Findings Of Fact Respondent left Cuba with her parents in 1981. She resumed school in Spain and thereafter immigrated to the United States. She has had difficulty in adjusting here, especially to the language change. She is currently a 7th grade student at West Miami Junior High School. She is failing most of her subjects and has an absentee rate (unexcused) of nearly 50 percent. She has been involved in fights at school on two occasions during the current academic year. School officials have met with her parents, and have counseled Respondent in an effort to assist her. These efforts have been unsuccessful. Recently, her parents have taken her to the "Family and Adolescent Development Center" where she is apparently receiving therapeutic services. A late-filed exhibit on her current, diagnosis (Respondent's Exhibit 1) was to be furnished by Respondent's therapist. However, this document was not filed. Therefore, the results of the therapeutic referral were not established.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assigning Respondent to its Educational Alternative Program. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Reinaldo Sanchez 6797 South West 21st Street Miami, Florida 33155 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2013.
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's intended award of a contract to Ramsay Youth Services, Inc., pursuant to RFP No. K8027, is contrary to Respondent's governing statutes, applicable rules, or polices or the specifications of the request for proposals.
Findings Of Fact On August 13, 1999, Respondent, Department of Juvenile Justice (Department), advertised and released a request for proposals (RFP) for the operation of a 62-bed Male Moderate Risk Residential Education Program in Dade County, Florida, RFP K8027. Petitioner, Youthtrack, Inc. (Youthtrack), and Intervernor, Ramsay Youth Services, Inc. (Ramsay), submitted the only two proposals in response to the RFP. On September 20, 1999, the Department posted an intended contract award to Ramsay. Based on the evaluations conducted by the Department, Ramsay received 401.66 points, and Youthtrack received 376 points. The RFP requested proposals to design, develop, implement, and operate a Moderate Risk Residential Education Conservation Corps on land owned by the South Florida Water Management District located outside of Florida City. The RFP called for a daily capacity of 62 male youths who are committed to the Department after having been classified as a moderate risk to society. Youthtrack is the incumbent provider. The RFP specified the proposal award criteria. The proposals were to be evaluated on the statement of work/program services, organizational capability, management approach, and past performance. The evaluation areas were assigned a maximum number of percentage points. Each area contained subcategories, which were assigned percentage points to equal the maximum number of percentage points that could be awarded in that particular category as follows: Award Criteria STATEMENT OF WORK/PROGRAM SERVICES 50 Soundness of Approach 25 Compliance with Requirements 25 ORGANIZATIONAL CAPABILITY 20 Soundness of Approach 10 Compliance with Requirements 10 MANAGEMENT APPROACH 20 Soundness of Approach 10 Compliance with Requirements 10 PAST PERFORMANCE 10 Historical implementation 2 Educational achievements 2 Recidivism rates 2 QA evaluation 2 Community involvement 1 CMBE subcontracting 1 In addition to the above criteria, ten bonus points were available for offerors who were certified minority business enterprises (CMBEs) or who utilized CMBEs as subcontractors. The evaluators were to rate each category using the following rating system. A rating of excellent would receive a score of five. Criteria deemed to be very good would be rated as a four. An adequate response for a category would be scored as a three. A rating of poor would garner a score of two. An unsatisfactory rating would be scored as one. If the criteria was not addressed in the proposal, a zero would be assigned. Three Department employees served on the technical evaluation committee: Robert Rojas, Anne McVey, and Joan Berni. Mr. Rojas is the facilities superintendent for the Department's Miami Halfway House, which is a 28-bed moderate risk facility similar to the 62-bed facility addressed in the RFP at issue. Ms. Beri is a program administrator over probation units in the north area. Maria Elena Cadavid served as the contract administrator for the RFP. She was responsible for overseeing the development of the RFP, the evaluation process, and the integrity of the procurement process. On September 15, 1999, Ms. Cadavid held a meeting with two of the evaluators to distribute the RFP, the Ramsay and Youthtrack proposals, and a memorandum of instructions. In addition to the instructions within the memorandum, the evaluators were provided with copies of a sample scoring sheet and an "Evaluation Factor Guide" as attachments to the memorandum. Ms. Berni did not attend the September 15 meeting. At the beginning of the evaluation process, the RFP, the proposal, and the instruction memorandum with attachments were delivered to her office. Once the technical evaluation was complete, the cost proposals were to be evaluated by Martha Bermudez. The members of the technical evaluation committee were not provided with the cost proposal. During the evaluation process, Mr. Rojas could not determine whether Youthtrack intended to provide psychiatric services to residents who were not eligible for Medicaid. In a letter attached to Youthtrack's proposal as an Appendix, (CPC), states that individual therapy and case management services are provided to eligible clients. In Mr. Rojas' past experience with (CPC), services had been provided only to Medicaid eligible clients. Mr. Rojas called Ms. Cadavid and asked whether Youthtrack's separate cost proposal included a budget item for mental health services that are not billable to Medicaid. Mr. Rojas was trying to determine the level of mental health services to be provided by Youthtrack's proposed subcontractor, (CPC). Ms. Cadavid told Mr. Rojas that there was no such budget item and that he did not need to take it into consideration. She did not provide Mr. Rojas with a "bottom-line" price or any other budget information from the Youthtrack proposal. Mr. Rojas concluded that Youthtrack would not provide mental health care unless the individual was eligible for Medicaid. The Department maintains a Contract Manager's Manual (Manual), which "establishes policy, assigns responsibilities, and prescribes implementing procedures for soliciting and evaluating Offeror's proposals." Section 9.3.2.a of the Department's Manual provides: Technical as well as cost (price) proposals will be submitted to the Contract Manager who will provide technical proposals to the technical evaluators. The technical evaluation will be conducted independent of the cost (price) evaluation. Technical evaluators (unless the district appoints only one team) will not have access to cost data at any time prior to the decision. In the case of one team, the team shall complete the technical evaluation of all technical proposals before beginning the evaluation of the cost proposals. In this context, cost data does not include information required for types and quantities analysis such as labor hours, personnel qualifications, equipment and material list, and other