The Issue Whether the Respondent, John Obrzut, should be terminated from his employment for reasons of incompetence and his alleged failure to advise the Superintendent of the Franklin County School District time and filing requirements under the above-cited Statute, because of failure to submit required monthly reports to the School Board as well as for unauthorized absences.
Findings Of Fact On May 6, 1985, the Respondent entered into an employment contract with the Franklin County School Board for employment in the position of Finance Officer and Business Manager. The contract's term continued through June 30, 1986, with a commencing date of July 1, 1985. The contract provided for a probationary status for Respondent. The Respondent was provided with a copy of the job description for the Finance Officer/Business Manager position he accepted and contracted for at the time of his employment. That job description established that the individual directly responsible to the Superintendent and the School Board for all activities concerned with the financial operations of the school system was the Finance Officer/Business Manager, Dr. Obrzut. Superintendent Gloria Tucker interviewed Dr. Obrzut for this position and was especially concerned that he understand the duties he would have in that office because the School Board was experiencing financial difficulties at that time, primarily related to the disheveled condition of its records for the past several fiscal years due at least in part to previous mismanagement by those with Dr. Obrzut's responsibilities. The Respondent was informed that it would be necessary for him, as Finance Officer, to reconstruct portions of those records. Dr. Obrzut did not inquire regarding the specific status of the records during the time of his employment interview and once he became employed he found the problem to be considerably worse than he had expected. Ms. Tucker informed the Respondent that his duties would include keeping her advised of the "TRIM Bill" time requirements in order to meet the budget publication date of July 25, 1985, as required by that law. His job description also required him to prepare a monthly financial statement showing receipts, disbursements and the balance of funds available in the district budget. Additionally, on June 24, 1985, after he was hired, the Respondent was given the various task assignments, in writing, from the Superintendent. These involved: (1) gathering necessary data and preparing the budget amendment for the June 27, 1985 School Board meeting; (2) develop with Mr. Johnson's help the baseline data that would establish the "time-line" for reconciliation of the 1982-1983 and 1983-1984 budgets, which was one of the Respondent's two major priorities for June and July of 1985 because, given the disarray of its financial records, the Board had an immediate necessity to know what cash reserves it truly had on hand; (3) set up a time schedule concerning when final reports were due on each federal and State project and when that information would be available to the Superintendent, as well as to give the Superintendent a written report as to how the "time-line" would operate during July and August of 1985. (4) The Respondent was required to set up a written time schedule as when Department of Education reports were due so that no reports would be filed late. Assignment number 5 involved reviewing the requirements for budget preparation as stated in the law regarding time requirements (i.e. the "TRIM Bill"). The Respondent was to directly contact the County property appraiser concerning when tax millage information from his office would be ready for the budgeting process. The Respondent's past employment history involved various clerical, accounting and financial analyst positions for most of the last two decades, as well as substantial periods of time spent obtaining graduate degrees. His longest period of employment was four years with the Department of Transportation, where he supervised a clerical unit with a number of employees reporting to him. Prior to his employment with the Franklin County School Board, he had no experience as the overall supervisor of financial operations of any agency of government or a private enterprise. He had no experience with school finance procedures established under Chapter 237, Florida Statutes. On June 24, 1985, the Respondent was given the assignment involving task number 5 mentioned above, whereby he was to review the requirements for budget preparation as stated in the above- cited Statute regarding time requirements. He contacted the property appraiser concerning when the Superintendent and the Board might expect tax millage information from his office required for the budget process. The Respondent was also verbally instructed by the Superintendent at this same time to keep her informed of all specific dates required by the law concerning budget events. In the course of these verbal instructions, the Superintendent advised Dr. Obrzut that she was especially concerned about this because this was her first time to be involved in the budgeting process as a Superintendent of Schools. On June 25, 1985, Dr. Obrzut advised the Superintendent that he had called the Franklin County property appraiser's office and it provided him no information on the requirements for the budget process at that time, in the form of the tax millage information, but he expected advice from them on this subject on June 27, 1985. He also advised the Superintendent at this time that he expected to receive a planning document, with the time requirements for the budgeting process, in the mail from the Department of Education and also expected to receive a copy of it personally at a school financial officer's meeting in Tampa. Dr. Obrzut reviewed Section 200.065, Florida Statutes (the "TRIM Bill"), as requested by the Superintendent, but his testimony establishes that he has no recollection of making any notes or recollection concerning the sequence of events required by the Statute as deadlines in the budget preparation process. In any event, the Respondent had no further communication with the Superintendent concerning the budget time requirements. He subsequently learned that a copy of the planning document would also be mailed to the Superintendent and therefore simply assumed she would monitor the State's various budget planning event time requirements herself. He took no further steps to advise her of the various critical time deadlines. In fact, no one in the Franklin County School District administration was monitoring the budget time schedule of events because the Superintendent, whom the financial officer, Dr. Obrzut, directly reported to, was relying on Obrzut to do this. This fact, however, was discovered accidentally by Mr. David Johnson, a contract certified public accountant, who was performing an audit of the internal accounts of the various district schools. Mr. Johnson was meeting with the Superintendent concerning matters about the internal audit on a Wednesday in July 1985, when he inquired of her as to the status of the district's advertising of its forthcoming budget, as required by law. The Superintendent advised him that Dr. Obrzut was monitoring the schedule of events and deadlines concerning the budget preparation and advertising process. Mr. Johnson thereupon visited Dr. Obrzut at his office and retrieved from him the planning document that Obrzut had received from the Department of Education. Mr. Johnson informed the Superintendent that the budget must be completed and ready for advertising prior to the following Tuesday. This was the first time the Superintendent had learned of the immediately impending deadline for budget advertising as required by the above Statute. The Franklin County School District employees responsible for preparation of the budget then had to work through the entire weekend that ensued in order to timely complete the budget in time for the advertising deadline on Tuesday. The testimony of the Superintendent as well as Mr. Johnson, who has extensive experience in the field of educational finance and was accepted as an expert in that field, established that had that deadline been missed the Franklin County School District would have lost approximately $500,000 in tax revenues needed to fund its $3,000,000 operating budget. Dr. Obrzut acknowledged that he was responsible for ensuring that the federal cash advance reports were sent to the Department of Education in a timely fashion in order to ensure the continuous flow of funds to the district for the district's federally funded projects. He established that he prepared one of these reports himself and delegated the task of preparing the September 1985 report to one of his subordinate employees, Donna Ward. He admitted he did not monitor her work and ensure that the report was timely filed and did not learn of the fact that it had not been filed until the Superintendent informed him of that fact at the time she informed him she would recommend his dismissal. The report was delinquent at that time and the district had already ceased to receive federal funds because of that delinquency. David Johnson was accepted as an expert witness in the areas of accounting and Florida school finance. He worked for the Office of the Auditor General for three years and then spent several years in the capacity of a school Finance Officer. He is a certified public accountant and currently operates an accounting firm that renders accounting assistance to four school districts in Florida. Additionally, he serves as chairman of the Walton County School Board. Mr. Johnson was retained to assist Dr. Obrzut in reconstructing the ledgers and records for the fiscal years 1982- 83 and 1983-84. He was also asked to school Dr. Obrzut in the legal and regulatory requirements and accounting procedures attendant to the peculiarities of Florida school finance. Mr. Johnson established that he had great difficulty explaining to Dr. Obrzut the nuances and peculiarities of the Florida school finance law, reporting requirements and accounting procedures. He spent more than one full day in attempting to explain these duties of Dr. Obrzut's position to him. Dr. Obrzut would indicate that he understood, but later conversation revealed that he did not in fact understand what had been explained to him. Further, Dr. Obrzut showed a penchant for discussing tangential or even unrelated matters with great Verbosity during Mr. Johnson's attempts to explain his financial duties to him. This may have frustrated Dr. Obrzut's opportunity to understand the explanation of his financial duties and the requirements of his position and doubtless frustrated Mr. Johnson's efforts to explain them. In any event, Mr. Johnson established that, based upon his association with Dr. Obrzut over a period of several months, that Dr. Obrzut did not possess the knowledge and skills necessary to enable him to serve as a School District Finance Officer, even in view of his educational degrees in the areas of finance. This opinion was unrebutted.
Recommendation Having considered the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent John Obrzut be terminated from his position of employment with the School Board of Franklin County. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1775 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted, but not for the material import sought to be conveyed. Rejected as to its overall import as not in accordance with the greater weight of the testimony and evidence presented. Accepted to the extent that the Petitioner failed to present evidence of any unauthorized absences, but the remainder of this proposed finding is rejected as not comporting with the greater weight of the material evidence presented. Rejected as not in accordance with the greater weight of the evidence and testimony presented, except that the record does not reflect that he ever received any written reprimand or warning. Accepted. COPIES FURNISHED: Van P. Russell, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Edward S. Stafman, Esquire 317 East Park Avenue Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Gloria H. Tucker, Superintendent Franklin County School District 155 Avenue E Apalachicola, Florida 32320
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether the Respondent, the Gadsden County School Board (Respondent or Board), acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all proposals for telecommunications services as set forth in its E-Rate application for the school year 2003-2004 (the sixth year).
