STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WALTON COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 99-2522
)
LINDA RUSHING, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal hearing was conducted in this case on
September 29-30, 1999, in DeFuniak Springs, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.
APPEARANCES
For Petitioner: Joseph L. Hammons, Esquire
Hammons & Whittaker, P.A.
17 West Cervantes Street Pensacola, Florida 32301
For Respondent: David A. Simpson, Esquire
Simpson & Simpson, P.A.
909 Mar Walt Drive, Suite 1024
Fort Walton Beach, Florida 32547-6757 STATEMENT OF THE ISSUE
The issue is whether Petitioner Walton County School Board (Petitioner) had good cause to reject Superintendent Jack Bludworth's (Superintendent) nomination of Respondent Linda Rushing (Respondent) for an annual administrative contract to
fill the position of Exceptional Student Education (ESE)
Coordinator.
PRELIMINARY STATEMENT
On May 13, 1999, Petitioner voted to reject the Superintendent's recommendation to renew Respondent's annual administrative contract to fill the position of ESE Coordinator.
By letter dated May 26, 1999, Respondent requested an administrative hearing. Petitioner referred the case to the Division of Administrative Hearings on June 7, 1999.
On June 24, 1999, the undersigned issued a Notice of Hearing, scheduling this matter for hearing on September 29, 1999.
On July 15, 1999, Petitioner filed a Motion for a Prehearing Conference. The motion sought a conference to ensure that all parties had adequate notice of the issues to be resolved at the formal hearing. Pursuant to the agreement of the parties, the undersigned conducted a telephone conference on July 20, 1999. The undersigned subsequently entered an Order Requiring Statement of Cause on July 21, 1999.
On August 6, 1999, Petitioner filed a Statement of Good Cause. Respondent filed a Motion to Strike this statement on August 16, 1999.
On September 3, 1999, Respondent filed an excerpt of the Transcript of the Petitioner's May 13, 1999, public meeting.
The undersigned heard oral argument on Respondent's Motion to Strike in a telephone conference on September 7, 1999. On September 8, 1999, the undersigned issued an Order Granting in Part Respondent's Motion to Strike. That same day, Petitioner filed an Amended Statement of Good Cause.
On September 22, 1999, the undersigned issued an Amended Notice of Hearing, advising the parties of a change in the location of the hearing.
On September 23, 1999, Respondent filed a unilateral Prehearing Stipulation.
The two-day hearing commenced on September 29, 1999. As a preliminary matter, Respondent made an ore tenus motion to
strike or dismiss Petitioner's Amended Statement of Good Cause. The undersigned reserved ruling on Respondent's motion pending completion of the formal hearing. That motion is hereby granted in part and denied in part. It is granted to the extent that Petitioner's Amended Statement of Good Cause exceeds the scope of the reasons expressed by Petitioner's members as constituting good cause to reject Respondent's nomination.
Petitioner presented the testimony of six witnesses.
Petitioner offered 25 Exhibits, 24 of which were admitted into the record as evidence. As allowed, Petitioner never filed its Exhibit P23 as a posthearing submission.
Respondent testified on her own behalf and presented the testimony of 10 other witnesses. She offered 35 Exhibits, which were accepted into the record as evidence.
At the conclusion of the hearing, the undersigned granted the parties additional time to file posthearing depositions in lieu of testimony at trial. On October 21, 1999, Respondent filed Cindy Jeselnik's deposition with attached exhibits.
Petitioner filed Mary Watson's deposition on October 26, 1999. On November 22, 1999, Respondent filed Rosemary Raigle's deposition.
The court reporter filed the Transcript of the proceeding on October 20, 1999. The parties filed their Proposed Findings of Fact and Conclusions of Law on November 1, 1999.
FINDINGS OF FACT
Respondent holds Florida teaching certificate number 595971. She is certified in elementary education, emotionally handicapped education, and school guidance. She received a Bachelor of Science degree in emotionally handicapped education from the University of West Florida and a Master of Education degree in mental health counseling from Troy State University. She is currently seeking a Doctorate of Education in Alternative Education/At Risk Education from the University of West Florida.
Respondent has six years of classroom experience as a teacher of emotionally handicapped students. She served as a
guidance counselor for three years, two of which included working with ESE students. Respondent served as Petitioner's ESE Coordinator from March 16, 1998, to June 30, 1999. Prior to that time, she had no experience working as an administrator.
As ESE Coordinator, Respondent was responsible for the administration of Walton County School District's (the district) special education department. Her duties included the direct supervision of employees assigned to that department. She was required to work with teachers and special education professionals throughout the district to identify ESE students who were eligible for services pursuant to the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). Additionally, she was responsible for ensuring that the district provided each ESE student with an appropriate education under an individual education plan (IEP) as required by IDEA and Section 504.
The failure to follow state and federal regulations to properly identify and educate ESE students could result in significant financial repercussions for the district. Therefore, Respondent was required to interact with the Superintendent and Petitioner to make sure that the district complied with these regulations.
The Superintendent took office in November 1996. Jerry Jones, Donnie Richardson, and Darrell Barnhill were elected to
the five-member school board in November 1998. Susan Adkinson and Mark Davis retained their positions as school board members, having been elected in a previous election. After the November 1998 election, Petitioner elected Mr. Jones to serve as its chairman.
Ms. Bebe Whitehead was in charge of the ESE department for several years until she retired early in 1998. Upon her retirement, Ms. Cindy Jeselnik, formerly the ESE staffing specialist for secondary students, became the interim ESE director. Ms. Jeselnik is certified by the Department of Education (DOE) in the areas of health education, school guidance, and administration and supervision. She has a Master of Education degree in administration and supervision.
Ms. Jeselnik has worked for the district for approximately 13 years.
After Ms. Whitehead's retirement, Ms. Nancy Holder continued to work in the ESE department, as the district's only school psychologist. Ms. Holder had served in that position for approximately 16 years. Her prior work experience includes 11 years as a teacher of emotionally handicapped students in Holmes County. She has a bachelor's degree in intellectual disabilities, a master's degree in school psychology, a specialist degree in educational leadership, and a specialist degree in curriculum instruction. She needs to take three
classes and write a dissertation in order to receive a doctorate degree. As a certified school psychologist, Ms. Holder was employed under an administrative salary schedule, earning approximately $50,000 annually.
When Ms. Whitehead retired, Ms. Cecilia Bishop Jones continued to serve as the district's ESE Pre-Kindergarten Coordinator. Her duties included working as the Child Find specialist and providing direct instruction to pre-kindergarten ESE students as a speech teacher. She played an integral role in the referral process to determine the eligibility of pre- kindergarten students for participation in the ESE program. At times she signed IEPs as the speech pathologist. She had served in that capacity since 1994, when James King, the district's superintendent from June 27, 1994, through November 18, 1996, nominated her to fill an approved position as a speech/language pathologist. 1/ Her prior work experience included working for the district as an elementary school teacher.
Ms. Jones has a Bachelor of Arts degree in elementary and early childhood education. She is certified to teach in those areas. After her transfer to the ESE department, she began taking classes towards an undergraduate degree in speech pathology. In order to be certified as a speech pathologist, one needs to have a master's level degree in that area.
A target selection committee interviewed applicants to fill the position vacated by Ms. Whitehead. This committee was composed of education professionals from outside the area. The committee recommended Ms. Jeselnik, Ms. Holder, and Respondent as the number one, number two, and number three candidates, respectively. Presented with these three names, the Superintendent chose to nominate Respondent for ESE Coordinator. Petitioner approved the Superintendent's nomination on March 16, 1998.
Ms. Jeselnik was visibly upset when Respondent was hired as ESE Coordinator. For the remainder of the 1997/1998 school year, Ms. Jeselnik avoided contact with Respondent whenever possible. On May 27, 1998, Respondent performed
Ms. Jeselnik's "annual evaluation." Ms. Jeselnik complained to the Superintendent that it was the lowest evaluation she had ever received. In August 1998, the Superintendent granted
Ms. Jeselnik's request for a lateral transfer to the position of Student Services Coordinator. In her new position as the head of the student services department, Ms. Jeselnik was no longer under Respondent's supervision.
When Respondent became ESE Coordinator, she became concerned that Ms. Jones was functioning as an uncertified speech pathologist in violation of state and federal regulations. Due to that concern, Respondent informed Ms. Jones
that she would no longer serve as a speech teacher/therapist. Respondent immediately restricted Ms. Jones' duties to assisting with referrals to the ESE pre-kindergarten program. For the duration of the 1997/1998 school year, Ms. Jones worked in the ESE department as a Child Find specialist.