non- rate information. Technical personnel may examine such data even if it is extracted from the cost proposal. However, they may not be given access to the complete cost proposal. The September 15 memorandum stated: Each Section of the rating sheet has a section for comments. It is requested that you explain your rationale for the scoring of the proposal under each section. The manual provides that the individual evaluators will prepare narratives, which is to be the principal means available to do a comparative analysis of the offers. The narratives are to include as a minimum the following: What is offered; Whether it meets or fails to meet the evaluation standard; Any strengths or weaknesses; and An assessment of the Offeror's proposal approach and ability to perform. Mr. Rojas included comments on his scoring sheets for Youthtrack and Ramsay. The other evaluators, Ms. McVey and Ms. Berni, did not provide any comments on their scoring sheets for either proposal. The Manual provides that the individual narratives are to be consolidated into an evaluation report that is prepared by the evaluation team. The Manual contemplates that "the strengths and weaknesses determined by the individual team members are to be distilled into an integrated, team consensus, preferably by group discussion." Based on the Manual, the evaluation report is done after both the technical and cost proposals have been evaluated. The evaluation report may be done in any format, but it must include the following information: Narrative assessment of the technical evaluation; An analysis of the Offeror's cost (price) (realism, completeness, and reasonableness); and Results of evaluating contractual considerations and any other general considerations that were evaluated by the SSET [Source Selection Evaluation Team]. In Section 9.3.7, the Manual further provides: The objective of the proposal evaluation report is to present a summary of the evaluation of each proposal against solicitation requirements based on established evaluation criteria. The proposal evaluation report encompasses information derived from the results of the evaluation of the proposals. It is an official record of the evaluation of proposals and supporting rationale and, therefore, shall be maintained as a portion of the official contract file. On September 20, 1999, the evaluation committee reconvened to hand in their scores and to allow the contract manager to ensure that there were no math errors. During the meeting, the evaluators were instructed that the points entered under "Criteria" headings on the score sheets should equal the sum of the points of the underlying subfactors. This instruction comports with the directions on the scoring sheets. As a result of this clarification, Mr. Rojas made changes to his criteria scores so that they equaled the sum of his subfactor scores. Mr. Rojas lowered his criteria scores for Youthtrack by 58 points and increased his criteria score for Youthtrack by ten points. For Ramsay's proposal, Mr. Rojas lowered the criteria scores by 13 points. After the scores were tabulated and averaged, a summary of the scoring was prepared and signed by each of the evaluators. The summary stated that Ramsay's average score was 401.66 and that Youthtrack's was 376.00. Ms. Cadavid reported these scores to Ronald E. Williams, the Department's Senior Juvenile Justice Manager, who posted the results and recommended award of the contract to Ramsay by memorandum dated September 20. 1999. At the final hearing, it was noted by Ms. Cadavid that an error had occurred in calculating the average scores. Ms. McVey's score for Ramsay was listed as 500 points, rather the 510 points that was listed on Ms. McVey's score sheet. When the correct 510-point score from Ms. McVey is used, Ramsay's average score is 405, which is 29 points higher than Youthtrack's average score. If an offeror was a CMBE, the RFP required the following: The Offeror, if applicable, shall include a copy of certification or proof of registration (letter) as an eligible certified minority business enterprise to do business in the State of Florida, as set forth in Section 287.0945, Florida Statutes. To be an eligible minority vendor/offeror you shall possess current certification issued by the State of Florida Minority Business Advocacy and Assistance Office. If an offeror planned to use CMBEs as subcontractors, the RFP required the following: The Offeror shall include a subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan must include the percentage of the total proposed contract dollars the offeror anticipates expending under subcontract to CMBE's as well as the type of services/commodities that will be included as subcontracts. The subcontracting plan shall be incorporated into the contract. Minority Business Enterprise subcontracting shall be an evaluation factor and shall be used as a measure of provider past performance. The clause is not applicable to registered CMBE's. The Ramsay proposal contained a list of the CMBE vendors with whom Ramsay intended to subcontract, the dollar amounts of the intended contracts, and the types of goods or services to be performed by the CMBE subcontractors. Ramsay also included CMBE certificates for three of the subcontractors. Ramsay intended to subcontract raw food products with a minority vendor in the amount of $90,520, but no vendor was listed and no certificate was provided. Youthtrack's proposal contained the following as Youthtrack's CMBE subcontracting plan: As an equal opportunity employer and national member of the National Association of Blacks in Criminal Justice (See Appendix), Youthtrack will continue to diligently pursue the development of subcontracts with available minority business enterprise contractors. This will be accomplished by consulting Department of Labor and Employment Security, Minority Business Advocacy & Assistance Office, and by utilizing its Business Commodity Directory for Dade County. Furthermore, Youthtrack has established a goal of spending a minimum of 10% of the programs' goods and services budget on goods and services procured from local minority business enterprises. Services to be provided may include mental health services, vocational and educational services and facility maintenance services such as refuse removal, pest control, clothing, etc. Currently Youthtrack's Hurricane program is in the process of finalizing an agreement with Rockdale Auto Services which is a minority owned business, for the provision of auto repair services, and with Dr. Peterson, whose medical practice is a certified minority business, for the provision of health services. Ms. McVey had awarded Youthtrack ten bonus points for minority subcontracting. At the September 20 meeting, the evaluators were told that the CMBE bonus points could not be awarded unless the offeror submitted CMBE certificates from the Department of Labor with the proposal. As a result of this directive, the ten bonus points awarded to Youthtrack by Ms. McVey were deducted. Neither Mr. Rojas nor Ms. Berni awarded Youthtrack bonus points for CMBE subcontracting. In his evaluation comments, Mr. Rojas questioned the caseload assignments for Youthtrack's case management personnel. Youthtrack included a staffing plan in Appendix I of its proposal, indicating that case management would be provided by four team leaders and two counselors. Mr. Rojas was under the impression that the two