Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact: Claudio Senan, date of birth, September 18, 1967, was assigned to the Henry H. Fowler Jr. High School as an eighth grader during the 1982-83 school year. By letter dated March 16,1983, Petitioner, Claudio Senan's parent, Ms. Otero, was advised that the Petitioner was being assigned to the Jan Nann Opportunity School, North, based on a recommendation of the principal and a school screening committee of the Department of Alternative Education Placement based on the student's disruption of the educational process in the regular school program. Evidence reveals that during October through December, 1982, the Petitioner was continuously defiant which resulted in his being referred for indoor suspensions on more than three occasions. This pattern continued during the period January through March, 1983. In all of these incidents, Petitioner disrupted his school classroom activities. During early March, 1983, Petitioner was stopped by the Hialeah Police Department and assigned to truant officers. The Petitioner has received only minimal credits since his enrollment in the regular school program. As example, during the 1980-81 school year, Petitioner enrolled for 12 credits and earned 8 credits. During the 1981-82 school year, Petitioner again enrolled for 12 credits and earned 5. During the 1982-83 school year, the Petitioner earned no credits. Efforts to curb the Petitioner's disruptive activities while enrolled in the regular school program have not been successful. Further, Petitioner is not earning credits or otherwise benefiting from the education process being afforded him due to his disruptive conduct in the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, School Board of Dade County, Florida enter a Final Order assigning the Petitioner, Claudio Senan, to an alternative educational placement. RECOMMENDED this 30th day of September, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1983. COPIES FURNISHED: Ms. Maria Otero 1140 W. 29th Street, Apt. 26 Hialeah, Florida 33012 Jesse J. McCrary, Jr. , Esquire and Mark Valentine, Esquire 300 Executive Plaza, Suite 800 3050 Biscayne Blvd. Miami, Florida 33137
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent's proposed decision to award a contract to Florida Youth Academy, Inc., pursuant to Request for Proposals No. F4G01, is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On June 19, 2001, the Department issued and advertised RFP No. F4G01 for the design, implementation, and operation of a moderate risk residential program with a daily capacity of 30 youthful female offenders who have been committed to the Department after having been assessed and classified as a medium risk to public safety. This was an on-going program, and PEMHS was the incumbent contractor. PEMHS and FYA submitted proposals, which were opened on July 24, 2001. Three qualified agency employees, Mary Mills, Nicholas Lefrancois, and Jennifer Gallman, were given the assignment of evaluating the proposals in accordance with the requirements of the RFP and an evaluation score sheet providing evaluation and scoring criteria. The evaluators worked separately and returned their completed score sheets to Genanne Wilson, the contract administrator who developed the RFP. Ms. Wilson tabulated the scores. On August 31, 2001, the Department posted the tabulations for the RFP, recommending the contract be awarded to FYA. FYA received 328 points, and PEMHS received 288 points. FYA's score was corrected to 303 points when it was discovered that Ms. Wilson had applied an incorrect weighting factor to the points awarded FYA for CMBE participation. The correction did not affect the outcome of the process. PEMHS filed a formal written protest on September 14, 2001, and an amended formal written protest on October 19, 2001. Section L of the RFP set forth the proposal award criteria. Subsection L.1 described the RFP's sole "Fatal Item" as follows: Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration. Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgment Form (PUR 7033)? _____ Yes No If the above item is marked "NO" the evaluation of this proposal will STOP! The referenced Form PUR 7033 is prescribed by the Department of Management Services, Division of Purchasing, for inclusion in all agency RFPs. Rule 60A-1.002(7)(c), Florida Administrative Code. The form lists 17 separate General Conditions applicable to all contracts, provides potential vendors with information as to posting of proposal tabulations, and, most importantly, provides space for a manual signature by an authorized representative of the prospective vendor, stating the vendor's assent to the following statement: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a Proposal for the same services, supplies or equipment and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a Proposal to an agency for the State of Florida, the Proposer offers and agrees that if the Proposal is accepted, the Proposer will convey, sell, assign or transfer to the State of Florida, all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Antitrust Laws of the United States and the State of Florida for the price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the Proposer. The vendor's manual signature on Form PUR 7033 binds the vendor to the terms of its proposal, should it prevail at the end of the evaluation process. The RFP was made available to vendors via download from the Department's Internet web page. The web page allowed the downloading of the Form PUR 7033, but also allowed the downloading of a form similar but not identical to Form PUR 7033. This second form included the language quoted above binding the vendor to its proposal and the space for the manual signature assenting to those terms, but did not include the 17 General Conditions found on the Form PUR 7033. The proposal submitted by FYA employed the second form, not the Form PUR 7033. It included the manual signature of Dr. Devyani Desai, the president and chief executive officer of FYA, indisputably a person authorized to bind FYA to its proposal. PEMHS' protest contends that, given the strict language of the "Fatal Item" RFP term, FYA's proposal should have been rejected out of hand for failure to include the mandatory Form PUR 7033. Genanne Wilson, the contract administrator, was the person charged with deciding whether the FYA proposal should be rejected. She consulted a Department attorney, who advised her that the second form was acceptable and met the criterion for submission of a Form PUR 7033. Based on that advice, Ms. Wilson distributed the FYA proposal to the three evaluators for scoring. The evaluators' score sheets contained a space calling for them to confirm the presence of the Form PUR 7033, but the testimony at the hearing established that the evaluators relied on Ms. Wilson for that information. Mr. Lefrancois testified that he assumed he would not have received the proposals for evaluation at all had they not contained the Form PUR 7033. The seventeen General Conditions set forth on Form PUR 7033 are commonly referred to as the "boilerplate" language included in any contract issued pursuant to an RFP. They include the terms of submission and opening of proposals, bid protest procedures, terms of invoicing and payment, conflict of interest notices, public records requirements, and contractual restrictions regarding assignment, default, advertising, liability, and cancellation. All of the substantive areas of the General Conditions were set forth in substance, if not precisely the same form, within the RFP itself. While pressing its