Findings Of Fact The Petitioner is a municipal corporation operating under authority of law. NetQuincy is the utility/entity through which the City sought to provide "information technology resources" as requested by the Board's RFP. NetQuincy is capable of providing internet access and related telecommunication services. "T1" is a specific type of information technology that identifies internet access. It is undisputed that the Petitioner sought to provide such service in connection with the RFP at issue. On October 9, 2002, the Respondent posted a Form 470 requesting various telecommunication services to be provided during the 2003-2004 school year (the sixth year). T1 service was among the requested technological services identified. Form 470 is required pursuant to E-rate guidelines. In connection with the Form 470, the Board also posted the RFP that is the subject of the instant dispute. The original RFP was amended and reposted on October 25, 2002. T1 service for all eligible school sites was specifically noted on the revised RFP. A vendor's meeting regarding the revised RFP was conducted on October 31, 2002. The Petitioner's representative attended the vendor's meeting. On December 2, 2002, three vendors timely submitted responses to the RFP: the Petitioner, the Intervenor, and Trillion (not a party herein). None of the submittals was evaluated. Instead, the Respondent posted a notice on December 6, 2002, that rejected all responses. More specifically, the notice provided in connection with the service in dispute in this cause: **We would like to thank all those who submitted quotes for this section of our RFP, however, during the 28 day period of the bidding process, the School District learned that the Florida Learning Alliance will be providing this service for us. Since this means zero costs for the School District, we will NOT be filling [sic] for E-rate discounts for this service for the 2003-2004 (Year Six) time period. The rejection notice did not contain the language set forth in Section 120.57(3), Florida Statutes. Nevertheless, the City filed a Notice of Intent to Protest the decision to reject all responses. The timeliness of the Notice of Intent to Protest or the Petition for Administrative Hearing has not been challenged. On December 16, 2002, the Florida Learning Alliance (FLA) filed an RFP requesting vendors for the same services identified in the Respondent's revised request. That is, T1 service for all eligible school sites for E-rate (the sixth year). The deadline for submittals to FLA's RFP was January 16, 2003. No decision on FLA's RFP was rendered as the instant action was initiated on December 23, 2002. The parties contend that by operation of law the bid solicitation process for both RFPs (the Board's and FLA's) was suspended. Thus it is uncertain whether the Respondent will be able to participate in the E-rate program for the sixth year. The E-rate program has existed since the 1998-1999 school year. It provides funding to enable schools to obtain internet access and services. The Schools and Libraries Division (SLD) administers the program and offers funding to eligible school districts computed as a "discount." The level of discount is determined by the level of poverty within the population to be served. The Respondent has participated in the E-rate program for several years. Depending on the school to be served, the Respondent's discount is 86 or 87 percent. The remaining amount, the "undiscounted portion" is not paid by the SLD. Participants in the E-rate program are entitled to apply in two ways: individually (as the Respondent has done) or through a consortium. In this case, the FLA is an alliance through which the Respondent may receive E-rate services. FLA is comprised of three educational consortia covering 34 small rural school districts. The Panhandle Area Educational Consortium (PAEC) encompasses the geographical area within which the Respondent is located. As a member of PAEC, the Respondent is entitled to participate with FLA. By virtue of FLA's Technology Innovation Challenge Grant rural schools may receive T1 lines such as requested herein. More important, however, is FLA's ability to provide the undiscounted portion of the E-rate. That means FLA will provide the 13 or 14 percent not covered by the SLD. In order to benefit in this manner, the Form 470 for the services requested must be filed through the FLA. In this case, the Respondent confirmed this potential benefit of receiving the services at no cost only after its Form 470 and RFP had been posted. When they elected to withdraw their own RFP (to allow FLA to pursue the matter in their behalf) the instant protest followed. The Petitioner did file a response to FLA's RFP in order to be considered for the sixth year E-rate. The issue related to the sixth year is complicated by the fact that unbeknownst to the Respondent FLA acted on behalf of the Board for Year 5 T1 connectivity. As to Year 5, when no vendor replied to the FLA's RFP for T1 service, the Intervenor was selected as the "carrier of last resort." No contract was required or signed in connection with Year 5. The Intervenor was selected for Year 5 because TDS provided service in the areas designated for T1 service E-rate Year 5. That is how it was deemed "carrier of last resort." Other vendors provided services in other areas where they were similarly deemed the "carrier of last resort." In fact it was not until October 2002 that the Year 5 funding was made available. During the discussions over the Year 5 services (and with the deadline for filing the application for the sixth year fast approaching) Respondent filed Form 470 without knowing how or if FLA would participate in the sixth year process. When it later confirmed FLA would be available to administer the sixth year E-rate, the Respondent elected to abandon its revised RFP related to T1 service (thereby hoping to save the 13 or 14 percent not covered by the SLD funding). The revised RFP contained the following information: For Year 6 (July 1, 2003-June 30, 2004), the school district is planning to seek the services listed below. Any company that desires to submit a proposal for these services must meet the following criteria: * * * Be willing to enter into an agreement contingent upon E-Rate funding award. In other words, if the District is not successful in obtaining E-Rate funding on the particular service, the agreement will become invalid. Be willing to accept payment of only the non-discounted portion of the service from the school district and bill the SLD for the remaining portion. (this averages to be 86%) When a vendor is selected to provide E-rate services, SLD requires Form 471 to identify the provider and to complete the requisition started by the process (Form 470). The deadline for filing a Form 471 pertinent to this case (the sixth year) was February 6, 2003. Neither the Respondent nor FLA filed a Form 471 for the T1 services at issue. When the deadline for filing Form 471 passes, the opportunity to receive E-rate funding closes. As of the time of hearing in this cause the possibility of the Respondent receiving E-rate funding was slim to none. No entity filed a Form 471 for T1 services for the sixth year. The Respondent has not selected any vendor to provide E-rate services for the sixth year. The Respondent did not direct FLA to submit the Form 471 with the Intervenor as the provider for T1 during the E-rate sixth year. FLA has not submitted such form. The Respondent did not reject all bids for the purpose of avoiding the procurement process. The Respondent does not have a contract with the Intervenor for T1 services for E-rate, Year 6. The Respondent has not attempted to circumvent policies, rules, laws or statutes governing competitive procurement. The T1 services for the sixth year E-rate are "information technology resources" as defined in Section 282.303(13), Florida Statutes. As such they are not subject to any provision requiring competitive procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Formal Notice of Protest/Petition for Administrative Hearing be dismissed. DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2003. COPIES FURNISHED: Sterling Dupont, Superintendent Gadsden County School Board 35 Martin Luther King Boulevard Quincy, Florida 32351-4400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Stephen C. Emmanuel, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302-0391 Roosevelt Randolph, Esquire Knowles, Marks & Randolph, P.A. 215 South Monroe Street, Suite 130 Tallahassee, Florida 32301 William E. Williams, Esquire Huey, Guilday, Tucker, Schwartz, & Williams, P. A. 1983 Centre Pointe Boulevard Suite 200 Post Office Box 12500 Tallahassee, Florida 32308
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Introduction At all times relevant hereto, respondent, Willie Mae Johnson, held Florida Teacher's Certificate Number 276107 issued by petitioner, Betty Castor, as Commissioner of Education (petitioner). The certificate covers the areas of elementary education and administration for the period July 1, 1977 through June 30, 1992. The periods of time relevant to this controversy are the spring of 1982 when respondent was employed by the School Board of Hillsborough County (Board) as a curriculum intervention specialist (CIS) at Just Sixth Grade Center (JSGC) in Tampa, Florida and 1986 through 1988 when respondent was employed by the Board as the principal of Bryan Elementary School (BES) in the same city. The amended complaint, as further amended at hearing, charges generally that respondent, while principal at BES, converted school funds to her own personal use on several occasions, made an unwarranted accusation against two teachers, hindered a school investigation, ordered with school funds numerous publications for her own use, and falsified school records. The complaint alleges further that respondent misused school funds while employed as a CIS at JSGC in March and May 1982. Respondent has denied all such charges. To support or refute the above allegations, the parties presented the testimony of twenty- three witnesses, including respondent. As might be expected, sharply conflicting versions of the events were given. In reconciling these conflicts, the undersigned has accepted the more credible and persuasive testimony of those witnesses. That testimony is embodied in the findings below. School Year 1981-82 The amended complaint (paragraph 4) alleges first that during March and May 1982 Johnson "mishandled funds by failing to maintain bank records or documentation and by drawing two checks on the school's Courtesy Club account for her own personal use." Respondent served in the position of a CIS at JSGC during school year 1981-82. Her principal was Lois Bowers. One of Johnson's responsibilities was to serve as treasurer of the school's "Courtesy Club" (club), a club which maintained a small bank account for the purpose of buying miscellaneous school related items. As treasurer, Johnson had the authority to sign checks on behalf of the club. It was also her responsibility to keep the books in order and balance the account as needed. The treasurer had the authority to designate other persons to write checks, and Johnson claimed, without contradiction, that one Laura Pilligi was so authorized. Indeed, Pilligi's signature appeared on at least one of the checks written on the club account during the spring of 1982 but this fact is not dispositive of the allegation. Johnson's tenure as treasurer of the club ended in June 1982. In the late fall of 1982 Bowers had reason to believe that money might be missing from the club's bank account and that the shortage might have occurred while Johnson was treasurer. Bowers confronted Johnson, questioned her about the missing funds, and requested copies of certain missing checks. Johnson initially denied any wrongdoing and failed to produce those cancelled checks that were missing from the club's records. However, in early 1983 Bowers obtained from the bank copies of checks written on the account during Johnson's stewardship of the club. They reflected that check number 1050 in the amount of $85 was written on March 8, 1982 to Progressive Realty and Appraisal, Inc. for an "appraisal" and check number 1054 in the amount of $10 was written on May 26, 1982 to United Insurance Company of Tampa for "insurance". Both checks carried what purported to be the signature of Johnson. After being confronted with those items, in February 1983 Johnson admitted to Bowers that she had written those checks for non-school purposes because she "needed the money." Although Johnson contended she "cleared" with Bowers the larger of the two checks at the time it was written, Bowers disputed this, and Johnson's testimony is not accepted as being credible. After being requested by Bowers on several occasions to reimburse the money, Johnson finally repaid the money more than a month later. Bowers did not take disciplinary action against Johnson because she desired to "keep her own house in order" and attributed the incident to "poor judgment" on the part of Johnson. There is no record of the matter in Johnson's personnel file. The use of such money by Johnson for her own personal use was improper. School Year 1986-87 Paragraphs 2 and 3 of the amended complaint concern the alleged misuse of school funds by Johnson in November and December 1986. It is first alleged that in November 1986 Johnson "cashed a check on the school's checking account for $70.28 and kept the money for her own personal use." It is also alleged that in December 1986 Johnson "removed $85 in cash from the school's bank deposit bag" and later "requested the secretary to attempt to reconcile the book's without having to replace the missing money." Johnson became principal of BES on February 6, 1986. From that time until February 1988 one Mary Lou Wallace was Johnson's secretary. Wallace's responsibilities included maintaining and performing the bookkeeping for all internal funds, including petty cash, a small cash fund (around $125) kept on hand to reimburse teachers for purchasing small items for classroom use. Wallace was described by one teacher as "inefficient" and by another as lacking in bookkeeping skills. Under then existing school policy, after a teacher made a purchase, the teacher would bring the receipt to Wallace and be given a cash reimbursement. At the end of the month, or whenever a number of receipts had accumulated, Wallace would send the receipts to the area office with a request for reimbursement of those funds. A reimbursement check was then prepared by the area office and made payable to Johnson who was supposed to cash the check and place the proceeds in the petty cash fund. In November 1986 Wallace gave Johnson a reimbursement check in the amount of $70.28 made payable to Johnson. If school procedure had been followed, Johnson would have cashed the check and returned the cash to Wallace for deposit in the petty cash account. After Johnson cashed the check but did not return the money, Wallace asked Johnson for the money. Johnson told Wallace the money was in a folder on her desk and she would give it to Wallace later. After asking Johnson for the money on many occasions but with no success, Wallace quit asking because she knew she did not have to balance the account until the end of 1986. On December 20, 1986 BES closed down for the Christmas holidays and did not reopen until January 2, 1987. In accordance with school procedure, Wallace gathered all cash, except that in the petty cash account, various checks and some deposit slips, and placed them in a sealed money bag kept in Johnson's office safe. Because of a lack of time, Wallace did not deposit the cash and checks in the bank, as she should have, but kept the bag in the safe over the school holidays. The cash totaled around $85, but the entire deposit was for $187.62. When Wallace returned to school on January 2 she found the money bag missing from the safe. When she asked respondent about the missing money bag, Johnson told her not to worry, that she (Johnson) had it, and it would be returned by the end of the week. On Friday, Johnson again gave the same answer to Wallace. Around the end of January, and after repeated requests for the money by Wallace, Johnson opened up her desk drawer and showed Wallace the money bag with a broken seal. However, she explained that she did not have the money to replace the missing funds and instructed Wallace to try to think of a way to reconcile the account even though the money was missing. Wallace declined to do so. When