counselors would be providing the case management for the 62 children. His notes on Ramsay indicated that Ramsay had three case managers. Mr. Rojas scored Ramsay a three for Section 1.2.2.1 and scored Youthtrack a 2 for the same section dealing with the soundness of approach for organizational capability. Mr. Rojas concluded that Youthtrack had not provided for communicating gang information to the police based on the Department's Policy No. 8.09 regarding street gangs. The policy establishes elaborate procedures for identifying members of street gangs, controlling their behavior, housing them in Department facilities and interfacing with other law enforcement and community groups. The RFP included requirements that the offerors comply with several Department policies which were specifically identified; however, Policy No. 8.09 was not part of the RFP and was not referenced in the RFP. Mr. Rojas downgraded Youthtrack's proposal for not complying with Policy No. 8.09. Mr. Rojas made the same comment concerning street gang information when he evaluated Ramsay's proposal and downgraded Ramsay's proposal for not complying with Policy No. 8.09. Mr. Rojas testified that Youthtrack's proposal failed to provide for submission of progress reports every 30 days. Mr. Rojas notes state that Ramsay also failed to provide 30-day progress reports. Youthtrack and Ramsay both provided for 30-day progress reports in their proposals. In his notes on his evaluation of Youthtrack's proposal, Mr. Rojas stated, "The offeror does not clearly demonstrate a designated health authority." On page 44 of its proposal under the section describing the health services which will be provided, Youthtrack states: Health Services are provided by the Physicians Office of Florida City who is our designated health authority and provides medical services in accordance with the 1998 Department of Juvenile Justice Health Services Manual. In the event that the youth require hospital services, Homestead Hospital is located fifteen miles from the program and has indicated in writing its intent to enter into a cooperative agreement with Youthtrack for such services. In an appendix to its proposal, Youthtrack included a letter from Physician's Office of Florida City, indicating that it was providing the medical services. In another appendix to its proposal, Youthtrack included a proposal for Claudia Hall Peterson, D.O., of Homestead, Florida, to serve as the designated health authority. Thus, when Youthtrack's proposal is read in its entirety, there is an internal conflict as to who will serve as the designated health authority. In light of this discrepancy on the face of Youthtrack's proposal, Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. The RFP requires that the offeror provide mental health services which include psychopharmacological therapy. Youthtrack stated in its proposal that CPC would provide mental health services, and that youths placed on psychotropic medications would be under the direct medical care of the prescribing physician and that a psychiatrist from CPC would provide medication for the treatment of mental health disorders. Mr. Rojas commented that Youthtrack's proposal did not include a consulting psychiatrist for psychopharmacology. At hearing, Mr. Rojas explained his view, that it was not sufficient for Youthtrack to state that psychiatric services were to be provided by its subcontractor, CPC. Mr. Rojas was looking for the name of a specific psychiatrist that would be used by the subcontractor. Mr. Rojas also based his comment on the Department's protocol requiring one person to oversee all medication; however, this protocol was not included in the RFP. Mr. Rojas had scored Youthtrack a "2" for soundness of approach for the management approach category and had scored Ramsay a "3" for the same subfactor. Mr. Rojas made comments on his scoring sheets concerning lack of integration with Youthtrack's staff and CPC and particularly questioned the interaction with the individual therapist. Youthtrack lists two individual therapists in its programming staffing. In the narrative of its proposal, Youthtrack states that when one-on-one counseling is needed, the youth will be referred to Youthtrack's overlay counselors and other local specialized service providers. The narrative also mentions overlay case managers from CPC. The narrative further talks about individual counseling being provided by "our staff." In another section on individual counseling, the proposal indicates that some individual counseling will be done by employees of Youthtrack and some will be done by the subcontractor. The proposal is unclear if the individual therapists are employees of Youthtrack or of the subcontractor's overlay counselors. It does not indicate that the individual therapists in the staffing plan are the ones referred to in the narrative. Additionally, it is not clear from Youthtrack's program staffing chart which other staff members are employees of Youthtrack and which staff members are employees of the subcontractor. Mr. Rojas' comments were not arbitrary, capricious, or clearly erroneous. Mr. Rojas' score sheet included a note stating, "no ranking uniform issued to offenders." Mr. Rojas was concerned at the time he evaluated the proposals that the children were not being classified at the time of admission. Youthtrack's classification takes place at the orientation level which follows the admission process. Mr. Rojas was concerned about security during the admission time Mr. Rojas made a similar comment concerning Ramsay's proposal. Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. Mr. Rojas gave Youthtrack two points out of a possible five points for community involvement under the category of past performance. As explained in his score sheet comments and at hearing, Mr. Rojas based his score at least in part on Youthtrack's failure to have executed a contract with Everglades National Park for the operation of a recycling plant, despite the fact that Youthtrack is the incumbent provider. Youthtrack claims that Mr. Rojas required more of Youthtrack because it was the incumbent provider. Youthtrack overlooks that the category, is historical implementation; thus, the evaluators looking at what Youthtrack had done in the past and how it has conducted itself on the current contract is relevant. Mr. Rojas did not penalize Youthtrack because it was the incumbent provider. Youthtrack's representative conceded at the final hearing, that there was no evidence that Mr. Rojas, or any of the other evaluators, was prejudiced against Youthtrack or in favor of Ramsay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing Youthtrack's petition. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of January, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Gary V. Perko, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301
The Issue In this case, the Petitioners challenge the determination by the Respondent that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based upon the Division of Retirement's determination that Dr. Rush is not an independent contractor. The issue is whether Dr. Rush should be a member of the Florida retirement system. This determination which turns upon whether she is an employee of the school district. Which turns upon whether or not she is, and was, an independent contractor providing professional services to the school board pursuant to contract.