claim that the literal language of the RFP should apply to disqualify FYA's proposal, PEMHS offered no evidence that FYA gained any competitive advantage by submitting the alternative form that it downloaded from the Department's own web site. No party contended that the submission of the alternative form would release FYA from any of the General Conditions. The Department has modified Form PUR 7033 to include blank signature spaces to be signed in the event the bidder enters into a contract with the Department. PEMHS argued that FYA's failure to include the modified Form PUR 7033 meant that FYA and the Department would be unable to finalize the contract by signature. PEMHS offered no statutory or rule citation that would require the contract to be executed on the modified Form PUR 7033, or that would prohibit the Department from drafting a separate document for the parties to sign in execution of their contract. Greg Chown, the Department's director of contracts, testified that the lack of a signature page in the bid documents would not prevent the Department from subsequently entering into a contract with a successful bidder. In summary, FYA filled out and submitted a form provided by the Department. The form bound FYA to its proposal just as the Form PUR 7033 bound PEMHS to its proposal. FYA gained no competitive advantage by submitting the alternative form. The RFP labeled submission of the Form PUR 7033 a "Fatal Item," but the clear intent of this requirement was to ensure a firm commitment by the vendor, not to trap an unwary bidder who inadvertently downloaded the alternative form from the Department's own web page. The alternative form signed by FYA's president complied with the substance of the "Fatal Item" requirement. In view of all the evidence, FYA's failure to submit a Form PUR 7033 was at most a minor irregularity, properly waived by the Department in the interest of preserving competition in a situation in which only two proposals were received. Section K.3.3 of the RFP provided that the bidder must present "a letter of intent to enter into local interagency agreements required in program objectives: submit cooperative agreement(s) or contract(s) with local school districts describing the manner in which education services shall be provided in performance of this contract." PEMHS contended that one evaluator, Mr. Lefrancois, awarded FYA a "satisfactory" score of three points for this item despite the fact that FYA did not submit the required cooperative agreement or contract.1 In response to Section K.3.3, FYA submitted a letter from Frank Potjunas, the supervisor of dropout prevention services for Pinellas County Schools. The letter, addressed to FYA's president, stated: It has come to my attention that you are applying to the Department of Juvenile Justice to provide a 30 bed residential program for moderate risk girls at your Largo facility. As a Pinellas County School administrator and a member of Florida Youth Academy's Advisory Council, I have spent many days at your program. I have worked closely with the FYA administration and staff and I am aware of the services and care you provide to at-risk youth. I support your application, and if I can be of any further help please let me know. PEMHS contended that the above letter did not constitute either a letter of intent or an actual contract as contemplated by Section K.3.3 of the RFP, and that Mr. Lefrancois therefore erred in awarding FYA three points for this item. PEMHS also pointed out that evaluator Mary Mills agreed that the FYA response was inadequate and that she awarded FYA only two points for this item. The third evaluator, Jennifer Gallman, also awarded FYA three points for this item. She testified that a cooperative agreement signed by all parties would be an ideal submission, but that only the incumbent bidder can realistically be expected to have such an agreement in place. A bidder who does not enjoy the advantage of incumbency should demonstrate that it has made contacts within the community and enlisted support for its prospective program. Ms. Gallman was satisfied that the letter quoted above satisfied Section K.3.3 when read in conjunction with its accompanying text in the FYA proposal: Florida Youth Academy intends to modify existing cooperative agreement [sic] with the Pinellas County School Board to provide onsite dropout prevention programming for these additional beds. There will be one classroom for every 19 youth. A letter of intent from Pinellas County School System is included in this submittal. In summary, the issue raised by PEMHS regarding Section K.3.3 amounts to no more than a minor difference of opinion among the evaluators. Two of the evaluators found FYA's response "adequate" and awarded three points. One of the evaluators found FYA's response "poor" and awarded two points. Either opinion is rational and defensible. Nothing in the FYA response to Section K.3.3 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. Section K.4 of the RFP, entitled "Organizational Capability," required the bidder to submit seven items: An organization chart identifying relationships between dedicated program staff and corporate staff, along with a narrative detailing the capacity of program staff to accomplish program objectives. A synopsis of corporate qualifications indicating ability to manage and meet performance objectives of the proposed program, including copies of corporate documents. A plan to illustrate adequate internal administrative review and monitoring services to assure performance for the program. A resume for each professional staff member to include name, position titles, certifications and qualifications of those providing service. A staffing plan to include name, position titles, and weekly hours allocated to ensure quality service delivery. Narrative description that outlines the arrangements that will be in existence at the time of contract award to rent, purchase or otherwise acquire the needed facilities, equipment or other resources required to perform the contract. Narrative outlining the Offeror's ability to perform the contractual services taking into consideration any existing contracts with the Department, other state agencies or any other agency in which the Offeror has entered into a contractual relationship.2 PEMHS contended that FYA's proposal did not address items 3 and 5 of Section K.4, but that two of the evaluators nonetheless awarded FYA an "adequate" score of three points for this section, while the third evaluator awarded a "poor" score of two points. While FYA's proposal did not separately set out the "plans" referenced in items 3 and 5, a fair reading of the proposal as a whole could lead a rational evaluator to conclude that FYA addressed the substance of those items. As with the dispute over the scoring of Section K.3.3, this issue involves a minor difference of opinion among the evaluators as to the adequacy of FYA's response. Two of the evaluators, judging the proposal in its entirety, determined that FYA adequately addressed the requirements of Section K.4. One evaluator disagreed, finding the response "poor." Either opinion is rational and defensible. Nothing in the FYA response to Section K.4 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. PEMHS complained that evaluator Mary Mills changed her score for two items in her evaluation of PEMHS' proposal. The evidence established that in one instance, Ms. Mills lowered the score from three points to two. In the other instance, Ms. Mills raised the score from two points to three. The evidence further established that Ms. Mills made these changes