Findings Of Fact The Respondent, Department of Health and Rehabilitative Services is the state agency charged with the responsibility of monitoring the Aid For Families with Dependent Children, (AFDC), program in Florida. Petitioner Nola Little and the Intervenors, are recipients of services under that program and subject to the terms of the existing and proposed rules. The Department published notice of Proposed Rules 10C-1.080, 10C-1.082, and 10C-1.107 in Volume 15, Florida Administrative Weekly, at pages 3082-3083, on July 21, 1989. The rules in question deal with the issue of entitlement to payment to eligible applicants for AFDC. Rule 10C-1.080(10)(b) has been amended to change the definition of the date of entitlement to the date of authorization or the 30th day from the date of application, whichever is earlier. Rule 10C- 1.080(11) has been amended to provide that the first payment to an eligible applicant must be made for the date of authorization or the 30th day from the date of application, whichever is earlier, and provides for a prorated payment based on the date of entitlement. Rule 10C-1.082 has been amended to provide that grants of applicants will be prorated for the initial month of entitlement. The increase in grant for the needs of persons added to the grant will be prorated for the initial month of grant increase. Rule 10C-1.107 has been amended to provide that the initial month's grant will be prorated from the date of entitlement. The initial month of grant increase for adding the needs of individuals to the grants will be prorated from the add date. Thereafter, on August 10, 1989, Petitioner Little filed a petition to determine the invalidity of the proposed rules alleging that: They violate Section 409.235, Florida Statutes, which requires the Department to furnish monthly financial assistance, and They provide an inadequate statement of economic impact. At the time she filed her Petition, Nola Little was a pregnant AFDC applicant residing in Pensacola, Florida. Intervenor Perez and his wife reside in Miami, Florida with Mrs. Perez' son by a former marriage. Mrs. Perez and her son were found to be eligible for AFDC. Mr. Perez and his natural children have not been approved due to pending consideration of Mr. Perez' determination of incapacity as a result of a back injury. He is, otherwise, eligible for AFDC. All Petitioners will receive prorated benefits under the proposed rule. Prior to the 1988 legislative session, the Department had been requested by the President of the Florida Senate to identify programs for a possible 5% reduction. The date of entitlement for new applicants for AFDC, the subject matter of one rule in question, was identified as one of those programs. Though the Governor agreed with the Department's proposal and recommended it, the Legislature did not adopt that program for cuts in the 1988 session. Again, prior to the 1989 legislative session, the Governor directed each department to identify programs for possible cuts up to 10% for a total of $23.9 million. As a part of his directive, he hypothetically identified cuts in programs to reach that figure. One item so identified was a change in the date of entitlement to AFDC. After considering various ways to implement the cuts, (4 different program alternatives), all of which had an unpleasant effect, Mr. Don Winstead, Assistant Secretary of DHRS for Economic Services, chose the current method of reduction and recommended it to the Department's Deputy Secretary for Administration who incorporated it as a part of the entire Department submittal to the Governor. A 5% cut list was ultimately forwarded to the Governor in December 1988, which included two of those alternatives on the 10% list. The instant program cuts were not recommended by the Governor. Mr. Winstead and his staff generated substantial input to the Legislature, its committees, and its staffers about the subject. Ultimately, the Legislature, in conference, agreed to certain cuts. Economic Services was reduced by some $17,476,531.00, including the programs covered by the proposed rules in question. It was clear to Mr. Winstead that the Legislature mandated the reduction as proposed. In July 1988, the Department's District Directors were told to implement the change. In Mr. Winstead's opinion, if the Department had "its druthers," it would not have made the change. The Department's policies are driven by the Governor's direction. Since the Governor did not recommend the cut, the official position of the Department is, and was, against it. In fact, Mr. Winstead felt it was not a good idea and testified against cuts in committee hearing. He indicated there that neither he nor the Department supported this cut or recommended it. Though he did not agree, the lawmakers possessed the authority to make the change and the cuts were passed by the Legislature and signed by the Governor. He is, therefore, obliged to implement them. Since the passage of the act which mandates the cuts, Mr. Winstead has not considered alternatives to direct budget deficit reduction, nor has the Department applied to the Governor to transfer social and economic program funds to address budgeting problems with the AFDC budget. Mr. Winstead's position is that the Appropriations Act mandates him to modify the AFDC grant date and the specific basis therefor is Appropriation Number 864 which gives general revenue and trust fund amounts which, when considered with the Legislature's statement of intent, indicates what has to be done. Admittedly, there is no specific mandate from the Legislature or the Governor to cut this specific program. However, when the list of possible program reductions was prepared in an in-house memorandum, the cut in AFDC funds was identified as #3. Mr. Winstead's position with regard to this cut is supported by Jennifer Lange, a program administrator with the Department whose unit wrote the proposed rule. She felt the Department had no option but to promulgate the rule due to the Legislative mandate. Considering the evidence as a whole, it is found that a logical conclusion to be drawn from the pronouncements, documents, and directives coming from the Legislature through the entire appropriations process, is that drawn by the Department here, to wit: cuts were mandated by the Legislature in this and other programs and action must be taken to implement them. The drafting and promulgation of the rule in question is but an appropriate extension of that conclusion. Assuming the rule is ultimately promulgated and funds are saved thereby, it is the intention of the Department to continue with the mandate of the Legislature until that body affirmatively changes its direction, even if more money is found somewhere else. Under the proposed rule, an applicant would be issued a check for the first period 30 days after application or after approval of the application, whichever came first. Since the Department routinely runs three payrolls a month, it would probably be one third of a month after the cutoff date that an applicant would receive his or her first check. Ms. Lange also was instrumental in drafting the Economic Impact Statement (EIS) to accompany the rules, utilizing in doing so, information garnered from a number of sources. Some figures utilized therein are a generalized estimate only. The majority of applications are accomplished within the 30 day period. Ms. Lange is satisfied that in the preparation of the EIS, all pertinent information required to be considered was considered and nothing that would materially effect the probity of the EIS was eliminated. The actual EIS was drafted by Mr. Greenwood and his team in late May or early June 1989. In doing so, Mr. Greenwood did not consider population additives. While the drafters of the EIS considered the entire subject matter, including legislative policy, no impacts, other than those ultimately addressed therein, were considered. The 6,000 case per month figure was used because it was the information provided by the Department's data unit and as a figure that was being used elsewhere in the Department. This was not the latest figure available, however. Current figures available reflected a potential for slightly in excess of 8,000 cases per month. The difference of over 2,000 cases per month is substantial. Mr. Greenwood concludes that the maximum which can be lost to any applicant is 30 days benefit, and the Department presumed, for the EIS, that all would lose that amount. In reality, that is unlikely. There is no doubt that the implementation of the proposed rule will have an impact on the economic welfare of those currently receiving AFDC and those who may receive it in the future. Rosemary Gallagher, an associate with the Florida Catholic Conference and a lobbyist in the area of social services, is very familiar with the social service agencies available to the poor in this state. In her opinion, having studied the proposed rules, almost all agencies will be adversely affected by their implementation. Clients will require more agency help as a result of the rule implementation and homeless shelters will be hit the hardest. The homeless population in Florida is composed of approximately 1/3 single women with children who need financial assistance to be self-sufficient. Reduction in AFDC benefits will require the client to stay in the shelter longer to accumulate rent money and funds for other required expenditures. By the same token, other organizations will similarly be affected. In addition, less money will have a devastating effect on the agencies , and the delay in receipt of payments, occasioned by the proposed change, will, in her opinion, hurt hundreds of thousands who are affected. This cutback is, she believes, the worst thing to happen in a long time, and she lobbied against the basic legislation calling for cutbacks. Ms. Gallagher has never been a case worker and has no degree or course work in either economics or social