Respondent performed an "annual evaluation" of
Ms. Jones in June 1998. Shortly thereafter, Ms. Jones requested a lateral transfer to the student services department. The Superintendent granted this request in August 1998. Ms. Jones' new title became Resource Teacher for Early Childhood, Child Find, and Home Education. Primarily she continued to serve as a Child Find specialist.
There was no established position for a Child Find specialist in the ESE department or the student services department. Therefore, Ms. Jones' transfer created some confusion concerning the person responsible for performing her evaluations.
On May 27, 1998, Respondent sent the Superintendent a memorandum requesting that he place a revised school psychologist position description, together with terms of employment, on Petitioner's agenda for the upcoming meeting. The position description required the school psychologist to have a current Rank II teaching certificate and to be a specialist in the field. The position description required the
school psychologist to be responsible for all psychological testing in grades pre-kindergarten through 12, including all testing of ESE students.
The proposed terms of employment that Respondent submitted with the revised position description provided for a 12-month annual contract. The proposed salary was based on a range from $33,000 to $36,000, depending on the school psychologist's degree level and expertise in the field. A school psychologist with a master's degree would earn a base salary of $33,000. The salary range was not on a published salary schedule for instructional, administrative, or non- instructional personnel.
Petitioner considered the Superintendent's recommendation and approved the revised position description and terms of employment on June 9, 1998. Petitioner also authorized the Superintendent to advertise for a school psychologist to fill the position. The person hired to fill the position would have provided the district with a second school psychologist because Ms. Holder continued to hold her position in that capacity.
On or about July 15, 1998, Ann Farrior applied for the position of school psychologist as advertised pursuant to the revised position description. Ms. Farrior received her master's degree in school psychology in 1990. However, she did not
complete a school psychology internship because one was not required for certification in Florida at that time.
Ms. Farrior worked exclusively in private clinical practice until Petitioner hired her on an as-needed basis in 1996/1997. Under the 1996/1997 contract with Petitioner,
Ms. Farrior was a member of the child study team and acted as a referral agent for ESE students.
On July 20, 1998, Respondent and Ms. Holder interviewed Ms. Farrior for the school psychologist position. Ms. Farrior revealed that she was not certified in school psychology because she lacked 6 required courses and an internship. She also revealed that it would take approximately two years for her to achieve certification. Ms. Farrior stated that she held a two-year temporary certificate to teach in the subject area of psychology from July 1, 1996, through June 30, 1998. The interview team understood that Ms. Farrior was eligible to renew this two-year temporary certificate upon her employment with the district. The interview team noted that they needed to check with DOE regarding Ms. Farrior's credentials.
After the interview, Respondent and Ms. Holder agreed that they would recommend Ms. Farrior for the school psychologist position. They chose Ms. Farrior over two other applicants. One of those candidates was certified in school
psychology but had no work experience in the field. Respondent offered and Ms. Farrior accepted the job with a $33,000 annual salary.
On August 4, 1998, the Superintendent nominated Ms. Farrior for the new school psychologist position. The Superintendent believed Ms. Farrior was certified or eligible for certification when he made this nomination. Petitioner approved her employment effective retroactively to July 28, 1998.
On July 1, 1998, Zane Sunday became the district's personnel director. 2/ Soon after Ms. Farrior's employment, she requested that Mr. Sunday assist her in renewing her temporary certificate in psychology. 3/ Ms. Farrior wrote several memos to the district's personnel department regarding the request for issuance of her new temporary certificate from DOE. However, DOE never received such a request.
Shortly after assuming the position of ESE Coordinator, Respondent entered into negotiations with Vantage Healthcare Corporation, d/b/a Destin Health Care and Rehabilitation Center (DHC) for the provision of contract services, including speech/language pathology services and supervision, physical therapist services, and occupational therapist services.
The three written contracts state that the district shall pay $55.00 dollars per hour for all services provided. The services for a speech/language pathologist included "supervision of personnel, for speech therapy and related services which include the writing of IEP's [sic], attending staffings, and IEP review at assigned school." The services for a physical therapist and an occupational therapist included "administration and coordination of services, on-site services rendered, and education of personnel and families." All three contracts state that the district will reimburse DHC for mileage at .29 per mile.
During the negotiation of the contracts, Respondent reached a separate oral agreement with DHC that, in addition to the services specified in the contracts, the $55.00 per hour rate would include all time spent by the therapists in traveling from school to school. The written contracts did not express this separate oral agreement.
Respondent presented the written contracts to the Superintendent and Petitioner's attorney for their approval. She did not explain to them that the $55.00 per hour charge included the travel time of the DHC service providers. On the Superintendent's recommendation, Petitioner approved the three contracts on August 11, 1998. The contracts were effective August 1, 1998, through June 30, 1999.
Beginning in August 1998, DHC regularly submitted invoices to the district for payment that, without Petitioner's knowledge, included charges at the rate of $55.00 per hour for the driving time of DHC service providers. Respondent had the responsibility to review the invoices to ensure payment according to the contracts prior to submitting them to the finance department.
On or about August 10, 1998, Respondent gave Mr.
Sunday a personnel action form for Ms. Farrior. The form related to a "[n]ew" position needed due Board action on June 9, 1998. Ms. Farrior's position description and terms of employment were attached to the form. The terms of employment stated that the employment contract was for 12 months with a base salary of $33,000 for a master's level degree.
Mr. Sunday informed Respondent that the position description did not allow for a negotiated salary and that Petitioner could not have approved it as such. Mr. Sunday also said that Ms. Farrior was not entitled to an incremental increase in pay based on her experience because she was not a full-time employee when she worked for the district in 1996/1997. Ms. Farrior eventually agreed to work for $23,000 under a published instructional salary schedule.
In September 1998, Ms. Holder became the ESE department's Program Specialist/Staffing Specialist. The change
in her job description was due to Ms. Jeselnik's transfer to the student services department. In her new capacity, Ms. Holder no longer functioned as a school psychologist. Thereafter,
Ms. Farrior was responsible for all testing and diagnostic services in the district.
Ms. Frieda White-Crenshaw was a DHC speech pathologist. Pursuant to one of the contracts between Petitioner and DHC, Ms. White-Crenshaw's duties included supervising the district's speech therapists. In the fall of 1998, Ms. Jones was required to work with Ms. White-Crenshaw to determine whether pre-kindergarten students required additional referral services. Ms. Jones met with Ms. White-Crenshaw and parents in Child Find screenings and ESE eligibility meetings. Respondent was present during some of these meetings; she did not approve of Ms. Jones' attitude toward Ms. White-Crenshaw in these meetings.
On October 6, 1998, Mr. Sunday prepared a list of employees who were teaching or working in a field for which they were not certified. He compiled this list based on information furnished by school principals, supervisors, and department heads. Respondent did not report that Ms. Farrior was working as an out-of-field school psychologist. Mr. Sunday personally added Ms. Farrior's name to the list. Neither he nor Respondent contacted DOE to check Ms. Farrior's certification status. One
week later, Petitioner approved the list based on the Superintendent's recommendation. Petitioner was unaware that Ms. Farrior was functioning as an uncertified, out-of-field school psychologist.
Jim McCall has been the district's Finance Officer for
15 or 16 years. He is responsible for the district's financial accounts, including budget and payroll. He is also responsible for paying invoices as Director of Purchasing. Occasionally, school board members request Mr. McCall to answer questions regarding the district's financial accounts.
Petitioner is required to approve monthly voucher reports and the annual financial report. The Superintendent and Petitioner's chairman co-sign checks issued by the district. Usually a signature machine imprints their signatures on each check. The Superintendent has always followed this practice.
When Mr. Jones first became Petitioner's chairman, he elected to sign each voucher personally. He also reviewed each invoice or statement before signing his name to a check in payment of a bill.
On November 17, 1998, Mr. McCall sent Respondent a memorandum requesting copies of all ESE telephone and fax logs for the period beginning August 1, 1998 through November 17, 1998. Mr. McCall made the request on behalf of a school board member.
Subsequently, Mr. McCall informed Respondent that the school board member making the request was Mr. Jones. Mr. McCall also informed Respondent that Mr. Jones had not requested similar records from any other department. However, it was a routine practice for Mr. McCall to request administrators to furnish other types of records in order to satisfy concerns of individual school board members.