on her own, prior to submitting her completed evaluation to Ms. Wilson. In each instance, her completed review of the entire PEMHS proposal caused Ms. Mills to reconsider the score she had preliminarily awarded. PEMHS failed to establish that Ms. Mills did anything inconsistent with the duties of a conscientious evaluator. Finally, PEMHS alleged that FYA submitted false information concerning its past performance. Section K.4.1 of the RFP set forth the requirement for documentation of past performance: The Offeror shall submit documentation to support the following: An established history of program implementation within the fiscal constraints of any previous contracts. Achieved measurable results in educational achievements by participants. Satisfactory or higher ratings in a similar program Quality Assurance Evaluation. Involvement by the community in which the program is located indicating the community's support for the continuation of the program, such as local boards, volunteers, local financial or in-kind support, and support by local governmental organizations. Any documentation to support the program's recidivism rates for clients served. The corresponding section of the score sheet provided a possible five points for each of the five aspects of past performance listed in Section K.4, for a possible total of 25 points. Each of the evaluators awarded FYA an "adequate" score of three points for each of the items, except for the item corresponding to "satisfactory or higher ratings in a similar program Quality Assurance Evaluation." For this item, Mr. Lefrancois and Ms. Gallman awarded FYA a "very good" score of four points. Each of them noted that the superior rating on this item was based on FYA's having operated other programs that had achieved "deemed" status, the highest rating available under Quality Assurance Evaluations conducted by the Department. PEMHS alleged that the experience claimed by FYA in its proposal is actually that of another company, Florida Health Facilities, L.P., the assets of which FYA acquired in 2000. PEMHS claims that it was misleading, if not actually false, for FYA to claim credit for accomplishments achieved prior to 2000, and that the evaluators' crediting FYA with those accomplishments fatally undermined the integrity of the procurement process. Contrary to PEMHS' implication, FYA's proposal made no effort to disguise the facts. It stated, in pertinent part: Dr. Devyani N. Desai is the President & CEO of Florida Youth Academy, Inc., which was formed in September 2000 to acquire Florida Health Facilities' business and property. (p. 36) * * * Florida Youth Academy operates 132 beds at the Largo facility, which has received deemed status every year since 1998. It also leases Wilson Youth Academy facility at Land O'Lakes of 32 moderate risk beds. This facility has also received deemed status since 1999. Through the change of ownership FYA has retained all the key management personnel. (p. 37) * * * As noted in the Organizational Capability section of this proposal, FYA programs formerly owned and operated by Florida Health Facilities, L.P., has been [sic] a proven provider of female and female [sic] services for the State, and also the Circuit 6 service area. Along with general program implementation, Florida Youth Academy has also been successful in maintaining financial stability and utilizing the per diem dollars within the constraints of the contract. The formalized report of the audit for year 2000 will be made available upon request. Examples of FYA's ability to provide quality program [sic] is outlined below: FYA currently operates four treatment programs, with varying levels of care. The programs consist of 96 High Risk, 18 Moderate Risk, 18 Low Risk and additional 32 Moderate Risk program [sic] located in another county. Three of the four residential commitment programs have received excellent quality Assurance rating with deemed status results for a consecutive two-year period. (p. 37-38) * * * The facilities have received five year's [sic] of Quality Assurance surveying. Each year ongoing improvements have been evident through increasing scores and achievement of deemed status ratings. Since program development, all levels of care have been proven to be effective at implementing which [sic] meet and exceed QA standards. In the most recent survey of 2000, all the programs achieved and/or maintained deemed status reporting . . . . (p. 38) * * * The current programs at the facility of Florida Youth Academy were previously owned and operated by Florida Health Facilities, L.P. The programs have been operated consistently through change of ownership. The recidivism rate at FYA is below average for comparable programs. The most recent experience is 28% and 30% for High Risk and Moderate Risk programs respectively. (p. 38) PEMHS' implication that FYA submitted false information is unfounded. As the quoted examples from its proposal indicate, FYA directly stated that it had acquired the assets of Florida Health Facilities in 2000, and emphasized that it had made strong efforts to maintain continuity of personnel and services during the transition. PEMHS offered no evidence to document that FYA has failed to maintain the documented quality of the "deemed" facilities it now owns. It was not arbitrary, capricious, or contrary to competition for the evaluators to accept FYA's representations as to the historical and continuing quality of the programs it acquired, absent any evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a moderate risk residential program in Pinellas County for 30 female offenders, pursuant to RFP No. F4G01, to Florida Youth Academy, Inc., and dismissing the protest of Personal Enrichment Through Medical Services, Inc. DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida. 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 29th day of November, 2001.
Findings Of Fact Mrs. Judy Jean Emens is the mother of Teresa Ann Emens who was a student in respondent's biology class at Apopka High School in May of 1978. Late on the night of May 25, 1978, a Thursday, Teresa finished a project for biology class on the kidneys. Perhaps because she was up so late the night before, she did not feel well on the morning of May 26, 1978, and Mrs. Emens decided that her daughter ought not go to school. Teresa asked her mother to take the project to school for her but Mrs. Emens declined and Teresa took it herself on Monday. When Teresa returned from school with the report that respondent refused to accept her project because it was late, Mrs. Emens telephoned Apopka High School, and complained. In general, however, she believes respondent has "been a very good teacher." (T13). Erla Mae Miles is the mother of Barbara Miles, who was a student in respondent's biology class at Apopka High School in May of 1978. On the night of May 25, 1978, Barbara suffered an asthma attack. She did not go to school the following day, a Friday. When she took the project to school on Monday, respondent refused it. Learning of this Mrs. Miles telephoned Apopka High School and complained. On Tuesday May 30, 1978, Mr. Acree, assistant principal at Apopka High School told the principal, Roger Augustus Williams, that a mother had called to complain about respondent's refusal to accept her daughter's project. Later, Mr. Williams himself spoke to another mother with a similar complaint. That afternoon, Mr. Williams discussed the situation with respondent, who said he did not intend to accept the girls' projects. Mr. Williams said "Mr. Lee, you better think this over and come in tomorrow morning and let's discuss it." (T26). The following day Mr. Williams directed respondent orally and in writing to "accept these two projects and grade them. . ." Petitioner's exhibit No. 2. Respondent told Mr. Williams, "I just can't accept those. . .