work. It is her opinion, however, that the legislative statement relied on by the Department calls for modification to AFDC, not necessarily a cut. As a matter of history, she relates, the Department has been asked for the last several years to list items for cut and historically has always identified those items it felt certain the Legislature would never cut. When, in this current year, it listed the currently considered program, in her opinion, this was done with the belief the Legislature would not approve any cuts, a position consistent with that indicated by Mr. Winstead, but cuts were nonetheless made by that body without, she believes, a proper public hearing. Dr. Frederick Bell, an economist on the faculty of Florida State University and an expert in economics, micro-economics, and the techniques of economic impact statement preparation, reviewed the instant EIS along with depositions and the transcript of public hearing on the matter. He has done some rudimentary research into the effect of the proposed rules and considered therewith the spending patterns of low income people in the areas of housing, clothing, and transportation. He has also looked at small businesses in Florida and feels that the EIS as drafted does not accurately reflect the situation and its method of preparation is poor. In his opinion, it is inadequate to show the effect on the economy since it failed to consider all factors pertinent thereto. He objects to the use of the term "negative cost" as used in the document, which he does not considers to be a proper economic concept. He assumes it is another term for savings. He assumes the EIS reference to 6,000 applications which are those approved per month. Other pertinent documentation, however, refers to a substantially larger number of applications (8,042) yet neither figure is sourced, and Dr. Bell is unable to verify their accuracy. The parties stipulated that in formulating the EIS, the Department utilized figures provided by the Legislature, but Dr. Bell's complaint regarding his inability to check their accuracy is still valid. Dr. Bell also questions the average grant amounts and notes that the Department assumes that the determination of eligibility is always going to be accomplished within 30 days. In his opinion, this is neither reasonable nor substantiated. He believes it is a "monumental" error to put into the EIS entirely different numbers than are actually expected. In the instant case, this resulted in a difference of $6.4 million which is substantial. With regard to that section of the EIS that starts, "Changing the effective date of grant increases," on the one hand, it indicates a cost of increased benefits as a result of adding individuals to the household, and on the other hand claims a reduced cost resulting from the loss of benefits to newborns. Dr. Bell professes to be "flabbergasted" by the conclusion drawn in the EIS that the additional costs to the agency will be balanced out by the benefits saved. In his opinion, there is absolutely no justification for that conclusion. He also disputes agency figure of $17.5 million in resultant cuts, concluding it would actually be more in the area of $23.9 million. As a result, he believes the impact will be substantially greater to individuals than that indicated. He also contends the state should have considered the cumulative effect on the economy of governmental program cuts, otherwise known as the "multiplier effect." A reduction in amounts spent will have a resultant double effect on the businesses where this money would normally be spent. There is nothing shown in the EIS to indicate this factor was considered. Dr. Bell also believes the agency should have considered the effects of its cutback on the counties and their support agencies as well as the nongovernmental charities involved in providing assistance to the underprivileged who will have to pick up the slack resulting from the cut in public money. He feels the EIS estimate of the cut's minimal effect on small minority businesses is not supported. It appears to him that the agency failed to utilize the services of the small and minority business advocate attached to the Florida Department of Commerce who could have provided input on whether a cutback in spending would have had a major effect on minority business enterprises. Dr. Bell is convinced that it will and his opinion is diametrically opposed to that of the Department. In substance, Dr. Bell was convinced that the EIS was "completely inadequate." In his cross examination of Dr. Bell, Respondent's counsel indicated there would be no impact on small and minority business and urges that Dr. Bell was stretching when he claims there would be. Such argument is ingenuous however. Regardless of which of the two impact figures cited is used, such a sum cannot help but have some impact on an economy which includes small businesses. The degree thereof and whether or not that impact constitutes grounds to invalidate the rule is another question altogether. Nothing in the statute or the rules relating to the sufficiency of an EIS requires that there be unanimity of opinion as to the conclusions drawn therein. Taken as a whole, the evidence appears to show, and it is so found, that while the EIS may well be subject to some disagreement as to a number of the provisions therein, and while some provisions may well be contra to the weight of the best evidence available, it is, nonetheless, basically adequate in content and form to constitute an acceptable economic impact statement in support of the proposed rules here.
Findings Of Fact The Business of Respondent The complaint alleges the Respondent admits and I find that the Respondent is a public employer within the meaning of Section 447.203, Florida Statutes. The Labor Organization Involved The Respondent disputes the complaint allegation that the Charging Party is an employee organization with the meaning of Section 447.203(10) of the Act. Evidence adduced during the course of the hearing establishes that the Charging Party is an organizational faculty at Brevard Community College which desires the betterment of teaching conditions at the college. It seeks to represent public employees for purposes of collective bargaining and in other matters relating to their employment relationship with the college. The Charging Party is registered with PERC and has petitioned PERC to determine its status as a bargaining representative. Testimony also indicates that employees are permitted to participate in the organizational affairs and a representation election was held on March 3, 1976, which Involved the Charging Party. Based on this undisputed testimony, I find that the Charging Party is an employee organization within the meaning of Section 447.203(10) of the Act. The Alleged Unfair Labor Practices Background Patrick D. Smith, is employed by Respondent as Director of College Relations and he also serves as the editor of a college communications organ called the Intercom. Smith's immediate superior is Dr. King, the College's President who has the final authority for determining the Intercom's content. The Intercom is distributed to faculty and staff members in their college mailboxes and is published weekly during the school year. The Intercom is printed in and distributed from Smith's office on campus. On January 21, 1976, Lewis Cresse (then the Charging Party's President and a BCC faculty member) called Smith at his office and advised that he (Cresse) would like to announce a meeting that the Charging Party would be having in the Intercom. Approximately one week later, Cresse met President King in the college's parking lot and specifically asked that the BCCFT (the Charging Party) be allowed to use the Intercom. King indicated that he had no intention of allowing the Charging Party to use the Intercom and it suffices to say that Smith denied Cresse the use of it for announcing a meeting that the Charging Party would soon be holding in the Intercom. It is by these acts, that the General Counsel issued his complaint alleging that the Respondent discriminatorily denied the Charging Party the use of the Intercom and the college bulletin boards as a means of communicating the Charging Party's announcements and meetings. In attempting to establish that the above acts constitute violations of Sections 447.501 and 447.301 of the Act, the General Counsel introduced testimony to the effect that the Brevard Vocational Association, an organization whose purpose is to maintain communications for the benefit of all vocational, industrial education instructors in Brevard County had been permitted useage of the Intercom. Evidence also established that individuals were allowed to advertise personal items which they desired to sell in the Intercom and that such useage included advertisements regarding rummage and garage sales and that the Brevard Chapter of Common Cause, an organization which seeks to improve the workings of government by making it more accountable to the citizenry had frequently utilized the college's bulletin system. The Respondent bases its defense on its position that including in the Intercom, a meeting notice for the Charging Party which not only gave the time and place of the meeting but also urged faculty members to attend would have possibly violated the Act, by giving illegal assistance to the union; and that in any event, the college was not required to run the employee organization's notice in a publication such as the Intercom. Smith informed Cresse of Respondent's decision not to permit the employee organization to use the Intercom as a communications organ and thereafter, no other requests to use Intercom was made by the employee organization. Based on Smith's undisputed testimony that he raised the issue with Dr. King, college President, whether the employee organization's request would be granted, and that he (King) raised the question with the college's attorney, I find that