On November 18, 1998, the speech therapist at Butler Elementary School (BES) went on emergency maternity leave. Respondent and BES's principal could not locate a substitute speech therapist. In order for there to be no interruption of speech therapy services at BES, Respondent and DHC entered into a oral agreement for DHC to provide those services for $440.00 per day, inclusive of all expenses.
On November 23, 1998, Respondent wrote a memorandum to Mr. McCall refusing to provide the ESE department's telephone and fax logs to Mr. Jones unless Petitioner's attorney or Petitioner, as a collective body, directed her to comply with the request. Respondent quoted Petitioner's policy regarding the lack of authority for school board members to act individually, including as a district administrator. Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission.
On November 23, 1998, Respondent sent the Superintendent a memorandum requesting that he place a proposed contract with DHC on the agenda for Petitioner's next meeting. The purpose of the contract was to fill a vacancy at West DeFuniak Springs Elementary School (WDSE) due to the sudden resignation of the speech/language pathologist. The proposed contract stated that the district would pay DHC $300.00 per day for all services provided by DHC's certified speech pathologist. The contract did not include any reference regarding the district's obligation to pay mileage expense. The contract stated that it was effective beginning October 5, 1998, through May 28, 1999.
On November 24, 1998, Respondent wrote an addendum to her prior memorandum regarding Mr. Jones' request for the ESE department's telephone and fax logs. This document states:
On the date of November 23-24, 1998 I communicated with Mr. Mike Dill, Regional Director of the Federal Bureau of Investigation regarding your request for 'a copy of all telephone and fax logs for the time period of August 1st - November 17th, 1998.' I was directed by Special Agent Dill not to release these records. Therefore, I will comply with Mr. Dill's recommendation. In addition, independent legal counsel will be contacted for representation at this time, as well. (emphasis in original)
Respondent sent a copy of this memorandum to the Superintendent, Petitioner's attorney, all school board members, DOE staff members, and DOE's Professional Practices/Ethics Commission.
In a subsequent public meeting, Mr. Jones questioned Respondent about her November 24, 1998, memorandum. She responded orally, stating that she had talked to a Federal Bureau of Investigation (FBI) agent. According to Respondent, the FBI agent had directed her not to release the records sought by Mr. Jones.
On November 30, 1998, DHC's speech pathologist provided one day of speech therapy to the students at BES. These services were provided under the oral contract between Respondent and DHC.
On or about December 7, 1998, the speech therapist on emergency maternity leave from BES was granted additional maternity leave. Her maternity leave was extended through February 15, 1999. DHC's speech pathologist continued to provide speech therapy at BES under the oral contract.
Respondent knew that DOE staff would perform an audit to determine the district's compliance with state and federal regulations under IDEA and Section 504 during the 1997/1998 school year. The audit was scheduled for sometime in April 1999. Respondent was concerned because many ESE records for the prior year were deficient, showing that the district had not
followed proper procedures in identifying and educating ESE students. In an effort to prepare for DOE's audit, Respondent requested technical support from a DOE pre-audit team.
On December 8, 1998, Judith Smith and Cathy Bishop, DOE staff members, performed the pre-audit. During their one- day visit, they examined the records of six ESE students at Freeport High School and two ESE students at Walton Middle School.
On or about December 8, 1998, school board member Darrell Barnhill signed a memorandum regarding a proposed amendment to the proposed contract with DHC for speech pathologist services at WDSE. In pertinent part, Mr. Barnhill's proposed amendment inserted additional language to clarify that the $300.00 per day charge included full payment for mileage expenses and any other incidental expenses associated with DHC's provision of the services. By way of background, Mr. Barnhill noted that an emergency need for speech therapy services had existed at WDSE since October 5, 1998. He concluded that consideration of the contract was presented to Petitioner in an untimely fashion. Sometime thereafter, Petitioner approved this contract as revised.
On December 14, 1998, Respondent sent the Superintendent, Mr. Jones, and FBI agent Mike Dill, a memorandum regarding the request for her to produce copies of the ESE
department's telephone and fax logs. For the first time, Respondent explained that she did not comply with the request immediately because she was attempting to seek expert advice concerning the confidentiality of information related to ESE students and their families. The memo states in pertinent part:
During this time period, I was misinformed through a third party that FBI agent Mike Dill had issued a directive to not release the requested logs - I acted on this information. I was informed on December 11, 1998, by Special Agent Dill that he had never issued those instructions and that, in fact, it was not a FBI matter.
In the memorandum, Respondent agreed to produce the records on December 16, 1998, after redacting all confidential information. 4/ She also apologized to Agent Dill and the members of the school board for any inconvenience or embarrassment that she may have caused. Respondent made this apology after Petitioner's attorney contacted the FBI and determined that Agent Dill had never communicated with Respondent.
On December 15, 1998, Mr. Jones made a walk-in visit to DOE's teacher certification office in Tallahassee, Florida. The purpose of the visit was to inquire about Ms. Farrior's certification status.
By letter dated December 17, 1998, Cathy Bishop, DOE's Director of Program Administration and Evaluation, provided Respondent with a report relative to the December 8, 1998, pre-
audit of ESE records. The letter listed specific deficiencies in the student records reviewed by the pre-audit team. The deficiencies noted were not limited to those created during the 1997/1998 school year. The report discussed all compliance issues observed in the records, including violations of state and federal regulations occurring in the fall of 1998 after Respondent became ESE Coordinator.
Sometime during the December 1998 school holidays,
Mr. and Ms. Jones met in Marianna, Florida with Gregg Centers, a member of the Auditor General's staff. The purpose of the visit was to make inquiries concerning certain DHC invoices. Mr.
Jones had obtained the invoices in his capacity as a school board member. On a subsequent trip to Tallahassee, Florida, Mr. and Mrs. Jones met with Wayne Blanton regarding these same invoices. Mr. Blanton is associated with the Florida School Board Association in some capacity.
During the December 1998 school holidays, or soon thereafter, Mr. Jones requested Mr. Sunday to call DOE's certification office regarding Ms. Farrior's certification. Mr. Sunday's subsequent call to DOE revealed that Ms. Farrior could not perform intelligence testing of ESE students because she was not certified as a school psychologist.
By letter dated December 28, 1998, David Mosrie, Director of DOE's Division of Public Schools and Community
Education, advised the Superintendent that his staff had observed significant deficiencies in IEPs developed during the 1997/1998 school year. He noted that the district had corrected some of the deficiencies. He also noted that the district's staff had been proactive in addressing concerns about violations of IDEA. Nevertheless, Mr. Mosrie specifically directed the district to "take action to conduct IEP meetings to correct any IEPs that do not contain present level statements, goals, objectives, and evaluation procedures, as soon as possible."
In a memorandum dated January 4, 1999, Respondent requested the Superintendent to place a proposed contract with DHC on the agenda for Petitioner's next meeting. The proposed contract stated that DHC agreed to provide substitute speech/language therapy to the students at BES for $440.00 per day for all services, including all travel time between schools and mileage. The proposed contract stated that it was effective November 30, 1998, through February 15, 1999. Respondent's delay in presenting this proposed contract to Petitioner was caused in part by difficulty in negotiating the contract during the reallocation of corporate responsibilities between DHC and a new corporation, Beverly Health and Rehabilitation Services, Inc.
On or about January 5, 1999, Respondent contacted the DOE certification office by telephone to inquire about
Ms. Farrior's certification status. She learned that according to DOE's records, Ms. Farrior needed to complete specialization requirements.
As ESE Coordinator, Respondent's responsibilities required her to review and verify the accuracy of invoices sent to the district by vendors who provided goods and services to the ESE department. She was expected to review DHC invoices to determine whether the charges were consistent with services provided under contracts approved by Petitioner.
Respondent had a certain amount of funds in her budget for discretionary expenses. She had sufficient funds to send someone to represent the district at an autism conference. Respondent elected to send Ms. White-Crenshaw to the conference. As stated above, Ms. White-Crenshaw was a DHC speech pathologist who provided supervisory speech and language services to ESE students in the district.
DHC sent the district the following four invoices:
(a) an invoice dated November 30, 1998, in the amount of
$440.00, for Barbara Carter's services on November 30, 1998, at BES, approved by Respondent on December 7, 1999; (b) an invoice dated October 6, 1998, in the amount of $6,454.29, for Frieda White-Crenshaw's services as a supervisor during the month of September 1998, approved by Respondent on November 20, 1998;
(c) an invoice dated November 3, 1998, in the amount of
$8,845.66, for Frieda White-Crenshaw's services as a supervisor during the month of October 1998, approved by Respondent for payment in the amount of $8,680.66; and (d) an invoice dated December 3, 1998, in the amount of $5,596.83, for Frieda White- Crenshaw's services as a supervisor during the month of November 1998, approved by Respondent on December 7, 1998.