the missing money had still not been replaced by early February 1987, Wallace overheard Johnson on the telephone one day telling the caller that her husband was going to donate a new lawn edger to the school. Wallace voluntarily suggested to Johnson that, rather than donating the edger, Johnson ought to sell the edger to the school and use the proceeds to replace the missing money. Johnson agreed this was a good idea and instructed Wallace to follow through with the plan. Wallace then prepared a memorandum to the area office requesting permission for Johnson to purchase an edger. After approval was obtained from the area office, on February 27, 1987 Johnson was authorized to receive $199.95 from school funds as reimbursement for the edger. The money was immediately given to Wallace who redeposited $187.62 (including $85 in cash) and replaced the shortage in the petty cash account. The full details of the complicated edger scenario, which constitutes a separate charge, is recounted below. By using the school money ($155.28) for her own personal use, keeping the money bag in her desk drawer, and delaying the deposit for more than two months, Johnson violated school procedures. In a memorandum authored by respondent on April 14, 1988, and sent to the assistant superintendent for instructional personnel, Johnson denied that she had kept the $70.28 in petty cash funds "for any extended period of time". As to the delay in not depositing the $187.62 until February 27, 1987, Johnson blamed her secretary (Wallace) who "didn't understand that the deposit slip could have been written again and the remaining amount deposited before the February date." The use of the $85 out of the sealed money bag was blamed on "poor administrative judgement" on Johnson's part but she maintained that the money was spent on "custodial supplies for cleaning the cafeteria." She did, however, accept responsibility for the deposit delay. At hearing, respondent denied taking the $70.28 from petty cash and claimed she repaid that amount only because Wallace had told her that amount was "outstanding" in the account. She also continued to maintain that she used the $85 in the money bag for maintenance purposes and gave that amount to Mr. Inman, a custodian, to purchase "stripper" to remove wax from the cafeteria floors. Even though she knew that school regulations called for her to obtain a receipt from Inman for the supplies and work, she could not produce a receipt. In addition, Inman no longer works for the Board and his whereabouts are unknown. This version of the events is rejected as not being credible. Paragraph 4 of the amended complaint alleges that during February 1987 Johnson "requested and received permission to purchase an edger for the school using internal account funds", was issued a check on February 24, 1987 in the amount of $199.95 made payable to respondent, and "cashed the check and did not purchase the edger which had been authorized but instead retained the funds for her own personal use." The complaint goes on to allege that when a school auditor inquired as to the whereabouts of the edger in January 1988, even though the "Property Control Office had no record of the edger", respondent "indicated it was being repaired." However, the "repair shop"... had no record of the edger." Finally, it is alleged that "respondent produced a receipt from Sears as proof of purchase", that the receipt was "backdated to February 24, 1987", that Sears "has no record of the purchase", and that respondent twice "produced an edger to investigators as the one purchased at Sears on February 24, 1987 (but) the edger produced by respondent was the brand name Penncraft which is distributed by J. C. Penny, Inc., not Sears." As noted above, Wallace prepared a memorandum on February 16, 1987 to Peter B. Davidson, area director, requesting authorization to purchase an edger for the school. No mention was made that Johnson intended to purchase the edger from herself, something prohibited by school policy. In addition, on February 23, 1987, she submitted a check requisition form for $199.95 for the purchase of the edger from herself but failed to attach a receipt to the form, as is Board policy. On February 27, Davidson granted the request by writing the word "Approved" on the memorandum and returning the same to Johnson. He also wrote "Check with Arnold Vance regarding recommended make and model." Vance was the area custodial supervisor whose job was to insure that any equipment purchased met school specifications and was of a type that could be repaired by the school repair shops. Johnson did not follow this instruction. In mid-January 1988, or a year later, and just after she had received notice that BES was about to be audited, Wallace decided to report the missing money and edger affairs to Davidson. Davidson promptly ordered the Board's internal auditors to conduct an investigation. This was accomplished the same month. During the course of the audit, the supervisor of auditing, Debbie Hannon, found that the check made payable to Johnson for an edger was not supported by a receipt. In addition, the edger could not be located by Hannon nor did property control have a record of that item. Johnson claimed that the new edger was being repaired at the school maintenance department. However, a check of maintenance shops revealed that they had not received an edger from BES. In her audit findings prepared on January 22, 1988, Hannon directed Johnson to respond in writing where the edger was located, to advise why there was no receipt, and to state why a purchase order was not issued in order to take advantage of the school's tax exempt number. In a letter dated January 28, 1988 from Johnson to Hannon, Johnson gave the following response to Hannon's questions concerning the missing edger, sales receipt and tax exempt sale: As per the lawn edger: I talked with the custodian about the whereabouts of the lawn edger, he informed me that it was in the shop, and that is what I told you. He later informed me that he brought the lawn edger to the front steps and that you informed that it was not necessary for you to see it. As far as the receipt, I did not have one at the time I purchased and asked if I could get a copy of the receipt. I was able to get a copy of the receipt for auditing purposes. I am aware that no purchase order was written up, and am also aware that since I made the purchase myself, I did not present my tax exempt number and was not charged taxes on this item. I do hope this is sufficient documentation as to (the) lawn edger. If not please feel free to confer with me. As a new principal I am very open to any suggestions that will be helpful to me as needed to improve my documentation in future audits. It should be noted that at no time did Johnson advise Hannon that the purchase of the edger was related to the replacement of the missing monies. Respondent produced for Hannon a Sears sales receipt which purported to evidence her purchase of a 2.5 horsepower gas powered lawn edger from a Sears store in the University Square Mall in Tampa. Johnson had just obtained the receipt from a Sears clerk by the name of Buciglia after telling him she needed it for "auditing" purposes. The upper portion of the receipt reflected a sales price of $199.99, a sales date of February 27, 1987, and respondent's name, Mac Johnson, as purchaser. The bottom portion of the receipt reflected that the item was stock number 79651 and carried BES's tax exempt number. Hannon thereafter attempted to ascertain the validity of the receipt by telephoning the general manager of the store. She learned it was invalid for the reasons set forth below. According to the general manager of the store where Johnson claimed she made the purchase, and who testified at final hearing, whenever a customer purchases merchandise, such as an edger, the clerk fills out a six-copy sales check. The tickets are "rung up" on the cash register and authenticated with one copy given to the customer. Another copy is entered into the computer system while another is used to post the transaction to a user book, which contains the name, address and telephone number of all purchasers of gasoline powered lawn equipment, date of purchase, stock number of the merchandise and sales clerk's name. It was standard policy during the relevant years in question that a tax exempt number be used on any purchase of equipment by school personnel. This enabled the school to be exempted from paying the state sales and use tax. When such a purchase was made at the Sears store, special store instructions required that the clerk write the tax exempt number on the six-copy sales slip along with the name of the organization that was purchasing the item. Because a tax exempt number could not be used by an individual, the purchase necessarily had to be in the name of the organization. Finally, each tax exempt purchase at the store required the personal approval of a second staff clerk. Through the testimony of a handwriting expert, it was established that the writing on the top of the receipt was filled in by an unknown person while the tax exempt number on the bottom of the receipt was written by respondent. The Sears manager established that the receipt was invalid because it did not comply with the procedures described in findings of fact 18 and 19. In addition, the serial number on the receipt would mean that the purchase was for a "Craftsman" edger, a brand name sold by Sears. However, the model produced by Johnson for Hannon's inspection was an old 1974 model carrying tide brand name "Penncraft", a model that was once sold by J. C. Penny's stores but not by Sears. Finally, a review of the Sears user book for the years 1986, 1987 and early 1988 reflected that no one with respondent's name, or that of her husband, Calvin Johnson, had purchased a gas powered edger from the Sears store. When the invalidity of the receipt was established, Davidson made a visit to BES for the purpose of seeing the edger. He was taken to a storage building by the head custodian and shown two edgers, one approximately twenty years old while the other was a Penncraft model, a model sold by J. C. Penny's stores. At that point, Johnson admitted for the first time that she had purchased the edger from herself. Later on, the assistant principal for instructional personnel, Dr. David G. Binnie, became involved in respondent's investigation. On March 2, 1988 he visited BES and asked Johnson to show him the edger. She took Binnie to a storage shed and showed him two edgers. However, she pointed to a Penncraft model as the one she had purchased at Sears. Thereafter, Binnie requested a written explanation as to all matters under investigation, including the edger affair. In a responsive memorandum prepared on April 14, 1988, Johnson agreed the purchase of the edger from herself "was not in my best judgement" and that she was "confused/confounded when discussing the situation with (her) Area Director." However, she held fast to the story that she "obtained (a receipt) from the store clerk for the edger that I purchased." She added that she regretted the entire situation. At hearing, Johnson acknowledged that the explanation given to Debbie Hannon in January 1988 was not true. Thereafter, she recounted the following version of events. Her husband, Calvin, had purchased an edger at Sears for $239 and, with his permission, she had carried it to school in February 1987. She also claimed that she telephoned the area custodial supervisor to verify that the equipment was in compliance with specification and maintenance requirements. When she returned to Sears a year later to get a receipt, the same model was then on sale for $199.99. On the ground she needed a receipt for "auditing purposes", she convinced a Sears salesman to make up a receipt in that amount. She also contended the salesman ran the receipt through the cash register to validate the same. To partially corroborate that story, Calvin testified he purchased with cash an "old black and white Sears edger" in 1986 or 1987 at University Mall for around $230 or $240. Later on, he placed the edger in his wife's car and she carried it to work. However, he claimed he lost the sales receipt and owner's manual, and he remembered the Sears clerk did not fill out a lengthy sales receipt or make a user book entry, both of which the general manager stated were required for every purchase. This version of events is not accepted as being credible. Respondent also presented the testimony of Ester Mae Pugh whose husband, now deceased, once worked at the BES maintenance shop. Pugh recalled one day in 1987 that her husband brought home from school an edger for repair purposes. After repairing the same, he placed it in the back of his pickup truck but found it missing the next morning. However, there is no competent evidence to establish that the edger brought home was the one allegedly purchased by respondent's husband and then sold to the school. Respondent was also charged in paragraph (7) of the complaint with having "ordered the following publications using school funds intended for the library: Newsweek, Wall Street Journal, Florida Trend, Time, Savvy, Ebony and Jet." It is further alleged that "(u)pon delivery, Respondent repeatedly took these publications home for her own personal use." The illicit conduct is alleged to have occurred while Johnson was principal at BES. During school year 1987-88, BES received an allocation (approximately $450) that was specifically earmarked for purchasing periodicals and newspapers for the school library. These funds were maintained in a special account known as the library account (number 6020) and were not to be used except for ordering magazines and periodicals for the library's use. A decision on how to spend the money was based on the collective judgment of the faculty, principal, CIS and library media specialist, Patricia Mixon. In all cases, however, Mixon had the responsibility for personally ordering all publications. Although there was evidence that on one occasion respondent asked the faculty for suggestions on magazines to order for the teacher's lounge, this is irrelevant to the issue of whether respondent had authority to purchase magazines from the library fund. Mixon established that in 1987 someone, other than herself, had ordered $180 worth of periodicals and magazines using library account funds. She was not notified of any purchase nor did any of the periodicals end up in the library. However, a few periodicals were seen in the teacher's lounge. Petitioner's exhibit 4 contains copies of checks written principally on the library account. A few represent purchases from a general miscellaneous account. All checks carry the signature of respondent and she later acknowledged, that she had placed those orders. This was corroborated by Johnson's secretary who mailed the orders at Johnson's direction. When the magazines were received, the secretary placed them in respondent's box. Although Johnson had the authority to order magazines and periodicals when needed, respondent's authority was limited to ordering them from a different internal account and not from the library account. Moreover, if magazines were ordered, they should have been ordered from EPSCO, a magazine jobber used by the Board. Respondent did not use EPSCO. By ordering $180 worth of magazines with library account funds, respondent violated school procedure. The charge that respondent took the above publications home for her own personal use cannot be established by the evidence of record. None of petitioner's witnesses saw respondent leaving the school premises with the magazines in question, and no witness testified that the magazines were seen in Johnson's home. Although respondent's secretary contended she saw respondent place a magazine in her briefcase one day, this is insufficient to establish that the illicit conduct occurred. Further, the fact that several witnesses, including the internal auditors, did not see the magazines in the teacher's lounge is insufficient to raise an inference that the magazines were actually at respondent's home. The amended complaint charges further in paragraph (8) that in December 1987 respondent "assigned a full time teacher to administrative duties and secured a substitute teacher to take over the teacher's class for approximately five (5) days", that respondent "did not inform the teacher in question that the teacher's salary for those days was being deducted from her sick leave days," and that respondent "then falsified the sick