[The two] students knew what day it was due in and. . .the other kids would want to turn them in and it wouldn't be fair to them." (T29). Respondent reiterated this refusal some ten days later. He never accepted the projects for grading. In Mr. Williams' opinion, respondent was insubordinate but not insulting; he testified that respondent has never shown him any disrespect. Paragraph A of Article XIV of the contract between petitioner and the union of which respondent is a member provides: Teachers shall have academic freedom in the District, provided that: The teacher must be acting within accepted and/or adopted curriculum and courses of study. Instructional materials presented must be pertinent to the subject and level taught. The teacher presents all facts in a scholarly and objective manner. Topics discussed and materials presented within the classroom must be relevant to the subject matter under study and within the teacher's area of professional competence. A teacher shall have freedom in the implementation of the curriculum including the right to select material and to determine the class needs as they relate to the curriculum, however, this does not exclude the right and obligation of the principal or immediate supervisor to question, consult and direct whenever necessary. Petitioner's policy on attendance and excuses provides, in part: A student may be granted an excused absence when in the opinion of the Principal or his representative the absence is to the educational advantage of the student or an absence which is due to. . .personal illness of the student whose attendance in school would endanger his/her health or the health of others. . . Petitioner's exhibit No. 1. Apopka High School's policy is consistent with petitioner's policy, both of which were known to respondent in May of 1978.
Recommendation Upon consideration of the foregoing and in order not to disrupt respondent's students' education unduly, it is RECOMMENDED: That petitioner suspend respondent for one day. DONE and ENTERED this 10th day of January, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Mr. Thomas S. Lee, Jr. 4289 Lake Richmond Drive Orlando, Florida 32805
The Issue The issues in this case are: whether Respondent's intent to award a contract to Intervenor for an immediate response notification system pursuant to Request for Proposal 2007-01 (the RFP) was contrary to Respondent's governing statutes, rules, policies, and solicitation specifications and whether Petitioner has standing to protest the intended award.
Findings Of Fact The Florida legislature designated funds in the amount of $1,500,000 in Specific Appropriation 116 of House Bill 5001, the 2006 General Appropriations Act (Specific Appropriation 116) for pilot implementation of an immediate response notification system in seven Florida school districts. The appropriation provided: Funds for School Safety/Emergency Preparedness are provided for pilot implementation of an immediate response information system in one large, two medium, and four small school districts. The system will serve to enhance the safety of school children in emergency situations, such as impending hurricane and severe weather, fire, bomb threat, homeland security and other critical school safety events. The system must be real-time and multi-lingual with the ability to notify parents of emergency and non-emergency situations in at least ten different languages through email, telephone, and other communication devices. The Department of Education shall competitively bid this project in accordance with the provisions of chapter 287, Florida Statutes. To allow for early implementation, all funds shall be under contract no later than September 15, 2006. The Department issued the RFP on or about September 1, 2006. Pertinent portions of the RFP provided: PROPOSALS ARE DUE BY: 2:30 EST, ON SEPTEMBER, 15, 2006. ESTIMATED POSTING BEGINS SEPTEMBER 25, 2006, AND ENDS SEPTEMBER 28, 2006. [Cover Sheet] The Department is seeking qualified vendors to provide pilot implementation of an immediate response notification system to be piloted in seven (7) Florida school districts. Additional school districts may be added in subsequent years based on appropriations and periodic performance reviews. The Proposer must have a notification system that currently exists. The system must have undergone rigorous field testing and evidence must be provided to demonstrate successful implementation for similar school districts. The Proposer must have demonstrated the ability to coordinate and integrate all components of the system. The proposed system shall not require the school districts to purchase or lease any additional hardware or software or infrastructure upgrade to obtain the service. The pilots will be in one large, two medium, and four small districts. For purposes of this proposal a large district would be any district with over 150,000 students, a medium would be any district of 50,000-100,000 students and a small district would have up to 50,000 students. [Page 29] The State's performance and obligation to pay under this contract are contingent upon an annual appropriation by the Legislature. [Page 11] Any protest concerning this solicitation shall be made in accordance with Sections 120.57(3) and 287.042(2) of the Florida Statutes and chapter 28-110 of the Florida Administrative Code. Questions to the Procurement Office shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and that specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. [Page 16] Any person who is adversely affected by the specifications contained in this RFP must file the following with the Department . . . A written Notice of Intent to Protest within seventy-two (72) hours after posting of this RFP specifications, and The Formal Written Protest by petition and Protest Bond in compliance with Section 120.57(3), Florida Statutes, within ten (10) days after the date on which the written Notice of Protest is filed. Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. [Page 19] A responsive proposal is a proposal submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation. A responsive and responsible vendor is a vendor that has submitted a proposal that conforms in all material respects to the solicitation and who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good-faith performance. Material requirements of the RFP are those set forth as mandatory, or without which an adequate analysis and comparison of proposals is unreasonable or impossible, or those which affect the competitiveness of proposals or the cost to the State. Proposals may be rejected if found to be irregular or non- responsive by reasons that include, but are not limited to, failing to utilize or complete prescribed forms, modifying the proposal requirements, submitting conditional proposals or incomplete proposals, submitting indefinite or ambiguous proposals, or executing forms or the proposal sheet with improper and/or undated signatures. Proposals found non- responsive will not be considered. Proposers whose proposals, past performance or current status do not reflect the capacity, integrity or reliability to perform fully and in good faith the requirements of the Contract may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP, and which proposers are responsible. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. [Page 21] The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. [Page 25] REFERENCES: (ATTACHMENT 3) Provide at least three (3) references, which demonstrate efforts comparable to the one described in the RFP. Provide a list of school districts and other venues where this technology is currently in use. The Department reserves the right to contact the references regarding the services provided. [Pages 27-28] ATTACHMENT '3' WORK REFERENCES Provide the following reference information for a minimum of three (3) similar school districts or other venues where services of similar size and scope have been completed. [Page 37] Proposals will be evaluated and graded in accordance with the criteria detailed below. a. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding the project, qualifications, approach and capabilities, to assure a quality product. Only those proposals that are found to meet the verification of Section 4.2 Mandatory Submittal Documents will have the technical proposal evaluated. For this purpose, evaluators will consider a Proposer's description and explanation of the proposed products and services as described in the proposal and the supporting documents. The proposal evaluation committee, acting independently, will assign ratings of the quality of the proposed technical solutions to the work tasks specified in the RFP. Of these ratings the high and the low score will be discarded and the remaining scores averaged. The following point system is established for scoring the technical proposals: . . . Qualifications and Experience including rigorous testing of the system (10 [points]). . . Price Proposal Price analysis is conducted through the comparison of price quotations submitted. By submitting a proposal, Proposers agree to serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. Only proposals that are found to meet the mandatory minimum requirements and which receive an average rating of seventy (70) or more points for the Technical Proposal will have the cost proposal evaluated. The Department will determine if a cost proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. Any cost proposal that is incomplete may be rejected by the Department. Cost analysis is conducted through the comparison of price quotations submitted. A total of 20 points is possible. The fractional value of points to be assigned will be rounded to two decimal points. The criteria for price evaluation shall be based on the following formula: (Low Price/Proposer's Price) x Price Points=Proposer's Awarded Points [Pages 32-33] The price proposal must be submitted on the form provided as Attachment '4'. [Page 29] ATTACHEMENT '4' VENDOR'S BID SHEET We propose to provide the services being solicited within the specifications of RFP 2007-01. All work shall be performed in accordance with this Request for Proposal, which has been reviewed and understood. It is also understood that the Proposer will serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. DESCRIPTION TOTAL COST____ PRICE PER STUDENT $ /per student [Page 38] NTI did not file a protest concerning any of the specifications of the RFP within 72 hours of the issuance of the RFP. Addendum No. 1 to the RFP was issued on or about September 8, 2006, to provide answers to questions submitted by vendors during a question and answer period. Addendum No. 1 was the only addendum to the RFP and provided an answer to a question submitted by Roam Secure, Inc. (Roam Secure) regarding pricing. The question and answer provided: Q. Our pricing is based on total number of users. Because there is a significant amount of up front work involved, i.e. server setup, network optimization, data import, registration customization, and training, it is not feasible for us to supply a solution based on a few users. As such we are hoping that [the Department] will allow us to provide a total price for this RFP based on unlimited number of users for the 7 districts. Would that be acceptable to [the Department]? A. This would be acceptable, as the RFP states the vendor will serve the entire population of the seven districts chosen by the Department of Education. The large district will have more than 150,000 students, the two medium districts will range between 50,000 students and 150,000 students and four small districts will include districts with student populations of up to 50,000. See page 29.5.0 Scope of Services in the RFP. Addendum No. 1 did not address how the Department was going to compare a total price with a per student price as set out in the original RFP. The RFP does not specify what process the Department would have used to determine whose cost proposal would be the lowest or how the Department would determine the number of cost points to be awarded when there is a mix of per student prices and total prices. The Department had not determined which school districts would participate in the pilot program prior to the submission of the proposals and, as of the date of the final hearing, it was still not determined which school districts would participate. The deadline for receipt of proposals in response to the RFP was September 15, 2006, at 2:30 p.m. The Department received ten proposals in response to the RFP. The Department determined that six of the ten proposals submitted did not meet the mandatory requirements of the RFP. The Department's Selection Committee evaluated proposals submitted by NTI, US Netcom, TechRadium, and Roam Secure. Based on the RFP tabulation posted by the Department on September 29, 2006, NTI received the highest technical points of all the proposers. The technical points that were awarded by the Department's Selection Committee were as follows: NTI 89 points US Netcom 84.4 points TechRadium 80.6 points Roam Secure 67.4 Roam Secure's proposal was disqualified, and its cost proposal was not evaluated because it failed to receive an average rating of 70 or more points for its technical proposal as required by Section 6.1 of the RFP. By submitting a proposal, all proposers agreed to provide the services being procured through the RFP for a price of no more than $1,500,000 regardless of the districts selected by the Department or the number of students in such districts. TechRadium submitted a proposal to provide the requested services for $1.95 per student. US Netcom submitted a cost proposal of $3.00 per student and included a charge of $135.00/hr for [a]dditional customization [that] may be required to meet some of the application requirements." NTI submitted a cost proposal as follows: PRICE PER STUDENT Large District shall not exceed $2.60/per student Medium District shall not exceed $3.00/per student Small District shall not exceed $3.00/per student. SUPPORT FEE $1,000/per district $100/per site/per district The Department determined that NTI's cost proposal was non-compliant. The Department awarded TechRadium 20 cost points for a total score of 100.6 and awarded US Netcom 13 cost points for a total score of 97.4. At the final hearing, the Department represented that it now considered US Netcom's cost proposal as non-compliant, but, as of the date of the final hearing, the Department had not posted its intent to determine US Netcom's proposal non-compliant. In response to the RFP requirement that the proposers provide at least three references, "which demonstrate efforts comparable to the one described" in the RFP, TechRadium listed the Klein Independent School District, Northwest Indiana Educational Service Center, and Goose Creek CISD. The Klein Independent School District has a total population of less than 50,000 students. The software license agreement between TechRadium and the Klein Independent School