the Respondent's denial is an act which is properly chargeable to Respondent. In support of its position that the Respondent discriminatorily denied the Charging Party to utilize the Intercom, the General Counsel introduced the February 19, 1976 issue of Intercom which contained a statement to the effect that Lewis Cresse, a professor at the college, would be speaker at a monthly meeting of the Brevard Vocational Association. Another item included in the Intercom was a meeting notice for the American Welding Society wherein it was announced that Sam Reed was Granted permission to announce a meeting for the society. In both examples, it was noted that the Brevard Vocational Association and the American Welding Society are organizations which the Respondent's administration encouraged faculty and staff members to participate in and for which the college reimbursed employees for expenses resulting from out-of-town meetings. Respondent's position is that it works closely with the society in that it fulfills its educational mission by preparing instructors which ultimately fulfills the college's mission. The remaining complaint allegations concerns the issue of a discriminatory denial to the employee organization of access to the college's bulletin Boards. Evidence reveals that the college has a well established procedure for the approval of documents to be posted on the college's bulletin boards and that such procedures are enforced. Prior to posting, they must be approved by Mike Merchant, Manager of the Student's Center and that approval takes the form of either a rubber stamp which indicates approval which is thereafter initialed by Mr. Merchant, or he writes the work "approved" on the document with his initials and the date. The facts relative to this allegation stems from a request by the Charging Party to post campaign materials on bulletin boards throughout the campus. Dr. Kosiba, provost of the Cocoa Campus informed Mr. Merchant that this request should be denied and it was. This request was also denied based on Respondent's position that it was not obliged to honor union requests to post union meeting notices on its bulletin boards and further that the items requested were "promotional materials" which were in truth "highly controversial campaign literature intended to gain support for the union in the then upcoming election." The items introduced were (1) a bumper sticker which encouraged employees to vote for the union and (2) a red, white and blue document covered with banner, stars and an eagle entitled "working draft of proposed agreement." To sustain the complaint allegations, it must be shown that (1) the Charging Party made a request to use the Respondent's communication facilities which in this case involved the Intercom and its bulletin boards and a denial of such request, (2) that similar requests had been approved of a similar nature and (3) that other alternative means of access were not available to the Charging Party. As to the first point, there is no question but that the Charging Party requested and was denied permission to use the Respondent's bulletin boards and its communications organ, the Intercom. However, the record evidence fails to establish that the Respondent had honored similar requests by other organizations in the past. In fact, all of the evidence tends to establish that with respect to the items here in dispute, Respondent vigorously opposed unionization, as was its right, and to have permitted the Charging Party to use the bulletin boards and its communications organ here would have been tantamount to a passive approval of the very ideas to which it had vigorously objected to. Furthermore, records evidence established that the union had abundant opportunity and did in fact communicate extensively with the employees. Among these other alternative means were: The college permitted the Charging Party to hold campus wide meetings for the faculty and staff on campus during daylight hours. The college provided a bulk distribution table conveniently located near the post office which was regularly visited by faculty and staff members. The college had an established policy which would have permitted the Charging Party to designate a single bulletin board for the posting of announcements. The employee organization was able to communicate extensively with faculty and staff by the circulation of numerous documents that were delivered to staff offices. (See Public Employer's Exhibits #3 - #24). Via the "faculty and staff directory", the employee organization had access to all names, home addresses and phone numbers of all members of the bargaining unit. (See Public Employer's Exhibit #26). The employee organization had available the campus newspaper THE CAPSULE, for meeting notices, announcements, etc. Local newspapers disseminated in the Brevard County area reported extensively on the union's campaign and activities. (See Public Employer's Exhibit #24(a) through (t)). Based thereon, I find that the Charging Party had numerous alternative means to communicate with the employees and the record is void of any circumstantial evidence that the rights of employees were interfered with, restrained or otherwise coerced by the Respondent's conduct as set forth above. I shall therefore recommend that the complaint filed herein be dismissed in its entirety.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint.
Findings Of Fact At all pertinent times, Clifton Jerome Locke has held Florida Teacher's Certificate Number 361372 for the areas of psychology, administration and Junior ROTC, and has taught as a Junior Army ROTC instructor at Crestview High School. Major Jordan was the director of army instruction for the Okaloosa County School Board and Sgt. Locke's "superior officer" at all pertinent times. Ever since Sgt. Locke began as a Junior Army ROTC instructor at Crestview High School, in January or February of 1971, Major Clifton D. Jordan's job was "[t]o coordinate and to command, really, if you will, the Army ROTC operations within the county school system." (T. 39-40) TELEPHONE BILLS The Okaloosa County School Board relied on the ROTC program to secure reimbursement from the U. S. Army for long distance charges incurred by ROTC. When the School Board received telephone bills for the ROTC telephone at Crestview High School, the office of the assistant superintendent for finance paid them, and sent copies of the bills to Crestview High School's Junior ROTC program. As the monthly phone bills arrived, Sgt. Locke looked them over, then gave them to a cadet, who prepared DA Form 360 and DA Form 3953, for Major Jordan's signature. Major Jordan signed the Army form to which a copy of the monthly telephone bill was attached, DA Form 3953. This form and attachments were regularly sent to the signal officer at Fort Rucker, Alabama, until the practice ceased in the spring of 1978. Although unsure whether his office, the school principal or Major Jordan received the Army's reimbursement checks, Creel Richardson, Jr., assistant superintendent for finance for the Okaloosa County School Board, testified without contradiction that the U. S. Army had not reimbursed long distance charges incurred by the Junior ROTC program at Crestview High School over a 46-month period beginning in the spring of 1978. During this entire period, Major Jordan was "telephone control officer." Army regulations precluded Sgt. Locke's serving as telephone control officer. (T. 81) Some time in 1978 Sgt. Locke received a note from Mrs. Strauder of the signal office which read: Returning your bill to be corrected. Please mark calls on the phone bill that add up to fifty-three ninety- five ($53.95), all three copies, please. It was about this time that Sgt. Locke and Major Jordan discussed the use of the telephone for other than official long distance calls. Although Major Jordan did not recall this conversation, he did testify at hearing that he had made various personal long distance calls on the ROTC telephone and had sought Army reimbursement for them by failing to delete personal items from the phone bill copies forwarded to Fort Rucker. Without counting calls made in 1982, Major Jordan made more than two hundred personal, long distance calls on the ROTC telephone, between February 14, 1978, and May 26, 1983. See Respondent's Exhibit No. 5. Eventually, the Federal Bureau of Investigation looked into Major Jordan's personal use of the ROTC telephone for long distance calls, but criminal charges were not brought. Other school personnel also made unauthorized use of the ROTC telephone. Major Jordan, who had never delegated any responsibility or duty in connection with telephone bill reimbursement to Sgt. Locke in writing, told him not to be concerned about which of the phone calls were in fact official calls. Sgt. Locke continued for a few months to give phone bills to cadets for preparation of the reimbursement request forms and the forms continued to be prepared. But Major Jordan stopped signing them and Sgt. Locke eventually stopped giving the phone bills to the cadets who prepared the forms. Of the 46 monthly bills for which no reimbursement was sought, 29 had not been opened in March of 1982, at the time Sgt. Locke was transferred from the ROTC department and Major Jordan went through respondent's desk drawers. At some point, Sgt. Locke told Major Jordan he would rather not be involved in preparation of the forms. He told the student cadets responsible for preparing the forms to deal directly with Major Jordan. In or about October of 1982, the signal office inquired about phone call reimbursement and charges for long distance. Phone calls billed to the ROTC number at Crestview High School aggregated $2,974.42 over the 46-month period. How much of this sum reflected official calls was not clear from the record. Another year elapsed after Sgt. Locke's transfer from the ROTC department before Major Jordan signed and transmitted any phone bill reimbursement