leave claim form to read that the teacher in question was absent due to illness and by signing on behalf of the teacher in question." The teacher in question was Dorothy Harmon. Respondent, and other administrators, considered Harmon to be lacking in instructional skills. Indeed, at hearing the assistant superintendent described Harmon as "a poor teacher". After Johnson's efforts to improve Harmon's skills were unsuccessful, Johnson directed the assistant principal to put pressure on Harmon to either retire or seek a transfer to another school. This was accomplished through various evaluations and observations, and Harmon eventually transferred to another school and then retired. Prior to her transfer, however, Johnson reached the point where she did not want Harmon teaching the children during the last week before Christmas holidays, particularly since Harmon's class included low achievers and students with attendance problems. Harmon had been ill the previous few days and a substitute teacher had done an excellent job. Johnson accordingly placed Harmon on administrative leave for the last week before the holidays and secured the same substitute teacher to teach Harmon's class. However, Harmon reported to school on all or parts of three of those days. This created a problem since a substitute teacher cannot be paid unless the teacher is absent from work. Respondent then directed Payne, the assistant principal, to put in a sick leave form on behalf of Harmon. When Payne questioned this order, respondent answered that Harmon would never know about the leave. Thereafter, a "claim for sick leave" form for Harmon was prepared by Payne reflecting that Harmon was absent on December 10, 11, 14, 15, 16, 17, and 18, 1987 due to illness. It should be noted that Harmon was actually on sick leave on December 10 and 11. Therefore, the "bogus leave" was for the week of December 14. The form carries what purports to be Harmon's signature and the approval signature of respondent. Next to Harmon's signature were the initials "M. J.", which are respondent's initials. Respondent readily concedes that she signed the form without Harmon's knowledge and that her actions were wrong. However, she contends that she intended to take full responsibility for the action since she placed her initials next to the signature. She also contended that she prepared the form in the best interests of the children since they were receiving inadequate instruction from Harmon. Even so, Johnson's conduct constituted a violation of school procedure. Paragraph (9) of the amended complaint contains the charge that during school year 1987-88 respondent "was notified by a teacher that a student in her class did not meet the age requirements for kindergarten", that "(n)o corrective action was taken", and that "(s)ubsequently, the child was retained in kindergarten the next school year." There is no allegation in the complaint that respondent falsified her school records regarding this student or ordered other school personnel to do so. Therefore, evidence pertaining to those matters is irrelevant and will be disregarded. To determine the number of teachers (units) to be assigned to a particular grade level in a school, the Department of Education uses the number of students in attendance at a school during the first twenty days of a school year. For example, in school year 1987-88, the kindergarten level of instruction received three units if, on the twentieth day, a school had 63 or more students in that grade level. An enrollment of less than 63 students reduced the allocation of units by one. During the first part of each school year, it was the responsibility of each teacher to count the number of students enrolled in his or her class and report that count to the principal's office. A secretary in the office then tallied the total number of students by grade level and telephoned that number to the area superintendent who in turn relayed the information to a bureaucrat in Tallahassee. Due to such factors as illness and changes of residence by the students, some confusion always existed during the first twenty days over a student's true status. For this reason, and because student counts were so important, a principal was reluctant to remove a student from the rolls until after the twentieth day, when counts no longer mattered. In order to qualify, age-wise, for kindergarten, a child must have attained the age of five by September 1 of the school year. A student by the name of A. J. enrolled in kindergarten at BES in September 1987 but, as it turned out, she did not turn five years old until September 15, 1987. Thus, the student missed the September 1 cutoff date by two weeks and should not have been enrolled in school. Although a data processing clerk, Karen Burnett, had the responsibility of enrolling students and rejecting any who did not meet residence and age requirements, Burnett failed to initially discern the fact that A. J. was underage. However, a screening process involving a diagnostician, the student's teacher and the assistant principal, Janis Payne, occurred sometime within the first eight weeks of the school year and A. J.'s age was noted at that time. Even so, Burnett established that respondent became aware of A. J.'s situation within the first twenty days but told Burnett to do nothing until after the twentieth day. By not taking corrective action at that time, Johnson was in violation of school policy. Finally, it is true that the same student remained in school for the entire year and was required to repeat the same grade the following year. However, Burnett acknowledged that she, and not Johnson, forgot to have the student withdrawn after the twentieth day. The next charge in the amended complaint is found in paragraph (10) and alleges that "on or about March, 1988, respondent . . . interfered with an investigation of respondent's performance by instructing a teacher how to respond to the Area Director's questions." Although the record is replete with instances of respondent changing her story from time to time, particularly after administrators found holes in each story there is no evidence that fits the allegation in the complaint, namely, that Johnson "instruct(ed) a teacher how to respond to the Area Director's questions." Indeed, the charge apparently stems from certain allegations by Dr. Binnie, as memorialized in respondent's exhibit 6, but no evidence was adduced to support that charge. The final charge is found in paragraph (11) of the amended complaint and alleges that respondent, while principal at BES during school year 1987-88, "inappropriately charged that two teachers in her employ were having a lesbian affair without having any substantiating facts to support such a claim." The complaint goes on to state that the two women were in fact "married with children" and that respondent "instructed a member of her staff to keep an eye on the alleged `lesbians' and even instructed a member of her staff to call the home of one of the teachers in order to find out additional information regarding any alleged lesbian affair." To preserve the confidentiality of the names of the two teachers in question, they will be referred to by their initials, G. W. and M. N. The former was a kindergarten teacher's aide while the latter was a sixth grade teacher. The charge arises out of statements allegedly made by respondent to certain school personnel. One, Janis Payne, the assistant principal, recalled Johnson telling her that it was "not natural" the way M. N. looked at G. W., and that she could not understand why M. N. would want to leave an attractive man (her husband) for G. W. Payne was also told by respondent to "keep tabs" on G. W., and on one occasion she was asked to go to M. N.'s classroom and see if G. W. was there. However, respondent never used the word "lesbian" when discussing the matter. Payne was also present when respondent told her secretary to telephone G. W.'s home and ascertain if G. W. was still living with her husband. The secretary did not make the call. While in the presence of her secretary, respondent commented that G. W.`s husband was gone all the time and that the two women were "together too much to be normal." On another occasion, after respondent observed the two go into a portable classroom together, Johnson remarked that such conduct was "sickening". Again, however, the words "lesbian" and "gay" were never used. Through the testimony of another teacher, it was established that "it was just common talk around the school" that "there was a lesbian affair going on." Even so, it may be reasonably inferred that respondent was inappropriately perpetuating a rumor that the two employees were engaging in a lesbian affair, particularly since at least two bystanders interpreted respondent's comments in that context. Respondent denied that she had made comments that the two were having a lesbian affair. She contended that she was simply concerned that they were spending too much time out of the classroom and not attending to their duties. Further, since one was a kindergarten teacher's aide and the other a sixth grade teacher, they had no reason to be conferring with each other during class hours. Respondent also denied asking her secretary to telephone G. W.'s house or asking Payne to keep tabs on the two. However, these assertions do not belie the more credible and persuasive evidence that respondent was perpetrating a rumor about the two employees. Loss of Effectiveness as a Teacher According to Dr. David G. Binnie, who was accepted as an expert in education administration, respondent's effectiveness as an administrator has been reduced because of her conduct in this affair. He pointed out that respondent exercised an "incredible pattern of poor judgment" and that her credibility and trust have been destroyed. As a teacher, Dr. Binnie opined that her effectiveness has likewise been impaired since her leadership, management and instructional skills have been reduced. However, he added that the specific allegations against respondent are not widely known by the community since the newspaper media did not report on the full scope of charges. Consequently, he has received no complaints from parents or students regarding her continuing employment as a classroom teacher. He characterized her effectiveness as a teacher with her colleagues to be only "somewhat negatively impacted" because of her conduct. Although a brief story on the matter appeared on a local television station, it may be reasonably inferred that respondent's credibility and trust in the eyes of the general public, students and their parents have not been impaired. Mitigating factors presented by respondent Respondent has been a classroom teacher for over twenty years in some five states. She holds both a bachelor degree and a master's degree as well as credits towards her doctorate. Prior to the school audit in January 1988, respondent had received satisfactory evaluations as both a teacher and a principal. While not binding on petitioner, it is of some persuasion that the Hillsborough County School Board did not see fit to terminate respondent as an employee after the alleged misconduct occurred but rather chose to reduce her from a principal to a classroom teacher. She has functioned well in that position since her reduction and has received good evaluations from her supervisor. Respondent desires to continue as a teacher and maintains she has already suffered sufficient monetary and professional punishment in this matter. She has expressed regret over the entire episode and acknowledges that she used extremely poor judgment in all facets of the case. She blames part of her problems on the fact that she had no training in bookkeeping and had to rely on an inexperienced secretary, Wallace. It should be noted that after this matter arose, the Board strengthened its on-the-job training for new principals, including additional training in basic bookkeeping and financial management skills. When Johnson assumed the position of principal, the Board did not require any financial background as a prerequisite to appointment and only offered limited training in Board fiscal policies and other management areas. Motion for fees and costs Based upon the pleadings filed in this cause, as well as representations of counsel during argument on the motion, it is found that on November 14, 1989 respondent's original counsel was authorized to withdraw as counsel in this cause. At the same time, the final hearing then scheduled on November 28 and 29 was rescheduled to commence at 9:00 a.m. on Monday, December 18, 1989. Respondent thereafter attempted to obtain new counsel and eventually met with her present counsel for the first time on December 4. A subsequent meeting was held on December 5. At that time, respondent's counsel advised Johnson that he would accept the case and became aware that a hearing was scheduled on December 18. However, a notice of appearance was never filed and counsel's signature did not appear on any document until December 15, 1989. On Friday, December 15, 1989, or the last working day before the hearing, a motion for continuance was filed by respondent's counsel, and a telephonic conference call with counsel was conducted by the undersigned at approximately 3:00 p.m. that afternoon. Although petitioner objected to the granting of the motion, the continuance was granted so that new counsel would have a reasonable opportunity to prepare for final hearing. In so ruling, the undersigned noted that, if the motion was denied, the prejudice to respondent outweighed the prejudice to petitioner, particularly since respondent's livelihood as a teacher was at risk and the charges herein were fairly complex and lengthy. However, the undersigned's order noted that the motion did not comply with the requirements of Rule 22I-6.017, Florida Administrative Code (1987) in that no "extreme emergency" existed as required by the rule. 1/ In his motion, counsel for respondent alleged that he was attempting to settle the case during the week prior to hearing but when settlement efforts failed, he filed the motion. In addition, he contended he was absent from his office for much of the week of December 4, needed further time to prepare for hearing and desired to take the depositions of certain witnesses. Because of respondent's delay in not filing the motion until the last working day before the hearing, counsel for petitioner contends he incurred costs in (a) preparing for the telephonic conference call, (b) utilizing time to contact witnesses who were already under subpoena to attend the final hearing scheduled the following Monday morning, and (c) paying the process server who had already served sixteen subpoenas. The amount of fees and costs associated with the above, and their reasonableness, have not yet been established. Neither the motion nor counsel offered a legitimate reason as to why the motion was filed on the last working day prior to hearing. During argument on the motion, counsel proffered that he thought the matter might settle and was out of town on other legal matters during part of that time. In response, petitioner's counsel represented that he advised respondent's counsel that he was continuing to prepare for trial in the event a settlement could not be reached. In addition, the record shows that no further discovery was undertaken by respondent's counsel between December 15, when the motion was filed, and January 4, 1990, when the continued hearing commenced. This was one of the grounds cited as a reason for the continuance. Under these circumstances, the motion may be said to have been filed for an improper purpose that had increased the cost of litigation by (a) causing unnecessary process server fees to be incurred and (b) requiring opposing counsel to expend time to advise sixteen witnesses that the hearing had been continued. Accordingly, reasonable fees and costs are justified as a sanction for such conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsections 231.28(1)(f) and (g), Florida Statutes (1987) and that her teaching certificate number 276107 be suspended for six months. RECOMMENDED this 8th day of May, 1990, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1990.
The Issue Whether the Petition for Formal Administrative Hearing filed by the Respondent, Carlos Sasse, should be dismissed in part for failure to timely file. Whether the Petitioner, the School Board of Leon County, should have abolished Mr. Sasse's position of employment and failed to fulfill its contract of employment with Mr. Sasse.