Findings Of Fact The Board, in compliance with the statutory mandate requiring special education programs for emotionally-handicapped students, contracted with the Child Guidance Center, Inc., (CGC) to provide assessment and counseling of qualified students. See, Ex. A-B and Tr. 215-217. The Board obtained additional funding from grants to provide its students with these mandated special educational programs relating to mental health. See, Ex. E, F, G, H, and M. The Board contracts with neighboring school boards which are unable to afford their own programs and pay the Baker County Board to provide services to severely emotionally disturbed children in their counties as required by the statute. The Board's contracts with mental health specialists are dependent upon funding for special students from state monies allocated based upon the total number of students and upon grant money. See, Tr. 38 and 215-216. The Board has not established a permanent position for a health care professional to render clinical mental health services. See, Tr. 72 and 217. The Board has contracted for these professional services to severely emotionally handicapped students, as well as for the professional services of occupational therapists and physical therapists. See, Tr. 79. CGC, the first provider of services to emotionally-handicapped students, is a corporation whose business is providing mental health care. See, Tr. 29. The Board contracted annually with CGC beginning in 1982 to provide a specified number of hours of counseling for its qualifying students. See, Tr. 31-33. The number of hours stated in the contract with CGC varied according to the availability of funding and established a financial liability limit on the contract. Each contract between the Board and CGC was for the term of the school year and could be terminated by either party upon 30 days notice. See, Ex. B. The contracts between the Board and CGC provided that the services would be rendered in the Baker County public schools. See, Ex. B. CGC billed the Board for each hour of counseling provided by its employees. See, Ex. B. CGC did its billing and accounting on a quarterly basis and arranged with the Board to be paid on a quarterly basis for its convenience. See, Ex. B; Tr. 145-146. Dr. Rush was an employee of CGC and first began providing mental health services to the students of Baker County in the early 1980's. See, Tr. 142. Dr. Rush is a licensed psychologist specializing in child psychology. Dr. Rush received a graduate degree in psychiatric social work from the University of Athens, Greece, and received a Ph.D. in clinical psychology from the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field of mental health for approximately 20 years. Dr. Rush began her own practice while still working for CGC through Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and 183. In 1990, Dr. Rush no longer wanted to be an employee of CGC and became an independent contractor with CGC. See, Tr. 146-147. Dr. Rush's private practice grew gradually and prior to 1991, she had resigned her employment with CGC, concentrating on her private practice. See, Tr. 146. In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38. Wanda Walker, administrator of the special education programs, approached Dr. Rush and asked her if she would provide the mental health care as an independent contractor, as previously provided by CGC. See, Tr. 37-38. On August 16, 1991, the Board entered into two contracts with Dr. Rush to provide different types of mental health counseling to its students. See, Ex. A One contract between Dr. Rush and the Board provided that Dr. Rush would provide mental health services to the Board for at least nine hours per week, from which two hours would be committed to the special needs of the students in the Opportunity Program at Baker County High School. The contract services were for 37 weeks of the 1991-1992 school year. The cost of the service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount not to exceed $14,460.00 for the service. The agreement required Dr. Rush to perform the services at Baker County public school sites, and provided that the mental health services should include psychological evaluations, classroom observations, participation as a member of the crisis intervention team, and consultations with teachers, guidance counselors and other appropriate school personnel. Dr. Rush submitted a statement of hours worked every two weeks, and was paid the contractual rate for each hour of professional services rendered. The contract provided that either party could terminate upon 30 days written notice. The other contract between the Board and Dr. Rush provided that Dr. Rush would provide mental health services to severely emotionally disturbed students in the Day Treatment Program at Southside Educational Center. This contract provided that Dr. Rush would provide case management, assessments and evaluations, consultation to school personnel, mental health services appropriate to the program, and direct the counseling services provided to Day Treatment Program students. The contract provided that Dr. Rush would provide for 10 hours of professional services per week for 37 weeks at a cost of $40.00 per hour not to exceed $14,550.00. The contract provided that Dr. Rush would submit a statement of hours worked every two weeks, and that the agreement could be terminated by either party upon 30 days written notice. On June 4, 1992, Dr. Rush entered into an agreement to provide professional services to the Board for the 1992-1993 school year. This contract duplicated the previous contract for nine hours per week of mental health services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour not to exceed $14,460.00. The only significant change in this contract was that the contract covered the provision of services by Dr. Rush or her associate, Nancy Davie. On June 4, 1992, Dr. Rush entered into a contract with the Board to provide mental health services to severely emotionally disturbed students similar to the previous contract for the 1991-1992 school year. The contract for mental health services to severely emotionally disturbed students did not provide for the provision of these services