district states that the authorized number of seats is 37,000.1 The Goose Creek Consolidated Independent School District has a total student population of less than 25,000. The contract between TechRadium and Goose Creek Consolidated Independent School District provides for 21,500 authorized seats. The contract between TechRadium and the Northwest Indiana Educational Service Center provides for 185 authorized seats, but TechRadium has provided services to approximately 90 individuals annually in the Northwest Indiana Educational Service Center. The Department reserved the right to contact the references listed in the proposals. None of the references of any of the proposers was contacted by Department during the evaluation process to verify the experience of the proposers with systems comparable to the one required by the RFP. The Department considered the listing of the references sufficient if the references included some school districts. On September 29, 2006, the Department posted its intent to award the contract arising out of the RFP to TechRadium. On October 4, 2006, NTI filed a Notice of Intent to Protest the Department's intent to award the contract to TechRadium. NTI filed its Formal Written Protest and Petition for Formal Administrative Hearing on November 7, 2006. The protest was accompanied by a bond which satisfied the requirements of applicable statutes and the RFP. NTI is not contesting whether TechRadium has the infrastructure or capacity to fulfill the pilot program requested in the RFP. No funds allocated for School Safety/Emergency Preparedness in Specific Appropriation 116 were under contract on or before September 15, 2006. NTI was aware of Specific Appropriation 116 prior to the Department's issuance of the RFP. NTI did not object to the time limitations for opening bids or posting the rankings until it filed its formal written protest on October 13, 2006. NTI was aware of the time limitation of which it now complains more than 72 hours prior to the filing of its formal written protest. Prior to the issuance of the RFP, Michael Arnim, the Director of Sales at TechRadium, sent e-mails to school districts in Florida containing multiple untrue representations regarding the pilot project. Mr. Arnim had misunderstood some conversations he overheard at the TechRadium office in Texas and thought that TechRadium had been awarded the pilot project. He sent e-mails to some of the school districts stating that the Commissioner of Education could verify that TechRadium would be providing the notification systems for the pilot project and requesting the school districts to send letters of intent on the school districts' letterhead indicating the school districts wanted to participate. When the Department brought the e-mails to the attention of others at TechRadium, Mr. Arnim was reprimanded, and no further representations were made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding the contract for an immediate response notification system pursuant to RFP 2006-01 to TechRadium. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S ___________________________________ SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings 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 this 9th day of January, 2007.
The Issue The issue to be determined is whether Respondent has violated section 1012.795(1)(c) and (j), Florida Statutes (2007), and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact Respondent is a teacher licensed by the State of Florida, and has been issued Florida Educator's Certificate 400054. Her certification covers the areas of history, physical education, social science, and middle grades, and is valid through June 30, 2014. Respondent was employed by the DCSD since 1981, and taught at several different schools during her employment. During the 2007-2008 school year, she was employed as a geography teacher at Jefferson Davis Middle School (Jefferson Davis). During the 2008-2009 school year, she taught geography at Southside Middle School (Southside). The allegations in this proceeding concern Respondent's behavior during and professional evaluations with respect to the 2007-2008 and 2008-2009 school years. During this period, the DCSD used the Teacher Assessment System (TAS) as the authorized method of evaluating teacher performance. The TAS measures teaching performance based on nine identified "competencies," which are as follows: Promotes student growth and performance; Evaluates instructional needs of students; Plans and delivers effective instruction; Shows knowledge of subject matter; Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; Shows sensitivity to student needs by maintaining a positive school environment; Communicates with parents; Pursues professional growth; and Demonstrates professional behaviors. A teacher's evaluation was based upon two formal classroom observations performed by a school administrator, which was usually the principal or an assistant principal. The teacher was afforded a pre-observation conference at which time the date for the observation was selected and the lesson plan to be taught during the observation was discussed. After the observation, there was a post-observation conference where the administrator's observations, which were recorded on a Teacher Assessment Instrument (TAI) were discussed. In addition to the formal evaluations, administrators also could use informal, unannounced observations of teachers in forming their opinions regarding performance. In the final evaluation conference with a teacher, a form entitled Evaluation of Professional Growth of a Teacher was used to document the instructor's final rating in each competency area and to record the teacher's overall performance rating for the school year. If a teacher demonstrated deficient performance in one or more competency areas, a "success plan" was developed for the teacher in an effort to assist the teacher in improving performance. The elements of the success plan were developed by a success team, typically composed of the teacher, school administrators, teachers with expertise in the relevant subject matter area, and resource teachers or "coaches." These elements, which were developed with input by the teacher being assisted, identified weaknesses by competency category, set out objectives to address these weaknesses, and provided timelines to meet the identified objectives. Addison Davis was the principal at Jefferson Davis from December 2005 through August 2009. He was the principal responsible for evaluating Respondent's performance during the 2007-2008 school year. On August 28, 2007, Mr. Davis conducted an informal "walk through" of Ms. Bowman's classroom. He observed that although the students had been instructed to read, 16 out of 23 of them did not have a book and were doing nothing. Ms. Bowman did nothing to provide these students with a book, and after 21, 31, and 37 minutes of class time respectively, Mr. Davis noted that no instruction had yet taken place. During the "mini- lesson," Ms. Bowman was asking questions and the students were yelling out unison responses, a practice which is not considered an effective teaching method. Mr. Davis's notes regarding the walk-through observation included the following observations: Instructor informed that "the quieter the class, the more hall passes were given out." Instructor asked questions and students were talking about unrelated topics . . . No evidence of learning taking place. No daily objectives were extended. Essential questions and vocabulary were not extended. Standards were not introduced. I asked the instructor for a