Findings Of Fact Carlos Sasse's Employment with the School Board. In July, 1989, the Respondent, Carlos Sasse, was hired by the Petitioner, the School Board of Leon County. Mr. Sasse was hired as the Assistant Superintendent of Instruction (or a similarly designated position). Mr. Sasse's duties included the supervision of seven executive directors, the functioning of twenty-two elementary schools, seven middle schools, five high schools and a number of other programs. The Superintendent of the School District, William M. Woolley, recommended that Mr. Sasse be retained for the 1991-1992 fiscal year of the School Board. The School Board accepted the Superintendent's recommendation and reappointed Mr. Sasse as Assistant Superintendent of Instruction. The School Board's fiscal year runs from July 1st to June 30th. For the 1991-1992 fiscal year the School Board approved (on April 16, 1991), and Mr. Sasse accepted, the employment of Mr. Sasse for twelve months beginning July 1, 1991, at a salary of approximately $60,000.00, plus fringe benefits. No written contract of employment between the School Board and Mr. Sasse for the 1991-1992 fiscal year was entered into. The School Board admitted, however, in its Answer filed in this case that Mr. Sasse was employed pursuant to an annual contract of employment. Mr. Sasse has performed his duties with the School Board in a satisfactory manner. The School Board's 1991-1992 Budget. The School Board is charged by law with the responsibility to operate, control and supervise all public schools within the School District. In fulfilling its responsibilities, the School Board is required to approve a budget for the operation of the school system. Toward this end, the School Board approved the budget for the 1991-1992 school year (hereinafter referred to as the "1991-1992 Budget"), on September 17, 1991. See Petitioner's Exhibit 1. Consistent with the requirements of Florida law (Section 237.061, Florida Statutes), the 1991-1992 Budget was a balanced budget. That is, projected expenditures did not exceed projected sources of funds. At the time the School Board approved the 1991-1992 Budget, the School Board members were aware of the unfavorable economic conditions impacting the budget. The School Board had taken actions prior to the 1991-1992 fiscal year to reduce expenditures by reducing approximately seventy-five positions totaling almost $2.5 million. The 1991-1992 Budget consisted generally of five "funds": (a) a general operating fund; (b) a special revenue fund; (c) a capital improvement fund; (d) a debt service fund; and (e) a trust and agency fund. The general operating fund is the fund providing for the budget for the School Board's educational and support service programs. The School Board was somewhat restricted in the use of monies between funds. For a more detailed description of the various funds (other than the general operating fund), see proposed findings of fact 7-10 of the School Board's proposed recommended order. The final 1991-1992 Budget provided for approximately $131 million of expenditures and, excluding certain fund balances, approximately $125 million of revenues. State revenue accounted for approximately 72% of the general operating fund of the 1991-1992 Budget. Approximately 82% of the general operating fund was earmarked for salaries and employee benefits for the approximately 4,000 employees of the School District. In approving the 1991-1992 Budget the School Board established certain priorities, which the School Board sought to achieve through the 1991-1992 Budget. For more details concerning those priorities, see the School Board's proposed findings of fact 14 and 15. The Unappropriated Fund Balance. Although not required by statute, it is generally recognized within the public agency sector that public agencies, such as the School Board, should attempt to maintain an amount of money as an "unappropriated fund balance" (hereinafter referred to as the "Fund Balance"), or as a reserve equal to approximately 5% of the total operating budget. In an effort to establish a Fund Balance, the School Board adopted Rule 6.01, Rules of the School Board. Rule 6.01 provides, in pertinent part: (14) . . . . The School District shall establish and maintain an annual contingency reserve of no less than 1% of the total general fund effective with the 1990-91 fiscal year, increasing by as much as 1% per fiscal year thereafter until stabilizing at 5% subject to an annual financial review by the Board during the budget process. This reserve shall provide for temporary funding of unforeseen needs of an emergency or non- recurring nature. . . . The Fund Balance was separate from another contingency fund created by Rule 6.01. For the 1990-1991 fiscal year, the School Board's goal of a 1% Fund Balance was achieved. The Fund Balance at the end of the 1990-1991 fiscal year was $7,841,954.00. For the 1991-1992 Budget, however, the School Board was required to utilize the Fund Balance to meet "unforeseen needs of an emergency or non- recurring nature." As a result of severe revenue restrictions, the School Board was required, and decided as part of its approval of the 1991-1992 Budget on September 17, 1991, to utilize approximately $5,167,746.00 of the Fund Balance. At the time the 1991-1992 Budget was adopted, the School Board anticipated that it would receive approximately $2.6 million more in total general operating fund revenues than it had in the previous fiscal year. It also anticipated expenditures of approximately $10 million over the previous fiscal year because of increases in salaries, fringe benefits, carry over obligations and other expenses. Therefore, it was anticipated that expenditures would exceed revenues by approximately $7.4 million. The School Board decided to offset the projected 7.4 million excess, in part, by using $5.2 million of the Fund Balance. This resulted in a projected Fund Balance of only $2,674,208.00. The School Board approved the 1991-1992 Budget with a projected Fund Balance of $2,674,208.00, less than its 1% goal. Rule 6.01, however, recognizes the possibility that the Fund Balance may have to be used. While Rule 6.01 establishes a 5% goal for the Fund Balance, it does not require that this goal be achieved within any particular time period. Anticipated Shortfalls in State Funding and the School Board's Response Thereto. Between September 17, 1991, and November 5, 1991, the School Board was informed that the State of Florida had predicted that the anticipated revenues to be paid to the School District by the State would likely be $3,300,000.00 less than previously anticipated. After applying an emergency 1% fund and other funds to offset this anticipated reduction in revenues, the School Board was faced with a reduction of approximately $1,550,000.00 in its projected revenues for the 1991-1992 Budget. The School Board met on November 5, 1991, to consider what action to take to respond to the anticipated short-fall in State funding. During this meeting, the School Board heard from, among others, Lee Legutko, the Chief Financial Officer of the School District. After hearing from the Chief Financial Officer, the School Board directed the Superintendent to prepare for consideration at a November 19, 1991, meeting of the School Board a number of budget-reducing and other budget-related items. Among the items to be prepared for consideration was the following: the abolishment of the following positions effective December 31, 1991 as shown below: * ....Executive Director of Operations ....Executive Director of Student Services ....One position in Information Services ....Assistant Director of Educational Media ....Athletic Complex Foreman ....District Auditor ....Internal Accounts Auditor * Executive Director of Facilities ....Assistant Superintendent for Instruction ....Assistant Superintendent for Administration *Combine [Emphasis added]. At the November 5, 1991, School Board meeting, the School Board directed the Superintendent to notify the persons who were in the positions under consideration for abolishment that the School Board would consider the issue at the November 19, 1991, meeting. By letter dated November 12, 1991, from the Superintendent to Mr. Sasse, Mr. Sasse was informed of the School Board's action at the November 5, 1991, meeting. Among other things, the Superintendent told Mr. Sasse: At [the November 19, 1991] meeting, the Board may take formal action to abolish the position currently filled by you effective December 31, 1991. Any such abolishment of your position will be without prejudice to your right to petition the Board for a subsequent hearing with respect to your right of employment in and the availability of other positions for which you may be qualified. [Emphasis added]. The Superintendent went on to inform Mr. Sasse of the place and time of the meeting, he invited Mr. Sasse to attend and "present your position" (including through a written statement) and he assured Mr. Sasse that the Superintendent was committed to assisting persons adversely affected to "find other employment within the District with no break in service." The Superintendent ended the letter by assuring Mr. Sasse that he would make no recommendation until the November 19th meeting. Mr. Sasse was not advised in the November 12, 1991, letter, or otherwise, that his position was abolished or as to any due process rights he might have to contest any action adversely affecting Mr. Sasse's employment contract with the School Board. Mr. Sasse received the November 12, 1991, letter from the Superintendent. The School Board met on November 19, 1991. Among the items considered during this meeting was the abolishment of Mr. Sasse's position and the other positions the Superintendent had been requested to consider. Mr. Sasse was aware of the fact that the abolishment of his position would be considered prior to the meeting. He attended the meeting and, therefore, was aware of the School Board's action concerning his position during the November 19, 1991, meeting. Counsel for Mr. Sasse spoke on his behalf at the November 19, 1991, meeting. The Chief Financial Officer of the School District informed the School Board at the November 19, 1991, meeting, as he had at the November 5, 1991, meeting, that the 1991-1992 Budget would be balanced as required by law even if the School Board did not abolish Mr. Sasse's position (or the other positions being considered for abolishment). The Chief Financial Officer notified the School Board that the Fund Balance for the 1991-1992 Budget would be $260,758.00 if all eight of the positions the School Board had identified for consideration at its November 5, 1991, meeting were abolished effective December 31, 1991. Upon a motion being duly made, the School Board voted three to two to abolish the positions the School Board had identified for consideration at its November 5, 1991, meeting, including the position of Mr. Sasse. The positions were all eliminated effective December 31, 1991. Later during the November 19, 1991, meeting, the School Board voted to reinstate one of the eight abolished positions. Therefore, ultimately, the School Board eliminated seven positions, including Mr. Sasse's. The manner in which Mr. Sasse's position was eliminated consisted of a vote of the School Board to eliminate the position and the adoption of an amendment to the 1991-1992 Budget to eliminate funding for Mr. Sasse's position for the second half of the 1991-1992 fiscal year. The School Board also approved other amendments to the 1991-1992 Budget at the November 19, 1991, meeting. The abolishment of Mr. Sasse's position resulted in a savings in the 1991-1992 Budget of approximately $40,609.00. The net savings attributable to the abolishment of the seven positions eliminated was approximately $165,000.00. After all the amendments to the 1991-1992 Budget approved on November 19, 1991, the Fund Balance was projected to be $192,442.00. Therefore, the Fund Balance was sufficient to provide the funding necessary to fulfill the School Board's annual contract with Mr. Sasse from the Fund Balance. According to the Chief Financial Officer, it was not necessary to abolish Mr. Sasse's position in order for the School Board to maintain a balanced budget. The Superintendent recommended to the School Board that all of the positions other than Mr. Sasse's be eliminated. The Superintendent recommended that the School Board not eliminate Mr. Sasse's position based upon the Chief Financial Officer's advice to the School Board and the Superintendent's perceived need for the position. The Superintendent has subsequently, however, indicated that the loss of the position has actually had some positive impact on the administration of the Leon County school system. The School Board did not undertake any study or review of the administration of the School District before determining which positions, if any, should be considered for elimination prior to its action on November 19, 1991. It did take such action after the fact. Prior to reaching its decision on November 19, 1991, the School Board did not receive evidence or testimony or provide other due process safeguards to Mr. Sasse. The weight of the evidence failed to prove that the projected Fund Balance as of November 19, 1991, could not have been used to fulfill Mr. Sasse's employment contract for the entire fiscal year. After abolishing Mr. Sasse's position and the other positions the School Board directed the Superintendent to take the following actions: . . . promptly advice those persons whose positions have been abolished by the action of the Board, advise those persons of any vacant positions for which they may seek to be considered and to suggest to those affected persons that they make known their interest in any such vacancies within the next several weeks. . . . The motion to abolish Mr. Sasse's position and the other positions adopted by the School Board also expressly provided that the School Board's actions was "subject to the right of the incumbents to file a petition with the Board for a subsequent hearing for the purposes of determining whether there are other vacant positions for which these persons are qualified " The weight of the evidence failed to prove that were