by Nancy Davie. When the June 1992 contracts were executed, Dr. Rush had incorporated her professional practice; however, she entered into the contracts with the Board in her individual name. The Board was unaware of Dr. Rush's incorporation. Dr. Rush did not believe that there was a difference between contracting in her name or the name of her corporation; however, this contract was subsequently amended to indicate that her corporation was the contracting entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in the name of her corporation, Protepon Counseling Center, in 1993. Dr. Rush maintained two offices, one in Jacksonville and one in Macclenny, where she held herself out to the public as a individual providing psychological counseling and where she conducted her professional business. Generally, Dr. Rush and her associates provided their services at the schools within the district; however, Dr. Rush maintained a professional office in Macclenny, Florida, and met with students and their parents at her professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided services at the various schools within the district to alleviate the need to transport children and disrupt their schedules. Dr. Rush and her associates used the offices of guidance counsellors when at the various schools. See, Tr. 14 and 85. During the time that Dr. Rush has provided mental health services to the Board, Dr. Rush has provided her own tools for counseling and assessing students. She provides all of her own supplies. See, Tr. 88 and 297-298. Dr. Rush is not reimbursed for the use of her supplies or standardized tests. See, Tr. 211 Dr. Rush provides mental health counseling to private individuals and agencies, to include St. Johns River Hospital, the Center for Life Enrichment, Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative Insurance Program. See, Tr. 160-165. Dr. Rush provides a profit sharing plan to her associates and maintains workers compensation insurance for her employees. See, Tr. 174 and 208. The contracts with the Board make up only a fraction of Dr. Rush's gross income from her professional practice. See, Ex. J(2); Tr. 169-170. Dr. Rush maintains her own retirement fund and has done so since she left CGC in 1991. See, Ex. J(3); Tr. 172-173. Neither the Board or Dr. Rush consider their relationship to be an employment relationship. See, Tr. 149 and 217. It was never the intent of Dr. Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the continuation of the independent contractor relationship. The Board paid Dr. Rush for the services rendered by her and her associates from the special fund and not from a salary or payroll account. See, Ex. I. Every two weeks, Dr. Rush submitted statements of professional services rendered by her or her associates and charged the Board per hour for these services. See, Tr. 180-182. Dr. Rush was paid for each hour of service which she or her associates provided, and was not paid a salary or reimbursed or compensated for travel costs or supplies. See, Ex. I; Tr. 297 The statements do not indicate whether Dr. Rush or one of her associates provided the service to the Board. The Board never paid any of Dr. Rush's associates. See, Tr. 43-44, 106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr. 151-152. The Board never deducted withholding taxes from its payments to Dr. Rush. See, Ex. I. Dr. Rush paid her own social security tax. See, Tr. 207. Dr. Rush was paid by the Board as she is paid by all of her clients at the agreed-upon hourly rate for her professional counseling services. See, Ex. I; Tr. 182. In making its determination, the Division of Retirement relied upon the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered the questionnaire without help from legal counsel and without understanding its purpose or legal implications. See, Tr. 77-79, 82, and 176. Dr. Rush provided an annual orientation to new personnel and students; however, she did not take any training program required by the Board during the period of these contracts. The answers provided by Dr. Rush and Ms. Walker were ambiguous regarding the fact that the annual orientation in which Dr. Rush participated was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and 178-179. Using the school calendar, Dr. Rush prepared a schedule calendar indicating the dates, times, and school locations at which she or her associates would provide professional services under the contract with the Board. See, Tr. 178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided professional services for the Board at the times and dates when students were attending school. See, Ex. C. Dr. Rush set her own schedule within the confines of the school day and the school year. The purpose of the calendar schedule was to alert teachers as to Dr. Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her associates did not check in with a supervisor at the various schools. Dr. Rush called Ms. Walker, who notified the appropriate school when a new counsellor would be going to that school. See, Tr. 121-122. This practice was designed for security reasons to let the school know for security reasons that a new individual would be providing services. Dr. Rush was available if there was an emergency. When paged, Dr. Rush called the school and determined from the facts if it was necessary for her or one of her associates to respond. See, Tr. 131 and 297. Dr. Rush was not subject to being summoned by Board employees, but exercised her professional judgment about the by of response which was necessary. See, Tr. 131 and 297. Dr. Rush and her associates evaluated students and recorded the results of their testing and observations. They participated as part of the multidisciplinary team required by law to assess special education students and prepare their educational programs. In this regard, the reports of Dr. Rush and her associates were expressions of their professional expert opinion. See, Tr. 66. It was the experience and expertise of Dr. Rush and her associates which the Board sought in contracting with Dr. Rush. The Board did not direct Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates conducted their counseling without any control from the Board. See, Tr. 83-84 and 227.