lesson plan and one was not provide. [sic] Instructor said, "I don't have one." Student called Mrs. Bowman Ms. Bowwow. I had to address the class about gross respect. Mr. Davis observed no implementation of best practices and saw significant classroom management problems. Mr. Davis conducted a formal observation of Ms. Bowman on September 20, 2007, for which appropriate prior notice had been provided. The TAI completed for this observation indicated that all competencies were satisfactory with the exception of one area: plans and delivers effective instruction. Mr. Davis met with Ms. Bowman on September 26, 2007, to go over her TAI. He also spoke to her about calling him a dictator in the teacher's lounge at some point before the meeting. During this conversation, Mr. Davis spoke to Ms. Bowman about developing a success plan for her. Although Ms. Bowman signed her TAI, she informed Mr. Davis that she felt she was being targeted. A success plan meeting was scheduled for Wednesday, October 24, 3007. On October 22, 2007, Mr. Davis went to the cafeteria to remind Ms. Bowman, out of the hearing of students, of the meeting scheduled for later that week. Ms. Bowman stated that she did not have adequate time to arrange for a union representative, and while the two left the cafeteria, continued to express her feeling that she was being targeted. By the time Ms. Bowman and Mr. Davis reached the front office, she was yelling at Mr. Davis in the presence of students and staff, and accusing him of harassing her. When Mr. Davis advised her that she was acting unprofessionally, Ms. Bowman called him a liar. Approximately 30 minutes later, Mr. Davis called Ms. Bowman to his office to counsel her regarding her professional responsibilities. Ms. Bowman continued to claim she was being harassed, and Mr. Davis told her they needed to move forward. In response, Ms. Bowman told Mr. Davis she was not going to "kiss his ass" and walked out, still yelling at him. As a result of these incidents, Ms. Bowman received a written reprimand on October 23, 2007, considered step two discipline for the DCSD. Step one discipline had been imposed for a prior incident during the 2007-2008 school year. Ms. Bowman did not attend the success plan meeting scheduled for October 24, 2007. Despite her refusal to participate, Respondent was placed on a success plan which was implemented on or about November 3, 2007. Ms. Bowman made it clear that she would not participate in completing the success plan, despite repeated encouragement to do so. She refused to attend meetings and completed none of the identified objectives. A revised success plan dated January 18, 2011, was prepared, which reflected that none of the strategies were completed. Ms. Bowman refused to sign the revised success plan and continued to claim that she was being targeted. On December 10, 2007, Mr. Davis conducted an observation of Ms. Bowman, for which she had received notice November 27, 2007. As a result of this observation, Mr. Davis found that Ms. Bowman did not meet the competencies for promotes student growth and performance; plans and delivers effective instruction; and shows knowledge of subject matter. Mr. Davis was especially concerned that during his observation, two students were sleeping, and a third was wearing a hood on her head, which is prohibited. In addition, a significant portion of class time was focused on Sojourner Truth and the role she played in America's history. Teaching about Sojourner Truth, while relevant to geography in terms of cultural change, did not align with the pacing guide for teaching middle school geography at that point in the semester. On January 18, 2008, Ms. Bowman met with Mr. Davis regarding her December 10, 2007, observation, which they had discussed previously on January 2, 2008. A success team meeting was scheduled to occur after Ms. Bowman's meeting with Mr. Davis. During this initial meeting, Mr. Davis provided to Ms. Bowman a Notice of Potential Unsatisfactory Evaluation. Ms. Bowman became very upset during the meeting with Mr. Davis. She started yelling and could be heard by those staff members in the office area, calling Mr. Davis a liar and insisting that he was targeting her. Ms. Bowman refused to participate in the success plan meeting, continuing to insist that she was being targeted and harassed. Shortly after the meeting, Ms. Bowman returned to the office to say that she was leaving because she did not feel well. She called Mr. Davis a "son of a bitch" and said that "If I go down, then I am taking him with me." As a result of her behavior on January 18, 2008, on February 4, 2008, Ms. Bowman received another written reprimand as step three of the progressive discipline plan employed by the DCSD, and the Office of Professional Standards was notified. Ms. Bowman refused to sign the letter of reprimand.1/ An additional formal observation was conducted on January 30, 2008, by Tiffany Torrence, an assistant principal at Jefferson Davis. The TAI prepared for the observation indicated that competencies were not demonstrated for the following areas: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; and demonstrates professional behaviors. On March 3, 2008, Ms. Bowman received an unsatisfactory evaluation for the 2007-2008 school year. The evaluation reflected unsatisfactory ratings for the competencies of promoting student growth and performance; planning and delivering effective instruction; and demonstrating professional behaviors. She received a "needs improvement" for the competency of evaluating instructional needs of students. On May 7, 2008, John Williams, Director of Professional Standards for the DCSD, notified Ms. Bowman that, consistent with DCSD policy, in light of her unsatisfactory evaluation she had the right to elect to stay at Jefferson Davis or be reassigned to another school for the following school year. Failure to make an election by May 16, 2008, on the form provided would result in the automatic transfer to another school. Ms. Bowman did not submit the form and was transferred, consistent with DCSD policy, to Southside Middle School for the 2008-2009 school year. The principal for Southside during the 2008-2009 school year was LaTanya McNeal. In light of Ms. Bowman's unsatisfactory evaluation the previous year, and her own preliminary observations of Ms. Bowman, she initiated a professional development plan for Ms. Bowman on August 28, 2008. The plan identified four areas of focus: 1) to effectively create and maintain a standards-based bulletin board; 2) to effectively create and maintain a standards-based classroom environment; 3) to consistently develop plans based on student data; and 4) to effectively maintain student portfolios with work that meets the outlined standards according to the department checklist. The plan also provided certain goals and timelines for completing these goals, including the continued maintenance of daily lesson plans that reflect the workshop model. Ms. Bowman refused to sign the professional development plan. Ms. Bowman was informally observed on September 5, 2008, and September 24, 2008, with notice provided prior to the observations. Neither observation could be characterized as successful. The Teacher Observation Follow-up Form completed on September 25, 2008, included the following: -Teacher must have daily lesson plans and workshop model for social studies on her board. -Must have daily writing prompts -Portfolios (student) must be maintained consistently. -Per teacher has a problem with the support (amount) that is provided [Instructional coach, Department chair, Professional Development