forms to the signal office, with the result that reimbursement for any official calls was lost to the Okaloosa County School Board for much of that period as well. CANDY SALES Toward the beginning of the 1981-1982 school year, Jerry Pilgrim, a candy salesman from Milton, Florida, spoke to Major Jordan and Sgt. Locke about the ROTC students' selling candy to raise money. In October, it was agreed that a sale would take place later in the fall. Mr. Pilgrim discussed the candy sales with Major Jordan, who told him to deal with Sgt. Locke. Orders for candy to be delivered in November and December were not filled on time, so Sgt. Locke cancelled them, fearful the upcoming Christmas vacation would complicate matters. When Mr. Pilgrim stopped by the school to apologize for his failure to deliver the candy on time, Major Jordan said ROTC might sell candy some other time. In all, Mr. Pilgrim spoke to Major Jordan six to ten times and never got any indication that Major Jordan opposed a candy sale. It was Major Jordan who chose the particular kind of candy (Reese's candy bars) the day Mr. Pilgrim handed out samples. Major Jordan never told respondent not to conduct a candy sale. Major Jordan and Sgt. Stakley's testimony otherwise has not been credited. In January, Sgt. Locke placed another order for candy by telephone and Mr. Pilgrim delivered the candy the third week of January, 1982. He unloaded the trunk of his car at the ROTC office at Crestview High School, and returned two days later with 20 more cases of candy. Two weeks later he again called at the school, but Sgt. Locke told him that the principal was upset and that ROTC would not be ordering more candy. For the 1981-1982 school year and for some time previously, there was a written policy at Crestview High School requiring approval in advance of fund raising projects, and requiring, with respect to sales conducted by students, that a form be filed reflecting beginning inventory, cost per item, closing inventory, profit, total cost and total items sold. Petitioner's Exhibit No. 1. Both Major Jordan and Sgt. Locke knew or should have known of this policy, even though there was no evidence that the ROTC program had followed it in the past. Approval was not obtained for the candy sale in advance, nor was the required form filed. On January 21, 1982, six students turned in a total of $89.50 to Sgt. Locke, money they had been paid for candy. On January 25, 1982, six students turned in more candy sale proceeds to the respondent, aggregating $86.00. On January 26, 1982, Sgt. Locke entered the hospital, having suffered a mild stroke. He had trouble seeing, was unable to change gears driving, and finally fainted, slumping over his typewriter at Crestview High School. In the hospital, he remembered the money in his desk and asked his daughter, Cynthia Faith, who was also a cadet in the ROTC program, to retrieve the cash from his desk drawer. Sgt. Locke could not see well enough to count the money, so his wife, his daughter and his parents, who were visiting at the hospital, counted it for him. His wife drew a check in the amount of $175.50 on a joint account she shared with respondent, and one of the respondent's daughters gave the check, Petitioner's Exhibit No. 6, along with the required "Report of Monies Collected" forms, Petitioner's Exhibit No. 5, to the school bookkeeper, Ms. Earlene Carter, on February 5, 1982. (T. 163) Proceeds from the candy sale totalled at least $1385.86 and there were no complaints about the handling of the rest of the money. Insofar as the evidence shows, all the money the students turned in was ultimately deposited with the school bookkeeper. School policy required that "teachers who receive money from students in a school related activity should . [t]urn the money into the bookkeeper the day it is collected or as soon thereafter as possible." Petitioner's Exhibit No. 2. Pictures were taken of the ROTC students by James L. Davis of Stone Studio in Pensacola. Most of the students showed up with their money at the time pictures were taken in January of 1982. Others, including respondent's two daughters, did not pay for their photographs the day they were taken, but Cynthia Faith Locke later gave Sgt. Stakley $20 for the pictures taken of her sister and herself, and the photographer was eventually paid in full. Major Jordan testified at hearing that he found a "collection voucher" in Sgt. Locke's desk drawer reflecting that four ROTC students had made payments of ten dollars each for photographs, but that no money was attached to the voucher or present elsewhere in the drawer. Two of the students Major Jordan said were listed on the "voucher" were Sgt. Locke's daughters. The evidence was insufficient to show that Sgt. Locke ever received any money from any student for photographs. The "voucher" Major Jordan claimed he found was not produced at hearing. Aside from Major Jordan's testimony, which has not been credited in this regard, no evidence suggested any impropriety in the handling of any moneys respondent may have received in connection with the sale of photographs to ROTC students. APPLICATION LATE Dean Oliver Casey, a student enrolled in the ROTC program at Crestview High School, filled out an application for an ROTC scholarship in December of 1980. Major Jordan and Dean Casey had discussed the scholarship application two or three times between September 1, 1980, and mid-November of that year, and Major Jordan had told him to mail the completed application to Fort Monroe, Virginia, but he missed the December 15, 1980, deadline. Later Dean Casey gave the completed application to Sgt. Locke who asked Major Jordan if he could "pull any strings" to get the application considered, even though the deadline for submission had passed. After Major Jordan "relieved" Sgt. Locke of his ROTC assignment, respondent went to work in Okaloosa County School Board's finance department at the Carver Hill complex. On the assumption that the allegations against him were true, his effectiveness as a ROTC instructor had been impaired, the consensus of the testimony was, but there was no evidence of the impact on his effectiveness on the assumption that the charges were false, even in part; and no evidence as to his effectiveness while employed in the finance department. The parties' proposed findings of fact have been considered in preparation of the foregoing. To the extent they have not been adopted, they have been rejected as unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 25th day of May, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Ronald G. Meyer, Esquire Pamela Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
Findings Of Fact Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School. James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories. Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental. The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use. Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/ After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental, Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards. On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students. Upon arriving at the school, Mr. McCallum and Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report. Mr. McCallum requested that Ms. Gribben accompany Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing, Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk." Mr. Makowski came to the principal's office. Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches. Mr. Culbert then began to question Mr. Makowski about his inappropriate searches. Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches. Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop. Mr. McCallum urged Mr. Makowski to be honest. Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation. Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes. Mr. Makowski surrendered his laptop computer to Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours. On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report, Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children. All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches. Mr. McCallum's report concluded as follows: On Monday, September 20, 2010, after Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds, Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act. The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting. Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident. The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students. Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges. "Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay. Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/ At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report. Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum. Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination. Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality." During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment." Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing. At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned. Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board. At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention. No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer. Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact. Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned. Mr. Makowski has not been subject to discipline by the School Board prior to this case. In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement. The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011. In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of November, 2011.
The Issue The issue is whether Respondent's decision to reject all replies to Invitation to Negotiate 2019-44, Social Media Monitoring (ITN), is arbitrary or illegal, within the meaning of section 120.57(3)(f), Florida Statutes.