Respondent sent these invoices, which total $21,173.78, to Mr. McCall's office for payment on or about December 9, 1998.
Mr. Jones reviewed these invoices and refused to pay them. He listed the dollar amounts that could not be paid for each invoice pursuant to the written contracts. Mr. Jones requested that Mr. McCall verify the charges in relation to the DHC contracts. Mr. McCall subsequently compared the invoices to the DHC contracts and the "outsourcing therapy labor logs" maintained by DHC staff.
At the request of Mr. Jones, Mr. McCall arranged a meeting with the school board attorney; Mr. Jones; the Superintendent, and Respondent. Mr. Jones refused Respondent's request to invite DHC to the meeting. Based on advice of counsel during the meeting, Mr. McCall concluded that the district had to reduce payment to DHC for the invoices in question by $14,135.00.
During the meeting, Respondent was advised that the district would not honor future DHC invoices to the extent that
the invoices included charges at $55.00 per hour for the service providers' school-to-school travel time because travel time was not covered under the DHC contracts. In fact, future DHC invoices would be reduced for any service provider's time not reflected in sign-in/sign-out logs maintained at the individual schools or sites where the services were provided.
Respondent agreed to inform DHC of the reasons for the reductions. At the request of Mr. Jones, she also agreed to inform DHC that its staff would have to sign-in and sign-out on logs maintained by the individual schools or sites where services were provided. Respondent created a form for DHC staff to sign because not all schools maintained sign-in/sign-out logs. These types of logs are usually kept as "site-based management decision," and not pursuant to Petitioner's policies.
Mr. Jones did not request that any other vendor sign a site-based log. This caused Respondent some concern because one other ESE contract vendor did not have to keep on-site time logs.
In a memorandum dated January 7, 1999, Mr. McCall directed his staff to pay $7,038.78 for services rendered by DHC staff as reflected on the four DHC invoices referenced above. According to Mr. McCall, the amount paid to DHC was reduced for the following reasons: (a) there was no contract between Petitioner and DHC for Barbara Carter to provide services at BES
during the month of November 1998; (b) contracts between Petitioner and DHC that were in place did not authorize payment for school-to-school travel time of DHC employees; and
(c) contracts between Petitioner and DHC did not cover expenses incurred by DHC staff for attending an autism conference. Despite this reduction in payment, DHC continued to provide uninterrupted services pursuant to the written contracts.
During a school board meeting on January 12, 1999, Petitioner rejected the Superintendent's recommendation to revise the job description for a school psychologist for ten months plus two additional months (10+2) on an instructional salary schedule. Petitioner approved the Superintendent's request to advertise for a full-time ESE teacher in the Options Alternative School (Options), the district's second/last chance program. Additionally, Petitioner discussed the following matters without taking any action: (a) Mr. Jones' concern that Ms. Farrior was not a certified school psychologist and therefore could not administer intelligence tests to ESE students; (b) the approval and payment of DHC invoices; and (c) the proposed DHC contract for services at BES.
During the school board meeting on January 12, 1999, Respondent stated that Ms. Farrior only lacked one course, for which she was currently enrolled, in order to be eligible for
certification as a school psychologist. This information was incorrect.
Ms. Farrior took no course work toward fulfilling her certification requirements during the first semester of the 1998/1999 school year. The second semester Ms. Farrior took two of the courses required for certification. In January 1999, she needed to complete those two courses, take one other course, and complete an internship. At that time, Ms. Farrior had not applied for enrollment in an accredited school psychology internship program or registered for the final academic course.
In January 1999, Ms. Farrior also needed to send transcripts of courses that she had taken in prior years at Troy State University to the DOE certification office. Additionally, DOE did not have a record of some of Ms. Farrior's required examination scores. Some of the scores were missing because
Mr. Sunday's office had not forwarded them to DOE. One other score was missing because Ms. Farrior had not taken the exam.
Finally, Respondent misled Petitioner by stating that Ms. Farrior could be employed as "out-of-field teacher" even though she lacked certification as a school psychologist. While Petitioner's rules authorize teachers, under appropriate circumstances, to teach classes outside the areas for which they are certified, DOE rules do not permit one who is certified only
to teach psychology to administer intelligence tests as an "out- of-field" school psychologist.
During a January 19, 1999, school board meeting,
Mr. Jones expressed his concern regarding the backlog of students requiring psychological testing. He also discussed Ms. Farrior's inability to administer intelligence tests under DOE rules. Petitioner subsequently voted to approve a contract with Florida State University's (FSU) Multidisciplinary Center for the provision of services, including intelligence testing and
re-evaluations of ESE students formerly tested by Ms. Farrior.
The Superintendent approved of contracting with FSU to test the ESE students. He was aware of one complaint from one parent about the backlog in testing students. However, the Superintendent was not of the opinion that the testing backlog was due to Ms. Farrior's not being certified as a school psychologist. He felt that it was a problem that Respondent inherited when she became ESE Coordinator. The Superintendent did not believe the district could eliminate the backlog until it hired a second school psychologist to fill the position formerly held by Ms. Holder.
Respondent was not in favor of contracting with FSU. She wanted to allow Ms. Farrior to continue administering all tests except intelligence tests. She was willing to perform Ms. Holder's duties so that Ms. Holder could perform any re-
evaluations of ESE students that were necessary. Under that arrangement, Ms. Holder eventually re-tested 24 ESE students.
The test results from Ms. Holder's re-evaluations were not significantly different from the intelligence testing performed by Ms. Farrior. There were no changes in the placement of any ESE students after the re-evaluations were performed. The re-testing of the students did not result in any additional cost to the district, but it increased the workload of the ESE department.
By letter dated January 20, 1999, Shan Goff, Chief of DOE's Bureau of Instructional Support and Community Services, advised the Superintendent of the following: (a) only a certified school psychologist could administer intelligence tests to ESE students; (b) an uncertified examiner could not administer the test even if a licensed individual "signed-off" on the test as supervisor; and (c) under certain conditions, an intern in an approved course of study could perform intelligence testing provided the testing was performed under the supervision of a qualified individual.
Ms. Goff's January 20, 1999, letter set forth the following specific actions that the district needed to take in order to be in compliance with IDEA:
Re-test all students whose tests of intelligence were administered by the non- certified individual and prepare and
"addendum" or a comprehensive psychoeducational report. Please note that school psychology practices may require that a different test be used for re-testing purposes than the instrument originally administered. Determination about what tests should be administered will need to be made on an individual student basis.
Make a determination about parental involvement. We believe it advisable to notify parents of the situation and the purpose of the re-test. In instances where the original testing took place some time ago, you may want to secure parental consent.
Review the results of the re-testing to determine whether there are significant changes that would impact on the students' eligibility for services and/or the content of the students' IEPs. In each instance where eligibility for services and/or content of the students' eligibility or the content of the IEP would be affected, conduct a new eligibility staffing and/or IEP meeting. Please note that all state and federal requirements relative to the conduct of staffings and IEP meetings must be adhered to.
Determine whether any students were counted for FTE purposes in October and/or the December 1 child count who were subsequently determined to be ineligible for exceptional student education services. Adjust these counts as necessary.
In those instances where a child tested under these conditions has transferred from Walton County School Districts, provide follow-up with the receiving school district to provide guidance in corrective actions necessary for that district to be in compliance.
All District School Superintendents received a letter dated January 26, 1999, from Mr. Mosrie, Ms. Goff's superior. Mr. Mosrie's letter reviewed the rules and regulations regarding qualified examiners of intelligence tests.
By memo dated January 26, 1999, Greg Centers, advised the Superintendent about the Auditor General's questions concerning Ms. Farrior's employment based on a pre-audit review of the district's records. Mr. Centers noted that Ms. Farrior's temporary teaching certificate expired on June 30, 1998, and had not been renewed. According to Mr. Centers, the district's records did not indicate that Ms. Farrior was otherwise qualified for the school psychologist position. The Superintendent signed this memo on January 29, 1999, acknowledging that the Auditor General's understanding regarding Ms. Farrior's employment status was correct.