not other reasonable alternatives to breaching its contract with Mr. Sasse available to the School Board to address the budget problems. For example, the School Board failed to refute evidence presented by Mr. Sasse concerning the possibility of furloughing administrative staff for one day. The School Board also failed to refute evidence presented by Mr. Sasse that the School Board normally has lapsed salary (amounts budgeted to be paid for salary which are not used because of vacancies) which has averaged $1 million a year. At the time of the final hearing of this matter, the anticipated carry forward in revenues for the 1991-1992 fiscal year was $1.1 million. Efforts to Place Persons in Abolished Positions in Other Positions. Subsequent to the November 19, 1991, meeting, Mr. Dave Giordano, the Director of Personnel Services of the School District, considered alternatives for placing the persons in other positions within the school district whose positions had been abolished. The alternatives were discussed with the Superintendent and other administrative staff. A memorandum dated November 22, 1991, was written by Mr. Giordano to Mr. Sasse and was provided to Mr. Sasse. The memorandum notified Mr. Sasse that the School Board had directed that Mr. Sasse "be allowed, without prejudice, to apply for other positions within the school district." Mr. Giordano requested that Mr. Sasse notify him in writing within the next three weeks of any positions he wished to be considered for. A copy of a list of eight vacant and available positions was provided to Mr. Sasse with the memorandum. Three days after Mr. Giordano prepared his November 22, 1991, memorandum to Mr. Sasse, Mr. Giordano prepared a memorandum to the Superintendent setting forth for consideration a possible plan for the placement for the displaced employees into the vacant and other existing positions Mr. Sasse had been informed of. The plan of placement set out in Mr. Giordano's November 25, 1991, memorandum was based upon the discussions between the Superintendent and staff that had already taken place. Based upon the plan, Mr. Sasse was being considered for the position of Director of Co-Curricular Activities. On December 10, 1991, before the expiration of the three week period in which Mr. Sasse had been told to respond to Mr. Giordano's memorandum, the School Board met. At the December 10, 1991, meeting, all of the persons whose positions had been abolished on November 19, 1991, except Mr. Sasse, were recommended by the Superintendent for placement in other positions. The Superintendent's recommendation was approved by the School Board. The weight of the evidence failed to prove that the School Board took any action, other than Mr. Giordano's memorandum of November 22, 1991, to place Mr. Sasse in a vacant position which would insure that the School Board's contractual obligation to Mr. Sasse for the remainder of the fiscal year was fulfilled. By letter dated December 11, 1991, counsel for Mr. Sasse informed the Superintendent that Mr. Sasse understood (based upon Mr. Giordano's November 25, 1991, memorandum) that the Superintendent was considering placing Mr. Sasse in the Director of Co-Curricular Activities position. Counsel indicated that "Mr. Sasse would be willing to accept such an appointment provided that he remain at his contractually agreed price pay grade for the remainder of his contract period." Counsel went on to explain that the apparent difference in his current salary and the salary for the Director of Co-Curricular Activities he was being considered for of $7,363.20 for the second half of the fiscal year was contrary to his contract with the School Board and was not acceptable to Mr. Sasse. The School Board did not respond to counsel for Mr. Sasse's letter of December 11, 1991. As of December 10, 1991, the only vacant position available to Mr. Sasse that he had been informed of by the School Board was the Director of Co- Curricular Activities, which remained open and available as late as the day the final hearing in this case was conducted. Mr. Sasse was qualified, ready and able to serve as the Director of Co-Curricular Activities during the period from January 1, 1992, to June 30, 1992. He was also willing to serve in that position if the conditions of his contract with the School Board concerning salary were met and so notified the School Board. The School Board made no additional effort to place Mr. Sasse in any position as of January 1, 1992, or to otherwise fulfill its contract with him for the second half of the fiscal year. Mr. Sasse has remained willing an able to fulfill the terms of his employment contract with the School Board. No action has been instituted pursuant to Section 231.36, Florida Statutes, to terminate Mr. Sasse's contract for just cause. The School Board had a rule governing the manner in which employees may be terminated. Rule 6Gx37-2.36. This rule was not followed by the School Board. Request for Hearing. Mr. Sasse has never been informed that his position has been terminated and the School Board did not intend to take any further action to find a position for him which would fulfill their contract with him for the second half of the fiscal year. The School Board has also failed to provide notice to Mr. Sasse of the reason why his contract was not fulfilled, his right to request a hearing on the actions of the School Board or the time within which he must request a hearing. On January 27, 1992, Mr. Sasse served a Petition for Formal Administrative Hearing with the School Board. Although not served with twenty-one days after Mr. Sasse's position was abolished, it was served with twenty-one days after it first became definite that the School Board did not intend to comply with its contract with Mr. Sasse by placing him in another position or by any other means.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order in this matter providing for the payment to Carlos Sasse of all salary and benefits to which he would have been entitled had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992, It is further RECOMMENDED that the School Board make contributions to the State of Florida retirement system on behalf of Mr. Sasse to insure that he receives any retirements he would have been entitled to had he been allowed to fulfill his contract of employment for the period January 1, 1992, to June 30, 1992. If the School Board is unable to comply with this recommendation, the Sc hool Board should pay Mr. Sasse an amount equal to the present value of any retirements he would have earned for the period January 1, 1992, to June 30, 1992. It is further RECOMMENDED that the School Board take the actions necessary to insure that Mr. Sasse receives credit toward retirement for the period January 1, 1992, to June 30, 1992. DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The School Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 8. 2 3. 3 4. 4 9 and 12. 5 15. 6 14. 7-10 See 13. 11 17-18 and 20-21. The suggestion that the final budget was adopted November 19, 1991, is not supported by the evidence. The final budget for the 1991-1992 fiscal year was, according to the Chief Financial Officer of the School District, adopted September 17, 1991. It was subsequently amended on November 19, 1991. 12 17. 13 Hereby accepted. 14-15 See 16. 16 21. Hereby accepted. Although this finding of fact is true, the evidence also proved that increases in expenditures were approved. For example, $363,000.00 of expenditures excluded from the 1990- 1991 budget were approved for the 1991- 1992 Budget. There were also new expenditures, referred to as "enhancements or expansions" of approximately $64,836.00 approved for 1991-1992. Hereby accepted. 19 23-24. 20 26. The Fund Balance referred to was contingent upon no cuts being made, which the facts proved did not occur. 21 27. 22 28. The last sentence is hereby accepted. 23 32 and 41. 24 34. 35 and 46. The last sentence is not relevant. Although correct, the reasons for the position cuts were those of one School Board member. The evidence failed to prove that the School Board adopted those reasons. 27 45. 28 35 and 37. 50. The last sentence is not relevant. 52 and hereby accepted. See 54. Mr. Sasse's Proposed Findings of Fact Proposed Finding Paragraph Number in Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 Hereby accepted. 3-4 3. 5 5. But see 6. 6 28-29. 7 35 and hereby accepted. 8 36. 9 11, 18 and 20. 10 9 and 14. 11 38. 12-13 33 and 40. 14-15 See 47. 16 52 and hereby accepted. 17 50. 18 51. 19 52. 20 52 and 58. 21 54 and 57. 22 57. 23 59. 24 58. 25 7. 26 60. 27 61. 28 Hereby accepted. 29 41. 30 42. 31 43. 32 48. COPIES FURNISHED: C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. David Holder, Esquire 1408 North Piedmont Way Suite 100 Tallahassee, Florida 32312 Honorable Betty Castor Commissioner of Education The Captiol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Mr. Bill Woolley, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 =================================================================
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 the application of Petitioner Florida Cities Water Company, to increase the ratios it charges customers for water service in Lee County should be granted. CONCLUSIONS and RECOMMENDATION Conclusions: Factors pertinent to ratemaking and enumerated in Section 367.081, Florida Statutes, have been considered in this pro- ceeding. The Petitioner utility has not justified use of "year-end" rate base; those adjustments which it has supported with a preponderance of evidence have been accepted, those lacking sufficient eviden- tiary support have been rejected. Peti- tioner's application for rate increase should be granted to the extent provided in this Recommended Order; the resulting rates are just, reasonable, compensatory, and not unjustly discriminatory. Recommendation: That the Commission recalculate adjusted rate base, operating income, and the result- ing additional and total gross revenues in a manner consistent with this Recommended Order, and that Petitioner be authorized to file new rates structured on the Base facility charge concept designed to generate the addi- tional and total annual gross revenues so specified.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: I. The Application By its application, the UTILITY seeks authority to increase its rates sufficiently to generate additional annual gross revenues of $1,483,300. It attributes the need for increased revenues to extensive additions recently made to its water plant pursuant to COMMISSION Order No. 6209 entered in Docket 74176-W. The UTILITY claims that the increased investment and higher operating expenses associated with such plant additions effectively reduce its rate of return to 4.2 percent; it asserts that the requested additional revenues are necessary to allow it to earn a fair and reasonable rate of return of 12 percent. (Testimony of Reeves, Cardey; P-2, P-8.) II. Rate Base There are three issues involving the proper determination of rate base in this case: (1) whether "year-end", rather than "average" rate base should be used, (2) whether an Allowance for Funds Used During Construction (AFUDC) for post-test period additions allowed in rate base is proper, and (3) whether connection fees collected from 1969 to 1973 should be recorded as Contributions in Aid of Construction (CIAC) "Year-end" v. "Average Rate Base In determining rate base, absent extraordinary or emergency conditions or situations, "average" rather than "year- end" investment during the test period should be used. City of Miami v. Florida Public Service Commission, 208 So.2d (Fla. 1968). The Florida Supreme Court has suggested that average investment "should not be departed from except in the most unusual and extraordinary situations where not to do so would result in rates too low as to be confiscatory to the utility." Id. at 258. Year-end investment may be used only when a utility is experiencing extraordinary growth. Citizens v. Hawkins, 356 So.2d 254 (Fla. 1978). The UTILITY has not established that it meets the standard for utilization of "year-end" rate base, i.e. , that it has experienced unusual and extraordinary growth. Its customer growth rate averaged 8.2 percent for the last seven years, with a 10.56 percent gain during the test year. This growth rate has been experienced by many other Florida utilities of similar size and is neither extraordinary nor unusual. Neither is the UTILITY's growth extraordinary when measured in terms of water sold. Between 1975 and 1979, its growth in water sales averaged approximately 11 per- cent, in 1980--6 percent. In terms of plant growth, the UTILITY averaged 19.37 percent over the last seven years; the growth rate for 1979 was 12.03 percent. However, in 3980, its investment in gross plant grew at a 33 percent rate. The UTILITY's growth rate was repeatedly described as "substantial" by its consultant, K. R. Cardey, but substantial growth does not equate to extraordinary or unusual growth as defined by the Florida Supreme Court. Furthermore, the UTILITY did not establish that failure to use "year-end" rate base would reduce its rates to a confiscatory level. See, City of Miami, supra. It follows that "average" investment during the test period is the proper method to utilize in determining rates in this case. (Testimony of Cardey, Deterding.) Appropriateness of Allowance for Funds Used During Construction (AFUDC) After the test period, the UTILITY completed five major additions to its plant, all of which were required by previous order of the COMMISSION. (Order No. 6209, Docket 74176-W.) The COMMISSION agrees that, since it required these post-test period additions, they should be included in rate base at full weight. Since these additions, which total $5,966,569, were under construction during the test period, the COMMISSION contends they should be recorded as Construction Work in Progress (CWIP). The UTILITY agrees that these additions should be included in rate base but seeks to include, as well , an AFUDC allowance in the amount of $326,422.2 AFUDC represents interest that was capitalized on each of these additions while they were under construction during and after the test period. Since these additions are already included in rate base at full weight, the inclusion of AFUDC in rate base would allow the UTILITY to duplicate earnings on its investment. Such a result would be unreasonable, improper, and should not be allowed. (Testimony of Reeves, Deterding; P-1, P-3, P-10, R-2.) Connection Fees: CIAC or Revenue From 1969 through 1973, the UTILITY operated under the regulatory jurisdiction of Lee County, not the COMMISSION. During those years, it was the UTILITY's practice and policy to record connection fees, which totaled $226,582, as revenue, not CIAC. Since connection fees are ordinarily considered CIAC, the COMMISSION proposes to adjust CIAC by $226,582. (Testimony of Deterding, Cardey; P-8, R-2.) Contributions in Aid of Construction are defined as monies used to offset the acquisition, improvement, or construction cost of utility property used to provide service to the public. Section 367.081(2), Florida Statutes (1980). The UTILITY's consultant testified that connection fees collected and credited to revenue by the UTILITY during 1971, 1972, and 1973, totaling $176,773, were "not used to offset the improvements or construction costs of the [UTILITY's] property. (P-8, p. 6.) The COMMISSION, on cross-examination, did not question the accuracy or impeach the credibility of this statement; neither did it present any evidence to controvert or rebut the UTILITY's assertion as to how the connection fees were used. The only evidence on the question presented by the COMMISSION consisted of its accountant's conclusion: "During the years from 1969 to 1973, Florida Cities Water Company recorded many tap-in fees collected as revenue. These should properly be recorded as contributions in aid to construction. This adjustment [of $226,582] adds these contributions." p. 5.)