Findings Of Fact In response to the tragic shootings at Marjorie Stoneman Douglas High School in February 2018, the legislature enacted, effective March 9, 2018, the Marjorie Stoneman Douglas High School Public Safety Act (the Act). Among other things, the Act authorizes Respondent to spend $3 million for the 2018-19 fiscal year "to competitively procure . . . [a] centralized data repository and analytics resources pursuant to s. 1001.212, Florida Statutes[,]" and provides that Respondent "shall make such resources available to the school districts no later than December 1, 2018." Ch. 2018-3, §§ 50 and 52, Laws of Fla. Within one month after the passage of the Act, Respondent confirmed that the above-quoted language mandated the procurement of two systems and that "analytics resources" refers to the Monitoring Tool. Respondent researched the relevant technology and drafted an ITN, which it issued on August 3, 2018. In general, the ITN requires each vendor to submit, by September 6, 2018, a reply consisting of a technical reply and a price reply and provides that Respondent will evaluate the replies by September 10, 2018. ITN section 3.4 states that the Negotiation Committee will commence negotiations on or about September 24, 2018, and the winning vendor or vendors will commence work on October 19, 2018. ITN section 8.1.2, which contains the "Criteria for Evaluation," states that Respondent will score each reply based on a maximum of 70 points for the technical reply and 30 points for the price reply. Section 8.1.2 states that, after negotiations, Respondent anticipates awarding the contract, if any, to not more than three vendors that Respondent has determined provide the best value to the state. ITN section 8.3 provides that, after Respondent awards a contract to each of up to three vendors, "[s]chool districts will then choose from these approved vendors to determine which [Monitoring Tool] is used in their district." ITN section 8.1.3, which contains the "Criteria for Negotiations," broadly authorizes Respondent to negotiate revisions to each vendor's technical reply, as required to serve the best interest of the state. Section 8.1.3.E. also authorizes Respondent to revisit each vendor's price reply: "[Respondent] reserves the right to negotiate different terms and related price adjustments if [Respondent] determines that it is in the state's best interest to do so." ITN Attachment B is the "Price Reply." The first paragraph of Attachment B states: "There shall be no additional costs charged for work performed under this ITN. The [school] district price on this page will be used for evaluation and scoring purposes." The second paragraph, which is titled, "Assessment Instrument," adds: "Respondent shall provide a cost for the Social Media Monitoring instrument and services in subsequent contract." Immediately below this statement is the following price form: Description Cost Social Media Monitoring Contract 10/19/18-6/30/19 $ instrument and services Period 7/1/19-6/30/20 $ 2018-2021 7/1/20-6/30/21 $ Social Media Monitoring Optional 7/1/21-6/30/22 $ instrument and services Renewal 7/1/22-6/30/23 $ Years 7/1/23-6/30/24 $ Grand Total Cost* $ $ The price form fails to reveal if the "Grand Total Cost" and annual costs are per-district prices or gross prices, regardless of the number of school districts choosing to use the Monitoring Tool. The asterisk is meaningless because the ITN contains no explanation as to its meaning. The second blank line to the right of "Grand Total Cost" is consistent with an extension of a per-district price, but the document does not direct the vendor to perform such an extension, which would be impossible because, as noted above, the multiplier is unknown until districts contract to use a specific Monitoring Tool. On August 22, 2018, Respondent issued ITN Addendum #1, which answers questions posed by vendors. Through this means, Respondent informed vendors that school districts are not required to use the Monitoring Tool, Addendum #1, p. 3; it is impossible to determine the volume of usage of the Monitoring Tool among over 4000 schools serving about 3 million students, Addendum #1, p. 3; replies may include more detailed pricing schedules, such as "pricing based on differing user counts and/or number of schools or districts," Addendum #1, p. 4; and the Monitoring Tool may be used by as many as 67 school districts plus six university-affiliated lab or charter schools, Addendum #1, p. 6. On August 30, 2018, Respondent issued ITN Addendum #2, which makes two changes to Attachment B. Addendum #2 deletes the second blank line to the right of "Grand Total Cost" and explains the asterisk by stating, "Points awarded will be based on this price." Neither change resolves the ambiguity as to whether the quoted prices are per-district or gross prices. Eight vendors, including Petitioner, timely submitted replies. Petitioner is a responsible vendor and its reply is responsive. It appears that Respondent completed scoring of all of the technical and price replies of the eight vendors in substantial conformity with the September 10 deadline stated in the ITN. As provided by the ITN, five of Respondent's employees scored the technical replies, staff scored the price replies, and the five employees who scored the technical replies formed the negotiating team. One of the technical evaluators failed to discharge his responsibilities. Appearing not to have read or understood the basics of Petitioner's reply, which describes a Monitoring Tool already in use by several Florida school districts, the evaluator wrongly concluded that Petitioner's reply did not offer a Monitoring Tool and improperly assigned a low score to its reply. This evaluator abruptly quit the day after turning in his evaluations, and Respondent's negotiating team was reduced to the four remaining evaluators. Based on the scoring of the replies, Respondent selected three vendors with which to negotiate: Abacode, Veratics, Inc. (Veratics), and NTT Data Inc. (NTT Data). Abacode resolved the ambiguity of the price form in Attachment B by adding to the price form language stating that its price is a per-district price. For the three years of the base contract and three optional renewal years, Abacode's "Per-District Grand Total Cost" was $68,350, meaning that, even ignoring the lab schools, the gross price would slightly exceed $4.5 million, if all 67 school districts chose Abacode's Monitoring Tool for six years. Abacode offered a 15% discount in the unlikely event that all 73 school districts and lab schools chose to use its Monitoring Tool. Veratics did not alter the price form and offered a "Grand Total Cost" of $143,325.18 for the three years of the base contract and three optional renewal years. This appears to be a per-district price, so the gross price would slightly exceed $9.6 million, if all 67 school districts chose Veratics' Monitoring Tool for six years. NTT Data likewise completed the price form without alterations, showing a "Grand Total Cost" of $88,454 for the three years of the base contract and three optional renewal years. An additional page entitled, "Additional Pricing Detail" confirms that the "Grand Total Cost" is a per-district price, so the gross price would slightly exceed $5.9 million, if all 67 school districts chose NTT Data's Monitoring Tool for six years. Negotiations with the three vendors commenced in late October 2018. During negotiations, Respondent's negotiating team realized that the ITN failed to convey adequately Respondent's requirement to receive the notifications that the Monitoring Tool transmits to the contracting school district, as vendors had not included this service in their price replies. At some point, the negotiating team also realized that the price form was ambiguous as to per-district or gross pricing. On November 13, 2018, Respondent's procurement officer sent to a member of the negotiating team a draft revised price form that specified per-district pricing for the base years, but not for the optional renewal years. After further revisions by the recipient of the email, Respondent distributed a revised price form to the three vendors, but not the five vendors that it had not selected for negotiations. As applicable to both the base and optional renewal periods, the revised price form requires an annual price for notifications to Respondent; a one-time price for the "Initial Districts [sic] first six (6) months"; and "Costs per additional district," which are classified by "Small," "Medium," and "Large." The revised price form also includes a list of all 67 districts with their 2017-18 enrollments and classifies each district as "Small," "Medium," or "Large." The three vendors timely submitted revised price replies with the following "Grand Total Costs": Abacode-- $4.6 million, Veratics--$34.4 million, and NTT Data--$6.0 million. The price replies of Abacode and NTT Data increased by relatively modest amounts, but the price reply of Veratics, which increased by nearly $25 million over the six years of the procured service, itemized about $5.5 million for the first year. Hurdling past the $3 million authorized for the procurements of the Monitoring Tool and a centralized data repository, Veratics implicitly eliminated itself as a vendor. On December 10, 2018--nine days after the statutory deadline for making the Monitoring Tool(s) available to school districts--Respondent issued a Notice of Intent to Award the contract to Abacode. Petitioner timely filed a Notice of Protest and Formal Written Protest, which includes a Petition for Administrative Hearing. The petition details, among other things, the ambiguity in the original price form as to per-district or gross pricing and alleges that Respondent failed to perform the necessary conversions to compare price replies accurately. Addressing the negotiations, the petition notes, among other things, that the three selected vendors were allowed to change their price replies and submitted what the petition describes only as "higher" pricing--certainly, a charitable understatement as applied to Veratics. For relief, Petitioner requested recommended and final orders directing that Respondent award the contract to Petitioner, "or, alternatively, that [Respondent] reject all Replies and conduct a new procurement." On January 3, 2019, Respondent did just that: Respondent issued an Amended Agency Decision rejecting all replies and advising that it would reissue the ITN in a second attempt to procure the Monitoring Tool. However, Petitioner timely filed a Second Notice of Intent to Protest and Formal Written Protest, as well as the Petition, which, as noted above, requests a recommended order awarding the contract to Petitioner. Due to the school-safety issues involved in the subject procurement, Commissioner of Education Richard Corcoran issued a memorandum on February 13, 2019, authorizing Respondent to proceed with the second procurement "to avoid an immediate and serious danger to the public health, safety or welfare," as provided by section 120.57(3)(c). On the same date, Governor Ron DeSantis issued Executive Order 19-45, which, among other things, characterizes as "unacceptable" Respondent's failure to meet the December 1 statutory deadline and orders Respondent to "immediately take any and all steps necessary to implement [the Act] to provide . . . [the Monitoring Tool] . . . by August 1, 2019." The new invitation to negotiate is similar to the ITN, except that its definition of "Notifications" in the scope of services clearly defines the need to transmit notifications to Respondent, as well as to the contracting school district, and the price form in Attachment B bases the evaluation on gross prices. Respondent's decision to reject all replies is supported by five facts: 1) the irrational scoring of Petitioner's reply by one evaluator; 2) the potential confusion caused among potential vendors, including the eight vendors that submitted replies, by the ambiguity contained in the price form in Attachment B; 3) the revision of the price form for the three selected vendors to clarify that the pricing was on a per-district basis; 4) the effective loss of one of the three selected vendors upon receipt of pricing replies to the revised price form; and 5) the capacity to resolve the then-pending protest by acceding to Petitioner's demand for a reject-all decision. As for the first reason, Petitioner objected at hearing to testimony from one of Respondent's witnesses pertaining to this matter because, on deposition, Respondent's agency representative failed to identify the irrational scoring as a factor in the reject-all decision. As discussed in the Conclusions of Law, section 120.57(3)(f) requires a determination of whether an agency's reject-all decision "is," not "was," arbitrary. Thus, all facts may be considered, regardless of whether an agency witness cited them in a deposition or, more broadly, whether an agency cited them at the time of making the reject-all decision. Additionally, despite the failure of the deposition witness to identify this factor, Petitioner mentioned in the Pre-hearing Stipulation "incorrect evaluations" by at least one evaluator, so Petitioner was aware of this basis for the reject-all decision, even though Petitioner may not have been aware that Respondent relied on this factor in making the reject-all decision. As for the third reason, as noted above, the ITN permits Respondent to negotiate new items and, if so, obtain revised price replies from the vendors with which it is negotiating. These provisions cover the addition of the notification to Respondent, which Respondent substantially omitted from the ITN. However, resolution of a basic element of any bid2/ solicitation--here, whether the price form calls for per-district or gross pricing--does not fall within these provisions, so Respondent's decision to provide this revision only to the three selected vendors raises competitive concerns. As for the fourth reason, the ITN permits Respondent to have selected two vendors for negotiations in the first place. But this does not mean that the effective loss of a selected vendor is not available as a legitimate reason to reject all replies. Also, Veratics' jarring price increase indicates either that one of the successful vendors failed to appreciate the scope of the procurement or did not wish to participate in the procurement any further--either reason signaling a potential problem with the procurement, so that Respondent rationally may have decided to reject all replies. As for the fifth reason, Respondent had already missed the December 1 statutory deadline, and a reject-all decision represented the quicker route to completing this procurement because of the above-cited flaws in the initial procurement; the school-safety issue, which authorizes the immediate commencement of a second procurement for the Monitoring Tool; and, as discussed in the Conclusions of Law, a reject-all decision is easier to defend than an award decision. In the Pre-hearing Stipulation, Petitioner requested relief in the form of a reopening of the procurement process following a clarification from Respondent--presumably, as to the pricing ambiguity in the original price form and the need to provide notifications to Respondent; an opportunity for all eight vendors to submit new replies; and the scoring of the new replies. First, Petitioner did not seek this relief in its initial petition protesting the award decision or even in the Petition protesting the reject-all decision. So, when making the reject-all decision, Respondent was acceding to the only alternative posed by Petitioner that did not result in an award to Petitioner. By doing so, as explained above, Respondent rationally pursued an expeditious resolution of the then-pending protest and, thus, the procurement of the Monitoring Tool. Had Respondent chosen an option not presented by Petitioner, Respondent had no assurance that its choice would have induced Petitioner to dismiss its first protest. Second, even if Respondent should have assumed that a restart of the first procurement would have resolved Petitioner's then-pending protest, as it accomplishes the same thing as a reject-all decision followed by a rebid, the focus is on whether Respondent made a rational choice, not whether it made the best choice. By this point, at least, Respondent was trying to hurry along the procurement, and a reject-all decision would achieve this end, even if a restart of the first procurement might have been resulted in an earlier award. Under the circumstances, Respondent's decision in January 2019 to cut its losses and reject all replies, clean up the documents, and rebid the procurement is not arbitrary. As discussed in the Conclusions of Law, no further analysis is required of Petitioner's claim that the reject-all decision is arbitrary for the additional reason that the sequence of events--an award decision, a reject-all decision, and a rebid--has resulted in the disclosure of each vendor's reply and undermined the integrity of the procurement process. The point is that the reject-all decision is rational--not, as discussed above, whether Respondent could have made a better decision or, in connection with a claim of arbitrariness, whether the effect of the agency's decisionmaking sequence may also have undermined the integrity of the procurement process.
Recommendation It is RECOMMENDED that the Department of Education enter a final order dismissing the Petition. DONE AND ENTERED this 17th day of April, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 17th day of April, 2019.
The Issue The issue in this case is whether the Respondent, School Board of Broward County, Florida (Respondent or Board) may require bidders to comply with specifications and conditions for a bid solicitation that pertains to audiovisual, photographic equipment and related supplies, and computer peripherals as set forth in, and identified as, Invitation to Bid No. 27-040N. The Petitioner, Audio Visual Solutions Corporation (Petitioner), timely filed a challenge to the bid specifications and conditions for the subject acquisition.