By letter dated January 29, 1999, Charles Lester, Auditor General, requested the Superintendent to submit a written explanation within 30 days concerning the findings of preliminary audit findings. Attached to the letter was a finding that the district had hired a school psychologist when the district's records did not indicate the basis upon which the employee was determined to be qualified for that position. The Auditor General requested that the district provide an explanation or take corrective action to provide a certified
school psychologist for administering tests and assessing placement for ESE students.
After receiving the Auditor General's letter, the Superintendent met with Respondent and Ms. Farrior. During the meeting, he asked Ms. Farrior to resign. She refused to comply with his request.
Terrica Carlock became the new ESE classroom teacher at Options in January 1999. The district's ESE department was responsible for evaluating and writing new IEPs for ten or twelve of Options' students who needed to be placed in the new classroom on a resource or special assignment basis. Prior to that time, ESE students at Options had been mainstreamed and provided ESE services only on a consultation basis.
The IEP meetings at Options needed to be scheduled immediately in order to complete the IEPs before the state conducted a Full Time Equivalent (FTE) count in the first week of February. The district's state funding depends in part on the FTE count.
In order to expedite the process, Respondent sent the necessary IEP forms to the principal at Options, on January 25, 1999. She directed the principal to schedule IEP meetings and to notify parents about the meetings. Respondent did not give the principal specific directions about the IDEA notice procedure.
The principal of Options sent notices to parents about the IEP meetings by giving the notice forms to the ESE students. Ms. Carlock advised the principal that IDEA required the school to give parents a second notice to determine whether parents wished to participate in the IEP meetings or waive that right. On January 27, 1999, Ms. Carlock assisted the principal in making those calls to parents who did not sign and return the written notice. Very few parents were able to attend the IEP meetings on such short notice.
The IEP meetings at Options were scheduled for January 27-29, 1999. Respondent intended to serve as the Local
Education Agency (LEA) representative at the meetings. However, she was unable to attend several of the IEP meetings because of a scheduling conflict. Respondent told Ms. Carlock to continue with these meetings despite the absence of an LEA representative. Respondent told Ms. Carlock to complete the LEA's IEP paperwork even though Ms. Carlock had not been trained for that responsibility. As to the IEP meetings that Respondent was able to attend, she occasionally left the meetings to answer phone calls, directing Ms. Carlock to continue the meetings in her absence.
By memorandum dated January 29, 1999, Ms. Carlock advised Respondent that she did not approve of the way the Options' IEPs were conducted. Specifically, Ms. Carlock
complained that parents did not have sufficient notice of the meetings. Ms. Carlock did not feel comfortable conducting the meeting without an LEA representative as required by IDEA. She did not think she was qualified to complete the IEP paperwork, which according to Respondent was the responsibility of the LEA representative. Ms. Carlock sent a copy of her memorandum to the Superintendent and Petitioner's members.
By memorandum dated January 30, 1999, Respondent attempted to explain to the Superintendent why she had not been present at the Options' IEP meetings. She accused Ms. Carlock of providing the Superintendent with erroneous information. Respondent criticized Ms. Carlock for complaining to the Superintendent and Petitioner without following the proper grievance procedure. Respondent requested that the Superintendent reprimand Ms. Carlock for making misrepresentations of fact. The Superintendent subsequently advised Ms. Carlock to stay within the chain of command when filing complaints.
By letter dated February 2, 1999, Patricia Howard, DOE's consultant for School Psychology, advised the Superintendent that he had two options for providing intellectual evaluations to ESE students. First, he could employ a full-time, certified psychologist or contract with a privately licensed psychologist/school psychologist to
administer and interpret all tests, including intellectual, achievement, process, emotional, and adaptive behavior. Second, he could employ a part-time, certified school psychologist or privately licensed psychologist/school psychologist to administer and interpret all tests of intelligence. In the latter case, the intellectual test results could be merged with assessments administered by other staff members that the district determined to be qualified to administer achievement, process, emotional, and adaptive behavior assessments.
On February 5, 1999, the Superintendent sent the DOE certification office a letter requesting the issuance of
Ms. Farrior's second two-year temporary certificate in the subject area of psychology. The letter stated that the request was based on the fact that Ms. Farrior did not graduate from an approved teacher education program.
By letter dated February 8, 1999, Respondent requested Tom Gallagher, Commissioner of Education, to assist her with problems she was having as the district's ESE Coordinator.
On February 9, 1999, DOE issued Ms. Farrior's temporary/non-renewable certificate to teach psychology in grades six through twelve. The certificate was effective retroactively to July 1, 1998, through June 30, 2000.
On February 9, 1999, Ms. Carlock was in the ESE building at the close of the school day. She was sitting in the
office of Samantha Nelson, an ESE Resource Specialist.
Ms. Nelson was checking her electronic mail when Ms. Carlock noticed Respondent's husband standing in the doorway to the office. Respondent's husband was holding a video camera. The camera was pointed toward Ms. Carlock and Ms. Nelson; the red recording light on the camera was blinking.
Ms. Nelson confronted Respondent's husband regarding his violation of her privacy. She and Ms. Carlock then reported the incident to the Superintendent.
The Superintendent immediately went to the ESE building to talk to Respondent's husband. Respondent's husband explained that he had not intentionally taped the conversation of Ms. Carlock and Ms. Nelson. According to Respondent's husband, he was testing his video equipment in preparation for taping the school board meeting that evening.
Upon learning that Respondent was not present and had no knowledge of her husband's activities, the Superintendent advised Respondent's husband that videotaping of district employees in their offices was not allowed. He told Respondent's husband to wait in Respondent's office in the future.
Ms. Nelson subsequently provided the Superintendent with a written complaint, informing him that she intended to file a grievance concerning the matter. As a result of that
grievance, the Superintendent agreed that he, and not Respondent, would evaluate Ms. Nelson's job performance.
At the school board meeting on February 9, 1999, the Superintendent recommended that Petitioner contract with FSU for
$200.00 per intellectual evaluation. The Superintendent wanted Petitioner to authorize 49 evaluations. Petitioner approved this request for an unlimited number of evaluations.
At the February 9, 1999, school board meeting, Petitioner rejected the Superintendent's request to advertise for an additional school psychologist pursuant to an approved position description with an annual salary of $50,000.00.
By memorandum dated February 11, 1999, Respondent advised the Superintendent that a copy of her husband's
February 9, 1999, videotape would not be made available until an attorney had an opportunity to review Ms. Nelson's complaint.
Respondent subsequently provided the Superintendent with a copy of the videotape. The Superintendent never reviewed the tape because he believed he had effectively resolved the matter.
By letter dated February 17, 1999, Respondent requested the Superintendent to join her in seeking Commissioner Gallagher's assistance in investigating the problems she faced as ESE Coordinator. Respondent enclosed a copy of her letter to Commissioner Gallagher.
On or about February 15, 1999, the speech therapist on maternity leave from BES elected not to return to work. DCH continued to provide speech therapy services even though Petitioner had not yet approved a contract for those services.
DHC sent the district the following invoices:
(a) invoice dated December 28, 1998, in the amount of $4,390.35, for Fredda White-Crenshaw's services as a supervisor during the month of December 1998, approved by Respondent in the amount of
$3,620.35; (b) invoice dated December 28, 1998, in the amount of
$2,100.00, for the services of Marilyn Marshall at West Defuniak Elementary during the month of December 1998, approved by Respondent as submitted; (c) invoice dated December 28, 1998, in the amount of $4,066.85, for the services of Julie Lange during the month of December 1998, approved by Respondent in the amount of $2,980.60; and (d) invoice dated December 28, 1998, in the amount of $2,553.02, for the services of Kathy Lafever during the month of December 1998, approved by Respondent in the amount of $1,466.77.
The total amount invoiced by DHC for December services was $13,109.87. Respondent reviewed these invoices and compared them to the "outsource therapy labor logs" maintained by DHC staff. She approved or made adjustments on February 11, 1999, verifying payment due to DHC in the total amount of
$10,167.72. She then sent the invoices to Mr. McCall's office for payment.
Upon receipt of the invoices, Mr. McCall compared them to the sign-in/sign-out logs maintained by the individual schools or site where DHC provided services. He determined that DHC's service providers recorded more time related to student services on their "outsource therapy labor logs" than was reflected on the sign-in/sign-out logs maintained by the schools. Mr. McCall reduced the payment for DHC's December 1998 services to the amount reflected on the sign-in/sign-out site- based logs. By memorandum dated February 19, 1999, Mr. McCall directed his office staff to pay DHC for its December invoices in the total amount of $7,674.39, or $2,493.33 less than the total amount approved by Respondent. Despite these reductions in payment, DHC continued to provide services to ESE students pursuant to the contracts.