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Rush be treated as an independent contractor and denied participation in the Florida Retirement System. DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3378 Both parties submitted proposed findings which were read and considered. Contrary to the Division's rules, Baker County did not number its findings and did not limit them to short statements of fact. Therefore, although most of its findings were adopted in the order originally presented, it is virtually impossible to identify which of the findings were adopted. In order to assist those attempting to determine which facts were adopted, and which were rejected and why, the numbers listed under the Recommended Order column below reference the paragraphs in the Recommended Order which contain the findings suggested by the Division, or the alternative findings suggested by Baker County which the Hearing Officer determined were based upon the more credible evidence. It is readily apparent when the reason is stated for rejecting the proposed findings. Retirement's Findings Recommended Order Paragraphs 1-3 1,2,3,6,7,13 Paragraph 4 14 Paragraph 5,6 19 Paragraph 7 Rejected as contrary to more detailed descriptions of the contracts at issue. Paragraph 8,9 20,21,22 Paragraph 10 Irrelevant. Paragraph 11 As indicated in the Conclusions, there is no issue concerning the fact that employees of school boards are qualified for membership in the retirement system. The issue is whether Dr. Rush was an employee. Paragraph 12,13,14 23,24,25,49,50 Paragraph 15 26,32,34 Paragraph 16 The differences in the terms of the board's contracts with CGC and Dr. Rush are not relevant. Paragraph 17 1,53,54 Paragraph 18 48,49 Paragraph 19 37-44 Paragraph 20-23 2-4,37-44. The manner in which some non-instructional staff are paid is irrelevant. Paragraph 24 26,28-31 Paragraph 25 45-47 Paragraph 26 51,52 Paragraph 27-28 53 paragraph 29 26,28 Paragraph 30,31 25 Paragraph 32,33 Irrelevant argument. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, FL 32399-0950 John W. Caven, Jr., Esquire Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A. 3306 Independent Square Jacksonville, FL 32202 Jodi B. Jennings, Esquire Assistant General Counsel Florida Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 William H. Linder, Secretary Department of Management Services 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether Respondent should be assigned to the school system's opportunity school program.
Findings Of Fact At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida. JANE C. HAYMAN 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 29th day of June, 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Does Petitioner, Nicholas A. Mancini, PhD (Dr. Mancini), satisfy the requirements for licensure as a mental health counselor as established in section 491.005(4), Florida Statutes (2010)?1
Findings Of Fact Based on the evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: On December 30, 2010, the Board issued its Notice of Intent to Deny Dr. Mancini's application for licensure as a Mental Health Counselor. Dr. Mancini requested a hearing to challenge the decision. This proceeding followed. Dr. Mancini has been licensed to practice psychology in California and Pennsylvania. His Pennsylvania license expired November 30, 2003. His California license was canceled on May 31, 2006. Dr. Mancini earned a master's degree in psychology from Fairleigh Dickinson University. He completed 34 semester hours of coursework there. The Fairleigh Dickinson University master's in psychology program that Dr. Mancini completed was not a mental health counseling program accredited by the Council of Accreditation of Counseling and Related Educational Programs. The program is, however, related to the practice of mental health counseling. At the time Dr. Mancini attended Farleigh Dickinson, it was accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools. It was also accredited by the Council of Higher Education Accreditation. By completing Fairleigh Dickinson course 20PY624, Counseling and Interviewing, Dr. Mancini obtained three semester hours of graduate coursework in the content area of counseling theories and practice. By completing Fairleigh Dickinson course 30PY633, Abnormal Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of diagnosis and treatment of psychopathology. By completing Fairleigh Dickinson Course 30PY600, Tests and Measurements I, Dr. Mancini obtained three semester hours of graduate coursework in the content area of individual evaluation and assessment. By completing Fairleigh Dickinson courses 20PY603 and 20PY604, Statistics and Experimental Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of research and program evaluation. By completing Fairleigh Dickinson course 30PY710, Social Problems, Dr. Mancini obtained three semester hours of graduate coursework in the content area of substance abuse. Dr. Mancini attended, but did not receive a degree from, Hahneman University Medical College of Philadelphia (now Drexel University). He completed four semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini attended, but did not receive a degree from, Glassboro State College (now Rowan University). He completed six semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini earned a doctoral degree in counseling psychology from the Professional School of Psychological Studies. At the time, the school was not regionally accredited. Dr. Mancini has not obtained three semester hours of graduate-level coursework from a regionally accredited institution in each of the following content areas: human growth and development; human sexuality, group theories and practice; career and lifestyle assessment; social and cultural foundations; counseling in community settings; and legal, ethical, and professional standards issues in the practice of mental health counseling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage, and Family Therapy and Mental Health Counseling issue a final order denying Dr. Mancini's licensure application. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 7th day of June, 2011.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, when it discharged Petitioner.