Findings Of Fact The Petitioner is a corporation that deals, resells and provides audio, video, and conferencing equipment to various entities throughout the state. The Petitioner represents a number of trade names in the electronics industry and serves educational and governmental markets in the State of Florida. The Petitioner holds contracts to provide electronic equipment to the Respondent at the present time. As part of its ongoing operation, the Petitioner routinely responds to bid invitations and solicitations such as the one at issue. The Petitioner’s standing to challenge the specifications in the instant matter is not disputed. In the instant matter, the Petitioner received the ITB for the Respondent’s bid No. 27-040N and began a detailed review of the general, special, and other specifications set forth in the ITB. The Petitioner determined it would evaluate the overhead expenses required, labor and documentation, invoicing, delivery, and other specifics that would play a part in pricing the products for response to the ITB. At all times material to the allegations of this protest, the Respondent was the entity charged with the responsibility of acquiring goods and services to support the operation of the public schools in Broward County, Florida. Respondent was the appropriate entity with whom the protest should have been filed as it was the procuring entity for ITB No. 27-040N. The Respondent bears the ultimate burden for all procurement necessary to operate the public schools for Broward County, Florida. The review process used by the Petitioner in this case is the same process it has utilized in the past when it has successfully obtained contracts with the Respondent. The bid evaluation Petitioner performs is necessary to determine whether the ITB is within the scope of its operations. On or about April 24, 2006, the Petitioner forwarded a Notice of Intent to Protest regarding certain Special Conditions of the subject ITB. The Petitioner filed its notice within 72 hours of receipt of the ITB. On May 4, 2006, as the wording for the disputed Special Conditions remained unresolved, the Petitioner filed a Formal Written Protest to contest the conditions and specifications of ITB No. 27-040N. The Respondent has not disputed the timeliness of the instant protest. Throughout the pre-hearing process, the parties met and continued efforts to resolve the disputed points. As set forth in the Joint Pre-Hearing Stipulation, disputes regarding Special Conditions 22, 23, 28, 29, 31, 32, 33 and 34 were resolved during the School Board Bid Protest Meeting or immediately prior to the formal hearing. The findings and resolutions set forth regarding the challenge to each of those Special Conditions are set forth in the Joint Pre-Hearing Stipulation and are adopted here by reference. At hearing, left unresolved were the Petitioner’s challenges to Special Conditions 3, 18, 20, and 27 of ITB No. 27-040N. In the ITB at issue, “SBBC” refers to the Respondent. The Petitioner challenged Special Condition 3 for several reasons. That provision stated: AWARD-For Bid Items 1 through 38: In order to meet the needs of the school system and SBBC, each ITEM shall be awarded to one primary and up to two alternate responsive and responsible bidders meeting specifications, terms and conditions. The lowest awardee in an item or group shall be considered the primary vendor and should receive the largest volume of work. SBBC reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) it is in the best interest of SBBC to do so regardless of reason. For Bid Item 39: In order to meet the needs of SBBC, awards will be made to all bidders who submit a catalog and offer a discount or net pricing from the most current vendors catalog/price sheet. These bidders shall then be in a favorable position to compete for the Board’s business, and those who offer lowest net prices for those items, that comply with the specifications and otherwise meet requirements, should obtain the largest volume of business. After award of this bid, any bidder receiving an award who violates any specification, term or condition of this bid can be found in default of its contract, have its contract canceled, be subject to the payment of liquidated damages, and be removed from the bid list and not be eligible to do business with this School Board for two years, as described in General Conditions 22, 23 and 53. (Emphasis in original). At hearing, the Respondent agreed that the words “regardless of reason” in the first section of Special Condition 3 would be deleted. The other concerns regarding this provision were not resolved. Thus, for the items to be procured the remaining terms of this provision would be applicable. The ITB sought responses for various items of equipment by unit price. For example, Item 1 of the ITB identified the equipment sought as “Multi-Media Projector: UltraPortable Low-End.” The bid summary sheet provided that an approved model for the item would be an Epson E3. Further, the quantity listed was for 2000. A bidder would be expected to provide the unit price, the total price (presumably applying that unit price to the volume sought), and then disclosing what percentage the unit price has been discounted off the manufacturer’s list price. For each of the 38 items identified by the ITB, a bidder would be required to provide all of the requested information. As to Item 38, the bidder was required to include quotes for multiple components of the item. The Petitioner maintains that Special Condition 3 does not conform to the Florida Administrative Code. Specifically, Petitioner believes that an award to multiple bidders violates Florida Administrative Code Rule 6A-1.012. The Petitioner also believes that Special Condition 3 violates a policy of the Broward County Purchasing Policy rules. Specifically, Petitioner argues that Respondent’s policy set forth in Purchasing Policy 3320 requires a single award. Essentially, the Petitioner contends that multiple awardees are not acceptable as the Respondent is required, by law, to award the contract to the lowest and best responsible and responsive bidder. When multiple awards are made the Respondent is not selecting the lowest and best. Therefore, for each item identified the Respondent should select the lowest and best responsible and responsive bid. Similarly, as it relates to Special Condition 3, Item No. 39, an award will be made to all bidders who submit a catalog and offer a discount on pricing from the most current vendor’s catalog/pricing sheet. Again, if all bidders are accepted, no one bidder will be identified as the lowest and best responsive and responsible bidder. Additionally, since some vendors use the same catalog, the lowest (or greatest percentage discount) bidder is not well served since all bidders will know the percentages (once the bid is opened). Disclosing the percentage will not assure that the Respondent will receive the item at the lowest possible price since the Respondent is not obligated to use the catalog of the lowest priced bidder. Further, a vendor using a catalog that has prices that are higher (for the same item) can offer a higher percentage discount and not affect the overall net to them. For every purchase the Respondent would have to compute the item price and apply the discount before the real cost could be known. The Petitioner challenged Special Condition 18. In pertinent part, that provision stated: VOLUME DISCOUNT: Through history, it is known that SBBC purchases the same item in high volume. In order for SBBC to leverage a pricing advantage, bidders are to provide, on the bid summary sheet, the lowest net price for purchasing a minimum of one. Additionally, SBBC will release quotes to awardees for volume purchasing and request the best and the lowest net price for ordering the quantity of items indicated on released quotes. The awardee that offers the lowest cost will be awarded that quote. This provision is offensive to the Petitioner because it allows the second bite of the apple. That is, by requiring the bidders to disclose their pricing for this ITB and then allowing all awardees to come back after-the-fact with a second “quote” does nothing to assure that the competitive pricing inherent in the bid process has been protected. Any awardee could, after seeing the pricing offered by the competition, know the discounts applied by the competition. This process according to the Petitioner defeats the purpose of finding the lowest bidder at a fixed point in time. The ITB responses merely create a pool of potential winners. So long as a bidder was lowest on one item, it will be assured an opportunity to “quote” on all purchases (and will do so having the competition’s best numbers). Who would offer their best prices on all items in response to this ITB? No one. The bidder that offers (at whatever low price) the best price on any single item is designated an “awardee” and gets to try to defeat the competition on each “quote” subsequently announced. Moreover, the “quotes” are not guaranteed the same protections as the sealed bid process. Consequently, the Respondent may purchase thousands of dollars of items without being assured that they were given the lowest and best price. The “quotes” may exceed $25,000. Special Condition 20 was also challenged by the Petitioner for the same reason. That provision states, in pertinent part: QUOTES: SBBC anticipates the procurement of bundled classroom solutions with installation. Therefore, SBBC reserves the right to solicit quotes for these solutions at any time during the contract period. The quotes will only be released to awardees of this contract. The models that become components of the solution must be the same models that were awarded as a specific item. However, there is no guarantee that an awardee of a model of a component of the solution will be the awardee of the quote. SBBC is opening competition to all awardees of this contract to offer the best pricing for these solutions. Section 5, Additional Information, Bundled Classroom Solutions includes a form that bidder is to complete and return with the bid. Bidder is to state if it wants to receive quotes, and if it has the capability to provide the necessary licensing and certifications associated with installation and wiring, not to include, high voltage electrical installation. Awardee of the quoted solution will be solely responsible for any issues related to the installation and minimum three [sic] warranty period of the bundle. Additionally, bidder must have an established working relationship with an SBBC awarded high voltage electrical company. This form is a questionnaire that is for informational purposes and will not be considered in determining award. Special Condition 27 provides: BALANCE OF LINE ITEM DISCOUNT (ITEM 39): SBBC encourages all awardees for this item to offer SBBC