(Testimony of Deterding, Cardey; P-8, R-2.) In its Proposed Recommended Order, the COMMISSION asserts that the UTILITY has the burden of showing: (1) the correctness of collecting funds normally authorized for service availability and using them for another purpose, and (2) the exact manner in which the funds were used. (Proposed Recommended Order, p. 6.) However, there was no evidence in the record to show that the UTILITY's treatment of connection fees during 1971 through 1973, was incorrect or violative of Lee County's regulatory standards. Neither is there any evidence to show that the connection fees collected in those years were used as contributions in aid of construction, i.e., to offset acquisition, improvement, or construction costs. The only evidence presented as to how those fees were actually used was that of the UTILITY's consultant; he testified that those funds were used only to defray operation and other expenses associated with the new customers. This evidence was sufficient to shift to the COMMISSION the burden of presenting evidence on the question or discrediting the evidence presented by the UTILITY. The COMMISSION did neither. It is found, therefore, that the $176,773, representing connection fees collected between 1971 and 1973, do not constitute CIAC, the UTILITY's testimony in this regard being persuasive. (Testimony of Cardey, Deterding; P-8, R-2.) However, as to the years 1969 through 1970, the UTILITY presented no evidence that the $48,809 in connection fees collected during that time were used only for operating and maintenance expenses and not to offset acquisition, improvement, or construction costs. In the absence of such evidence, the COMMISSION testimony that connection fees should ordinarily be treated as CIAC is persuasive. The connection fees collected during 1969 and 1970, calculated to be $49,809, are therefore properly included as CIAC. (Testimony of Deterding, Cardey; P-8, R-2.) In light of the above findings and the absence of disagreement concerning other adjustments proposed by the COMMISSION, the elements of the UTILITY's adjusted rate base are: RATE BASE Test Year Ended March 31, 1980 Utility Plat in Service $ 11,178,094 Construction Work in Progress 5,966,569 3/ Accumulated Appreciation (626, 160) CIAC,(Net of Amortization) (3,041,747) 4/ Advances for Construction (111,567) AFUDC (326,422) 5/ Working Capital Allowance 146,911 Materials and Supplies 117,450 Income Tax Lay [To be calculated based on additional gross revenues rec- opmended herein.] RATE BASE [To be determined upon recalculation.] In order to determine the adjusted rate base which should be utilized, Income Tax Lag requires recalculation in a manner consistent with the above findings and Section III below. (Testimony of Cardey, Deterding; P-1, P-3, P-8, P-10, R- 2.) III. Operating Income Operating Expense: Water Royalty Charge In calculating operating income for the test year, the UTILITY included $18,577 as an operating expense attributed to a $.03 per gallon royalty charge it paid an affiliate for water pumped from the Green Meadows well field. The UTILITY operates this water field on a 21-acre site and has easements to locate 26 wells. It pays no other cost for the water. The COMMISSION disputes the reasonableness of this charge because it is not an arms-length transaction, and the UTILITY has not explained the basis of the $.03 charge, the cost to the affiliate of the land involved and its subsequent sales price (the affiliate reserving the water use rights) , and the identity of the present owner. The COMMISSION's accountant testified that reasonableness of the charge could be determined by analyzing the costs of the rental of the land based on the original cost of the property to the affiliate. In response, the UTILITY established that the $18,577 expense is less than it would cost tide UTILITY, in terms of annual revenue requirements, to purchase the land involved. But the UTILITY failed to address the cost of renting the property, based on the affiliate's acquisition costs, or furnish information necessary to make such a determination. The COMMISSION is entitled to clearly scrutinize the expenses claimed by a utility and require that their reasonableness be shown. Tide UTILITY did not adequately explain or support the reasonableness of its claimed royalty expense, and it should therefore be disallowed. (Testimony of Reeves, Deterding; P-6, R-2.) Depreciation and Taxes: Adjustments Attributable to Post-Test Period Plant Additions The parties disagree on whether adjustments should be made to test year operating expenses to reflect increases in depreciation and taxes due to the five post-test year plant additions completed subsequent to the test period. The evidence is uncontroverted that these plant additions, including the Green Meadows water treatment plant and related facilities, were required by prior COMMISSION order and that they were necessary to provide service to existing customers of the UTILITY. The parties have also agreed that the full cost of these additions should be included in rate base, at full weight. The operating expenses of the UTILITY during the test year should be adjusted as was rate base, for known and no net changes in order to reflect conditions which will prevail when the rates become effective. The UTILITY's 2.1 percent composite depreciation rate should thus be applied against the new plant additions, and tide resulting depreciation expense included in the cost of providing service. Similarly, taxes (other than income) on the $5,960,569 worth of plant additions are known and eminent, are a cost of providing service, and should be included as an adjustment to test year taxes. The COMMISSION presented no policy or factual justification or explanation for its opposition to these adjustments to test year operating expenses. It does not contend that these expenses are other than known and eminent, attributable to the government-ordered plant additions, and will be part of the cost of providing service during the period the new rates will be in effect. The UTILITY's evidence in support of these adjustments is therefore persuasive. (Testimony of Cardey, Deterding; P-1, P-8, P-10, R-2.) Similarly, the UTILITY contended that test year income tax should be adjusted to reflect changes in revenue, operating expenses, depreciation, taxes, and interest expenses attributed to operation of the new plant addition. The COMMISSION offered no reason or explanation why such an income tax adjustment should not be made; changes in income tax due to the operation of the plant additions are known and eminent, and should be allowed as adjustments to test year expenses in order to adequately represent the UTILITY's future costs of service. However, due to the findings herein relating to use of "average rate base, the AFUDC allowance, treatment of connection fees previously collected, the water royalty charge, depreciation, and taxes, the income tax adjustment proposed by the UTILITY requires recalculation. (Testimony of Cardey, Deterding; P-1, P-0, P-10, R-2.) In light of the above findings, and the UTILITY's lack of opposition to other adjustments proposed by the COMMISSION, the known elements of adjusted operating income are: operating revenues of $2,419,437 and operating expense (operation) of $1,175,291. In order to determine adjusted operating income which should be used in this case, depreciation, taxes other than income, and income taxes require recalculation consistent with the findings contained in Sections II and III, infra. (Testimony of Cardey, Deterding; P-1, P-8, P-10, R- 2.) IV. Capital Structure, Cost of Capital, and Rate of Return The parties agree that UTILITY's capital structure and cost of capital are as follows: CAPITALIZATION COMPOSITE WEIGHT Rate 15 pct. 16 pct. Long-Term Debt 49.33 pct. 10.68 pct. 5.27 pct. 5.27 pct. Equity Capital 41.25 15-18 6.19 6.60 Subtotal 90.58 pct. 11.46 pct. 11.87 Deferred Federal Income Taxes 4.74 pct. -0- -0- -0- Customer Deposits .90 8.00 .07 .07 subtotal 96.22 Investment Tax Credit 3.79 pct. Average 11.53 .45 pct. 11.94 pct. .45 TOTAL 100.00 pct. 11.98 pct. 12.39 pct. They are also in agreement that a 12 percent return on the UTILITY's rate base, including a 15-16 percent return on equity, is a fair and reasonable rate of return. (COMMISSION's Proposed Recommended Order, p. 7; P-8, P-5.) V. Additional Required Revenues In order to determine the additional gross revenues which the UTILITY should file rates designed to generate, the authorized operating income should be computed by multiplying 12 percent times the adjusted rate base computed pursuant to Paragraph 10 above. The UTILITY should then be authorized to earn additional gross revenues equivalent to thee difference between the authorized operating income and the adjusted test year operating income computed pursuant to Paragraph 14 above. VI. Rate Structure and Rates The UTILITY proposes, with the COMMISSION's concurrence, that its new rates be structured in accordance with the Base Facility Charge Rate Design (BFC) and that the 25 percent surcharge currently imposed on general service customers be eliminated. The new BFC rate structure design contains a customer charge and a gallonage charge, both of which are directly related to the cost of providing the service. The customer charge assures that all customers pay their pro rata share of certain fixed and operating costs of the UTILITY which are not related to the amount of water used by the customer. The gallonage charge is based on the actual amounts of water used. With implementation of the base facility charge system, the UTILITY should lower its current $20 charge for reconnections during working hours to $10; similarly, its current $25 charge for reconnection after working hours should be reduced to $15. These lower charges are sufficient to cover the costs associated with the service rendered. The UTILITY also proposes various increases in its service availability, or connection charges. These increases, based on increased construction costs, will be used to finance additional facilities and stabilize rates to existing customers. The BFC rate design system proposed by the UTILITY is fair, reasonable, and nondiscriminatory. In light of the foregoing, it is unnecessary to consider the "alternative" rate structure which was presented to the COMMISSION staff on the day of hearing. With such time constraints, meaningful review of the "alternative" rate structure proposal was not possible. (Testimony of Byrd, Collier; R-1, R-3.) VII. Adequacy of Service Customer testimony criticized the 25 percent surcharge currently Imposed on general service customers, and the magnitude of the requested rate increase. Several customers complained of the quality of the water supplied. Under the proposed rate structure, tide surcharge on general service customers will be eliminated. While several customers complained of sediment in their drinking water, testimony established that the new Green Meadows softening plant should help alleviate that problem. The water supplied by the UTILITY meets all regulatory and health standards of the Health Department and the Florida Department of Environmental Regulation. The UTILITY is currently under no citation for violation of any regulatory standards. It is found that the quality of the water service offered by the UTILITY is adequate. (Testimony of Collier, Reeves, Customers; P-7.) VIII. Franchise Fees The UTILITY has collected $395,000 in "franchise fees" for Lee County, but has not paid them to the county due to questions surrounding the legality of the franchise fee. Neither have the funds been placed in a special escrow account pending resolution of this controversy. The UTILITY should ensure that such franchise fees are deposited in a special interest-bearing escrow account, and take steps to ensure that this controversy is resolved without further delay. (Testimony of Cardey; Late-filed Exhibit P-12.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the COMMISSION recalculate adjusted rate base, operating income, and the resulting additional and total gross revenues in a manner consistent with this Recommended Orders and that Petitioner be authorized to file new rates structured on the base facility charge concept designed to generate the additional and total annual gross revenues so specified. DONE AND ENTERED this 27th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 27th day of February, 1981.