Findings Of Fact Respondent, Cardio-Pulmonary Center of Bethesda, Inc. (Center), operates a Health and Fitness Center in conjunction with Bethesda Memorial Hospital located in Boynton Beach, Florida. On or about December, 1988, three separate business entities operated at the Health and Fitness Center: the Cardio-Pulmonary Center, a Fitness Department open to the general public, and a Sports Medicine and Back Care Center. Petitioner, Diane H. Cramer (Cramer), was hired by the Center as a secretary/receptionist on or about December 19, 1988. Cramer suffers from chronic depression caused by a chemical imbalance. When she is not in crisis she is highly functional; however when she is in crisis, there is criteria for a major depressive disorder which affects her ability to function normally in her day-to-day activities. For the entire length of Petitioner's Employment with the Center, Randy Colman (Colman) held the position of Director of the Cardio-Pulmonary Center. Colman was Cramer's immediate supervisor from December 1988 through September, 1991. In approximately August 1989, Cramer was promoted to the newly-created position of Office Manager based on her good job performance. Her duties included supervision of the office staff of the Cardiac Rehabilitation Department and the Sports and Back Care Center. Cramer's work performance continued to be satisfactory until early January, 1990. She broke up with her boyfriend and began to experience bouts of depression in which she would feel sad and angry and would isolate herself from others. She had contemplated suicide and told her co-workers about her suicidal thoughts. She would put her head down on her desk. When Colman would ask her to do something, she would look at him as if to say "why are you asking me to do this." Her emotional behavior had escalated to the point that it was affecting the performance of her co-workers. On January 19, 1990, Colman gave Cramer a memorandum outlining his concerns. He suggested that she speak to someone who was qualified in crisis management and depression and that she take a few days off. In response to Cramer's complaints to Colman that she lacked private space and private time at work, he suggested that she try a different work schedule which would allow her some privacy in her current work space. Additionally, he advised her that if she could not become more considerate and cordial to her co-workers that he would require her to take some time off and visit the employee health nurse before returning to work. Colman discussed these concerns as well in a conversation with Cramer on January 19, 1990. Cramer followed Colman's suggestion and took some leave time. When she returned from leave, she had improved and her work performance was satisfactory. Cramer did try the different work schedule suggested by Colman in his January 19, 1990 memorandum but she went back to her old work schedule. She did not seek any counseling in January, 1990. In June, 1990, Cramer experienced another bout of depression. On June 25, she had told Ken Goby (Goby), a co-worker, that she was depressed and that if she did not come into work the next day, it would be because she had killed herself. Goby relayed his conversation with Cramer to Colman. On June 26, Colman met Cramer at the entrance of the building and told her that he was concerned about her well-being. He gave her a memorandum which outlined his expectations of her work performance. Additionally, he advised her that she was suspended without pay until such time as she saw the employee health nurse, Ruth Tillman. He gave her an appointment time with Ms. Tillman. If she chose not to see the nurse, she was advised to sign the resignation form which was included with the memorandum. Cramer did see Nurse Tillman. As a result of her conversation with the nurse, Cramer went to see her endocrinologist, who referred her to Dr. Tomelleri. She saw Dr. Tomelleri on July 5. Cramer began taking medication and returned to work. Colman spoke with Nurse Tillman after her visit with Cramer and he was satisfied that Cramer could return to work. Having judged the credibility of the witnesses, I find that when Cramer returned to work she did not advise either Colman or Kathy Vredenburgh that she had seen a doctor, that she was diagnosed as being depressed, or that she was taking medication. However, the evidence is clear that Colman knew that Cramer was having emotional problems, which he judged to be depression. From the time she returned to work in July, 1990 until the early part of January, 1991, Cramer's work performance was satisfactory. Her mood swings were no different from any of the other employees at the Center. In the fall of 1990, Cramer received a seven percent merit increase and a .5 percent bonus raise. Beginning in January, 1991, Cramer began to come to work in a bad mood several times a month. She had a "snitty" way of dealing with her co-workers and the patients. She did not make any suicide threats. 15 In January, 1991, Cramer complained to Ken Goby that Colman was giving all his work responsibilities away and that they were doing all his work. Mr. Goby told Colman what Cramer had said. Based on Dr. Tomelleri's notes, Cramer had quit taking her medication sometime in January, 1991. She went back on her medication in late January, 1991. She was doing well when she next saw Dr. Tomelleri in March, 1991. Based on Dr. Tomelleri's notes, Cramer would do well as long as she continued to take her medication. In September, 1991, Colman was granted additional managerial responsibilities at the Center, and Kathy Vredenburgh was made Cramer's immediate supervisor. Colman and Ms. Vredenburgh conducted a performance evaluation of Cramer in September, 1991. Cramer was given a low rating. In November, 1991, one of Cramer's co-workers was having personal problems and asked Cramer if she could use the telephone in Cramer's office for a personal phone call. Cramer let her use the telephone; however, the co- worker's conversation dragged on and Cramer asked her to get off the phone so that Cramer could get back to her desk. Cramer got angry and threw a piece of paper. On November 29, 1991, Cramer received a reprimand for the incident and was cautioned that emotional outbursts, visible sulking, and performance of non- work related functions was not acceptable behavior and would not be tolerated. Prior to the issuance of the reprimand, Colman and Ms. Vredenburgh discussed Cramer's behavior. Based on Ms. Vredenburgh notes, it is clear that she was not aware that Cramer was currently being seen by a psychiatrist. In December of 1991 or January of 1992, Cramer got into an argument with a patient over some medical records. Cramer raised her voice at the patient. In April of 1992, Kent Goby became Cramer's immediate supervisor. Cramer was certified to teach SALSArobics, which is modified low impact aerobic exercises set to Latin music and movements. In October, 1991, she approached Colman with a proposal to introduce the