additional discounts for volume purchases of like items. SBBC reserves the right to release quotes for large catalog volume purchases. Bidders are required to offer a balance of line single, fixed percentage discount for equipment ($1000.00 or greater) and supplies (under $1000.00) off bidders catalog for any Audiovisual, Photographic Equipment and Related Supplies, and Computer Peripherals not itemized on the Bid Summary Sheets. This percent must be stated in the Bid Summary Sheet. An omission from this entry will be considered as a 0% discount offered from catalog. The single fixed percentage discount quoted by bidder shall apply to the catalog list price for all catalog items. This percentage discount does not include the itemized equipment listed on the Bid Summary Sheet. Items excluded from single fixed percentage discount should be listed on a separate piece of paper. These items will be excluded and should not be purchased. In the event a bidder handles catalog items that carry a little or no percentage, this fact shall be taken into consideration and percentages offered shall be a single fixed percentage discount for each category (supplies and equipment) and catalog. Awardees may offer SBBC additional educational discounts at any time and invoice SBBC at a greater discount than their bid discount. According to the Petitioner, bundled solutions have the possibility and the likelihood of exceeding $25,000. If so, the requirement for sealed bids by allowing only quotes would be circumvented. The Respondent seeks to obtain the needed equipment at the lowest possible cost to the School Board. By using the “quotes” procedure it believes it will achieve a lower cost per item purchased. The “quote” procedure to be used does not, however, allow entities not within the “awardee” group to participate. If the purpose of the “quote” is to secure the lowest possible price at a fixed point in time (at a point in time future to the ITB opening), the possible savings available through another entity outside those within the “awardee” class is lost. Further, members of the “awardee” class have no incentive to provide their lowest price for all items bid in response to this ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order amending the specifications challenged to assure that the award of the items will be to a single lowest and best responsible and responsive bidder. The Petitioner’s challenge to the provisions must be sustained as a matter of law. S DONE AND ENTERED this 30th day of October, 2006, in Tallahassee, Leon County, Florida. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2006. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mitchell D. Adler, Esquire Greenspoon Marder, P.A. Trade Centre South, Suite 700 100 West Cypress Creek Road Fort Lauderdale, Florida 33309-2140
Findings Of Fact Petitioner, J. D. Pirrotta Company (JDP), is a general contracting company located in Orlando, Florida. JDP has bid on projects involving construction of schools or educational facilities, including projects for Valencia Community College. Respondent, District Board of Trustees of Valencia Community College, is the governing body of the community college, with the authority to award contracts. Valencia Community College (VCC), in Bid #90/91-06, advertised for sealed bids for interior remodeling and renovation of existing buildings' modules 3 and 5, on its west campus on South Kirkman Road, in Orlando, Florida. The sealed bids were due at or before 2:30 p.m., on December 13, 1990, in the purchasing department of VCC, 190 South Orlando Avenue, Suite 402B, Orlando, Florida 32801. The Invitation to Bid includes a voluminous project manual containing instructions to bidders, various forms, a standard contract text and detailed specifications. A separate bid packet contains the set of drawings for the construction work. The advertisement of the Invitation to Bid, and Section 00100 of the Project Manual, Instructions to Bidders, paragraph 14A, reserve for the owner the right to reject any or all bids and to waive any and all "informalities". (Respondent's Exhibits #1 and #2) Section 00100, Instructions to Bidders, paragraph 18, provides: 18. SUBCONTRACTORS, ETC. The bidders at bid date shall submit to Owner a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of material and equipment) proposed for those portions of the work as to which such identification is so required. Such list shall be accompanied by an experience statement with pertinent information as to similar projects and other evidence of qualifications for each such subcontractor, person and organization if requested by Owner. If Owner, after due investigation has reasonable objection of any proposed subcontractor, other person or organization either may, before giving the Notice of Award, request the apparent successful bidder to submit an acceptable substitute without an increase in bid price. If the apparent successful bidder declines to make any such substitution, the contract shall not be awarded to such bidder, but his declining to make any such substitution will not constitute grounds for sacrificing his bid security. A subcontractor, other person or organization so listed and to whom Owner does not make written objection prior to the giving of the Notice of Award, will deemed acceptable to Owner. Should the subcontractors list be revised, for any reason, architect and Owner shall be immediately notified. (Respondent's Exhibit #2) Paragraph 9, Section 00300, the bid form, provides: The following documents are attached to and made a condition of the Bid: Required Bid Security in the form of a Bid Bond. A tabulation of subcontractors and other persons and organizations required to be identified in this Bid. Required Bidders Qualification Statement with supporting data. (Respondent's Exhibit #2) Section 00700, the Public Entity Crimes statement form, includes these instructions: Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy/copies of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. (Respondent's Exhibit #2) The Instructions to Bidders and the drawings include a total of ten deductive alternatives to be addressed in the bids, to afford VCC some flexibility in the event the base bid might be higher than the agency's available funds. In response to the advertisement and request for sealed bids, VCC received bids from the following seven contractors: Seacoast Constructors and Consultants; JDP; Southland Construction, Inc.; Harbco, Inc.; Technical Design Systems, Inc.; Hembree Construction, Inc.; and Waltree Construction, Inc. The bids were opened publicly and read aloud beginning shortly after the submittal deadline on December 13, 1990. Jack C. Crawford, Vice-President for Administrative Services, and Stephen Richard Childress, Purchasing Manager, participated in the bid opening on behalf of VCC. Seacoast Constructors was the lowest bidder, at $1,274,000.00, base bid; JDP was the second lowest bidder, at $1,297,000.00, base bid. None of the bidders submitted bids containing all of the requested or required information. None of the bidders included a deduct alternative requested by Drawing E-10, General Notes number 2. Only JDP included the deduct alternative requested by Drawing E-6, General Notes number 2. Seacoast Constructors and Consultants failed to include Form PUR 7068, Public Entity Crimes statement, with their bid, but it executed and submitted the form to VCC on December 13th, the date of the opening. Two of the bidders, JDP and Harbco, failed to submit subcontractor lists with their bids. At the time of hearing, JDP had still not submitted its list. For this project the low base bid is within VCC's available funds, and it does not intend to rely on any of the deduct alternatives in the bids. Following the bid opening, the bid tabulation form was posted on a bulletin board in the administration building. A copy of the tabulation form was also placed in a folder which includes recommendations on other bids and which is maintained at the desk of the security guard outside the room where the bids are opened. Inside the front cover of the folder, in the bottom left hand corner, is a small typewritten statement: Failure to file a protest within the time described in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. There is no evidence of any other notice of section 120.53, F.S. remedies to bidders, including in the advertisement or in instructions to bidders. JDP filed a written bid protest in a letter dated December 13, 1990 and received on December 14, 1990. The letter clearly states that it is a formal protest, pursuant to Section 120.53(5), F.S. It argues that bids submitted by Seacoast Constructors and others were unresponsive and should be rejected for failure to include the Public Entity Crimes Statement, for failure to bid on a deduct alternative, and for other reasons (immaterial, because they apply to higher bidders). The protest letter requested award to JDP. JDP met with representatives of VCC to attempt to resolve the protest. At the meeting, Joseph Pirrotta was informed that his bid was considered nonresponsive because it failed to include a subcontractors' list. The meeting did not resolve the matter, and on December 19, 1990, Joseph Pirrotta sent a follow-up letter arguing that the text of the bid instructions only require a subcontractors' list for "...portions of the work as to which such identification is so required", and nowhere in the bid packet was any reference to which were required. JDP considered that the subcontractors' list was, therefore, unnecessary. The December 19th letter also reiterated JDP's request to reject the other bids and to award the contract to JDP. The December 13th and 19th letters are the only written protests by JDP. VCC has previously awarded contracts to bidders who failed to submit a Public Entity Crimes Statement with their bid. It considers such failure an "informality" subject to waiver. It considers failure to submit a list of subcontractors an economic advantage with respect to other bidders. Representatives of VCC have recommended to its board that the contract be awarded to Seacoast Constructors, the lowest bidder.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the District Board of Trustees of Valencia Community College enter its final order awarding the contract in Bid #90/91-06 to Seacoast Constructors and Consultant, and rejecting the protest of J.D. Pirrotta Company. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 25th day of February, 1991. COPIES FURNISHED: Leslie King O'Neal, Esquire P.O. Drawer 1991 Orlando, FL 32802 Jeffrey S. Craigmile, Esquire Brian P. Kirwan, Esquire 390 N. Orange Ave., Ste. 2180 Orlando, FL 32801 Jack C. Crawford Vice President Administrative Services Valencia Community College P.O. Box 3028 Orlando, FL 32802
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