The Issue The issue for determination is whether Respondent committed the allegations set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent began her teaching career as a substitute teacher in 1984 and has been an educator ever since. She holds a teaching certificate, issued by the State of Florida, Department of Education, and is certified to teach varying exceptionalities (VE), emotionally handicapped (EH), English speakers of other languages (ESOL), business, business education, mathematics, and middle school grades. Respondent was employed with Petitioner as a classroom teacher since the 1993-94 school year. For the 1993-94 and 1994-95 school years, Respondent's annual evaluations were satisfactory, with no areas of concern being listed. For the 1996-97 school year, Respondent's annual evaluation was satisfactory, with one area of concern being listed. The area of concern was "Adheres to and Enforces School Policies." Petitioner did not renew Respondent's contract at the end of the school year. Prior to the non-renewal of her contract at the end of the 1996-97 school year, no complaints were made and no issues were raised regarding Respondent's performance in the classroom. After her contract was not renewed, Respondent was prepared to file an unfair labor practice charge against Petitioner. Among other things, Respondent considered herself to be entitled, as a matter of law, to a professional service contract, because she had been employed as an annual contract teacher for more than three years. However, in lieu of litigation, on October 10, 1997, Respondent and Petitioner entered into a Settlement Agreement, enabling her to return to work. The Settlement Agreement provided in pertinent part: Ms. Windecker [Respondent] will be placed on a fourth year of probationary service for FY98 and will be issued an annual contract in accordance with Fla. Stat. Section 231.36(3)(c). Ms. Windecker's reinstatement will be effective . . . upon her return to work on the first Monday following the execution of this agreement. . . . * * * In the event, Ms. Windecker's performance for the FY98 school year is satisfactory she will be recommended for a Professional Services Contract. Satisfactory performance will be determined in compliance with the standards set forth in Florida Statutes Section 231.29, the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers Association and the Palm Beach County School District, and the policies and directives of the Palm Beach County School Board. Ms. Windecker understands that her acceptance of the annual contract in 1 above is not a guarantee of continued employment in her position with the School District beyond the FY98 school year. The District understands that Ms. Windecker's satisfactory performance during the 1997-98 school year will require that she be recommended for and granted a professional services contract. In the event Ms. Windecker's performance for FY98 is determined by the District to be unsatisfactory, she will be entitled to a hearing pursuant to Fla. Stat. Section 231.36(6)(a) before the Division of Administrative Hearings. As a result of the Settlement Agreement, Respondent returned to work. Petitioner administratively placed Respondent at Indian Pines Elementary School (Indian Pines), effective October 13, 1997. At time of her placement, Indian Pines had a vacancy in VE and EH. Petitioner assigned Respondent to the VE position. Petitioner notified the principal of Indian Pines, Kenneth Meltzer, that Respondent was being placed at his school in the VE position. Principal Meltzer met Respondent for the first time on October 13, 1997. Principal Meltzer was not aware of the Settlement Agreement until approximately ten days after Respondent came to Indian Pines. When Respondent reported to Indian Pines on October 13, 1997, Principal Meltzer met with her and discussed, among other things, the VE class situation and the two individuals to contact should she need anything. The two individuals were Elizabeth Cardozo, assistant principal, and Jay Riegelhaupt, exceptional student education (ESE) coordinator and speech language pathologist. A pre-observation planning guide was usually provided to teachers at Indian Pines. Respondent did not receive a pre- observation planning guide. The evidence presented fails to show that the failure to receive the pre-observation planning guide was detrimental to Respondent. Respondent was required to turn-in her plan book to the administration at Indian Pines. Her plan book was approved by the administration at Indian Pines. Principal Meltzer performed a formal observation of Respondent on December 4, 1997. Prior to the observation, Principal Meltzer had received several complaints from the parents of students in Respondent's VE class regarding Respondent. When there are complaints from parents regarding a teacher, Principal Meltzer's usual procedure is to request the parents to place their complaints in writing and, after receiving the written complaints, to meet with the parents and the teacher to address the specific concerns. Principal Meltzer used this same procedure regarding the parents' complaints against Respondent. Some of the parents' complaints were based upon an allegation of battery of students lodged against Respondent. Principal Meltzer did not provide Respondent with any specific document to assist her in dealing with parents' complaints which may arise. Respondent met with each of the parents and their problems or complaints were resolved. During the investigation of the allegation of battery, Principal Meltzer met with Respondent and the parents of the alleged victim of the alleged battery. The meeting ended with the mother of the alleged victim apologizing to Respondent. In addition, prior to the observation of December 4, 1997, members of the crisis response team (CRT) complained that Respondent was making frequent, inappropriate CRT calls. These complaints were brought to the attention of Principal Meltzer. During the formal observation of Respondent on December 4, 1997, Principal Meltzer used the Florida Performance Measurement System (FPMS) Screening/Summative Observation Instrument. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Meltzer did not review the VE students' individual education plans (IEPs) prior to the observation. Principal Meltzer's observation of Respondent was that Respondent's teaching was unsatisfactory. On December 8, 1997, Principal Meltzer performed a mid-year evaluation of Respondent. The assessment instrument used by Respondent to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. Respondent was identified as an annual contract (AC) teacher on the CTAS. On the mid-year evaluation, Respondent received a score of 20 and was rated unsatisfactory, with 12 areas of concern being listed. The areas of concern are also referred to as deficiencies. Principal Meltzer based the evaluation on the observation of December 4, 1997, and all occurrences from October 13, 1997. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; Demonstrates Knowledge of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; Demonstrates Self Control; Demonstrates Effective Working Relationship with Coworkers; Demonstrates Effective Working Relationship with Parents; and Adheres to and Enforces School Policies. Respondent was provided a copy of the FPMS observation and the CTAS mid-year evaluation. The observation of December 4, 1997, contained what can be considered written feedback, but, as written, the feedback could have been better prepared. The mid-year evaluation of December 8, 1997, provided Respondent notice of the deficiencies. At the request of Respondent's union representative, Principal Meltzer agreed to re-observe and re-evaluate Respondent. The union representative noted that it was humanly impossible to correct 12 deficiencies. Principal Meltzer agreed that the second observation and evaluation would replace the first observation and evaluation. Principal Meltzer had the discretion to grant the request and granted the request over the objection of Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards. Principal Meltzer performed the agreed-upon formal observation on January 13, 1998. This observation was also not satisfactory. Respondent received her agreed-upon second mid-year evaluation on January 16, 1998. She received a score of 27 and was rated unsatisfactory, with six areas of concern listed. The areas of concern were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. These six concerns were the most important concerns to Principal Meltzer. Respondent was also placed on a School-Site Assistance Plan (School-Site Plan) on January 16, 1998. The School-Site Plan was developed to address Respondent's deficiencies, together with improvement strategies. No plan was developed for the concern of Demonstrates Effective Working Relationship with Parents because Principal Meltzer concluded that the parents' complaints had been effectively resolved through Respondent's meetings with the parents. Included in the School-Site Plan were agreed-upon dates for reviewing Respondent's progress. The School-Site Plan also provided, among other things, that observations would be conducted to determine whether the deficiencies were corrected. Principal Meltzer reviewed the School-Site Plan with Respondent on January 22, 1998. A copy of the School-Site Plan was provided to Respondent on January 28, 1998. The School-Site Plan was effective through March 10, 1998, which was the latest date that Principal Meltzer had to notify Respondent and Petitioner whether his intent was to recommend Respondent for reappointment. The School-Site Plan was essentially divided into two parts, which were for Respondent to engage in self-study and for her to perform her normal teaching duties. The parties agree that Respondent completed the self-study part of the School-Site Plan. Formal observations were conducted to determine whether Respondent performed her normal teaching duties. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 10, 1998, Pamela Tepsic, Petitioner's Program Specialist, who is also a certified FPMS observer, conducted an observation of Respondent to assist Respondent in improving management of student conduct. Ms. Tepsic's observation was not to be used for evaluative purposes. Some of the matters observed were discussed with Respondent on the same day of the observation. A follow-up conference was scheduled with Respondent for February 19, 1998. Ms. Tepsic made ten written recommendations, which were provided to Respondent on February 20, 1998. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 12, 1998, Linda Long, Petitioner's ESE Team Leader for Area 2, conducted an observation of Respondent for the purpose of assisting Respondent with grouping the IEPs of Respondent's students. Ms. Long wanted to observe Respondent's class before reviewing the students' IEPs. Ms. Long met with Respondent on February 26, 1998, to review the observation and the recommendations made. Ms. Long made four recommendations and provided Respondent with copies of strategies, which were from the State of Florida, Department of Education. During her meeting with Respondent, Ms. Long reviewed the students' IEPs and attempted to place them in groupings because it was difficult for Respondent to engage in direct teaching due to the many groups of children in Respondent's class. Ms. Long's observation was also not to be used for evaluative purposes. On February 17, 1998, Assistant Principal Cardozo conducted a FPMS formative observation of Respondent, focusing on the domain of Instructional Organization and Development, but she did not review the IEP's of Respondent's students prior to the observation. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made specific recommendations, and on February 18, 1998, she met with Respondent and reviewed the observation and recommendations. Assistant Principal Cardozo's recommendations included behaviors to continue or maintain and behaviors to increase. Assistant Principal Cardozo's observation was to be used for evaluative purposes. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 18, 1998, Hugh Brady, Petitioner's Instructional Support Team member of Area 2, conducted an observation of Respondent. He observed, among other things, that many of Respondent's comments to her class were not conducive to teaching VE students. Mr. Brady made several recommendations and conferenced with Respondent on February 25, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Mr. Brady's observation was not to be used for evaluative purposes. On February 19, 1998, Assistant Principal Cardozo conducted a formal FPMS summative observation of Respondent. She observed that Respondent continued to engage in ineffective teaching, including not teaching concepts completely and failing to give definitions, attributes, examples, and nonexamples. Assistant Principal Cardozo made several recommendations and conferenced with Respondent on February 23, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Assistant Principal Cardozo's recommendations included behaviors for Respondent to continue or maintain; behaviors for Respondent to increase; and behaviors for Respondent to reduce or eliminate. Her observation of Respondent was to be used for evaluative purposes. On February 26, 1998, Carol Parks was requested to serve as Respondent's peer teacher. On March 2, 1998, Ms. Parks met with Respondent and reviewed Respondent's lesson plans from which suggestions were made by Ms. Parks regarding planning and recording instructional objectives and improvement to Respondent's lesson plans. On March 5, 1998, Assistant Principal Cardozo conducted a formal FPMS formative observation of Respondent, focusing on the domain of Presentation of Subject Matter. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made recommendations, and on March 10, 1998, she met with Respondent and reviewed the observation and recommendations. Principal Meltzer failed to comply with the School- Site Plan as to having progress reviews on the specific dates which were set-aside. The dates scheduled for review of Respondent's progress were January 30, 1998, February 20, 1998, and March 6, 1998. On March 10, 1998, the latest date for Principal Meltzer to recommend non-renewal of an employee, Principal Meltzer conducted a CTAS annual evaluation of Respondent, who was identified on the evaluation as an AC employee. The observations considered by Principal Meltzer were the observations conducted by himself on December 4, 1997, and January 13, 1998; and by Assistant Principal Cardozo on February 17, 1998,1 and February 19, 1998. On the annual evaluation, Respondent scored 26 and was rated unsatisfactory, with the same six areas of concern listed as on the mid-year evaluation of January 16, 1998. The six concerns were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. Principal Meltzer determined that Respondent had failed to correct the six deficiencies. However, as previously indicated, the concern of Demonstrates Effective Working Relationships with Parents was no longer considered a concern, and, therefore, Respondent failed to correct five deficiencies. By letter dated March 10, 1998, Principal Meltzer notified Respondent that, in accordance with Section 231.36, Florida Statutes, and the Settlement Agreement, he was recommending that she not be reappointed for the 1999-2000 school year. In the letter, Principal Meltzer also encouraged Respondent to continue working to improve her performance and, if her performance significantly improved before the end of the 1998-99 school year, he may reconsider his decision. Respondent received this letter on the same date, May 10, 1998. No assistance was provided to Respondent after March 6, 1998. Even though Principal Meltzer had recommended non- reappointment for Respondent, he conducted an observation of Respondent on May 14, 1998. He observed that Respondent continued to need considerable improvement and made several recommendations for improvement. Had Principal Meltzer determined, as a result of his observation of May 14, 1998, that Respondent had made significant improvement, he could have rescinded his recommendation of non-reappointment and recommended reappointment of Respondent. By letter dated June 19, 1998, Petitioner notified Respondent that she was cleared of the allegation of battery of students made against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Dismiss the Administrative Complaint filed against Betty Windecker. Reinstate Betty Windecker with a professional service contract, full backpay, and lost benefits. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 27th day of June, 2000.
