in question precluded reliable findings of any additional overpayments, and poor District recordkeeping concerning even the $400,000 in claimed overpayments probably precluded their proof in a civil action for damages. The letter from Mr. Harper's attorney exacerbated the situation for Superintendent Johnson, who testified that the matter was serious because the attorney took it seriously and, if the District took no action after receiving such notification from an officer of the court, the District would leave itself vulnerable to later recriminations. The subsequent discovery of Respondent's requests for his employees to backdate the "July 5" letters and, worse, his momentary lying under oath, even though concerning tangential matters, made it much more difficult for Superintendent Johnson to coordinate public perceptions with the reality of the Square Yard matter. On this record, the reality of the Square Yard matter is that poor District recordkeeping and internal controls--since corrected--meant that the Square Yard might have been entitled to $43,000 on past-due invoices and future District business, rather than that the District was owed hundreds of thousands or even millions of dollars in overpayments.
Recommendation It is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing all charges against Respondent and awarding him back pay for the period from the date on which he was suspended without pay through the end of the term of his present contract. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. ____ ROBERT E. MEALE 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 5th day of June, 2002. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Alan M. Aronson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Elaine Johnson James, Esquire Edwards & Angell, LLP 1 North Clematis Street, Suite 1400 West Palm Beach, Florida 31301 Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Scott N. Richardson, Esquire Atterbury, Goldberger & Richardson, P.A. 250 Australian Avenue, Suite 1400 West Palm Beach, Florida 33401