By letter dated February 25, 1999, John A. Stewart, Deputy Commissioner for Educational Programs, responded to Respondent's letter to Commissioner Gallager. Mr. Stewart stated that DOE's Bureau of Instructional Support and Community Services would continue to work with the district to address compliance and programmatic issues previously identified. As to Respondent's concerns over working conditions that were unsatisfactory, Mr. Stewart stated that the DOE could not
intervene in personnel matters, which are within the purview of local officials.
The Superintendent wrote a letter to Commissioner Gallagher on or about March 1, 1999. The letter refers to the pre-audit critique requested by Respondent and performed by DOE's two-member team in the fall of 1998. The letter refers to significant deficiencies in IEPs developed during the 1997/1998 school year. The Superintendent requested a "task force of supplementary pre-audit personnel" to provide technical assistance in preparing for an upcoming audit of ESE records from the 1997/1998 school year.
In a memorandum dated March 22, 1999, DOE advised Ms.
Farrior that she needed the following in order to be certified as a school psychologist: (a) 27 additional semester hours of graduate credit in school psychology; (b) graduate credit should include six semester hours in a supervised school psychology internship, approved by DOE, at an elementary or secondary school; and (c) official documentation of a passing score on the school psychologist subject area test.
At the time that Ms. Farrior received the March 22, 1999, statement of eligibility from DOE, she had not submitted her updated transcript from Troy State University, showing graduate credit received in 1992 and 1993. It did not include the graduate courses at the University of West Florida and
Capella Distance Learning University, in which she was then enrolled. Therefore, DOE was not aware that Ms. Farrior had completed some of the required graduate credit course work.
In March of 1999, Ms. Holder helped Ms. Farrior complete her application packet for enrolling in Capella Distance Learning University's school psychology internship program. Ms. Holder agreed to act as intern supervisor for Ms. Farrior.
On March 23-25, 1999, George Pesta, Juvenile Justice Education Specialist at FSU, conducted a quality assurance review at North American Family Institute (NAFI) in Walton County. NAFI is a private, not for profit, Level Six and Level Eight facility. It provides juvenile delinquents enrolled in the Serious Habitual Offender Program with residential services in an Intensive Halfway House. NAFI provides these services pursuant to a contract with the Department of Juvenile Justice. NAFI provides its clients with educational services under a contract with the district.
The district provides ESE services to NAFI's clients.
Mr. Pesta's review included an audit of NAFI's ESE records. Respondent had signed five IEPs for NAFI students; these IEPs were in compliance with IDEA. One IEP that was developed before Respondent became ESE Coordinator was incomplete; it lacked goals and objectives.
At a school board meeting on March 30, 1999, the Superintendent requested Petitioner's approval to advertise for a certified school psychologist for ten months plus one month (10+1) with a base salary of $33,000.00. Petitioner approved the recommendation with the base salary subject to the collective bargaining agreement.
In 1999, the parent company of DHC created a new corporation to provide outsourcing therapy services. The new corporation, Beverly Health and Rehabilitation Services, Inc. (Beverly Rehabilitation), assumed DHC's obligations under the written contracts with Petitioner. In March 1999, Beverly Rehabilitation gave notice that it would no longer provide Petitioner with physical therapy and occupational therapy services. It was not economically feasible for Beverly Rehabilitation to provide these services under Petitioner's interpretation of the written contracts. Beverly Rehabilitation continued to provide Petitioner with a speech pathologist supervisor and speech therapy services pursuant to the approved written contracts.
In a memorandum dated April 5, 1999, Respondent requested the Superintendent to rehire Ms. Farrior as an ESE staff employee for the 1999/2000 school year. Respondent wanted Ms. Farrior to continue working as an "evaluation specialist" until she could perform all of the functions of a certified
school psychologist or an intern in an approved school psychology internship program.
Respondent knew there was no position description for an evaluation specialist approved by Petitioner. She also knew that the Superintendent could not recommend the hiring of a staff member for which there was no approved position. Respondent did not request the Superintendent to recommend that Petitioner create such a position.
At a school board meeting on April 15, 1999, the Superintendent recommended that Petitioner rehire Ms. Farrior as an ESE employee. Neither the Superintendent nor Respondent, who was present at the meeting, informed Petitioner that they were attempting to have Ms. Farrior rehired for a position that did not exist.
The Superintendent's intent was for Ms. Farrior to fill the school psychologist position for which she was not certified. The Superintendent understood that Ms. Farrior would be enrolled in an internship program during the 1999/2000 school year. He also understood that until Ms. Farrior could fulfill the duties of a school psychologist, other members of the ESE staff would have an increased workload. Petitioner voted to reject the Superintendent's recommendation.
Sometime after April 16, 1999, Petitioner approved the contract for Beverly Rehabilitation to provide BES with a
speech/language therapist. The contract terms were accepted as originally proposed with Petitioner paying $440.00 per day for all services including travel time and mileage.
In a memorandum dated April 18, 1999, Respondent advised the Superintendent that due to Petitioner's failure to renew Ms. Farrior's annual contract, the district would not have a staff member filling the school psychologist position at the end of the school year. Respondent stated that the district was in "dire need of hiring two individuals [as school psychologists] in order to adequately serve the needs of the ESE students of Walton County." Respondent stated that she intended to address this need at the next school board meeting. However, Respondent never requested the Superintendent to nominate a specific individual to be employed as school psychologist other than Ms. Farrior. Respondent admits that it was her duty to make this recommendation to the Superintendent.
On April 19, 1999, Respondent sent the Superintendent a memorandum inquiring about the current position status of
Ms. Jones. Respondent needed the information in order to prepare an organizational chart requested by the Superintendent. Respondent did not know whether Ms. Jones was a member of the ESE department or the student services department. Respondent's memorandum stated that Ms. Jones was serving in the capacity of
Child Find Specialist in a position that Petitioner had not approved.
In May 1999, Capella Distance Learning University approved Ms. Farrior's application to enroll in its school psychologist internship program with Ms. Holder as her supervisor. The internship program was scheduled to begin the next quarter on October 4, 1999.
On May 12, 1999, Respondent sent the Superintendent a memorandum concerning Ms. Jones' annual job performance evaluation. Respondent did not want to write the annual evaluation as requested because Ms. Jones was not an ESE staff member under the organizational chart. Respondent recommended that Ms. Jones be transferred to a position with no connection to ESE students.
At the May 13, 1999, school board meeting, the Superintendent recommended that Petitioner approve a position description for a school psychologist for ten months plus one month (10+1) under a salary schedule. The Superintendent requested permission to advertise for this position the following Monday. The Superintendent reminded Petitioner that the district was entitled to two school psychologists and that he would like to advertise for both of them. After much discussion, Petitioner voted to approve the advertisement of two school psychologist positions for ten months plus two months
(10+2) under a salary schedule, one to be filled immediately and one to be filled later.
At the May 13, 1999, school board meeting, Petitioner voted to terminate the contract with Beverly Rehabilitation for a speech/language pathologist supervisor. Ms. White-Crenshaw had been providing this service.
At the May 13, 1999, school board meeting, Petitioner rejected the Superintendent's recommendation to renew Respondent's annual contract for the position of ESE Coordinator by a vote of three to two. Ms. Atkinson and Mr. Davis voted to rehire Respondent.
Mr. Jones rejected Respondent's nomination based on her conduct as follows: (a) Respondent's failure to provide telephone and fax logs in a timely fashion; (b) Respondent's misrepresentation regarding Special Agent Dill's directive not to release the requested records; (c) Respondent's failure to explain the details of her oral agreement with DHC regarding charges for the service providers' travel time before recommending that Petitioner approve the contract;
(d) Respondent's failure to verify the charges on the second batch of DHC invoices by comparing them with the site-based sign-in/sign-out logs; (e) Respondent's failure to check Ms. Farrior's certification credentials before recommending that Petitioner employ her for the 1998/1999 school year; (f)
Respondent's recommendation that the Superintendent nominate Ms. Farrior for employment in the 1999/2000 school year when Respondent knew that Ms. Farrior was not certified as a school psychologist; and (g) Respondent's failure to recommend a certified school psychologist for the 1999/2000 school year after learning that Ms. Farrior would not be rehired.
Mr. Richardson voted not to renew Respondent's contract based on her conduct as follows: (a) Respondent's recommendation of an uncertified school psychologist for the 1998/1999 school year; (b) Respondent's recommendation of the same uncertified school psychologist for the 1999/2000 school year; (c) Respondent's failure to verify the accuracy of the charges in the first and second batch of DHC invoices; and
(d) Respondent's failure to provide telephone logs in a timely fashion and subsequent misrepresentation regarding Special Agent Dill's directive not to release the records.
Mr. Barnhill voted to reject Respondent's nomination.
He based his vote on Respondent's failure to present the proposed DHC/Beverly Rehabilitation contract for speech services at BES in a timely fashion.
At the school board meeting on May 25, 1999, the Superintendent made a second attempt to nominate Respondent as ESE Coordinator for the 1999/2000 school year. Petitioner rejected her nomination for the second time.
On June 30, 1999, Respondent's and Ms. Farrior's annual contracts expired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by a preponderance of the evidence that it had good cause to reject the Superintendent's nomination of Respondent for the position of ESE Coordinator. Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3rd DCA 1990).
Section 230.23(5), Florida Statues, states as follows in pertinent part:
230.23(5) Powers and duties of school board.--The school board, action as a board, shall exercise all powers and perform all duties listed below:
PERSONNEL.--Designate position to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
Positions, qualifications, and appointments.--Act upon written recommendations submitted by the superintendent for positions to be filled and for minimum qualifications for personnel for the various positions and act upon written nominations of persons to fill such positions. The school board may reject for good cause any employee nominated . . . .
The term "good cause" includes any conduct for which the Florida Education Practices Commission may suspend or revoke a person's teaching certificate, including but not limited to, the violation of the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Section 231.28(1)(i), Florida Statutes; Spurlin v.
School Board of Sarasota County, 520 So. 2d 294, 297( Fla. 2nd DCA 1988).
Additionally, the term "good cause" includes any conduct for which a member of a district's administrative or supervisory staff may be suspended or dismissed, including but not limited to, misconduct in office. Sections 231.36 (1)(a) and 231.36(4)(c), Florida Statutes.
Rule 6B-1.006, Florida Administration Code, states as follows in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct from the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of he individual educator's certificate, or the other penalties as provided by law.
* * *
Obligation to the public requires that the individual:
* * *
Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(i) Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
* * *
(l) Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statues and State Board of Education Rules.
Rule 6B-4.009, Florida Administrative Code, provides as follows in pertinent part:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
* * *
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of
Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
At the school board meeting on May 13, 1999, a majority of Petitioner's members voted to reject the Superintendent's recommendation to renew Respondent's contract for the position of ESE Coordinator. Mr. Jones, Mr. Richardson, and Mr. Barnhill each identified, orally and/or by written documentation, the conduct that they believed constituted good cause for rejection of the nomination. As members of a school board, they were precluded by Section 286.011, Florida Statutes, from communicating with each other prior to any public meeting in order to exchange information concerning their reasons for rejecting the Superintendent's nomination. Consequently, Respondent's conduct, identified by the dissenting school board members as constituting good cause, and not the label attached to that conduct, must be examined to determine whether Petitioner properly rejected the nomination.
Mr. Jones and Mr. Richardson found fault with Respondent's conduct because she recommended and assisted in the employment of Ms. Farrior as a school psychologist for the 1998/1999 and 1999/2000 school years.
Rule 6A-6.0331(1)(a), Florida administrative Code, states, in part that "[t]ests of intellectual functioning shall
be administered and interpreted by a professional person qualified in accordance with Rule 6A-4.0311, FAC, or licensed under Chapter 490, F.S." Rule 6A-4.0311, Florida Administrative Code, provides the requirements for certification in school psychology. Chapter 490, Florida Statutes, provides the requirements for licensure by the Agency for Health Care Administration for psychologists and school psychologist.
In August 1998, Respondent knew that Ms. Farrior was not certified and could not be certified as a school psychologist for approximately two years. Respondent failed to contact DOE to determine when Ms. Farrior would be eligible for certification or when she would be able to perform all of the functions of a school psychologist, including administering intelligence tests to ESE students.
Respondent should have known that Ms. Farrior could not administer intelligence testing under a temporary teaching certificate in the subject area of psychology, with or without the supervision of another certified school psychologist, until she was enrolled in an approved school psychology intern program.
Because Respondent failed to verify Ms. Farrior's certification status, the Superintendent recommended her for employment and Petitioner employed her under the mistaken
impression that she was certified or eligible for certification as a school psychologist.
In January 1999, Respondent orally misrepresented Ms. Farrior's certification status in a school board meeting. At that time, Respondent should have known that Ms. Farrior lacked more than one course to qualify for certification.
In April 1999, Respondent recommended Ms. Farrior for reemployment as an ESE employee or "evaluation specialist" in a position that Petitioner had not approved. Additionally, Respondent knew or should have known that Ms. Farrior continued to lack at least one academic course, an internship which would not commence until October of the 1999/2000 school year, and a passing score on a required examination. At that time, Capella Distance Learning University had not accepted Ms. Farrior as a student in its school psychology intern program.
Respondent's conduct in relation to Ms. Farrior violated Sections 231.28(1)(i), 231.36(1)(a), and 231.36(4)(c), Florida Statutes, and Rules 6B-1.006(4)(b), 6B-1.006(5)(i),
6B-1.006(5)(l), and 6B-4.009(3), Florida Administrative Code.
Mr. Jones and Mr. Richardson found fault with Respondent's failure to provide telephone and fax records upon proper request and making a false representation to Petitioner regarding those records.
Respondent's job responsibilities required her, as ESE Coordinator, to interact with Petitioner regarding financial matters. Mr. Jones, as Petitioner's representative, made a legitimate request for information regarding the ESE department's telephone. Respondent initially refused to provide the records. She subsequently made a false statement, orally and in writing, that she would not produce the records based on directions from an FBI agent.
Respondent's conduct regarding the telephone and fax logs violated Sections 231.28(1)(i), 231.36(1)(a), and 231.36(4)(c), Florida Statutes, and Rules 6B-1.006(4)(b),
6B-1.006(5)(a), and 6B-4.009(3), Florida Administrative Code.
Mr. Jones and Mr. Richardson found fault with Respondent because she knowingly or negligently approved and submitted DHC invoices for payment when the charges were not covered by the written contracts between Petitioner and DHC.
Without notice to Petitioner, the Superintendent, or the school board attorney, Respondent reached an oral agreement with DHC to pay a substantial hourly rate for travel of DHC service providers. This oral agreement was not expressed in the written contracts, which enumerated the services to be included in the hourly rate.
In a subsequent meeting with the Superintendent,
Mr. McCall, the school board attorney, and Mr. Jones, Respondent
was directed to compare all future DHC invoices with sign- in/sign-out logs maintained at the sites where DHC employees provided services. Respondent created those sign-in/sign-out logs for the DHC therapists to sign. Thereafter, Respondent failed to compare the DHC invoices to the site-based logs. As a result, she submitted a second batch of DHC invoices with inflated charges as approved for payment.
Respondent's conduct in relation to the DHC invoices violated Sections 231.28(1)(i), 231.36(1)(a), and 231.36(4)(c), Florida Statutes, and Rules 6B-1.006(4)(b), 6B-1.006(5)(a),
6B-4.009(3), Florida Administrative Code.
Mr. Barnhill found fault with Respondent's failure to timely present the proposed DHC/Beverly Rehabilitation contract for speech/language services at BES in a timely fashion.
Respondent reached an emergency oral contract with DHC for the services of a speech therapist at BES in November 1998. Respondent did not present the contract for Petitioner's approval until January 1999. The record contains no persuasive evidence to explain Respondent's delay in advising Petitioner about the emergency need at BES for a contract with DHC for speech therapy services. At a minimum, Respondent could have advised Petitioner about the difficulty she was experiencing in negotiating that contract in December 1998.
Nevertheless, Respondent's handling of the contract for speech/language services at BES does not rise to the level of constituting good cause for rejecting the Superintendent's nomination. It did not violate Sections 231.28(1)(i), 231.36(1)(a), or 231.36(4)(c), Florida Statutes, or Rules
6B-1.006 or 6B-4.009(3), Florida Administrative Code.
There is no persuasive evidence to support Mr.
Barnhill's allegation that Respondent acted unprofessionally by attacking a concerned citizen and a colleague orally and in a letter dated March 1, 1999. Additionally, there is no evidence that Petitioner or anyone in the ESE department violated Petitioner's policy concerning personal telephone calls or fax transmissions.
Finally, there is no evidence to support "good cause" based on Mr. Barnhill's allegations about the videotaping of ESE employees by Respondent's husband. There is no evidence that Respondent knew anything about her husband's inappropriate conduct until she returned to the ESE building after the incident.
Respondent's conduct, which was not addressed by the statements of good cause, cannot be considered here. For instance, no one on the school board alleged that Respondent acted unprofessionally by failing to take reasonable steps, after the unauthorized videotaping, to ensure that staff
members, like Ms. Nelson and Ms. Carlock, would not be subject to such invasions of privacy in the future. Likewise, no one on the school board alleged that Respondent acted unprofessionally by seeking disciplinary action against Ms. Carlock for writing the memorandum regarding her concerns about improper IEP meetings. Except as set forth above, other allegations of unprofessional conduct were either too vague to associate with Respondent's specific conduct or were not supported by the record.
Two of Petitioner's members articulated reasons that constitute "good cause" to reject the Superintendent's recommendation to renew Respondent's contract. The failure of the third school board member to support his negative vote with specific factual allegations that rise to the level of good cause does not undermine the majority vote to reject the Superintendent's nomination. Without question, Petitioner met the procedural due process requirement of providing Respondent with notice of the charges against her. Accordingly, Respondent is not entitled to return to her position as the district's ESE
Coordinator.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That Petitioner enter a final order rejecting the Superintendent's nomination of Respondent as ESE coordinator for the 1999/2000 school year.
DONE AND ENTERED this 30th day of November, 1999, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1999.
ENDNOTES
1/ Ms. Jones married Jerry Jones in 1994. At that time,
Mr. Jones was serving a prior term as a member of the district's school board.
2/ Mr. Sunday was the district's Superintendent of Schools from 1988 through 1992.
3/ DOE issues temporary two-year teaching certificates in some subject areas. A temporary certificate allows an individual to teach while working towards certification. An individual applying for a temporary certificate must be employed by a school district. The employing school district is required to request issuance of the certificate before DOE will issue it.
4/ Petitioner's counsel offered the telephone and fax logs during the hearing as P23. He stated that he would furnish copies of them for the record posthearing. The documents were never filed.
COPIES FURNISHED:
Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.
17 West Cervantes Street Pensacola, Florida 32301
David A. Simpson, Esquire Simpson & Simpson, P.A.
909 Mar Walt Drive, Suite 1024
Fort Walton Beach, Florida 32547-6757
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Honorable Tom Gallagher Commissioner of Education Department of Education
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
John Bludworth, Superintendent Walton County School Board
145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Proceedings |
|---|---|
| Jan. 31, 2000 | Final Order filed. |
| Nov. 30, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held September 29-30, 1999. |
| Nov. 04, 1999 | (J. Hammons) Disk (Petitioner`s Proposed Final Order) filed. |
| Nov. 01, 1999 | Final Order (Petitioners) with cover letter filed. |
| Nov. 01, 1999 | Respondent`s Proposed Recommended Order (For Judge Signature); Notice of Filing; Deposition of Rosemary Raigle filed. |
| Oct. 26, 1999 | Deposition of Mary Watson filed. |
| Oct. 21, 1999 | Subpoena ad Testificandum (D. Simpson) filed. |
| Oct. 21, 1999 | Deposition of: Cindy Jeselnik w/exhibits filed. |
| Oct. 20, 1999 | (3 Volumes) Transcript ; Condensed Transcript w/cover letter filed. |
| Oct. 19, 1999 | Letter to Judge Hood from D. Simpson Re: Requesting to have the discovery deadline extended (filed via facsimile). |
| Oct. 06, 1999 | (14) Subpoena ad Testificandum (D. Simpson); (2) Affidavit of Service; (3) Verified Return of Service filed. |
| Sep. 29, 1999 | CASE STATUS: Hearing Held. |
| Sep. 28, 1999 | (C. Ruberg) Motion to Quash (filed via facsimile). |
| Sep. 27, 1999 | (D. Simpson) Amened Witness List of Linda Rushing filed. |
| Sep. 23, 1999 | (D. Simmons) Prehearing Stipulations w/exhibits filed. |
| Sep. 22, 1999 | (D. Simmons) Prehearing Stipulations (filed via facsimile). |
| Sep. 22, 1999 | Amended Notice of Hearing sent out. (hearing set for September 29 and 30, 1999; 10:00 a.m.; Defuniak Springs, FL) |
| Sep. 21, 1999 | (Petitioner) Prehearing Stipulation w/cover letter (filed via facsimile). |
| Sep. 21, 1999 | Letter to Judge Hood from J. Hammons Re: Order of Pre-Hearing instructions (filed via facsimile). |
| Sep. 13, 1999 | Subpoena ad Testificandum (D. Simpson) filed. |
| Sep. 08, 1999 | Order Granting In Part Respondent`s Motion to Strike sent out. |
| Sep. 08, 1999 | (Petitioner) Amended Statement of Good Cause (filed via facsimile). |
| Sep. 07, 1999 | (Respondent) Notice of Filing; Walton County School Board Meeting filed. |
| Sep. 03, 1999 | Notice of Filing (Respondent) (filed via facsimile). |
| Aug. 30, 1999 | (2) Subpoena ad Testificandum (D. Simpson); Notice of Taking Deposition by Subpoena filed. |
| Aug. 30, 1999 | (D. Simpson) Notice of Taking Deposition by Subpoena filed. |
| Aug. 27, 1999 | (Petitioner) Notice of Taking Telephonic Deposition filed. |
| Aug. 25, 1999 | (J. Holder) Notice of Appearance filed. |
| Aug. 16, 1999 | (D. Simpson) Motion to Strike filed. |
| Aug. 12, 1999 | Respondent`s Motion for Protective Order filed. |
| Aug. 11, 1999 | (D. Simpson) Motion to Strike (unsigned) (filed via facsimile). |
| Aug. 11, 1999 | (3) Subpoena ad Testificandum (D. Simpson) filed. |
| Aug. 10, 1999 | Subpoena Duces Tecum (D. Simpson) filed. |
| Aug. 09, 1999 | (5) Subpoena ad Testificandum (D. Simpson); (2) Notice of Taking Depostion by Subpoena; (3) Notice of Taking Deposition by Subpoena/Telephonic filed. |
| Aug. 06, 1999 | (Petitioner) Statement of Good Cause w/cover letter filed. |
| Aug. 04, 1999 | (J. Hammons) Statement of Good Cause (Incomplete) (filed via facsimile). |
| Jul. 29, 1999 | Subpoena ad Testificandum (D. Simpson); Subpoena Duces Tecum; Notice of Taking Deposition by Subpoena filed. |
| Jul. 22, 1999 | (D. Simpson) (3) Notice of Taking Deposition; Re-Notice of Taking Deposition; Subpoena Ad Testificandum; Notice of Taking Deposition by Subpoena filed. |
| Jul. 21, 1999 | Order Requiring Statement of Cause sent out. (petitioner shall file statement of cause by 7/30/99) |
| Jul. 15, 1999 | (D. Simpson) (5) Notice of Taking Deposition filed. |
| Jul. 15, 1999 | (Petitioner) Motion for Prehearing Conference filed. |
| Jun. 24, 1999 | Notice of Hearing sent out. (hearing set for 10:00am; Defuniak Springs; 9/29/99) |
| Jun. 24, 1999 | Order of Pre-hearing Instructions sent out. |
| Jun. 18, 1999 | Joint Response (filed via facsimile). |
| Jun. 11, 1999 | Letter to L. Rushing from J. Bludworth Re: Recommendation (filed via facsimile). |
| Jun. 11, 1999 | Initial Order issued. |
| Jun. 07, 1999 | Agency Referral Letter; Request for Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 25, 2000 | Agency Final Order | |
| Nov. 30, 1999 | Recommended Order | Board has good cause not to renew Respondent`s contract because she recommended/assisted in employment of uncertified school psychologist, failed to provide records upon request, made false representations, and submitted invoices not covered by contract. |
SCHOOL BOARD OF WALTON COUNTY vs ANN FARRIOR, 99-002522 (1999)
ILENE R. BERSON vs DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY, 99-002522 (1999)
MIAMI-DADE COMMUNITY COLLEGE vs. JOHN HUMPHRIES, 99-002522 (1999)
MIAMI-DADE COUNTY SCHOOL BOARD vs JOAN E. WILLIAMS, 99-002522 (1999)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs TRACEY NEWTON, 99-002522 (1999)