Facilitator and administrator]. On October 22, 2008, Ms. McNeal conducted a formal observation of Ms. Bowman, for which notice was provided. The TAI prepared as a result of the observation indicated in part that there was no evidence of student portfolios and that the students' folders were empty. There was no evidence of differentiated instruction or use of data to guide instruction; portfolios showed no evidence of work artifacts. The form also indicated that one student was sleeping, and Ms. Bowman yelled at him to wake up once someone came to retrieve him from class. In addition, the class was in disarray with Ms. Bowman engaging in shouting matches with the students. It was noted that Ms. Bowman had not initiated any parent/teacher conferences for academic or behavioral reasons. The TAI indicated deficiencies in the following competencies: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; shows sensitivity to student needs by maintaining positive school environment; communicates with parents; and demonstrates professional behaviors. Ms. Bowman did not accept the TAI, and wrote on it that "principal did not tell the truth and was unfair and misleading." On October 28, 2008, Ms. Bowman was provided a Notice of Potential Unsatisfactory Evaluation, with competencies A, B, C, E, F, G and I listed as needing improvement. The Notice notified her that a success plan would be developed with her input and collaboration, with a conference to be held on November 3, 2008. Ms. Bowman refused to sign the Notice. On November 3, 2008, the success team met with Ms. Bowman in attendance, and a success plan was developed. The success plan included the concerns outlined in the professional development plan and focused on data-driven instruction, use of student portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program, which is a classroom management program used throughout DCSD. Consistent with DCSD policy, a success team was created that included Principal McNeal, other administrators, Ms. Bowman, a reading coach, and an instructional coach. In contrast to the experience at Jefferson Davis, Ms. Bowman at least attended the success plan meetings. Consistent with the objectives outlined in the success plan, Ms. Bowman was provided training and technical support for Compass Odyssey and FCAT Explorer, which are computer programs used to assess student needs and to track student progress. However, Ms. Bowman did not use the programs in her teaching and rejected the concept of individualized instruction based on student needs. She did not implement a portfolio system and declined to observe another teacher conducting a parent-teacher conference. As of January 30, 2009, Ms. Bowman had not submitted a five-day lesson plan, which is required of all teachers, despite that fact that the school year was over half-way completed. While Ms. Bowman claimed that she knew how to conduct parent-teacher conferences, Ms. McNeal had received numerous calls from parents upset about the grades received in Ms. Bowman's classes, and the lack of contact with Ms. Bowman. Ms. Bowman continued to complain that she was being singled out and that the success plan was merely a pretext to justify her termination. Although the success plan was deemed "completed" on February 25, 2009, Ms. Bowman did not incorporate the concepts identified in the success plan into her classroom instruction. To the contrary, it appears that Ms. Bowman's instructional methods did not change at all. Ms. McNeal conducted another formal observation of Ms. Bowman on March 11, 2009, in the afternoon. FCAT testing had taken place earlier in the day and Ms. Bowman thought it unfair to be observed on that day. However, she designated the date for observation during her pre-observation conference on March 6, 2011. The TAI indicates that competencies were not satisfactory for the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management techniques; shows sensitivity to student needs by maintaining positive school environment; and communicates with parents. Ms. McNeal noted on the TAI that a recent grade printout showed high levels of D's and F's for Ms. Bowman's students. For example, the printout dated March 5, 2009, indicated that out of 16 students in her first period class, five students had F's and two had D's. Of the 24 students in her second period class, 13 were failing and two had D's. Ms. Bowman was offered significant assistance to improve her performance. Ms. Bowman attended training opportunities on 14 school days where substitutes were arranged to handle her teaching duties. She was also offered the assistance of instructional and reading coaches, which she consistently rejected. On March 13, 2009, Ms. McNeal issued an Evaluation of Professional Growth of Teacher for Ms. Bowman. The overall evaluation resulted in an unsatisfactory rating, with unsatisfactory ratings in the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management; shows sensitivity to students by maintaining positive school environment; and communicates with parents. Ms. Bowman was rated as needing improvement in the areas of planning and delivering effective instruction and demonstrating professional behaviors. Ms. Bowman signed the evaluation but indicated that she did not accept it, noting that her observation was conducted on a day of FCAT testing. Ms. Bowman attacked the credibility of the principals at both Jefferson Davis and Southside, stating that they were targeting her and retaliating against her. However, no credible evidence was presented to show any basis for Mr. Davis or Ms. McNeal to retaliate against her. Moreover, as noted in the Recommended Order in Duval County School Board v. Bowman, Case No. 09-3004 (Fla. DOAH Jan. 12, 2010; DCSD Mar. 15, 2010), Respondent's work history indicates a pattern of blaming others for poor evaluations. On May 5, 2009, Respondent was notified by the Superintendant of Schools for DCSD, that based upon her two successive unsatisfactory evaluations, he was recommending that her employment be terminated. Ms. Bowman requested a hearing pursuant to chapter 120, and the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. After completion of a hearing, on January 12, 2010, a Recommended Order was issued recommending termination of Ms. Bowman's employment in Duval County School Board v. Bowman, Case No. 09-3004. A Final Order adopting the Recommended Order and terminating Ms. Bowman's employment was entered by the Duval County School Board on March 12, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent has violated the section 1012.795(1)(c) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), and revoking her educator's certificate. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of January, 2012.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (‘the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $50.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this | ¥ day of N. > lerber , 2011. retary are Administration Filed November 22, 2011 9:57 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this_/s day of LV lenfel ,2\1. Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Richard Shoop, Agency Clen Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Shaddrick Haston, Manager Assisted Living Licensure Unit Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Lafeta L. Coleman Myrtice Angels Senior Home Care, LLC 1061 Division Street Jacksonville, Florida 32209 (U.S. Mail) Carlton Enfinger, Esq. Office of the General Counsel Agency for Health Care Administration (nteroffice Mail) F. Scott Boyd Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2017.