program at the Center. By memorandum dated November 15, 1991, she followed up a meeting with Colman concerning her proposal and addressed several questions that he had concerning the program. Colman gave her his written comments on November 25, 1991. Cramer wanted to be the instructor of SALSArobics. On June 5, 1992, Goby and Cramer had a conversation concerning the SALSArobics. Cramer told Goby that Colman had been very negative about the program. She stated that if Colman did not appreciate all the work and research that she had done then, "The hell with him." On the following Monday, June 8, Goby again spoke with Cramer about SALSArobics. Goby told Cramer that he would be meeting with the Center's exercise instructor to discuss the possibility of starting the program. Cramer told Goby that she felt that the fitness center probably was worried about her influencing members from existing aerobic classes and that she would not want anyone else to teach SALSArobics. She told Goby "screw them." On June 9, Goby relayed his conversations with Cramer about SALSArobics to Colman. Based on the Center's records, and notes of Goby, Cramer was late three times in March, 1992, and twice in May, 1992. It is not clear why she was late in March. Her tardiness in May resulted from oversleeping on one occasion and a back ache caused by her bed on the other occasion. Cramer came to work late on June 9, 10, and 11. The evidence did not establish that she was late on these days because of her depression. Sometime during the week of June 9, 1992, Cramer made comments to Colman regarding her tardiness. Once she told him that she could not understand "how people get to work on time." On another occasion, when he observed her walking in late, she told him that she was "always" late. She did not advise Colman that her tardiness was due to her depression. Cramer's employment was terminated on or about June 11, 1992, due to "inappropriate job performance, i.e. tardiness, emotional outbursts, and general attitude towards the center and [her] co-workers." Cramer was not in a crisis situation during the time of the occurrence of the circumstances which led to her discharge. Based on the medical records prepared by Dr. Tomelleri, Cramer saw him in March, 1992 and did not visit him again until July 17, 1992. Cramer's claim for unemployment compensation benefits was refused by an Appeals Referee. The Appeals Referee concluded that Cramer was terminated for misconduct connected with her work. The decision of the Appeals Referee was affirmed by the Florida Unemployment Appeals Commission and by the Florida Fourth District Court of Appeal. Cramer filed a timely charge of discrimination with the Florida Commission on Human Relations. Cramer's charge alleged that she was "laid off" because of a perceived handicap, severe depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Cardio-Pulmonary Center of Bethesda, Inc. did not commit an unlawful employment practice and that Diane H. Cramer's Petition for Relief from an Unlawful Employment Practice be dismissed. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1260 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-5: Accepted in substance. Paragraph 6: The second half of the first sentence is rejected as subordinate to the facts actually found. The remainder of the paragraph is accepted in substance. Paragraphs 7-12: Accepted in substance. Paragraph 13: The first sentence is accepted in substance. Having judged the credibility of the witnesses, I reject the second sentence. Paragraphs 14-17: Accepted in substance. Paragraph 16: Rejected as subordinate to the facts actually found. Paragraph 17: Rejected to the extent that it implies that Cramer was deliberately excluded by her co-workers. Having judged the credibility of the witnesses, the evidence established that Cramer had been invited to go to lunch but had declined because of lack of money. Paragraphs 18-20: Rejected as subordinate to the facts actually found. Paragraph 21: Having judged the credibility of Cramer, I reject the first part of the sentence as not credible. The second part of the sentence is accepted in substance to the extent that Cramer did have episodes of depression. Paragraph 22: Having judged the credibility of Cramer, I reject this paragraph as not supported by credible evidence. Paragraph 23: Rejected as subordinate to the facts actually found. Paragraph 24: Accepted in substance to the extent that it refers to the time of discharge. The evidence is clear that Cramer had received warnings during her employment with the Center concerning her tardiness and her dealings with co-workers and clients. Paragraphs 25-31: Accepted in substance. Paragraphs 32-41: Rejected as subordinate to the facts actually found. Paragraphs 42-44: Accepted in substance. Paragraph 45: Accepted to the extent that the statement is generally true. Rejected to the extent that it implies that the tardiness that resulted in part in Cramer's discharge were caused by her depression. Paragraphs 46-48: Accepted in substance. Paragraphs 49-53: Accepted in substance to the extent Ms. Vredenburgh felt that Cramer had emotional problems which should be addressed in counseling. Paragraph 54: Accepted in substance. Paragraphs 55-61: Rejected as subordinate to the facts actually found. Paragraph 62: Accepted in substance. Paragraph 63: Rejected as subordinate to the facts actually found. No Paragraph 64 Paragraphs 65-71: Accepted in substance. Paragraph 72: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 73-75: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as unnecessary. Paragraphs 4-8: Accepted in substance. Paragraph 9: The second sentence is rejected to the extent that it implies that Colman did not perceive that Cramer had emotional problems. The remainder is accepted in substance. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary. Paragraphs 12-19: Accepted in substance. Paragraphs 20-21: Rejected as recitation of testimony. Paragraphs 22-28: Accepted in substance. Paragraph 29: The first two sentences are accepted in substance. The last sentence is rejected as constituting argument. Paragraph 30: Accepted in substance. Paragraph 31: Rejected as unnecessary. Paragraphs 32-39: Accepted in substance. Paragraph 40: The first and third sentences are rejected. Based on Colman's memoranda, I find that he did know that she had some emotional problems. The second sentence is accepted in substance. The last sentence is accepted in substance to the extent that there was no competent substantial evidence to indicate that Goby did have knowledge of Cramer's condition, psychiatric visits or medication. Paragraph 41: Accepted. COPIES FURNISHED: Elizabeth S. Syger, Esquire Michael W. Casey, III First Union Financial Center, Suite 3600 200 South Biscayne Boulevard Miami, Florida 33131-2338 Gary A. Isaacs, Esquire One Clearlake Centre 250 Australian Avenue South Suite 503 West Palm Beach, Florida 33401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED
