The Issue Whether Petitioner should be placed on the convicted vendor list.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into a settlement document. The settlement document provides as follows: The Petitioner, Fisher Scientific and the Respondent, State of Florida, Department of Management Services ("Department"), by their undersigned attorneys, enter into this agreed upon settlement permitting informal disposition pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes. The Joint Stipulation of Fact entered into by the parties is attached as Exhibit A and the parties stipulate that there is no material issue of fact remaining which would require a formal hearing. The Joint Stipulation of Fact establishes that the Petitioner has satisfied mitigating elements contained in 287.133(3), Florida Statutes, including elements that raise a rebuttable presumption in favor of Petitioner, that it would not be in the public interest to place Petitioner on the Florida Convicted Vendor's List. There are no stipulated facts that overcome the rebuttable presumption. THEREFORE, the parties agree to disposition of this matter in which it is requested a Final Order be issued adopting the settlement agreement and Joint Stipulation of the parties pursuant to Sections 287.133(3)(e)2f and 120.57(3), Florida Statutes, and finding that it is not in the public interest to place the Petitioner on the Florida Convicted Vendors List. Paragraphs 1, 2, and 10 through 21 of the Joint Stipulation of Facts appended to and incorporated in the settlement document provide as follows: On June 10, 1994, FSC was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. FSC entered a guilty plea to one count of a misdemeanor Information charging FSC with making a false writing in violation of 18 U.S.C.A. Sections 1018 and 2. A copy of the Information is attached as Exhibit 1. The entry of the guilty pleas by FSC was made pursuant to a Plea Agreement with the United States Attorney for the District of New Jersey dated March 10, 1994. A copy of the plea agreement is attached as Exhibit 2. . . . Pursuant to Paragraphs 287.133(3)(a) and (b), Florida Statutes, FSC made timely notification to the Department of Management Services and provided details of the misdemeanor conviction. On October 3, 1997, the Department of Management Services issued a notice of intent pursuant to subparagraph 287.133(3)(e)1. Florida Statutes. Exhibit 6. On October 16, 1997 pursuant to subparagraph 287.133(3)(e)2., Florida Statutes, FSC timely filed a petition for formal administrative hearings pursuant to subsection 120.57(1) Florida Statutes, to determine whether it is in the public interest for FSC to be placed on the State of Florida Convicted Vendor List. Exhibit 7. Subparagraph 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor on the Convicted Vendor List. Subparagraph 287.133(3)(e)3.d., Florida Statutes, establishes "(p)rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the Convicted Vendor List. (a) In March, 1994, FSC paid restitution to the U.S. Agency for International Development (AID) in the amount of $1,200,000. FSC also reimbursed AID for the cost of its investigation in the amount of $500,000. FSC paid these amounts prior to the entry of its conviction order, a copy of which is attached as Exhibit 3. On July 8, 1994, FSC paid a criminal fine in the amount of $20,000. Subparagraph 287.133(3)(e)3.e., Florida Statutes, establishes "(c)ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. (a) FSC cooperated fully and immediately with the federal authorities investigating the performance of FSC's International Division relating to certain contracts FSC entered into with foreign organizations to supply laboratory products. Payments for such products sold to foreign organizations were made to FSC by AID pursuant to various federal statutes and programs. A summary of FSC's cooperation is detailed in a letter dated May 24, 1994, to Ms. Beth Nuegass, Senior U.S. Probation officer, a copy of which is attached as Exhibit 4. FSC fully cooperated with the Department of Management Services in connection with its investigation initiated pursuant to section 287.133, Florida Statutes. Subparagraph 287.133(3)(e)3.f., Florida Statutes, establishes "(d)issociation from any other persons or affiliates convicted of the public entity crime" as a mitigating factor. The individual primarily responsible for the illegal conduct resulting in FSC's conviction, John Sommer, left FSC to join FSC's competitor several days prior to the commencement of AID's investigation. Several of Sommer's subordinates who shared his culpability also left at this time. The employees who may have been peripherally involved with Sommer and who remained employed with FSC were disciplined. FSC also changed the organization structure of the International Division subsequent to its conviction. FSII, FSC's parent company, established Fisher Scientific Worldwide Inc., as the new wholly owned subsidiary responsible for managing FSC's international business. Accordingly, the entity "Fisher Scientific Company" which now conducts business with state agencies and political subdivisions in Florida is separate from the unit which conducts business with the U.S. Agency for International Development. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(p)rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. FSC engaged in self-policing in three respects: In 1990, FSC retained the law firm of Wilmer, Cutler & Pickering as a special counsel to conduct a through investigation and provide the results to AID and the U.S. Attorney. After 1990, FSC provided additional education and training to its International Division in compliance with the country of origin requirements of AID. FSC has promulgated and reinforced with training, a Code of Business Conduct which addresses unethical and fraudulent conduct by employees, including requirements of government contracting. Exhibit 8. Subparagraph 287.133(3)(e)3.g., Florida Statutes, establishes "(r)einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. (a) Attached as Exhibit 5 is a letter from Mr. Robert S. Perkins, Counsel to the Inspector General of AID, to FSC's counsel stating that no further action was taken by AID in order to suspend or debar FSC from contracting with AID or any other federal agency. Subparagraph 287.133(3)(e)3.h., Florida Statutes, establishes "(t)he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. FSC has acted as the prime supplier of laboratory products to the University of Florida and the State of Florida since 1990. FSC's satisfactory performance of these contracts has enabled various public laboratories throughout Florida to perform essential functions, standardizing in many instances, products available only through FSC. In addition, the merger of Curtin Matheson Scientific, Inc. and FSC in June, 1990, brought numerous contracts to FSC to provide clinical laboratory products to public hospitals and other institutions in Florida. Action preventing FSC from bidding on the requirements for laboratory products of these various state and political subdivisions laboratories would materially reduce the competition in procurement and reduce the scope of products and services available to such laboratories. This joint stipulation provides a full and complete factual basis for determining whether FSC should be placed on the Convicted Vendor List. In light of the facts and the criteria set forth in subparagraph 287.133(3)(e)3.a. through k., Florida Statutes, there are no disputed issues of material fact between the Department of Management Services and FSC which would require a formal hearing. The parties’ settlement document constitutes an informal disposition of all issues in this proceeding.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue Whether the Respondent's real estate license in Florida should be disciplined as a result of his criminal conviction of crimes involving moral turpitude in violation of Section 475.25(1)(f), Florida Statutes.
Findings Of Fact At all times material to these proceedings, Respondent Rosenberg has been licensed as a real estate broker in Florida, and has held license number 0308769. The last license issued was as a broker and was sent in care of Monopoly Realty, Inc., 944 Country Club Boulevard, Cape Coral, Florida. On April 7, 1989, the Respondent entered guilty pleas to the eleven criminal charges set forth in an Information filed in Case No. 89-3310-CF10, Brevard County, Florida. Counts I-IV of the Information charged the Respondent with the crimes of unlawful and knowing possession of four different motion pictures containing sexual conduct by children. Counts V-XI of the Information charged the Respondent with possession of seven additional motion pictures or videotapes containing obscene materials. It was alleged that the Respondent intended to sell, show or distribute these videotapes. Upon acceptance of the pleas, the judge found the Respondent guilty of Counts V-VII and withheld adjudication on all other counts. The Respondent was sentenced to two years of community control followed by three years probation on Counts I-IV. In addition, he received six months probation to run concurrently with the first sentence on all other counts. Other conditions of the community control portion of the sentence required the Respondent to pay $774.50 in investigative costs to the Organized Crime Division, continue in sexual therapy, and required that he not accept employment in video stores or any establishment where adult magazines or videos are sold. After his pleas were accepted by the Court, the Respondent notified the Florida Real Estate Commission of the court's judgment and sentence by letter on May 3, 1989. Mitigation In mitigation, the Hearing Officer finds that the Respondent has never had a complaint filed against him during the eleven years he has been licensed and actively engaged in the sale of real estate in Florida. The Respondent realizes that his interest in pornography is prurient, and he is sincerely involved in the sexual therapeutic program. The Respondent has a supportive family which is anxious to assist him in overcoming his problem. The charges filed against the Respondent in the Information were based upon one criminal episode which involved eleven pornographic films or tapes.
Recommendation Based upon the foregoing, and having reviewed the mitigating factors presented by Respondent at hearing, it is recommended: That Respondent David Rosenberg be found guilty of having violated Section 475.25(1)(f), Florida Statutes, as set forth in the Administrative Complaint. That the Respondent's real estate broker's license be suspended for a period of four years in accordance with the guidelines set forth in Rule 21V- 24.001, Florida Administrative Code. This recommendation aligns itself with the sentence of the circuit court judge who has given Respondent the opportunity to be placed in a community control program with probation over a five-year period in order to receive sexual therapy and repay his debt to society for having committed crimes which violate Florida's obscenity laws. As one year of the sentence imposed by the court has passed, the recommended four-year suspension would run concurrently with the remaining term of the Respondent's sentence. RECOMMENDED this 7th day of May, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5858 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2 and #3. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Rejected. Improper legal conclusion and irrelevant. Rejected. Immaterial and Irrelevant. Rejected. Irrelevant. A collateral attack on Respondent's plea is improper as this is not the proper forum for such review. Rejected. Irrelevant. Accept that adjudication was withheld on all but Counts V- VIII in the Information. See HO #3. Accept that Respondent will be receiving therapy. See HO #3. Accept that Respondent has no prior arrests. The state of Respondent's future record once he successfully completes his sentence is irrelevant and is rejected as irrelevant. The assertion that child pornography is a victimless crime is rejected as contrary to fact. Accept subparagraphs 6(a) - (d). See HO #4 and HO #5. Reject subparagraph 6(e). Contrary to fact. See HO #2 and HO #3. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1990 Orlando, Florida 32801 Peter L. Rosenberg Qualified Representative 1224 Southeast 23rd Place Cape Coral, Florida 33990 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the School Board should have non-renewed the Respondent's professional service contract and terminated her employment as a member of the Petitioner's instructional staff for unsatisfactory performance effective June 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Palm Beach County, Florida, is the entity authorized to operate the public schools in Palm Beach County and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). This includes the power to terminate the contract of instructional staff for unsatisfactory performance. Section 231.36(e) and (f), Florida Statutes. At all times material to this proceeding, Joan Tochner was employed by the School Board and assigned as a media specialist to Allamanda Elementary School ("Allamanda Elementary"). Mrs. Tochner was first employed by the School Board in 1974, and she was placed on a continuing contract at the beginning of the 1977-78 school year. Mrs. Tochner remained employed under a continuing contract until she requested in April 1997 that she be changed to a professional service contract beginning in the 1997-98 school year. Mrs. Tochner has a Master's degree in Library Science and has taught for over thirty years. She has served as a media specialist all but one of the years she has worked for the School Board, and, except for two years, she has worked in Palm Beach County elementary schools. She served as the media specialist at Westgate Elementary School for seventeen years and at Washington Elementary School for the five years immediately preceding her assignment to Allamanda Elementary at the beginning of the 1996-97 school year. Prior to the 1996-97 school year, Mrs. Tochner had never received an evaluation in which her performance was identified as unsatisfactory in any performance area in which she was evaluated. Beginning in the 1996-97 school year, under the administration of the newly-assigned principal of Allamanda Elementary, Mrs. Tochner received a mid-year evaluation in December 1996 in which three areas of concern were noted; she was put on a School Site Assistance Plan beginning in January 1997; she received an annual evaluation in March 1997 in which six areas of concern were noted; she was put on a Professional Development Plan for the 1997-98 school year; she received a mid-year evaluation in December 1997 in which seven areas of concern were noted; and she received an annual evaluation in March 1998 in which seven areas of concern were noted. Her principal recommended in a letter dated March 10, 1998, to the Palm Beach County Superintendent of Schools that Mrs. Tochner's employment be terminated, and this recommendation was forwarded to the School Board by the Superintendent in a letter dated April 1, 1998. Mrs. Tochner was advised in this letter that her employment with the Palm Beach County School Board would terminate on June 11, 1998. She has not been employed by the School Board since that time. PERFORMANCE ASSESSMENT CRITERIA AND PROCEDURES FOR INSTRUCTIONAL PERSONNEL The School Board uses the Florida Department of Education's Florida Performance Measurement System ("FPMS") as its instructional personnel assessment system. This system measures the instructional performance of all instructional personnel, including teachers and media specialists. Each member of the School Board's instructional staff is observed during formal "observations" of classroom performance, during which the observer identifies teaching behaviors which he or she rates as more or less effective. The results of the observation are reported on the Screening/Summative Observation Instrument ("Summative Instrument"), which contains four categories, or "domains of effective teaching," which are identified as follows: Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; and Management of Student Conduct. These domains are divided into twenty-one sections, each section containing an effective teaching behavior in the left column and a corresponding less effective teaching behavior in the right column. The person conducting the observation identifies particular teaching behaviors and marks the Summative Instrument with tally marks next to either the left-hand column of effective behaviors or the right-hand column of ineffective behaviors. The Summative Instrument is intended to provide an objective measurement of a teacher's instructional competence; it is governed by strict rules defining the way in which the instrument is to be completed, and it represents the formal method by which data is collected regarding a teacher's performance in instructional processes. Each person conducting formal observations in the Palm Beach County public schools receives intensive training in the proper use of the Summative Instrument to ensure some degree of uniformity in rating teaching behaviors. Each member of the instructional staff is evaluated each March, and this annual evaluation is based on the formal observations reported in the Summative Instrument, together with anecdotal reports of informal observations and reports of post- observation meetings. The evaluations are prepared by the school principal, or the assistant principal if the principal delegates this responsibility. At the principal's discretion, a teacher may be given a mid-year evaluation, which is completed in December of each year. An approved School Board form is used to record the evaluations. Media specialists are evaluated using the Media Specialist Evaluation Form, which is one of two special evaluation forms required by the State of Florida, the other being for guidance counselors. The Media Specialist Evaluation Form contains a section covering media center management skills, in addition to the instructional processes and professional responsibility sections that are included in the evaluation form used for classroom teachers. The Media Specialist Evaluation form includes the following evaluation criteria: MEDIA CENTER MANAGEMENT CAPABILITIES Establishment and maintenance of program plans Organization of the media program Administration of program assessment Development and maintenance of the collection Provides assistance to educators and students INSTRUCTIONAL PROCESSES Management of student conduct Instructional organization and development Presentation of subject matter Communication: verbal and nonverbal Establishment of an appropriate learning climate PROFESSIONAL RESPONSIBILITIES Demonstrates a commitment to professional growth Demonstrates self control Demonstrates effective working relationships with coworkers Demonstrates effective working relationships with parents Adheres to and enforces school polices [sic] Performs duties as assigned by the school administration Each evaluation criterion is followed by two columns, one identified as "Acceptable," for which the media specialist is assigned two points, and one identified as "Concern," for which the media specialist is assigned one point. A satisfactory evaluation requires a total score of 28 points; in other words, five or more "Concerns" render an evaluation unsatisfactory. The evidence contains no definition of the term "Concern," as that term is used in the evaluation form, but the context in which the term is used, as well as the statutory assessment procedures applicable to school instructional personnel, supports the inference that a formal "Concern" noted on the Media Specialist Evaluation Form identifies an area of deficiency. Because the evaluation form for a media specialist includes management responsibilities as well as instructional processes and professional responsibilities specific to a media specialist, the School Board publishes a "Guide for the Media Specialist Evaluation Form" ("Guide"). The Guide provides a description of the duties assigned to a media specialist and provides the evaluator with guidance in preparing the evaluation. For example, under the Media Center Management Capabilities section, the evaluator is to determine whether the media specialist's performance is acceptable with respect to the category of Establishment and Maintenance of Program Plans in accordance with the following factors: The library media specialist: works with educators, parents, and when appropriate students to provide direction for the library media program develops statements of long range desired outcomes and supporting measurable results to provide direction for the library media program identifies those program activities that will be given primary attention during a specified time span and develops plans for implementation develops general statements of how a given practice is to be carried out in the library media center and the specific actions, sequences and rules to observe in carrying out a policy formulates and submits funding requests with written justification based on specific program needs and keeps on-going record of expenditures manages the integration of technology into the media program The Guide also includes specific factors that must be considered in evaluating the media specialist's performance in the five categories of the Instructional Processes section of the Media Specialist Evaluation Form and the six categories of the Professional Responsibilities section of the Media Specialist Evaluation Form. The specific factors to be used in evaluating the competence of a media specialist in the Instructional Processes section correspond roughly to the areas identified in the four categories, or domains, of the Summative Instrument. The Summative Instrument does not, however, include any categories relating to the management of the media center or the professional responsibilities of a media specialist. These items are subject to anecdotal review: An informal observation is done and a report is generated consisting of a narrative of the activities observed in the media center and the discussions with the media specialist in meetings that take place after the observation. The summary of the meetings includes identification of areas in which the media specialist could improve and recommended strategies for improvement. PROCEDURES FOR IDENTIFYING A MEMBER OF THE INSTRUCTIONAL STAFF WHOSE PERFORMANCE IS UNSATISFACTORY, FOR ASSISTING THE STAFF MEMBER IN IMPROVING PERFORMANCE, AND FOR TERMINATING A STAFF MEMBER WHOSE PERFORMANCE REMAINS UNSATISFACTORY The process by which a school district terminates a member of its instructional staff for unsatisfactory performance is known in Palm Beach County as the "231 process," referring to Chapter 231, Florida Statutes, in which the various procedures and criteria for termination are set forth. In Palm Beach County, if a member of the instructional staff, which includes media specialists, receives an unsatisfactory mid-year evaluation during what is known as the "identification year," that person is flagged as someone who might need assistance in improving his or her performance. Assistance is initially provided to a media specialist who has received an unsatisfactory evaluation through a school site assistance plan prepared and administered at the school level by the principal and assistant principal. Administrative and instructional personnel in the school to which the media specialist is assigned provide guidance and assistance at this stage of the "231 process." If, after receiving on-site assistance, a media specialist receives an unsatisfactory annual evaluation, the media specialist enters the formal remediation portion of the "231 process." The principal notifies the Superintendent that the media specialist has received an unsatisfactory evaluation, and the Superintendent responds with a letter requiring that the media specialist remediate the deficiencies noted in the evaluation. For a media specialist under a professional service contract on July 1, 1997, the media specialist is given one year to remediate his or her unsatisfactory performance, and that year extends from March to March. During what is known as the "remediation year," the media specialist is provided assistance in improving his or her performance in the form of a professional development plan that is prepared and administered at the district level. The media specialist first receives a "mini-plan," which covers the time period from March to June of the remediation year. The basic prescription in the mini-plan is for the media specialist to meet with the district's Manager of Library Media Services and go over the performance criteria for the media specialist. The mini-plan can also involve prescriptions for the media specialists to follow, including the use of tapes, videos, and workbooks. In June, the media specialist receives a formal professional development plan that begins in August of the remediation year and extends through the first half of the following school year. If the media specialist receives an unsatisfactory mid-year evaluation in December of the remediation year, he or she receives the second part of the professional development plan, which extends from January through March of the remediation year, the time at which annual evaluations are prepared. If the media specialist receives a satisfactory annual evaluation in March of the remediation year, he or she is taken off the professional development plan; if the media specialist receives an unsatisfactory evaluation in March of the remediation year, he or she can be terminated at the end of the school year. However, the remediation plan extends to the end of the school year, and if a principal observes improvement in the areas of deficiency to a satisfactory level, the principal can withdraw the recommendation of termination. AUGUST THROUGH DECEMBER 1996 Mrs. Tochner was assigned to Allamanda Elementary in July 1996, as its media specialist. The media center at Allamanda Elementary consisted of a central area and several rooms opening off of the central area. Book stacks were located in several of these rooms, as was the reading well, while the circulation desk was located in the central area. There had been no certified media specialist at Allamanda Elementary since March 1994, and Mrs. Tochner found the media center in disarray and in serious need of attention. Equipment had not been inventoried and was strewn around a storage room; much of the equipment was outdated and needed to be replaced. Six shelves of paperback books had not been processed for the Sirsi system, the electronic catalog in use in the Palm Beach County schools, and the reference collection needed to have bar codes physically affixed to each book. 1/ The collection had many outdated materials that needed to be removed from the shelves. Computer software was not organized and had not been inventoried or checked to see that the school still had computers that could run the different programs. None of the audiovisual materials had been entered on the Sirsi system. Many new materials ordered and received by the media center were still in the shipping boxes. As the media specialist, Mrs. Tochner was part of Allamanda Elementary's fine arts faculty, which also included the music director, the visual arts teacher, the guidance counselor, and the instructional technical support assistant ("ITSA"), a clerical employee who, at Allamanda Elementary, was in charge of the IBM computer laboratory. During the school years at issue herein, the fine arts faculty was scheduled to teach each class in the school for one hour each week, except that guidance and computers were scheduled on alternate weeks. The computer class was taught by the ITSA, and it was in this class that the children were taught how to use computers and were allowed to work on remediation skills in reading, writing, and mathematics using the computers. During the 1996-97 school year, the first class at Allamanda Elementary began at 8:15 a.m., and the last class ended at 1:55 p.m.; class periods lasted approximately forty- five minutes, and the teachers and media specialist were given a one-hour combined lunch and planning period each day. Teachers and the media specialist were expected to arrive on campus at 7:30 a.m. and to conclude their work and leave the campus by 3:00 p.m. If the principal approved overtime work, the teacher or media specialist would receive credit in the form of compensatory time. Under the revised fine arts schedule effective October 15, 1996, Mrs. Tochner was scheduled to teach six classes on Mondays and Thursdays, from 8:15 a.m. through 1:55 p.m., with no planning period except for the combined one-hour lunch and planning period; she was scheduled to teach five classes on Tuesdays, Wednesdays, and Fridays, with a one-hour planning period on those days in addition to the combined lunch and planning period. Media specialists rely on media aides and media clerks to assist in keeping the media center organized, in checking out books, and in keeping the students in order. During the 1996-97 school year at Allamanda Elementary, Mrs. Tochner had no full- time assistance in the media center. A gentleman named Mr. Brown was assigned to assist her part time, but his duties also included assisting the administration whenever any student in the school exhibited behavior problems. As a result, Mrs. Tochner was not able to depend on Mr. Brown's being available on a regular schedule, and she was most often the only adult supervising the students in the media center. Dr. Janice S. Cover was appointed principal of Allamanda Elementary in July 1996. She received her doctorate in education from Nova Southeastern University in 1996, and her appointment as principal of Allamanda Elementary was her first appointment as a school principal. Dr. Cover was first employed by the School Board in 1988; she taught at Allamanda Elementary from 1988 through 1993 and served as assistant principal at Timber Trace Elementary School during the 1993-94 and 1994-95 school years and at John F. Kennedy Middle School during the 1995-96 school year. Dr. Cover was trained in 1994 in the use of the Florida Performance Measurement System. Dr. Cover first met Mrs. Tochner in August 1996, in a "getting-to-know-you" session with Mrs. Tochner and another member of the fine arts faculty. During that meeting, Dr. Cover shared her vision for the children at Allamanda Elementary; she especially wanted the media specialist to help the children at Allamanda Elementary develop a love for reading, and she wanted the media center to be the hub of activity in the school. Dr. Cover asked Mrs. Tochner to describe her vision for the media center. Dr. Cover was not pleased with Mrs. Tochner's response, which Dr. Cover described only as a "non-response." Anne M. Wark was assistant principal at Allamanda Elementary during the 1996-97 and 1997-98 school years. Ms. Wark decided "from the start" that Mrs. Tochner was not comfortable teaching classes, that she was more comfortable running a media center. The basis for this determination was Ms. Wark's observation of the way Mrs. Tochner managed the students, and she testified that she first realized "that things were not as they should be" when Dr. Cover received a complaint that Mrs. Tochner had grabbed a student by the neck and thrown her down on the floor in the media center. Incident - October 21, 1996 The incident to which Ms. Wark referred occurred early in Mrs. Tochner’s first year at Allamanda Elementary. On October 21, 1996, Mrs. Tochner was accused by two second grade students of grabbing them and pushing them to the floor in the media center during the time their class was in the media center attending the Book Fair. The alleged incident was brought to Dr. Cover's attention when she received a telephone call from a parent alleging that his daughter was "grabbed by the media specialist and pushed to the ground" and advising Dr. Cover that the incident was observed by another student. Dr. Cover talked with this other student, who said that Mrs. Tochner also grabbed her neck and pushed her to the floor. Dr. Cover undertook to investigate the incident, and she spoke with an intern who had been in and out of the media center at the time of the alleged incident and with a teacher who had also been in the media center at the time. Neither witnessed any such incident in the media center at the time alleged or at any other time. 2/ Dr. Cover notified the district of the accusations against Mrs. Tochner and turned the matter over to district personnel for investigation on or about October 22, 1996. Although Dr. Cover testified at the hearing that she had hoped that Mrs. Tochner would talk to the parents and resolve the matter, Dr. Cover included the following in the notes of her on- site investigation of the alleged incident: Joan Tochner came to my office to find out if I had heard from the parents [of the children who had accused Mrs. Tochner of throwing them to the floor]. I told her that the matter was now in the hands of the investigators and that she should not talk to the students about the incident. She felt that she should meet with the parents. She wanted to find out if this was usual practice. I told her I had never experienced this before. She wanted to get advice on whether she should call CTA [Classroom Teachers Association]. I told her it was up to her. She asked me if I was hiding anything. I said no. She asked what I would do if I were in her shoes. I told her I really don't know. She left and said she would call CTA. Mrs. Tochner was advised in a letter dated February 21, 1997, that the district investigation had been concluded with a finding that there was no probable cause to take disciplinary action against her. Notwithstanding this finding, Dr. Cover believed in October 1996 that Mrs. Tochner had committed the acts alleged, and she continues to believe that Mrs. Tochner is guilty of having committed those acts. 3/ Meeting - October 29, 1996 Dr. Cover met with Mrs. Tochner on October 29, 1996, a week after the accusations of misconduct were made against her. During this meeting, Dr. Cover discussed the following concerns she had about Mrs. Tochner's performance: Books being used as consequence-- students not getting to check out books if their behavior was inappropriate. Your negative attitude toward students-- (shouting, not warm and receptive). Grade level report that stated you scream at the students, refer to them as "hey you" not by name, publicly reprimand a student when the teacher came to get the class. 4/ Meeting - November 6, 1996 On November 6, 1996, Dr. Cover met with Mrs. Tochner in the media center, at which time Mrs. Tochner shared with her the problems she was having controlling the behavior of students in a particular class. Dr. Cover suggested that it was probably a problem "that you may be having with the management of student conduct." In order to remedy the discipline problems, Mrs. Tochner met with the teacher of the class several times, and Mrs. Tochner and the teacher developed a discipline plan to address the problems Mrs. Tochner was having. Observation - November 7, 1996 Dr. Cover conducted an informal observation of Mrs. Tochner on November 7, 1996, which she memorialized in a memorandum to Mrs. Tochner dated November 27, 1996. Dr. Cover noted that Mrs. Tochner reprimanded one boy who misbehaved and did not permit him to check out a book. In addition, Dr. Cover noted that Mrs. Tochner stopped three boys who decided to use one of the computers in the media center during the time the students were to check out books. In the notes of her November 7, 1996, observation, Dr. Cover commented that some students appeared bored while Mrs. Tochner was explaining the discipline rules for the media center and while Mrs. Tochner was taking attendance. Dr. Cover did not prepare a Summative Instrument for this observation. Observation - November 14, 1996. Ms. Wark conducted two observations of Mrs. Tochner on November 14, 1996, while Mrs. Tochner taught a kindergarten class consisting of twenty-five students and a fifth grade class consisting of twenty-six students. 5/ The narratives Ms. Wark prepared of her observations consist of a chronology of the activities engaged in by the class, together with observations of the students' responses. There is virtually nothing in the narratives that can be categorized as reflecting negatively on Mrs. Tochner's performance. In the narratives, Ms. Wark did not attribute to Mrs. Tochner any behavior toward students that could be described as harsh, impatient, or sarcastic, and she did not expressly criticize any of Mrs. Tochner's teaching behaviors. With respect to Mrs. Tochner's managing student conduct, Ms. Wark noted that, after Mrs. Tochner dismissed the fifth grade class to check out books, several students were playing in the reading area and were not looking for books to check out. Mrs. Tochner did not stop this misbehavior because she was in another room in the media center, helping individual students and small groups select books. Ms. Wark noted that Mrs. Tochner stopped other student misbehavior, and she also noted that Mrs. Tochner was instructing the fifth grade students in using a computer. Dr. Cover's November 6, 1996, observation and Ms. Wark's November 14, 1996, observations were discussed with Mrs. Tochner during a meeting with Ms. Wark and Dr. Cover on November 15, 1996. The notes of the meeting indicate that the following topics were discussed at this meeting: Was there any assessment of students' prior knowledge? This would probably minimize boredom. Hands on opportunities should be provided. Train students to help in the check-out process. Attendance process is too lengthy-- students losing interest far too early in the lesson. Complaint about Mrs. Tochner's negative attitude toward students. 6/ What opportunities are students (K-5) given to respond to the literature presented? Kindergarten students not checking out books (teachers' agreement). Could students look at (manipulate) books provided by Mrs. Tochner? Need more positive feedback to students. In the November 15, 1996, meeting, Dr. Cover and Ms. Wark did not give Mrs. Tochner any suggestions for management of student conduct. Observation - December 2, 1996 On December 2, 1996, Dr. Cover conducted a formal observation of Mrs. Tochner's performance teaching a class consisting of ten exceptional education students. 7/ Dr. Cover completed a Summative Instrument for the December 2, 1996, observation and a narrative describing the observation. In the Instructional Organization and Development category of the Summative Instrument, Dr. Cover noted that Mrs. Tochner asked twenty-nine "single factual" questions and two questions requiring analysis and reasoning; that Mrs. Tochner allowed a unison response once, that Mrs. Tochner posed a multiple question asked as one five times; and that Mrs. Tochner used general nonspecific praise three times. In the Management of Student Conduct category, Dr. Cover noted three instances in which Mrs. Tochner either delayed stopping misconduct, failed to stop misconduct, or stopped misconduct punitively. Dr. Cover noted no ineffective teaching behaviors in the categories of Presentation of Subject Matter and Communication: Verbal and Nonverbal. Dr. Cover stated in the narrative of the December 2, 1996, observation that the students in the class appeared bored by the lesson, although she noted in the Summative Instrument that only three students were "not engaged" in class activity during the twenty-five minutes of her observation. Although Dr. Cover considered the use of single factual questions to be unsatisfactory teaching behavior, the use of such questions is included on the Summative Instrument as an acceptable behavior, although teachers are encouraged to ask analytical questions, or higher order questions, as well. Although Dr. Cover noted no instances during her formal observation on December 2, 1996, of Mrs. Tochner's ignoring a student response or expressing sarcasm, disgust, or harshness toward the students, Dr. Cover noted in the attached narrative that "[a]t times the teacher responded to students in a sarcastic tone." She also noted in the narrative that "[o]ne male student in a yellow shirt remained off task (talking or playing) for a large portion of the class and was never stopped." Finally, Dr. Cover noted in the narrative that "[t]here was no physical evidence of theme planning, student work demonstrating understanding or response to literature." Mid-year evaluation - December 1996 Dr. Cover ordinarily does not prepare mid-year evaluations of experienced teachers. However, Dr. Cover decided to do a mid-year evaluation of Mrs. Tochner, notwithstanding Mrs. Tochner's 30 years of teaching experience. Dr. Cover completed the mid-year evaluation of Mrs. Tochner's performance on December 2, 1996, and noted that she based the evaluation on informal observations of Mrs. Tochner's classroom performance conducted on November 7, 1996, and on November 14, 1996, and on the formal observation she conducted on December 2, 1996. In the section on Instructional Processes in the December 2, 1996, mid-year evaluation of Mrs. Tochner, Dr. Cover rated Mrs. Tochner as unsatisfactory 8/ in the categories of Management of Student Conduct, 9/ Instructional Organization and Development, 10/ and Establishment of an Appropriate Learning Climate. 11/ Dr. Cover rated Mrs. Tochner satisfactory in the sections of Media Center Management Capabilities and Professional Responsibilities. Mrs. Tochner's total score on this evaluation was 29 points, which constitutes an overall satisfactory evaluation. As an explanation of her December 2, 1996, evaluation, Dr. Cover included the following comments on the evaluation form: There are some concerns about: The climate in the Media Center and how Mrs. Tochner stops student misconduct. Students are not given specific academic praise. More analytic questions should be asked. Students should participate in hands-on activities and projects for display. Although the three "Concerns" marked by Dr. Cover in Mrs. Tochner's evaluation amounted to a finding that Mrs. Tochner's performance in these categories was deficient, Dr. Cover testified that she marked those areas of concern because, on the basis of the observations of Mrs. Tochner, she "needed to offer some assistance to Mrs. Tochner in these particular areas." Dr. Cover found Mrs. Tochner deficient in the category of Management of Student Conduct because she was not comfortable with the tone of voice Mrs. Tochner used with the children. She described Mrs. Tochner's tone as "harsh, quite impatient-like." Mrs. Tochner's failure to ask more analytical questions formed the basis for her rating Mrs. Tochner deficient in the category of Instructional Organization and Development. Although there is a category on the Media Specialist Evaluation Form identified as Establishment of an Appropriate Learning Climate, there is no corresponding category on the Summative Instrument used for the formal observations of Mrs. Tochner, and there is no explanation in the record of Dr. Cover's finding Mrs. Tochner deficient in this area. School Site Assistance Plan As a result of the December 2, 1996, mid-year evaluation, Dr. Cover placed Mrs. Tochner on a School Site Assistance Plan to provide her assistance in improving in the three areas of concern noted in the December 2, 1996, mid-year evaluation. Dr. Cover ostensibly did so as part of the "231 process," which requires that a teacher be given a chance to remediate unsatisfactory performance prior to being recommended for non-renewal of the teacher's professional service contract. Under the "231 process" used in the Palm Beach County school system, however, only those teachers who receive an unsatisfactory mid-year evaluation, that is, an evaluation with five or more areas of "Concern," are identified as teachers who might need to come under a Professional Development Plan. Because Dr. Cover identified only three areas of "Concern" on her mid-year evaluation, Mrs. Tochner's overall performance was not considered unsatisfactory. In the School Site Assistance Plan, Dr. Cover listed as deficiencies the following two items: "During time when you did correct students, you used rough, angry, and punitive language"; and "You did not use effective questioning techniques." Dr. Cover directed Mrs. Tochner to read a booklet on managing student conduct and a learning package on effective questioning techniques; to observe another media specialist; and to attend a discipline workshop and workshops on January 10, 20, 29, 31, 1997. Mrs. Tochner did each of the prescribed activities. Dr. Cover also advised Mrs. Tochner in the plan that she would be observed and assisted by the District Media Specialist during the week January 13 - 17, 1997, and that her performance would be observed on January 17, February 26, and March 3, 1997. JANUARY THROUGH JUNE 1997 Janet Kempel is employed by the School Board as an instructional technical support assistant ("ITSA"). She works at Allamanda Elementary, where she has been assigned for five years; during one of her years at Allamanda Elementary, she worked as a media clerk. Her duties as an ITSA include maintaining the computers in the IBM lab and in the Instructional Integrative Learning System ("ILS") lab at Allamanda Elementary, and she works with students on computer keyboard skills and with remediation skills in reading, writing, and mathematics. Ms. Kempel worked in the media center with Mrs. Tochner during the 1996-97 and 1997-98 school years, but, even though they were housed in the media center, the computer labs were not part of the media center, and Mrs. Tochner was not Ms. Kempel's supervisor. In January 1997, Ms. Kempel reported directly to Dr. Cover 12/ that Mrs. Tochner had thrown her cane 13/ across the media center. According to Ms. Kempel, she and Mrs. Tochner had a disagreement in the media center, and Mrs. Tochner became upset, turned her back on Ms. Kempel, walked a few steps, and threw her cane about five feet across the media center's central area. Mrs. Tochner admitted to being frustrated, not at Ms. Kempel, but because both of them had forgotten to videotape an activity as requested. According to Mrs. Tochner, she turned her back to Ms. Kempel and tossed her cane in the air next to her body and let the cane fall to the floor. A witness who was standing very close to Mrs. Tochner and Ms. Kempel during the incident did not observe Mrs. Tochner throw her cane across the room, nor did he observe any children in the media center at the time. 14/ Meeting - January 17, 1997 As part of the "231 process" and apparently as part of the School Site Assistance Plan, Dr. Cover planned to have several meetings with Mrs. Tochner and Ms. Wark, with others participating from time to time, to discuss Mrs. Tochner's progress under the School Site Assistance Plan. A meeting was held on January 17, 1997, in which Dr. Cover, Ms. Wark, and Mrs. Tochner discussed Mrs. Tochner's progress, and Dr. Cover and Ms. Wark answered Mrs. Tochner's questions. Mrs. Tochner advised Dr. Cover and Ms. Wark during this meeting that she was trying to organize the media center and that Allamanda Elementary's in-house Sirsi system would be hooked up soon. Mrs. Tochner explained that "if there is a tense climate in the Learning Center it is because she has so much she is trying to do." Mrs. Tochner reported at the January 17, 1997, meeting that she had reviewed materials on the use of specific praise, had attended "sessions" on this technique, and was using more specific praise in her lessons. Mrs. Tochner also advised Dr. Cover and Ms. Wark that she was working with the school's guidance counselor on techniques for conflict resolution to use in her class. Mrs. Tochner asked for specific ideas on improving her questioning techniques, asking Dr. Cover for examples of "higher level" questions. It was noted on the memorandum that a follow-up meeting would be held on February 26, 1997. There is no evidence in the record that another meeting was held between January 1997 and March 1997 in which Dr. Cover and Ms. Wark reviewed Mrs. Tochner's performance or provided assistance. Media Center Program Review Jane C. Terwillegar, the "District Media Specialist" referred to in Dr. Cover's School Site Assistance Plan, was asked by Dr. Cover in early 1997 to assess the media center program at Allamanda Elementary. Ms. Terwillegar's formal title is Manager of Library Media Services for the Palm Beach County school system. She has a Master's degree in Library Science and an EDS, 15/ and she completed her coursework for a doctorate in education in 1981. Ms. Terwillegar served as media specialist at the H.L. Johnson School from 1983-1993, and, immediately prior to assuming her current position, Ms. Terwillegar was media specialist at Allamanda Elementary for a period of nine months during the 1993-94 school year. As requested by Dr. Cover and in accordance with the School Site Assistance Plan, Ms. Terwillegar visited the media center at Allamanda Elementary on January 15, 1997, in preparation for submitting a full program review of the media center. Under the School Site Assistance Plan, Ms. Terwillegar was to focus only on Mrs. Tochner's management of the media center program. Ms. Terwillegar was not aware of the cited deficiencies in instructional processes in Mrs. Tochner's December 2, 1996, evaluation, nor was she aware of the deficiencies identified in the School site Assistance Plan designed by Dr. Cover. Ms. Terwillegar summarized her initial observations regarding the state of the media center and her recommendations for improvement in a memorandum to Dr. Cover dated January 28, 1997. Ms. Terwillegar observed that Mrs. Tochner was an experienced media specialist; that the 1996-97 school year was Mrs. Tochner's first year at Allamanda Elementary; that Mrs. Tochner had no full-time assistance in the media center; that the media center appeared to be running efficiently; that many out-dated and unusable materials needed to be removed from the collection; that Mrs. Tochner provided her with a number of documents documenting management activities in the media center; and that Mrs. Tochner demonstrated a commitment to professional growth. 16/ In her memo of January 28, 1997, Ms. Terwillegar made the following recommendations: The major difficulty observed is a reluctance and resistance on the part of the media specialist to promote the media program in a positive light. This atmosphere of negativity is pervasive, and prevents the active, existing, functioning program elements to provide a positive focus for faculty and staff. An active public relations campaign cannot function in a negative atmosphere. The main thrust and focus for the next few weeks needs to be positive thinking, positive responses, and a positive spirit of cooperation with others on the school's staff. For the time being, the focus of activity in the media center needs to move from organization and cataloging of materials, to building bridges with faculty for collaborative instruction and programming. Teamwork with the Instructional Technology Support Assistant (ITSA), clerical assistants, teachers and others needs promotion, so the full capabilities of the school's technology can be utilized as the media program: from in-house television to the circulating Macintosh computers. An integrated approach is required, with the media specialist providing leadership and support. Ms. Terwillegar was advised during her visit on January 15, 1997, that there had been no certified media specialist at Allamanda Elementary since she left the position in March 1994. Ms. Terwillegar also observed that there were no activity centers set up in the media center when she visited on January 15, 1997, but she attributed this in part to the fact that Mrs. Tochner was teaching classes virtually all day, every school day, so that there were no children or groups of children coming into the media center from the various classrooms to work on projects. In a memorandum dated February 10, 1997, Ms. Terwillegar summarized a meeting she had on February 7, 1997, with Dr. Cover, Ms. Wark, and Mrs. Tochner for the purpose of discussing improvements for Allamanda Elementary's media program. In addition to suggesting that Mrs. Tochner read additional materials relating to media program planning, that Mrs. Tochner visit other district schools with a single media specialist to see how those media programs are implemented, and that Mrs. Tochner visit classrooms to observe the manner in which children rotate through learning centers, Ms. Terwillegar suggested that: The media specialist devote more time to working directly with teachers in integrating the media program with classroom instruction. This includes attending grade level meetings. Since the ITSA's desk is located in the media center, and other staff is assigned to the center for part-time assistance, the school [should] consider a plan for integrating these staff members into a media/technology team working cooperatively in the media center, particularly for student supervision. The media specialist prepare a time/function plan, outlining the steps to be instituted, and the time frame for the coming semester, February through June. The example of a time/function plan provided to Mrs. Tochner by Ms. Terwillegar included a statement of the issue to be addressed, a breakdown of each task needed to address the issue, and a time frame within which the issue was to be resolved. Observation - March 6, 1997 On March 6, 1997, Dr. Cover observed Mrs. Tochner teach a fifth grade class. She did not prepare a Summative Instrument recording her observation, although she prepared a memorandum summarizing her observation. Dr. Cover noted that the lesson, which involved the use of the encyclopedia and a worksheet, was "teacher-directed" and that several students appeared bored by the lesson and were off task. Dr. Cover did not include any criticisms of Mrs. Tochner's management of student behavior, but she noted "two occasions when you tried to redirect student behavior. You said to a group of boys, 'Boys, if you are not watching, you're going to have a hard time.' You also placed a gently hand on a girl's shoulder to get her attention." Dr. Cover summarized her concerns and suggestions resulting from the March 6, 1997, observation as follows: Concerns You did not use any specific academic praise. The activity lacked motivation and did not lend itself to generating excitement. Students who were ahead could have continued independent work. There were no analytical questions asked. Suggestions Implement strategies you learned at the workshops on: Presentation of Subject Matter Instructional Organization and Development Management of Student Conduct Utilizing a Variety of Instructional Strategies for Lesson Delivery Dr. Cover also felt that there was a certain amount of disorganization in the lesson because some students completed the assigned activity while other students were struggling with the assignment. Observation - March 17, 1997 On March 17, 1997, Dr. Cover conducted a formal observation of Mrs. Tochner's performance teaching a fifth grade class consisting of twenty students. In the Instructional Organization and Development category of the Summative Instrument, Dr. Cover noted three instances in which Mrs. Tochner allowed a unison response to a question and one instance when Mrs. Tochner used general non-specific praise. In the Management of Student Conduct category, Dr. Cover noted one instance in which Mrs. Tochner did not stop misconduct timely; Dr. Cover noted that the misconduct involved a student's pounding on the table with his pencil. Dr. Cover did not note any behaviors, effective or ineffective, in the categories of Presentation of Subject Matter and Communication: Verbal and Nonverbal. Dr. Cover noted that, during the forty minutes of her observation, her first scan revealed two students who were not engaged, her second scan revealed three students who were not engaged, and her third and fourth scans, respectively, revealed four students who were not engaged. On the Summative Instrument, Dr. Cover included notes in which she questioned the nature of the lesson, which she categorized as a "paper/pencil task," and questioned whether there could be a tie-in with technology. In the narrative Dr. Cover prepared of her observation on March 17, 1997, she commented that the students were seated in groups of five at tables, working with encyclopedias, and that Mrs. Tochner circulated to the various tables answering individual questions. Dr. Cover did not notice any specific academic praise while Mrs. Tochner was working with the groups of children. Dr. Cover noted that, in the second part of the lesson, Mrs. Tochner initiated a class discussion in which she asked the students questions. Dr. Cover did not observe any "expression of enthusiasm or educational challenges," and she noted that Mrs. Tochner gave only "one specific academic praise." Finally, Dr. Cover observed that, while Mrs. Tochner was helping individual students, "several students out of her view were engaged in off-task talking and playing. Two boys were up from their seats and moving (playfully) around the room. Another boy pounded loudly on his table with his pencil." Dr. Cover completed her narrative description of the March 17, 1997, observation by noting several concerns and unanswered questions: Students were not oriented to the day's lesson. There was no beginning and ending review. There was no concept development. This unit lended [sic] itself to projects, sharing of information, lively discussions. There was no evidence of this. Could there be a link to technology with this unit? Why was the female student working by herself in another room while there were available seats? This was the end of this unit--students did not get the opportunity to share information. What modifications did you make for the ESE student who sat idly for quite sometime? 17/ Annual evaluation - March 1997 On March 25, 1997, Dr. Cover prepared Mrs. Tochner's annual evaluation using the Media Specialist Evaluation Form. 18/ Dr. Cover noted on the form that the evaluation was based on the observations of November 7, 1996, November 14, 1996, and December 2, 1996, which formed the basis for her mid-year evaluation, and on observations conducted on March 12, 1997, 19/ March 17, 1997, and "walk though visits during Jan. & Feb." 20/ In the March 25, 1997, annual evaluation, Dr. Cover found Mrs. Tochner's performance deficient in the following categories: In the Media Center Management Capabilities section, Mrs. Tochner was found deficient in the categories of Establishment and Maintenance of Program Plans 21/ and Administration of Program Assessment 22/ ; in the Instructional Processes section, Mrs. Tochner was found deficient in the categories of Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, 23/ and Establishment of an Appropriate Learning Climate. In the section of the form entitled "Commendations," Dr. Cover noted: "Mrs. Tochner worked diligently with the STIA 24/ team to develop the FY 98 STIA proposal. Her input and visit to FETC 25/ are commendable. There are concerns about Mrs. Tochner's development and implementation of a total media program." No further explanation of the basis for the evaluation was provided by Dr. Cover. In a letter dated March 25, 1997, Dr. Cover advised the Superintendent of the Palm Beach County school system of the six deficiencies noted on Mrs. Tochner's March 1997 annual evaluation. Dr. Cover asserted that, although she had provided assistance to Mrs. Tochner in correcting the deficiencies, Mrs. Tochner had failed to do so. Dr. Cover further requested that the Superintendent provide Mrs. Tochner with notice that she would be given one year in which to correct the deficiencies. The Superintendent provided the requested notice in a letter to Mrs. Tochner dated April 16, 1997, in which Mrs. Tochner was also advised that she would be placed on a professional development plan for the upcoming school year and that, if the deficiencies were not corrected by the end of the school year, "a change in your employment status may be recommended." In a letter dated "April, 1997," Mrs. Tochner requested a transfer for the 1997-98 school year to another appropriate position, with a different supervising administrator. Mrs. Tochner was advised by the School Board's chief personnel officer in a letter dated July 2, 1997, that a meeting had been held to consider her request for a transfer and that the request was denied: "Appropriate support can be provided in your current assignment." Another fine arts teacher at Allamanda Elementary who had received an unsatisfactory evaluation from Dr. Cover was allowed to transfer to another school. District Level I Professional Development Plan After giving Mrs. Tochner the unsatisfactory annual evaluation in March 1997, Dr. Cover referred Mrs. Tochner to Barbara Jeanne Burdsall as a teacher needing assistance. Dr. Burdsall is employed by the Palm Beach County school system and is the Manager of Professional Standards, a job she has held for the past fourteen years. Dr. Burdsall has a doctorate in educational administration and supervision, and she is certified by the Florida Department of Education in elementary education, guidance, and educational leadership. As part of her duties, Dr. Burdsall prepared the document entitled "Guide for the Media Specialist Evaluation Form," and she managed Mrs. Tochner's professional development plan, preparing the plans for Mrs. Tochner, monitoring Mrs. Tochner's progress, and conducting formal observations of Mrs. Tochner's performance as a media specialist. Dr. Burdsall first prepared for Mrs. Tochner a CTAS 26/ District Level I Professional Development Plan, which Dr. Burdsall refers to as a mini-plan. She transmitted the mini-plan to Dr. Cover with a memorandum dated March 27, 1997, and provided a copy to Mrs. Tochner. Dr. Burdsall listed in the mini-plan the areas of concern that Dr. Cover identified in the March 27, 1997 evaluation. The improvement strategies identified in the mini-plan specified that Mrs. Tochner should "[w]ork with the designated district specialist Jane Terwillegar . . . to design a plan to implement a new strategy in your classroom addressing targeted areas of concern. Turn plan into a site administrator for review prior to implementation. Evaluate results at completion of project." Mrs. Tochner was also told to attend district workshops and seminars and to view videos suggested for each area of concern, and she was also expected to meet with Ms. Terwillegar to discuss the duties and responsibilities of a media specialist. Meeting - April 16, 1997 Pursuant to the mini-plan, Ms. Terwillegar met with Mrs. Tochner on April 16, 1997. Ms. Terwillegar summarized this meeting in a memorandum to Dr. Cover dated April 24, 1997. Ms. Terwillegar noted in the memorandum that she made several suggestions to Mrs. Tochner, including the suggestions that Mrs. Tochner document all of her activities in the media center, such as contacts with teachers and parents, all telephone calls related to the business of the media center, and her activities developing student-centered activities; that Mrs. Tochner investigate ways in which to enliven the media center program; and that Mrs. Tochner plan and implement a school-wide media activity in the early fall of the 1997-98 school years. During this meeting, Mrs. Tochner told Ms. Terwillegar that she had implemented Ms. Terwillegar's suggestions from the February 7, 1997, meeting, a contention that Ms. Terwillegar did not dispute. Meeting - June 2, 1997 Dr. Cover had a meeting with Mrs. Tochner and Ms. Wark on June 2, 1997, 27/ in response to two letters Dr. Cover had received, one from Ms. Wark and one from Janet Kempel, regarding an incident that occurred on May 24, 1997. Mrs. Tochner had asked Dr. Cover to allow her to close the media center for two days so that she could set up the Book Fair, an event which Mrs. Tochner planned and implemented each fall and spring. Dr. Cover agreed to allow her to close the media center for only one day. In order to ensure that the children received media services during the time Mrs. Tochner set up the Book Fair, Dr. Cover told Ms. Wark to work with Ms. Kempel, the ITSA, or Mr. Brown, who assisted Mrs. Tochner part time in the media center, to organize media activities for the children. Mrs. Tochner had already made arrangements with Mr. Brown to show videos to the classes scheduled for the media center during the Book Fair, but, consistent with Dr. Cover's instructions, Ms. Wark arranged for Ms. Kempel to cover Mrs. Tochner's classes. In preparation for the classes, Ms. Kempel set up puzzles and other activities in the central area of the media center, which is the area in which Mrs. Tochner planned to set up the Book Fair. Mrs. Tochner did not learn of any of these arrangements until she arrived at school, ready to set up the Book Fair. Mrs. Tochner was upset, and Ms. Kempel reported this to Ms. Wark, who intervened and apparently wanted Mrs. Tochner to yield the central area to Ms. Kempel; Mrs. Tochner refused. Mrs. Tochner explained at the June 2, 1997, meeting that she had a plan for setting up the Book Fair and had spent a great deal of time preparing to set up in the area Ms. Kempel had occupied. Mrs. Tochner stated at the meeting that she was upset because Ms. Wark raised her voice to her. Dr. Cover told Mrs. Tochner that the conflict could have been avoided if she had shown a little flexibility. Ms. Wark indicated that the reason she wrote the letter to Dr. Cover about the incident was "to point out [Mrs. Tochner's] uncompromising attitude and [her] unwillingness to assist when changes are necessary." According to the memorandum summarizing the June 2, 1997, meeting, Dr. Cover took the opportunity to review with Mrs. Tochner other instances in which Mrs. Tochner was perceived to have behaved in an uncooperative manner. For example, a teacher wanted Mrs. Tochner to leave the media center and take the teacher's class to the cafeteria while Mrs. Tochner was supervising the Book Fair; when Mrs. Tochner resisted because of her responsibilities in the media center, Dr. Cover intervened and directed Mrs. Tochner to do as the teacher asked. Another example cited by Dr. Cover was Mrs. Tochner's reluctance to close down the Book Fair on Literacy Night when Dr. Cover told her to do so. Finally, Dr. Cover noted that she had overheard "a negative interaction" between Mrs. Tochner and a student in the media center and that Mrs. Tochner changed her tone of voice when she saw Dr. Cover. SEPTEMBER THROUGH DECEMBER 1997 During the 1997-98 school year, Mrs. Tochner taught five classes on Mondays, Tuesdays, and Thursdays, with one planning period in addition to her forty-minute lunch period; she taught six classes on Wednesdays and Fridays, with no planning period except her forty-minute lunch period. Among the classes taught by Mrs. Tochner were two exceptional student education classes on Mondays, one exceptional student education class on Thursdays, and four exceptional student education classes on Fridays. Mrs. Tochner taught from 8:30 a.m., the first period of the day, until 1:55 p.m., the last period of the day. The length of Mrs. Tochner's class periods varied from thirty minutes to fifty minutes; the standard class period at Allamanda Elementary was fifty-five minutes. The grade levels of the classes Mrs. Tochner taught changed from period to period; for example, on Mondays, Mrs. Tochner first taught an exceptional student education class, followed by a third grade class, a second grade class, a fourth grade class, and a second exceptional student education class. Part I of Mrs. Tochner's Professional Development Plan As part of the remediation process, Dr. Burdsall prepared for Mrs. Tochner a CTAS District Professional Development Plan, which is the formal plan designed to assist Mrs. Tochner to remedy the six deficiencies identified by Dr. Cover in the March 1997 evaluation. The first part of the plan covered the period from September through Midyear 1997. 28/ The plan provided that, during specified weeks, Phil Sorenson, Jane Terwillegar, Donna McCaffrey, and Dr. Burdsall would conduct formal observations of Mrs. Tochner's performance, follow up the observations with assistance conferences with Mrs. Tochner, and submit written reports and recommendations to Mrs. Tochner. The plan also provided that school-site administrators, consisting of Dr. Cover and Ms. Wark, would observe Mrs. Tochner and offer their assistance and that a colleague of Mrs. Tochner's would also provide assistance with respect to the areas of concern. Assistance Review Meeting - September 2, 1997 As part of Mrs. Tochner's Professional Development Plan, Dr. Burdsall monitored Mrs. Tochner's progress and held meetings throughout the 1997-98 school year attended by herself, Dr. Cover, Ms. Wark, Mrs. Tochner, and Mrs. Tochner's union representative. At the meetings, the participants went over the observations completed to date to make sure Mrs. Tochner understood the comments and recommendations. They reviewed Mrs. Tochner's progress and identified additional areas in which Mrs. Tochner needed to improve her performance as a media specialist. Dr. Burdsall held five such meetings and reported the main points of the meetings in memoranda which were distributed to all those attending. The meetings with Mrs. Tochner generally lasted two or three hours, compared to an hour or an hour-and-a-half for the typical assistance review meeting. Dr. Burdsall attributed the long meetings to Dr. Cover's discussions with Mrs. Tochner, during which Dr. Cover "spent a lot of time explaining to Mrs. Tochner exactly what she wanted her to do. There would be a lot of just detailed explaining . . . ." Dr. Burdsall noted that Dr. Cover's main emphasis was on the integration of classroom themes into the lessons on media skills, which was the mean by which Dr. Cover hoped Mrs. Tochner would carry out her vision of the media center as the hub of school activity. The first Assistance Review Meeting was held on September 2, 1997, to review Mrs. Tochner's professional development plan and to follow up on the remediation activities in which Mrs. Tochner had participated during the summer. Mrs. Tochner advised the group that she had watched all of the recommended videos and worked through the materials suggested in the plan. Mrs. Tochner also advised that she had signed up for the workshops recommended in the plan, which were to be held on September 17, September 24, October 1, October 8, and November 5, 1997, which were all Wednesdays. As a result of this schedule, Mrs. Tochner requested that she not be observed on Wednesdays, if possible. 29/ Mrs. Tochner's work schedule was discussed, and Dr. Cover explained that Mrs. Tochner could do media center work from 8:00 a.m. until 8:30 a.m. and from 2:00 p.m. until 3:00 p.m. each day, in addition to her planning periods. Dr. Cover confirmed that the budget did not include a media clerk to assist Mrs. Tochner, but she noted that they were trying to get a media clerk through the Parent Teachers Organization. The second Assistance Review Meeting was scheduled for October 6, 1997, and Mrs. Tochner was advised that Dr. Cover wanted to see student work exhibited in the media center and more student involvement in media center activities. Meeting - September 12, 1997 Dr. Cover and Ms. Wark met with Mrs. Tochner on September 12, 1997, to discuss an incident which Ms. Wark observed on September 10, 1997. Shortly before classes began on the morning of September 10, 1997, Ms. Wark overheard Mrs. Tochner tell two fourth grade students who wanted to check out books for a book report that it was not a good time to check out books; Mrs. Tochner did so because she was scheduled to teach a class within the next three or four minutes and did not have time to check the books out when the students asked. Mrs. Tochner suggested they check books out from their classroom or visit the public library. Ms. Wark intervened and told Mrs. Tochner, apparently in front of the students, that "we" want to have children coming into the media center and checking out books; Mrs. Tochner checked the books out to the students at that time. When Ms. Wark intervened, Mrs. Tochner had been about to offer to hold the books for the students until her lunch hour or planning period, when she would have time to check the books out. 30/ Ms. Wark observed in her memorandum to Dr. Cover that her main concern was that students were not a priority with Mrs. Tochner. Workshop - September 17, 1997 Donna McCaffrey was asked by Dr. Burdsall's office to conduct a workshop for Mrs. Tochner as part of Mrs. Tochner's professional development plan. Ms. McCaffrey is currently the principal of Florida Atlantic University's laboratory school, the A.D. Henderson School, where she had previously served as media specialist for fourteen years. When she returned to the A.D. Henderson School in 1990 as a part-time assistant principal, Ms. Ms. McCaffrey also worked part-time in the media center assisting the media specialist. Ms. McCaffrey has worked for the School Board as a consultant but has never been employed as part of its instructional personnel. One of the services she provides as a consultant to the School Board is providing workshops for teachers with a professional development plan. Ms. McCaffrey first met Mrs. Tochner on September 17, 1997, when she gave a workshop for her entitled "Media Magic." In the workshop, Ms. McCaffrey discussed with Mrs. Tochner the nature of the media center and its role in the school, and they discussed the knowledge base expected of a media specialist in Florida, using the duties and responsibilities set out in the Guide for the Media Specialist Evaluation Form as an outline. Observation - September 18, 1997 Phillip Sorensen was asked by Dr. Burdsall's office to conduct formal observations as part of Mrs. Tochner's Professional Development Plan. Mr. Sorenson has been employed in the Palm Beach County school system since 1968 and served as a classroom teacher at Allamanda Elementary, as an assistant principal, and as an elementary school principal. He also worked for the School Board's Department of Human Resources. At the time he participated in Mrs. Tochner's Professional Development Plan, he was a member of the instructional support team for Area 5 of the Palm Beach County school system. Mr. Sorensen is knowledgeable about effective teaching behaviors and the use of the Summative Instrument. Mr. Sorensen scheduled a formal observation of Mrs. Tochner's performance for the week of September 15, 1997, and he arrived for his first formal observation of Mrs. Tochner on September 18, 1997, expecting the class to begin shortly after his arrival. However, at the request of the classroom teacher, Mrs. Tochner had started the class early, so, in order to be fair, Mr. Sorensen wrote up the notes of his observation with Mrs. Tochner and discussed his observations with her but did not submit a Summative Instrument. Mr. Sorensen noted that, on September 18, 1997, Mrs. Tochner's class was responsive and their behavior was good. He described Mrs. Tochner as "smiling and being positive with students" and noted that the students went to the reference shelves in good order. Mr. Sorensen felt that some decorations and displays should be included in the media center. Observation - September 19, 1997 On September 19, 1997, Ms. Wark made an informal observation of Mrs. Tochner as she taught a third grade class consisting of twenty-six students. Ms. Wark completed a narrative that described the activities taking place at various times during the class, and she included three recommendations for improvement; Ms. Wark did not complete a Summative Instrument for this observation. In her narrative, Ms. Wark noted that Mrs. Tochner engaged in a number of positive teaching behaviors: Mrs. Tochner praised students who gave correct responses to questions; she challenged the students by asking a "hard" question; she engaged the children in an activity which they appeared to enjoy, although some of the students lost interest and began to talk or play with each other. Ms. Wark mentioned several instances when Mrs. Tochner redirected students who were talking or distracting others. She also noted an instance in which Mrs. Tochner sent a child away from the group for continuing misbehavior. The first two children to check out books were allowed to use the Earthcare computer, while the others did a puzzle or read. In the recommendations included in the narrative of the September 19, 1997, observation, Ms. Wark criticized Mrs. Tochner for using the entire instructional period to review vocabulary terms; she recommended that Mrs. Tochner integrate classroom themes and meaningful activities into the lesson. Ms. Wark also criticized Mrs. Tochner for focusing the lesson around "What" questions and recommended that she include more questions requiring critical thinking and analysis. Finally, Ms. Wark suggested that Mrs. Tochner identify the students who could use the computer after checking out books, so that the students would not rush through selecting books to check out. Assistance Review Meeting - October 6, 1997 The second Assistance Review Meeting required under the professional development plan was held on October 6, 1997, at which time Mrs. Tochner was credited with having attended three workshops and with having attended seminars on her own time. Dr. Cover noted that Mrs. Tochner had displayed student work in the media center and that Mrs. Tochner was trying to improve. Dr. Cover urged Mrs. Tochner to continue involving students in the media center. The focus of the discussion was the use of groups to teach computer skills; Dr. Cover wanted Mrs. Tochner to teach media skills with a "hands-on" approach. Mrs. Tochner indicated that she understood and would try the technique described. Observation - October 7, 1997 On October 7, 1997, Dr. Cover conducted a formal observation of Mrs. Tochner, and she prepared a Summative Instrument and a narrative summarizing her observation. In the Summative Instrument, Dr. Cover identified the following ineffective behaviors in the Instructional Organization and Development category of the Summative Instrument: Mrs. Tochner allowed a unison response to a question twice and she gave general, nonspecific praise twice. Dr. Cover noted that Mrs. Tochner asked a number of single factual questions, which Dr. Cover considered ineffective although they are not identified as such on the Summative Instrument. In the Presentation of Subject Matter category, Dr. Cover noted four instances in which Mrs. Tochner dealt effectively with concepts and noted no instances of ineffective teaching behavior. In the Communication: Verbal and Nonverbal section, Dr. Cover noted one instance in which Mrs. Tochner smiled and gestured and generally used body language to convey interest; Dr. Cover noted no ineffective behaviors in this section. Finally, in the Management of Student Conduct section, Dr. Cover noted one instance in which Mrs. Tochner maintained instructional momentum and no instances of ineffective behavior. In the narrative she prepared, Dr. Cover made a number of recommendations. First, in the Instructional Organization and Development category, Dr. Cover recommended that Mrs. Tochner interact more with the students by asking higher order questions, that "each table could have had a variety of reference and nonfiction books and through discovery identify the differences and similarities," that she improve her use of specific praise, and that she could have used cooperative groups in teaching the lesson. In the Presentation of Subject Matter category, Dr. Cover's main concern was that Mrs. Tochner controlled the learning environment, and Dr. Cover recommended that Mrs. Tochner "[g]et the students involved through hands-on activities" during the lessons, such as letting the students handle a variety of books and allowing them to go to the shelves on their own to find books and use the Sirsi electronic check out system. In the Communication: Verbal and Nonverbal category, Dr. Cover recommended that Mrs. Tochner rephrase her question if she is met by blank stares from the children and that, after she gives a direction, she ask the students if they understand. For Management of Student Conduct, Dr. Cover noted that the students at one table were often off task, apparently because they were unclear of the assignment, and she recommended that Mrs. Tochner review the materials she had already studied regarding the management of student conduct. Dr. Cover included handwritten notes on the narrative of the October 7, 1997, observation in which she expressed her frustration with Mrs. Tochner; these notes were not on the narrative at the time Mrs. Tochner signed it. Dr. Cover stated in her notes that she felt as though she were observing an inexperienced teacher who was unsure of herself and her subject. She noted that Mrs. Tochner had "limited withitness" 31/ and that Mrs. Tochner had low motivation and excitement for the lesson. Dr. Cover saw the lesson she observed as a "lost opportunity" and noted that the only technology Mrs. Tochner used during the lesson was an overhead projector on which she displayed a Venn diagram, which the children really did not use during the lesson. Finally, Dr. Cover noted that student surveys had shown that the main reason the students liked to go to the media center was to check out books, and she observed that a school did not need a media specialist to check out books. Observation - October 14, 1997 Mr. Sorensen returned to Allamanda Elementary and conducted a formal observation of Mrs. Tochner on October 14, 1997. He observed her teach a fourth grade class of twenty-four students, and he completed a Summative Instrument evaluating Mrs. Tochner's teaching presentation and behaviors. In the Summative Instrument, Mr. Sorensen identified only one teaching behavior as ineffective; specifically, he found one instance in which Mrs. Tochner allowed talk or activity unrelated to the subject being discussed. Mr. Sorensen discussed the results of the October 14, 1997, observation with Mrs. Tochner following the observation, and he wrote a memorandum to Dr. Cover in which he provided a narrative of his observation of and subsequent discussion with Mrs. Tochner. Because Dr. Cover had noted it as a deficiency included on Dr. Cover's March 1997 evaluation, he and Mrs. Tochner discussed different strategies for managing student conduct while they were moving around in the media center. Mr. Sorensen did not, however, observe any significant problems with the students' behavior during his observation on October 14, 1997, or with Mrs. Tochner's ability to manage the students. He observed a few minor disruptions, but, in his experience, such minor problems with student discipline in the media center is not unusual when students are selecting and checking out books or otherwise engaging in activities which involve their moving around rather than sitting in a classroom- like setting. Mr. Sorensen noted that, because of the physical layout of the media center, Mrs. Tochner could not see all of the children while they were searching for books to check out. In his opinion, Mrs. Tochner could monitor the children's behavior as they looked in the stacks for books and materials to check out only if she restricted the areas in which the students could circulate or if she pre-selected books and materials that the students could check out. Mr. Sorensen also suggested in the November 3, 1997, memorandum to Dr. Cover, that Mrs. Tochner "work with the principal and readdress the media schedule to include controlled 'open media' time." 32/ Mr. Sorensen recalled that Mrs. Tochner expressed her interest in using an open media schedule and told him she had broached the subject with teachers but met with resistance. In his experience, open media scheduling puts more responsibility on the classroom teachers, and they tend to resist the change. Mr. Sorensen believes that a principal should assert leadership to change the attitude of the teachers. Mr. Sorensen declined to rate Mrs. Tochner's effectiveness as a media specialist during the October 14, 1997, observation because he focused on her teaching skills; he noted, however, that he and Mrs. Tochner discussed the need to include in the media center displays featuring student work and bulletin board displays and displays of books and other materials featuring a particular theme. Observation - October 16, 1997 Jane Terwillegar, the District Media Specialist, was asked by Dr. Burdsall's office to conduct formal observations as part of Mrs. Tochner's professional development plan. Unlike her role in the school site assistance plan and in the mini-plan developed by Dr. Burdsall, Ms. Terwillegar was to observe Mrs. Tochner and determine if she perceived any deficiencies in her performance as a media specialist. Ms. Terwillegar's first observation of Mrs. Tochner under the professional development plan took place on October 16, 1997, when Ms. Terwillegar observed Mrs. Tochner teach a kindergarten class. She provided the notes of the observation in a memorandum to Dr. Cover dated October 20, 1997; Ms. Terwillegar did not prepare a Summative Instrument for this observation. In the memorandum, Ms. Terwillegar first noted that Mrs. Tochner's use of the overhead projector was not appropriate for use with kindergarten students and that many of the students could not see the screen because Mrs. Tochner placed the overhead projector and cart between the children and the screen. The subject of the class was "Fall," and Ms. Terwillegar found that the lesson was carefully planned but that Mrs. Tochner's presentation lacked energy and evoked little response from the children. Ms. Terwillegar found that the "sense of wonder I would like to see working with children was not there." Ms. Terwillegar did not observe Mrs. Tochner using any props for the lesson except book illustrations, 34/ nor did Mrs. Tochner question individual students or single out two or three of the children for special attention. Ms. Terwillegar also noted in the memorandum that, as a general matter, Mrs. Tochner spent too much time organizing the media center collection. Ms. Terwillegar noticed that, at the time of her visit, Mrs. Tochner was working with the shelf list card catalog. Ms. Terwillegar contacted one of the vendors from whom Mrs. Tochner purchased books and told the vendor not to send Mrs. Tochner shelf list cards with her books as Mrs. Tochner had requested. Ms. Terwillegar did this because, in her opinion, these cards were not necessary with the new Sirsi automated system. Ms. Terwillegar also commented in the October 20, 1997, memorandum that the computer lab was being moved back into the media center and that, with staff cooperation, this move could make the media center into a "unified instructional technology center"; Ms. Terwillegar noted that she did not yet seen such cooperation. In her memorandum of October 20, 1997, Ms. Terwillegar stated that she continue[s] to suggest Mrs. Tochner find ways and means to enliven the media program through creative ideas encouraging student involvement, student sharing, and student team/group cooperative activities. The media center continues to lack a sense of spirited activity. Students are visiting a "classroom" rather than an active center for exploration and learning. One of the ways in which Mrs. Tochner could enliven the media center, in Ms. Terwillegar's view, would be through "all school" activities planned and implemented by Mrs. Tochner, such as a reading day, a hat day, or some other such school-wide event. Ms. Terwillegar recognized that Mrs. Tochner planned and implemented a book fair for the school twice each year, which Ms. Terwillegar described as a "pretty difficult" endeavor, but Ms. Terwillegar wanted to see "all school" activities such as the ones described above. Ms. Terwillegar also noted that, although Mrs. Tochner is "making a determined effort to consult faculty about lesson topics, and to merge her lessons with classroom instruction," Mrs. Tochner had not taken over the role as technology leader for Allamanda Elementary. Ms. Terwillegar did not see a "whole" media program at the time of her October 16, 1997, observation, and she noted that "[t]his team work needs attention from all those involved." Ms. Terwillegar believed that Mrs. Tochner should take the lead in integrating the instructional technology systems with the computer lab run by the ITSA and with the in-house television capability at Allamanda Elementary, and make the media program integral to the whole school's instructional plan. Finally, Ms. Terwillegar recommended in her memorandum of October 20, 1997, that Mrs. Tochner give less attention to technical processes and organizing the media center's collection because "the total media program needs planning and direction to bring it into instructional focus for the school." Ms. Terwillegar felt that Mrs. Tochner should also spend more time working on her instructional processes and working with children rather than working to keep the collection organized. In Ms. Terwillegar's opinion, Mrs. Tochner should develop activity centers for each of her classes rather than stand in front of the class teaching a lesson. Observation - October 21, 1997 In addition to conducting the September 1997 workshop with Mrs. Tochner and as part of Mrs. Tochner's Professional Development Plan, Ms. McCaffrey made a site visit to Allamanda Elementary to observe Mrs. Tochner on October 21, 1997. At that time, she observed Mrs. Tochner teach a group of twenty-nine second grade students for approximately thirty-five minutes. Ms. McCaffrey prepared a Summative Instrument, a narrative describing her observation, and a prescription for Mrs. Tochner to follow in improving her performance. Ms. McCaffrey described the results of her evaluation of Mrs. Tochner with respect to the October 21, 1997, formal observation as "overall . . . not an ineffective summative." According to Ms. McCaffrey, Mrs. Tochner's use of general praise rather than specific praise for a second grade class was not inappropriate. She also concluded that Mrs. Tochner had no problems with her lesson preparation, her lesson was good, and the classroom activity was well-planned and executed. Ms. McCaffrey did note that Mrs. Tochner inappropriately touched a student by lowering his arm, which he had been waving about; Ms. McCaffrey and Mrs. Tochner discussed various techniques for managing student misconduct at the post-observation meeting. On the basis of her October 21, 1997, observation of Mrs. Tochner, Ms. McCaffrey concluded that Mrs. Tochner demonstrated effective teaching skills the majority of the time. Observation - November 12, 1997 In addition to preparing Mrs. Tochner's professional development plan and conducting assistance review meetings, Dr. Burdsall conducted formal observations of Mrs. Tochner's performance, discussed Mrs. Tochner's performance with her after the observation, and provided written reports and recommendations for improvement after each observation. Dr. Burdsall's first formal observation took place on November 12, 1997, when she observed Mrs. Tochner teaching two classes. Dr. Burdsall first observed Mrs. Tochner teaching twenty-four students in a first grade class, and Dr. Burdsall prepared a Summative Instrument for this observation in which she found that Mrs. Tochner engaged in nine ineffective teaching behaviors: In the Instructional Organization and Development category, Dr. Burdsall noted that Mrs. Tochner posed multiple questions asked as one three times and that she gave general, nonspecific praise six times. Dr. Burdsall observed Mrs. Tochner engage in many effective teaching behaviors in each of the four categories in the Summative Instrument, and the comments Dr. Burdsall included on the Summative Instrument regarding Mrs. Tochner's performance with this class were positive, as were the comments in the narrative included in Dr. Burdsall's memorandum to Dr. Cover describing the November 12, 1997, observation. In the memorandum, which is dated November 24, 1997, Dr. Burdsall commended Mrs. Tochner on effectively using a variety of materials with the first grade class, of using an effective procedure for returning and checking out books, and of using both high and low order (factual and analytical) questions with the students. She remarked that the students were attentive and responsive and that Mrs. Tochner read the class a story with expression. Dr. Burdsall's only criticism of Mrs. Tochner's performance with the first grade class was of her failure to allot enough time for the students to complete their last assignment, which involved drawing a picture. Mrs. Tochner told the students to take the pictures back to the classroom to finish and to ask their teacher to select the best ones to be put on display in the media center. Dr. Burdsall found particularly effective the method for checking out books that Mrs. Tochner used with the first grade class. This method restricted the movements of the students in the media center and limited the books from which they could choose. Mrs. Tochner gathered up the books the students were returning and, at the appropriate time, allowed small groups of students to select books to checkout of the media center from a group of books dealing with folk tales that Mrs. Tochner had selected before class and displayed on a table. Dr. Burdsall also observed Mrs. Tochner teach twenty- three students in a third grade class on November 12, 1997. In contrast to her positive impression of Mrs. Tochner's performance with the first grade class, Dr. Burdsall had virtually no positive comments about Mrs. Tochner's performance teaching the third grade class. Dr. Burdsall prepared a Summative Instrument in which she found that Mrs. Tochner engaged in a number of ineffective teaching behaviors: In the Instructional Organization and Development category, Mrs. Tochner allowed one unison response; she posed three multiple questions asked as one; she gave general, nonspecific praise five times; and she gave inadequate directions once. Notwithstanding these ineffective behaviors, Dr. Burdsall noted significantly more effective than ineffective teaching behaviors in the category of Instructional Organization and Development. In the Presentation of Subject Matter category, Dr. Burdsall noted two instances in which Mrs. Tochner treated concepts effectively, and she noted no ineffective teaching behaviors in this area. In the section on Communication: Verbal and Nonverbal, Dr. Burdsall found that Mrs. Tochner twice used vague and scrambled discourse and that she frowned twice. The majority of the ineffective teaching behaviors noted on the Summative Instrument involved management of student conduct, in which Dr. Burdsall found that Mrs. Tochner corrected misconduct in a harsh and punitive manner a total of ten times. Dr. Burdsall described Mrs. Tochner's general demeanor during this class as "very agitated." In the memorandum describing the November 12, 1997, observation of the third grade class, Dr. Burdsall provided a narrative of her observation in which she focused on the misbehavior of the students. Dr. Burdsall did not commend Mrs. Tochner on any of her behaviors with the third grade class, and all of the recommendations contained in her memorandum to Dr. Cover were focused on this class. Dr. Burdsall's first recommendation, under Management of Student Conduct, was that Mrs. Tochner "needs to avoid harsh reprimands"; Dr. Burdsall's second recommendation, also under Management of Student Conduct, was that Mrs. Tochner "needs to utilize a procedure for checking books in and out that does not involve standing in line"; Dr. Burdsall's third recommendation, under Instructional Organization and Development, was that Mrs. Tochner "needs to give clear directions to her cooperative learning groups"; Dr. Burdsall's fourth recommendation, under Establishment of an Appropriate Learning Climate, was that Mrs. Tochner "needs to consistently provide a positive learning environment for her students"; 35/ Dr. Burdsall's fifth recommendation, under Communication: Verbal and Nonverbal, was that Mrs. Tochner "should complete one activity before going on to another one to avoid scrambled discourse"; Dr. Burdsall's sixth and final recommendation, under Demonstrates Effective Working Relationships with Colleagues, was that Mrs. Tochner "needs to pace her lessons more carefully so that she does not need to have her colleagues complete her assignments with the students." With respect to Dr. Burdsall's recommendation that she avoid scrambled discourse by completing one subject before moving on to another, Mrs. Tochner added a note on the bottom of Dr. Burdsall's memorandum explaining that the "lesson was disjointed because it was actually a combination of two lessons." Mrs. Tochner had attended a workshop the previous week and the substitute teacher who had taught her classes did not finish the lesson planned for the third grade class. Mrs. Tochner needed to complete both this previous lesson and the lesson planned for November 12, 1997, so she was trying to teach two lessons during one class period. Dr. Burdsall did not observe the students using technology as an aid to learning in her November 12, 1997, observation of the first and third grade classes, nor did she observe displays relating to persuasive paragraphs for the third grade. Dr. Burdsall also did not observe Mrs. Tochner using "theme integration" in the media center. Assistance Review Meeting - November 24, 1997 The third and last Assistance Review Meeting for the period from September through December 1997 was held on November 24, 1997. Mrs. Tochner reported that the first, second, and third grades were all using computers and that the third, fourth, and fifth grades would be using the Sirsi system by January. It was noted that Mrs. Tochner would be assisted by the ITSA in teaching the students how to use computers. Dr. Cover congratulated Mrs. Tochner on "her initiative and follow through and enthusiasm" on the Book Fair and urged Mrs. Tochner to carry this through the entire media program. Dr. Cover also noted that she saw improvement in Mrs. Tochner's performance but still wanted her to take control of the media program. As a result, Dr. Cover told Mrs. Tochner that Mrs. Tochner was in charge of the technology committee and that Mrs. Tochner was to work with the group to prepare the STIA proposal. Media Center Program Review In a memorandum to Dr. Cover dated December 1, 1997, Ms. Terwillegar presented a Media Center Program Review based on her several visits to Allamanda Elementary, the last on October 23, 1997, in which she described the state of the media center at that time. Ms. Terwillegar advised Dr. Cover that there was still no full-time media clerk to assist Mrs. Tochner, but noted that Mrs. Tochner had some assistance from teaching assistants and volunteers. Ms. Terwillegar noted that part of the media center was used for the computer lab and for the ITSA's office. Ms. Terwillegar also observed that Allamanda Elementary had no television studio and that a closet was used as the television studio for broadcast of the morning announcement program, which was not produced by Mrs. Tochner. With respect to the collection of the Allamanda Elementary media center, Ms. Terwillegar noted that, although the collection met the applicable accreditation standards, the collection needed extensive weeding, including the audiovisual collection. Ms. Terwillegar also commented: Utilization and Program Planning The media center is fully scheduled, with four to six classes daily for forty-five minute periods. Since there is only one full time adult in the center, this schedule does interfer [sic] with the use of the center's resources for individual and small group activities. The center is well equipped with computers, both IBM and Macintosh, and there are a variety of excellent software programs, including CD- ROM encyclopedias. However, with the full media schedule, these resources are under utilized. In the "Comments" section of her memorandum, Ms. Terwillegar commented that Mrs. Tochner's instruction with individual classes had improved, that Mrs. Tochner's lessons are most carefully prepared, that student projects and art work were displayed in the media center, and that Mrs. Tochner "is careful to approach teachers and grade levels with a concern for developing lesson plans related to classroom activities." Ms. Terwillegar further advised Dr. Cover in the December 1, 1997, memorandum that the "media center needs more visibility as an integral, vital component of the school's instructional program," and noted that she had not observed an overall written plan for managing the media center to accomplish this goal for the 1997-98 school year. At the same time, she faulted Mrs. Tochner for focusing on the details of planning rather than focusing on "the desired results for student learning and outcomes of student enthusiasm for reading and inquiry." Ms. Terwillegar noted again in her December 1, 1997, memorandum that "[a]ction on recommendations for cooperative staff effort and development of a unified approach to technology in the center and in the school is still not evident." Finally, Ms. Terwillegar observed that the "school-wide media activity" she had suggested to Mrs. Tochner in the spring of 1997 had not materialized. Although recognizing that Mrs. Tochner had made improvements and was "working very hard on instruction and on lesson plans, Ms. Terwillegar summarized her impression of the progress Mrs. Tochner had made with the media center with the comment that "the outcome was less--less than what I had hoped it would be." Mid-year evaluation - December 1997 Dr. Cover completed the mid-year evaluation of Mrs. Tochner's performance on December 6, 1997, and noted that she based the evaluation on observations of Mrs. Tochner's classroom performance conducted on September 18, September 19, October 7, October 16, October 21, October 23, November 3, 36/ November 12 and November 24, 1997. Dr. Cover found seven areas of "Concern" in her December 1997 midyear evaluation of Mrs. Tochner's performance: In the section of Media Center Management Capabilities, Dr. Cover found Mrs. Tochner deficient in the Establishment and Maintenance of Program Plans and Administration of Program Assessment categories; in the section of Instructional Processes, Dr. Cover found Mrs. Tochner deficient in the Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, and Establishment of an Appropriate Learning Climate categories. In the section of Professional Responsibilities, Dr. Cover found Mrs. Tochner deficient in the Demonstrates Self Control category. Dr. Cover's only comments on the evaluation form were that Mrs. Tochner had attended several workshops and that she had organized the Fall Book Fair. Dr. Cover felt that she could commend Mrs. Tochner only on these two things. Dr. Cover noted that Mrs. Tochner's initiative and personality were so different during the time she was doing the Book Fair that "we would not have gotten to this point if I had seen that" initiative and enthusiasm all year long. Dr. Cover still had concerns about Mrs. Tochner's development and implementation of a total media program. Mrs. Tochner received a total of twenty-five points on her December 1997, mid-year evaluation, which constitutes an unsatisfactory evaluation. Had Mrs. Tochner received a satisfactory mid-year evaluation, she would have been removed from the professional development plan and would no longer have been in jeopardy of losing her teaching position with the School Board. JANUARY 1998 THROUGH MARCH 1998 Part II of the Professional Development Plan Because of Mrs. Tochner's unsatisfactory mid-year evaluation, Dr. Burdsall prepared a CTAS District Level II Professional Development Plan, which is the second half of the formal plan and which covered the period from January through March 1998. Like the plan for the period extending from September through December 1997, this plan provided that, during specified weeks, Phil Sorenson, Jane Terwillegar, Donna McCaffrey, and Dr. Burdsall were to conduct observations of Mrs. Tochner's performance to see what improvements had been made in light of the recommendations each had made during the first part of the plan. Each of these observers was to follow up the observations with assistance conferences with Mrs. Tochner, and submit written reports and recommendations to Mrs. Tochner. As did the first half of the plan, this plan also provided that of Dr. Cover and Ms. Wark, as school-site administrators, were to observe Mrs. Tochner and offer their assistance and that a colleague of Mrs. Tochner's would also provide assistance with respect to the areas of concern. Assistance Review Meeting - February 9, 1998 The fourth Assistance Review Meeting under Mrs. Tochner's professional development plan was held on February 9, 1998. This meeting included a review of Mrs. Tochner's December 5, 1997, mid-year evaluation. Dr. Cover explained the reasons she noted a "Concern" on the evaluation in the category of Administration of Program Assessment: Dr. Cover had to initiate surveys even though Mrs. Tochner was responsible for doing so according to the School Improvement Plan for 1997/98; Mrs. Tochner needed to present Dr. Cover with a plan for addressing the needs expressed in the survey; Mrs. Tochner needed to take more initiative in training staff on the software in the media center; and Mrs. Tochner needed to provide leadership for the Technology Committee and work with the committee in a positive way. Dr. Cover told Mrs. Tochner she wanted the media center open one day a month or one day a week so parents could visit the media center. With respect to staff training, Mrs. Tochner explained that she was working with teachers on a one-on-one basis. Dr. Cover explained that she noted a "Concern" on Mrs. Tochner's mid-year evaluation in the category of Presentation of Subject Matter because Mrs. Tochner lectured too much and needed to involve the children in developing concepts. Dr. Cover explained that she noted a "Concern" on Mrs. Tochner's mid-year evaluation in the category of Establishment of an Appropriate Learning Climate because, although she saw some improvement in Mrs. Tochner's attitude, she did not see consistency in Mrs. Tochner's management of student conduct. Dr. Cover also encouraged Mrs. Tochner to concentrate her lessons on more student activity, observing that the activities were too "teacher directed." Dr. Cover stated that she had noted a "Concern" in Mrs. Tochner's mid-year evaluation in the category of Demonstrates Self Control because she had "documented evidence that Mrs. Tochner lost her temper in front of the children." The notes of the meeting did not contain any more specific information regarding this alleged incident, and there is nothing in the record to indicate the nature of the incident to which Dr. Cover referred. During the assistance review portion of the February 9, 1998, meeting, Dr. Cover advised Mrs. Tochner that she wanted to see consistency. As summarized in the notes of the meeting, "Dr. Cover wishes to see all concerns noted consistently remediated regardless of who is in the room. The key word is consistency. Dr. Cover needs to see the excitement that kids can exhibit when they want to learn." Mrs. Tochner was told that she was to plan an activity for the media center to show her initiative and to provide a whole plan to Dr. Cover for the "Sunshine Books" activity that Mrs. Tochner was developing. Mrs. Tochner was told that she was to become involved in the in-school television production; Mrs. Tochner was told that she needed to act as backup for the ITSA in an emergency; Mrs. Tochner was told that Dr. Cover "simply expects Mrs. Tochner to take the initiative to ensure that the [in- service] training is done"; Mrs. Tochner was told that she needed to show initiative in "taking leadership regarding the media center." Mrs. Tochner requested that Dr. Cover include her in discussions of all technology issues if Dr. Cover expects her to know about all things under the "media" umbrella; Dr. Cover responded that "she had not done so as Mrs. Tochner had not expressed the initiative." Observation - February 19, 1998 Mr. Sorensen conducted an observation on February 19, 1998, of Mrs. Tochner teaching a first grade class. Mr. Sorensen did not prepare a Summative Instrument reflecting his observations but, at the request of Dr. Burdsall, conducted an anecdotal observation which he memorialized in a narrative. Mrs. Tochner's lesson involved reading a story to the class of about twenty-four students while they sat in the reading well, 37/ followed by the use of a storyboard to continue the lesson. Mr. Sorensen included in his narrative comments that were complimentary of Mrs. Tochner's performance, noting that she demonstrated good questioning techniques, that student behavior was very good, and that Mrs. Tochner's enthusiasm was evident. Mr. Sorensen recommended, however, that Mrs. Tochner work on smoothing out the transition between reading the story and using the storyboard, that she use more visible lettering on the storyboard, and that she give more emphasis to review of the story written with the storyboard. In Mr. Sorensen's opinion, Mrs. Tochner was an effective teacher and had no problem with her classroom performance. Mr. Sorensen did not offer an opinion about Mrs. Tochner's effectiveness as a media specialist, observing only that she needed to work on interacting with staff and parents in order to make the media center a "viable place for children." He had no criticism of the media center facility itself. Observation - February 25, 1998 On February 25, 1998, Dr. Burdsall conducted an observation of Mrs. Tochner's performance teaching twenty-five students in a first grade class, and she prepared a Summative Instrument in which she noted Mrs. Tochner's teaching behaviors. In the Instructional Organization and Development category, Dr. Burdsall noted two instances in which Mrs. Tochner used general, nonspecific praise; she noted numerous instances in which Mrs. Tochner engaged in effective teaching behaviors in this category. In the Presentation of Subject Matter category, Dr. Burdsall noted that Mrs. Tochner gave only a definition or example of a concept, identified as an ineffective behavior; Dr. Burdsall noted two instances in which Mrs. Tochner engaged in effective behaviors in this category. In the Communication: Verbal and Nonverbal category, Dr. Burdsall noted one instance in which Mrs. Tochner used vague or scrambled discourse and two instances in which Mrs. Tochner expressed enthusiasm and challenged the students. The category in which Dr. Burdsall observed numerous instances of ineffective behavior was in Mrs. Tochner's management of student conduct. In the narrative of the February 25, 1998, observation, Dr. Burdsall was complimentary of Mrs. Tochner's teaching performance, noting that she moved the children from their tables to the reading well in an organized manner, that she held the children's attention with her story, that she asked thought-provoking questions, that the children were involved and actively participated in the discussion of the story, and that she praised the students for their appropriate responses. Dr. Burdsall then noted that Mrs. Tochner went over the rules for checking out books with the children and dismissed the class so that the students could select books to check out. According to Dr. Burdsall's description, the children "immediately became disorganized and disruptive"; when Mrs. Tochner moved to one group of students to correct their behavior, children began fighting in another section of the media center. Dr. Burdsall noted that, although Mrs. Tochner tried to get the children under control and seated at the tables, "the majority of the class continued to mill around." In the narrative of the February 25, 1998, observation, Dr. Burdsall commended Mrs. Tochner on using questioning techniques "that promoted higher order thinking skills" and on displaying student art work around the media center. She included several recommendations in the narrative: Dr. Burdsall's first recommendation, under Management of Student Conduct, was that "Mrs. Tochner needs to structure the procedure for checking books in and out"; Dr. Burdsall noted that "it might be helpful to have pulled some appropriate fairy tales before the class began and designated a particular section for the students," thereby limiting the students' movements around the media center. Dr. Burdsall's second recommendation, under Instructional Organization and Development, was that "Mrs. Tochner needs to develop her lesson and ask comprehension questions before beginning to read a story"; Dr. Burdsall noted that Mrs. Tochner did not refer to the characteristics of fairy tales which were displayed on a transparency in the overhead projector and that she needed to move on because she had been working with fairy tales during the November 12, 1997, observation.1 Dr. Burdsall's third recommendation, under Establishment of an Appropriate Learning Climate, was that "Mrs. Tochner needs to consistently provide a positive learning environment for her students"; this was based on Dr. Burdsall's observation that Mrs. Tochner was smiling when she read the story to the class but became harsh and irritable when the children became disruptive after being dismissed to check out books. Dr. Burdsall's final recommendation, under Presentation of Subject Matter, was that "Mrs. Tochner needs to treat important concepts with a definition example and nonexample"; Dr. Burdsall noted that Mrs. Tochner gave complete treatment to the concept of main characters, giving an example and a nonexample, but that she did not give what Dr. Burdsall considered an accurate definition of fairy tale. Dr. Burdsall testified that, during the February 25, 1998, observation, she did not observe Mrs. Tochner using technology other than the overhead projector, nor did she observe the children using computers. Observation - February 25, 1998 Ms. Terwillegar also conducted an informal observation of Mrs. Tochner on February 25, 1998, when she observed Mrs. Tochner teach, first, a combined first and second grade class and, second, a fourth grade class; her observation was summarized in a memorandum to Dr. Cover and Mrs. Tochner. With respect to the combined first and second grade class, Ms. Terwillegar noted that Mrs. Tochner planned to review with the children the Caldecott Award for book illustration. Ms. Terwillegar observed that she could see little connection between the illustrated Caldecott books and the seated-work activity Mrs. Tochner had planned for the students. In Ms. Terwillegar's opinion, the lesson was dominated by the small-group instruction Mrs. Tochner gave to the class, which involved using student name cards to check out books. Mrs. Tochner took groups of two or three students to the "Easy Book" section of the media center and assisted the students in using their name cards and choosing books to check out, after which they returned to their seats with their new books. Ms. Terwillegar observed that the seated-work activity planned by Mrs. Tochner did not take up the entire time Mrs. Tochner was working with the small groups, with the result that the children at the tables were "noisy, bored, and restless." With respect to her observation of the fourth grade class, Ms. Terwillegar noted in her memorandum of February 25, 1998, that the class arrived a little bit late and that she left before the end of the class period. She provided a brief description of the lesson plan and the class activity. Ms. Terwillegar noted that Mrs. Tochner was integrating computers with her lessons, and she included in her memorandum the observation that, "[a]s a follow-up activity [to this lesson], the students are expected to visit the computer lab next week and use a word processing program to print up a final report" on the research project they began on the date of Ms. Terwillegar's observation. Ms. Terwillegar observed some students from another fourth grade class working on their reports at the computers in the media center. This was the type of technology integration that Ms. Terwillegar was looking for in the media center program. Ms. Terwillegar included several criticisms of Mrs. Tochner's teaching performance in her February 25, 1998, memorandum. Ms. Terwillegar observed that the goals stated in Mrs. Tochner's lesson plans were not always carried out in her presentation and planned class activities; class activities required the students to spend an inordinate amount of time on "seat work"; the instructions Mrs. Tochner gave for completing the "seat work" activities took too much time and were focused on procedural steps for completing the activity rather than on the objectives of the lesson; and Mrs. Tochner's use of the overhead projector was not effective. Ms. Terwillegar went on to include specific details regarding the manner in which she thought the lessons should have been taught. Finally, Ms. Terwillegar noted that "[t]he time devoted to planning instruction by Mrs. Tochner is evident. However, the execution of her stated goals and objectives for learning and the act of teaching are not congruent." Ms. Terwillegar also included comments and criticisms of the media center program in her memorandum summarizing her February 25, 1998, observation. Although she was aware that there was a lot of work to be done preparing the paperbacks and class sets in the media collection for automation, Ms. Terwillegar noted that "[i]n the Learning Center Goals for 1997/98 prepared by Mrs. Tochner . . . [she] continues to emphasize inventory and collection management." Ms. Terwillegar emphasized that a media specialist must balance the need to do "backroom" work such as organization and cataloging and the need to devote time to carrying out the school's instructional program. Ms. Terwillegar observed that, although Mrs. Tochner had planned and implemented both the "book fairs and the Sunshine Book Awards participation, both were expected as part of any normal elementary school media center operation." Ms. Terwillegar again faulted Mrs. Tochner for not planning and implementing "special all-school activities promoting the mission of the media center." Ms. Terwillegar was also concerned that the students' access to the media center was being limited, and she included the following in the February 25, 1998, memorandum: #1 As I have observed before, the media center continues to be organized for the convenience of adults, rather than child centered. While other media centers may also use shelf markers, it is not an accepted practice by those who wish to instill a love for browsing shelves and selecting the "special" book. Freely exploring the shelves is a right children need, and this exploratory freedom should be respected by those managing media centers. #2. The media center experience should be planned so it is similar to any library experience. Students need to go to the circulation desk, handle the process of returning books, and give their name (or name card) to the clerk as part of their responsibility for checking out books. This is the preferred routine to be practiced from the first days of visiting any media center. Likewise, for first and second graders, February is late in the year to begin browsing the shelves. The practice of limiting student selection to pre-selected books is to be avoided for all grade levels, even the youngest students. The price paid for student freedom in selection is the difficulty of keeping shelves neat, making additional work for those managing the center. This is a problem to be managed without limiting student exploration or the opportunity to use all the learning resources provided in the media center. Observation - February 26, 1998 Ms. McCaffrey observed Mrs. Tochner on February 26, 1998, and the observation was, at the request of Dr. Burdsall, an informal, anecdotal observation. Ms. McCaffrey did not prepare a Summative Instrument for this observation, but prepared a narrative of the activities she observed and a summary of the topics discussed during the meeting she had with Mrs. Tochner immediately following the observation. On the basis of this observation, which consisted of a fifteen-minute observation of Mrs. Tochner teaching a class of exceptional students, and on the basis of the fifty-five-minute meeting she held with Mrs. Tochner after the observation, Ms. McCaffrey concluded that Mrs. Tochner was "not [an] effective media specialist." When specifically asked to describe the ways in which Mrs. Tochner could improve her performance as a media specialist, Ms. McCaffrey generally recited the items included in the Guide to the Media Specialist Evaluation Form as the duties and responsibilities of a media specialist but did not identify any items that reflected specifically on Mrs. Tochner's competence as a media specialist. In Ms. McCaffrey's opinion, an effective media specialist would establish a program plan for operating the media center, including budgeting, identification of the materials which should be available to the students, and procedures for keeping the media center collection current, and he or she would have an effective mechanism for evaluating the program plan. Although Ms. McCaffrey believes that good teaching is still a very important part of every media center program, she expects that a media specialist will also function "as a facilitator and a researcher and a manager and an assistant and a resource leader in the school." With respect to Mrs. Tochner, Ms. McCaffrey's overall opinion, "with regards to establishing an overall program in the media center," was that Mrs. Tochner was not effective, but Ms. McCaffrey could not recall if she and Mrs. Tochner had discussed program goals after the February 26, 1998, observation. Mrs. Tochner provided Ms. McCaffrey with a copy of the media center budget, and Ms. McCaffrey's only comment was that Mrs. Tochner needed to find a source of funds to buy posters and other objects to brighten up the media center. Ms. McCaffrey noted that a theme chart was hanging on the wall of the media center but that it was not filled out. Ms. McCaffrey did not know whether Mrs. Tochner failed to integrate classroom themes into her lessons or whether she did so and simply failed to fill out the theme chart. Ms. McCaffrey was, however, aware that Mrs. Tochner was meeting with classroom teachers in order to integrate classroom themes into the media center activities for each grade level and that she was planning to implement a sports theme as a media center theme. Mrs. Tochner also provided Ms. McCaffrey with the results of a student survey she had done regarding the students' perceptions of the media center and with the form she sent to teachers seeking their input on materials and programs they would like to see in the media center. Ms. McCaffrey commented that Mrs. Tochner should present the results to the learning committee and that she should include eight or ten questions in the surveys rather than four questions. During the meeting held after the February 26, 1998, observation, Ms. McCaffrey encouraged Mrs. Tochner to continue providing in-service training for school personnel in using the equipment in the media center, to continue integrating technology into the media center program, and to continue displaying student work in the media center. Observation - March 4, 1998 Dr. Cover conducted an observation of Mrs. Tochner on March 4, 1998, teaching a kindergarten class consisting of twenty-two students. Dr. Cover prepared both a Summative Instrument and a narrative of the observation. In the Summative Instrument, Dr. Cover noted only one ineffective teaching behavior; in the Instructional Organization and Development category, Dr. Cover noted that Mrs. Tochner twice posed a multiple question asked as one. Dr. Cover noted numerous effective teaching behaviors in the areas covered by the Summative Instrument. Dr. Cover's narrative of the observation is generally favorable. However, she noted that, in the Instructional Organization and Development category, Mrs. Tochner left library books on the tables for the children and that these books were a distraction for the students, requiring that Mrs. Tochner stop on three occasions to redirect students who were playing with the books. Dr. Cover also noted that Mrs. Tochner did not notice some off-task behavior. In the Instructional Organization and Development category, Dr. Cover also noted that Mrs. Tochner's lesson was teacher-directed; Dr. Cover commented that more "involvement by the students would build greater understanding and memory of the concept" Mrs. Tochner was teaching and that Mrs. Tochner needed to continue to work on questioning techniques and giving specific praise as "a natural development of student's [sic] responses." In the Presentation of Subject Matter category, Dr. Cover noted that Mrs. Tochner smiled as she read a story to the kindergarten class but that she did not observe "enthusiasm or excitement in the students." Dr. Cover recommended that Mrs. Tochner get the students more actively involved in the lesson. In the Communication: Verbal and Nonverbal category, Dr. Cover noted that Mrs. Tochner smiled and read the story with expression. In the Management of Student Conduct category, Dr. Cover noted that the distraction provided by the books on the tables could have been avoided if the books had not been placed on the tables. Annual Evaluation of March 1998 Dr. Cover completed the annual evaluation of Mrs. Tochner's performance on March 10, 1998 and noted that she based the evaluation on observations of Mrs. Tochner's classroom performance conducted on September 18, September 19, October 7, October 16, October 21, October 23, November 3,2 November 12 and November 24, 1997, and those conducted on February 19, February 25 (2), February 26, and March 4, 1998. Dr. Cover identified the same seven areas of "Concern" in her March 1998 annual evaluation of Mrs. Tochner's performance as in the mid-year evaluation in December 1997: In the section of Media Center Management Capabilities, Dr. Cover found Mrs. Tochner deficient in the categories of Establishment and Maintenance of Program Plans and Administration of Program Assessment; in the section of Instructional Processes, Dr. Cover found Mrs. Tochner deficient in the categories of Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, and Establishment of an Appropriate Learning Climate. In the section of Professional Responsibilities, Dr. Cover found Mrs. Tochner deficient in the category of Demonstrates Self Control. Dr. Cover included the following comments on the evaluation form: Mrs. Tochner attended all the suggested workshops given by the Department of Professional Development & School Improvement Services. She has chaired the STIA and Learning Center Committees. She has organized the Fall Book Fair. Mrs. Tochner is on her second year of a Professional Development Plan. There were seven (7) concerns noted on the mid year evaluation. There are seven (7) concerns noted on this annual evaluation. There are still concerns about the consistency in the development and implementation of a total media program. Attached you will find a letter to the Superintendent recommending non-reappointment. Mrs. Tochner received a total of twenty-five points on her March 1998 annual evaluation, which constitutes an unsatisfactory evaluation and is grounds for non-reappointment and termination of employment. Dr. Cover sent a letter to the Superintendent dated March 10, 1998, in which she stated that, because Mrs. Tochner had not corrected her performance deficiencies during the 1997-98 school year, she was not recommending Mrs. Tochner for reappointment for the "FY 99 school year." I. Conference - March 11, 1998 On March 11, 1998, Dr. Cover called a conference with Mrs. Tochner to go over her annual evaluation. Dr. Cover's secretary was present and took notes of the discussion. Mrs. Tochner initially told Dr. Cover that they were scheduled to have two meetings to address her progress and that she had prepared documentation to show that she had responded to the recommendations which had been made to her. Mrs. Tochner pointed out that these two meetings had been cancelled and that she had not had an opportunity to discuss her progress. Dr. Cover "stated that she has been present and ready for each meeting and did not cancel any of them herself. She has not seen the documentation Mrs. Tochner prepared and based her recommendations on all the previous meetings and observations." Dr. Cover explained to Mrs. Tochner that "she needs to see consistency in developing and implementing the media center that is truly a reflection of being the hub of the school." When Mrs. Tochner replied that she had been working with all of the teachers and grade levels and was integrating classroom themes into her lessons, that she was responding to the students and faculty, and that the media center was a resource for the school, Dr. Cover "stated that she needs to see more. She is not seeing what she feels is necessary for a media center to be the hub of the school." When Mrs. Tochner told Dr. Cover that she had provided all of the things she had been asked to provide, Dr. Cover responded that "she does not want to get into an argumentative mode. She remembers saying that she needs consistency, and that is not happening. The leadership is not there. The initiative is not there." When Mrs. Tochner observed that the people who had observed her class in general thought her lessons were "very good," Dr. Cover replied: "Not everybody." The Superintendent of Schools sent Mrs. Tochner a letter dated April 1, 1998, in which she notified her that her performance as a classroom teacher was unsatisfactory, that she would not be reappointed for the 1998-99 school year, and that her employment would end on June 11, 1998. APRIL 1998 THROUGH JUNE 1998 Assistance Review Meeting - March 18, 1998 The fifth Assistance Review Meeting held with Mrs. Tochner under the Professional Development Plan took place on March 18, 1998, after Dr. Cover's unsatisfactory annual evaluation of Mrs. Tochner. Mrs. Tochner was advised at this meeting that, if her improvement reached a satisfactory level, Dr. Cover could withdraw her letter recommending termination. This meeting focused on discussions with Mrs. Tochner about incorporating themes into her lessons on media skills. Several themes were suggested, among them a sports theme. Mrs. Tochner said she thought sports would be a good theme. Observation - May 20, 1998 Dr. Cover conducted an observation of Mrs. Tochner May 20, 1998. When Dr. Cover entered the media center, a kindergarten class had just been dismissed. The actual observation was of Mrs. Tochner teaching a third grade class, and the lesson dealt with swimming. Mrs. Tochner read a book on swimming and demonstrated swimming strokes mentioned in the book. Dr. Cover prepared a narrative of the observation, and she presented it to Mrs. Tochner for her signature. Dr. Cover was in a hurry, and she just wanted Mrs. Tochner to sign the narrative, but she perceived that "once again, it looked as if were about to embark on an hour long or two-hour long meeting. And Mrs. Tochner wanted to go through each item to add her comments." Accordingly, Dr. Cover allowed Mrs. Tochner to submit a copy of the narrative with her written comments even though Mrs. Tochner was not entitled to do so under the teachers' contract. In the narrative of the observation, Dr. Cover commended Mrs. Tochner on having selected books that were age and grade appropriate and on having encouraged class discussion. Then Dr. Cover's included her recommendations: Mrs. Tochner needed to integrate technology into the lesson by using a CD- ROMs available in the media center; Mrs. Tochner responded that there was no software available on swimming for the first grade level. Mrs. Tochner needed to adjust her instruction based on the students' needs and responses because some of the students did not participate in the discussion. Mrs. Tochner needed consistency in her dismissal policy because the first grade class was dismissed in an organized fashion but the kindergarten class was in disarray; Mrs. Tochner responded that the substitute teacher for the kindergarten class preempted an orderly dismissal by "collecting" the students before Mrs. Tochner had a chance to dismiss them. Mrs. Tochner needed to avoid prolonged discussion which took the children off task, such as the discussion of the Titanic; Mrs. Tochner responded that the book she featured referred to diving for ship wrecks and that the students had initiated the "two minute discussion" on the Titanic. Mrs. Tochner needed to clearly develop her lesson and to provide constructive feedback to the students. Mrs. Tochner needed to use examples in presenting concepts. Mrs. Tochner needed to welcome the students to the media center in a positive way rather than by placing her finger over her lips and signaling to the students that they should be quiet. Mrs. Tochner needed to use the physical space in the media center more effectively because Mrs. Tochner used tables when the environment would have been "cozy" if she had read the story with the students in the reading well. Mrs. Tochner needed to effectively communicate with the media clerk regarding procedures and schedules at the check out desk. Mrs. Tochner needed to avoid using a harsh tone with the students. Observation - May 21, 1998 Ms. Terwillegar observed Mrs. Tochner May 21, 1998, while she taught a third grade class. Ms. Terwillegar noted that Mrs. Tochner had planned a media center theme focusing on sports. Ms. Terwillegar observed: Both display windows, the display case and the media center were decorated according to this theme. Many children brought in sports trophies and other related sports objects, and these were carefully displayed with cards noting the names of the donors. Mottoes such as "Be a super star - READ" and "Reading is our Sport" were used throughout the center. This is the first theme approach observed in two years and the effect successfully energized the appearance of the media center. Nonetheless, Ms. Terwillegar criticized Mrs. Tochner for introducing the game "Jingo" as a class activity after the students finished checking out their books. Ms. Terwillegar also noted that "[t]he Book Fair was successful, and the sports theme well done." Even so, Ms. Terwillegar criticized Mrs. Tochner as follows: [I]n closing [the media center] for a day to set up the fair, books were re-shelved by price. I do not recommend taking time from students to do this, when a book fair is already displayed for appeal by the company. Re-shelving by price is convenient for adults giving direction to children. However, one of the learning experiences for students is finding and reading the price of items, and judging if there is enough money to cover the cost of books selected. For every media center activity, the learning outcomes need to be defined and planned effectively. Further, it is important to keep the media center open for students at all times. When asked to state her opinion regarding whether Mrs. Tochner tried to improve her skills as a media specialist, Ms. Terwillegar testified: I think Mrs. Tochner made the effort to try in certain areas, particularly in relation to going to classrooms and finding out from teachers what they were doing. The execution of that never quite came out to be what we were looking for, in terms of that integration of the program. As an example, I remember one class was learning about snow and winter. And what I saw in the media center were children coloring pictures of snowmen. And although the topic was the same, it wasn't that instructional integration that I was looking for. Assistance Review Meeting - May 21, 1998 The sixth and final Assistance Review Meeting was held on May 21, 1998. It was noted during the meeting that Mrs. Tochner had been working on her sports theme. She wore costumes to school, used contests to promote the theme, and planned to have a drawing for a bicycle using the coupons the students were given for each book they read. Mrs. Tochner had incorporated the theme into her lessons and showed the group pictures of her bulletin board and sports theme activities. Dr. Cover criticized Mrs. Tochner for doing an insufficient in-service training to teach the teachers how to use the new camcorder the Technology Committee had obtained for the media center; Mrs. Tochner stated that there was not enough time to do the full presentation. Mrs. Tochner reported that the students were using the camcorder to record presentations in Mrs. Tochner's class; Dr. Cover said she was pleased to hear this. Dr. Cover discussed her observation of May 20, 1998, and noted that there was no order in the class dismissal; that the kindergarten class should have been in the reading well when Mrs. Tochner read a book about swimming; that Mrs. Tochner should have given a longer introduction to the lesson; and that she heard Mrs. Tochner speak harshly to an exceptional education student. Dr. Cover criticized Mrs. Tochner for failing to place information on the media center in the school newsletter. Mrs. Tochner noted that she had put two items in the newsletter, one about the Book Fair and the other about the Sunshine Books reading results; that she had sent a flier to parents about the "Read and Ride" contest; and that she had sent a brochure to the parents about the Book Fair. Dr. Cover responded that the Book Fair and the Sunshine Books program were "asides," that the parents needed to know what their children were learning. Meetings - June 4, 1998 Dr. Cover and Mrs. Tochner met on June 4, 1998, to discuss Dr. Cover's May 20, 1998, observation. The minutes of the meeting indicate that the meeting was confrontational, with both Dr. Cover and Mrs. Tochner making accusations and disagreeing with one other's recollection of the events of June 2, 1998, when Dr. Cover maintained she and Mrs. Tochner discussed the evaluation. The only point of substance reflected in the minutes of the meeting was Mrs. Tochner's explanation that she did not use a CD-ROM during the lesson on swimming, first, because there was nothing available in the media center collection on that topic, and, second, because she had found the students worked better at the computer in groups of two rather than working at the computer as a class. A meeting was held with Ms. Terwillegar, Dr. Cover, Ms. Wark and Mrs. Tochner on June 4, 1998, to discuss Ms. Terwillegar's May 21, 1998, observation. This meeting was held just prior to the meeting between Dr. Cover and Mrs. Tochner in which they discussed Dr. Cover's May 20, 1998, observation. Again, the minutes of the meeting do not reflect that much of substance was accomplished. Dr. Cover and Ms. Terwillegar criticized Mrs. Tochner's use of the game "Jingo" to teach a sports theme and both stated they would have taught the lesson differently. Dr. Cover and Ms. Terwillegar criticized Mrs. Tochner because she reorganized the Book Fair materials and closed the media center for one day to do so. Mrs. Tochner responded that the Book Fair was organized by book- sellers and that she rearranged the materials because the parents and students appreciated the materials being arranged by price and by reading level. Finally, Mrs. Tochner mentioned that she had accrued a lot of compensatory time, and Dr. Cover advised her that she had not given Mrs. Tochner permission to work overtime and that she was not entitled to compensatory time. Dr. Cover observed that she had told Mrs. Tochner many times that she spent too much time at the school, that she needed to go home. MRS. TOCHNER'S ACTIVITIES AND EFFORTS TO IMPROVE HER PERFORMANCE When Mrs. Tochner began working at Allamanda Elementary, she found a media center that had suffered from neglect for the previous two years. There was much technical processing of materials to be done to organize and inventory the media center collection and equipment at Allamanda Elementary. At the same time that she was familiarizing herself with a new media center, a new school, and a new faculty, Mrs. Tochner was assigned to teach a full class schedule. Dr. Cover decided at the beginning of the 1996-97 school year that the fine arts wheel would operate under a fixed-block class schedule. Such a class schedule required Mrs. Tochner to teach media skills during a set class period to all of the classes at Allamanda Elementary, meeting with each class once each week as part of the fine arts wheel and teaching five or six classes each day. The classroom teachers had a planning period during the time their classes were in the media center, so the teachers took the students to the media center and left them in Mrs. Tochner's care. Much of Mrs. Tochner's time during her first year at Allamanda Elementary was devoted to organizing the media center and up-dating the entries in the Sirsi system. She had no full- time assistance in the media center, and she was responsible for completing all of the processing and clerical tasks in addition to carrying out her duties as a full-time teacher. During pre-school in August 1996, Mrs. Tochner met with the various grade levels and with some teachers to discuss how she could correlate the activities and lessons in media skills to the topics which were to be studied in the classrooms. She continued to meet with teachers every few weeks. Mrs. Tochner sent out questionnaires to the teachers in which she requested input regarding the programs and skills they wished her to focus on in the media center and the support services they wanted her to provide. The responses revealed that, for the most part, the teachers of the primary grades, kindergarten through second grade, wanted her to read stories to their classes, while the teachers of the intermediate grades, third through fifth grades, wanted her to teach research skills. Mrs. Tochner was conscientious in providing materials requested by teachers the day after the request, which often required her to create an entry for the item or items in the Sirsi system before checking them out to the teacher. Mrs. Tochner also offered one-day service to students who wished to check out materials that had not been entered on the Sirsi system. Dr. Cover noted two areas of deficiency in the School Site Assistance Plan that she completed for Mrs. Tochner in December 1996, that Mrs. Tochner used rough, angry language when correcting students and that she did not use effective questioning techniques. Mrs. Tochner studied the materials suggested to her in the School Site Assistance Plan and worked on asking analytical questions, giving specific praise, and controlling the behavior of the students in the media center. She also worked with the school's Guidance Counselor to work out a conflict-resolution process to use with the students in the media center. In addition, as part of the School Site Assistance Plan, Mrs. Tochner observed Marlene Greeble, the media specialist at Timber Trace Elementary School, on January 19, 1997.3 Mrs. Tochner prepared a report of her observation for Dr. Cover. Mrs. Tochner noted two aspects of the media program at Timber Trace that distinguished it from that at Allamanda Elementary. First, Ms. Greeble had a full-time media clerk who assisted with various clerical tasks in the media center and who handled the circulation desk when the media center was open for students to check out books, which was from 8:30 a.m. until 1:30 p.m. Second, the media center operated under an open, flexible schedule pursuant to which Ms. Greeble was not assigned to teach scheduled classes. Rather, teachers could ask Ms. Greeble to teach their classes a particular skill lesson; Ms. Greeble would schedule the classes, with the length of time she spent with any one class determined by the skills to be taught. Otherwise, the students at Timber Trace could come into the media center, either individually or in small groups, with a pass from the teacher for a specified length of time. Students in the third to fifth grades could come in unaccompanied to check out books or work on projects, and the students in kindergarten to second grade could come into the media center with a parent volunteer or in small groups. Learning centers were set up in the media center for the use of the students. When Ms. Greeble was not teaching a class, she was available to assist students and teachers using the media center. Mrs. Tochner realized that the only way she could fulfill Dr. Cover's vision for the media center was to institute an open, flexible schedule which would give her time to work with the media center program and to fully integrate the program into the school curriculum.4 During their first meeting in August 1996, Mrs. Tochner had suggested that Dr. Cover consider putting the media center on an open, flexible schedule, but Dr. Cover rejected the idea in favor of the fixed-block schedule because of the preferences of the classroom teachers. In the memorandum Mrs. Tochner submitted to Dr. Cover in January 1997 relating her observations at Timber Trace, Mrs. Tochner pointed out the benefits of an open, flexible schedule to Dr. Cover and recommended that Allamanda Elementary try a modified open, flexible schedule by alternating the guidance and the media center classes on the fine arts wheel, so that she would teach each class only once every two weeks. Dr. Cover did not specifically respond to the proposal but told Mrs. Tochner that it would be Mrs. Tochner's responsibility to convince the teachers at Allamanda Elementary that an open, flexible schedule was preferable to the fixed-block schedule Dr. Cover had implemented. Although Mrs. Tochner spoke to a number of teachers about this, she met with resistance because the teachers did not want to give up their planning period. Dr. Cover did not provide Mrs. Tochner any assistance or encouragement with respect to implementing an open, flexible schedule in the media center. During the 1997-98 school year, Mrs. Tochner attempted to respond to the multitude of comments, criticisms, and recommendations presented to her during the Assistance Review Meetings and during the meetings that were held after each observation. Mrs. Tochner kept the log of all contacts she had with teachers, parents, and others that was suggested by Ms. Terwillegar in the spring of 1997, but no one asked to see this or any other of the materials Mrs. Tochner had prepared to document her efforts to comply with the recommendations. Many of the recommendations and criticisms were directed to specific behaviors that could not be, and were not, characterized as unsatisfactory but, instead, reflected the observers' opinions that Mrs. Tochner could have taught a particular part of the lesson in a different way or that Mrs. Tochner could have handled a particular situation differently or that Mrs. Tochner did not exhibit the expected level of enthusiasm as she taught the lesson. Often, the narrative of an observation was critical of Mrs. Tochner while the tally marks on the Summative Instrument indicated that she had engaged in many more effective teaching behaviors than ineffective ones; or, the narrative of an informal observation would reflect good teaching behaviors while the recommendations contained criticisms of particular behaviors which did not seem evident from the narrative. In her assessments of the media center program at Allamanda Elementary, Ms. Terwillegar several times emphasized the need to have teamwork between the ITSA, Ms. Kempel, and Mrs. Tochner with respect to integrating the school's instructional technology, with Mrs. Tochner providing leadership in the area of technology. Dr. Cover did not encourage such teamwork or assist in bringing about any cooperative arrangement between Mrs. Tochner and Ms. Kempel and, in fact, contributed to the tension between Ms. Kempel and Mrs. Tochner. Ms. Kempel watched Mrs. Tochner and reported to the administration any conduct on Mrs. Tochner's part that Ms. Kempel thought was significant, such as the purported "cane-throwing" incident in January 1997. In addition, Dr. Cover did not include Mrs. Tochner in discussions with Ms. Kempel regarding planning for the computer laboratories or the relocation of the IILS computer laboratory to the media center. Ms. Kempel found that working with Mrs. Tochner was difficult because, in her view, Mrs. Tochner always wanted things done "her way." In the absence of any leadership from Dr. Cover, the breach between them widened and prevented the cooperative endeavor envisioned by Ms. Terwillegar. One of the on-going criticisms of Mrs. Tochner's ability to manage student conduct was her failure to institute an orderly procedure for the students to follow when they were dismissed from their lessons in the media center and allowed to select books to check out of the media center. The physical layout of the media center made it impossible for Mrs. Tochner to view all of the students searching the stacks at any one time. The shelves of books were located in three separate rooms opening off of the central area of the media center where the circulation desk was located. When Mrs. Tochner assisted students in one area of the media center, students in the other areas could misbehave without her being able to observe their conduct. In addition, during the 1996-97 school year, Mrs. Tochner had no consistent assistance in the media center, so it was necessary for her to stay at the circulation desk checking out books to the children, making it difficult for her to monitor and correct student behavior. Mr. Sorensen and Dr. Burdsall both recommended that Mrs. Tochner solve the problem of student misbehavior during the time the students selected and checked out books by limiting the areas in media center in which they were permitted to look for books or by selecting books for the children and putting them into a separate display from which the children could choose their books. These recommendations for limiting student access to certain areas of them media center were totally opposite the recommendations of Ms. Terwillegar that the media center be completely open to the students and that the students be allowed to browse the stacks at will and check out books at any time. Although Mrs. Tochner tried several methods for minimizing confusion and student misbehavior during book-check-out time, she was not able to consistently avoid the problem. Mrs. Tochner was consistently criticized by Dr. Cover for failing to give sufficient specific praise during her lessons. Dr. Cover did not take into account, however, the grade level of the class she was observing and the type of praise appropriate to the specific grade levels. In one of the workshops she attended, Mrs. Tochner learned that general praise was categorized as a "more positive" teacher response for the primary grades, kindergarten through third grade, while specific academic praise was more positive for the fourth and fifth grades. Mrs. Tochner engaged in a number of activities with respect to procuring instructional technology for Allamanda Elementary. She chaired the committee that surveyed the needs of the teachers and students, and Mrs. Tochner wrote proposals for funding from the STIA committee to purchase equipment for the media center and for the school in general. Mrs. Tochner inventoried all of the equipment in the school, surveyed the teachers regarding their needs, and submitted to the district a list of equipment needed at Allamanda Elementary. When funding for equipment was not provided, Mrs. Tochner found money in the media center budget to purchase the equipment which had highest priority. As the ITSA, Ms. Kempel taught the students at Allamanda Elementary how to use computers. Mrs. Tochner trained the students in the use of particular programs; if a computer program were particularly difficult to operate, Mrs. Tochner would demonstrate it during class so that the children could use it on their own. Mrs. Tochner also trained the students in the third, fourth, and fifth grades how to use the Sirsi electronic catalog as a research tool, to search for books and other materials. Even though Dr. Cover criticized Mrs. Tochner for not allowing students to check out books themselves using the Sirsi system, Mrs. Tochner did not allow this because the electronic check-out system was usually used only by trained staff. Mrs. Tochner contacted other media specialists and learned that students were not allowed to use the Sirsi system to check out books in other schools, and she specifically observed that either the media clerk or Ms. Greeble checked out books at Timber Trace Elementary School. During the 1997-98 school year, Mrs. Tochner set up learning centers for the students coming into the media center singly and in small groups to follow up on a lesson she had taught in the media center or to support a classroom activity. She set up computers with CD-ROMs for the students to use while working on specific research projects or with software containing general learning materials; she set up cassette books with headsets for the children to use; she had film strips and videos set up for the children to use; and she had various games and puzzles set up throughout the media center. Mrs. Tochner did not use learning centers during media classes because she found that it was more effective for the students to use the equipment in small groups. By the end of the 1997-98 school year, Mrs. Tochner had reached the goal set out in the School Improvement Plan to make the media center twenty-five percent more user-friendly than it was at the beginning of the school year. The chairman of the Innovative Instructional Technology committee advised Mrs. Tochner that the goal had been met according to the surveys completed by students and teachers. During the 1997-98 school year, observers noted that Mrs. Tochner was integrating classroom themes into her media center lessons, that her lessons were well-planned, and that she was integrating technology into these lessons as well. She was displaying student work in the media center, and, at the end of the 1997-98 school year, she planned and implemented a school- wide sports theme. Three teachers at Allamanda Elementary found Mrs. Tochner very easy to work with, responsive to their requests for assistance both for themselves and their students, and interested in improving the media center. Mrs. Tochner consulted with these teachers about the themes their students were studying in the classroom, and she integrated these themes into her media lessons. None of the three teachers testifying at the final hearing ever observed Mrs. Tochner speaking harshly or sarcastically to students, being rude to students, or correcting students' behavior in an inappropriate manner, and the children in their classes never complained about Mrs. Tochner's behavior. One second grade teacher testified that she would regularly give her students passes to the media center, where they would work with different computer programs, such as the writing program, the encyclopedia program, and the Living Books program. One of Allamanda Elementary's exceptional student education teachers testified that Mrs. Tochner made it a habit to discuss with her the activities she proposed for the exceptional student education classes to ensure that her lessons were appropriate for the students' level of functioning and understanding. This teacher observed that Mrs. Tochner worked very well with the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order rejecting the Superintendent of School's recommendation that Joan Tochner's professional service contract not be renewed for the 1998-99 school year and awarding her back pay and benefits in the amount to which she is entitled. DONE AND ENTERED this day of January, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 day of January, 2000.
The Issue The issue in this case is whether Respondent, Digital Accessories Corporation (“Digital”), timely filed a request for a formal administrative hearing pursuant to Florida Administrative Code Rule 28-106.111(2).
Findings Of Fact Based upon the evidence presented, the demeanor and credibility of the witnesses, and the entire record in this case, the following Findings of Fact are made: The Department is the state agency responsible for monitoring the provision of workers’ compensation insurance by employers in this state. Digital is a family business. Its owner (Mrs. Benson’s father) created a company called Central Voice, Inc. (“Central”), in 1969 as a retail business. The business was run by Mrs. Benson’s family, i.e., her parents and siblings. After some years of operation, the family created another corporation, Digital, to deal with the wholesale side of the business. Again, this business was run by the family, most of whom worked primarily for Central. Central properly maintained workers’ compensation insurance coverage for the family members/employees. Digital really only had one functional employee; a store manager, and some part-time help on an as needed basis. Mrs. Benson’s father, as owner of the company, also worked for Digital. In recent years, both companies were “surviving, not thriving,” according to Mrs. Benson. As a result of the businesses’ struggles, the family decided that payment of the family’s salaries would be split between Digital and Central as a means of each business sharing some of the financial burden. In an abundance of caution, Mrs. Benson inquired of her insurance carrier whether Digital needed workers’ compensation insurance since its “employees” were primarily employees of Central and Central insured those persons. She was wrongly advised that the employees were sufficiently covered under Central’s policy. On August 14, 2017, investigator Gallegos conducted an inspection at the businesses for the purpose of assuring that the companies were compliant with workers’ compensation requirements. Mrs. Benson gave Gallegos copies of Central’s workers’ compensation insurance information and explained to him what her carrier had told her concerning the need for a policy for Digital employees. Gallegos explained to Mrs. Benson that, despite what she was told, Digital had more than four employees (on the books) and was required to have workers’ compensation coverage for them unless they were exempted. Mrs. Benson immediately went on-line to add her younger brother and sister to the list of officers of Digital so they could apply for exemptions. Based on his findings, Gallegos determined that Digital was not in compliance with workers’ compensation requirements. He then prepared a Stop-Work Order (“SWO”), which he handed to Mrs. Benson on the spot. The SWO contained a notice of rights, which was explained to Mrs. Benson by Gallegos, and imposed an estimated minimum penalty of $1,000. He also discussed with Mrs. Benson that she might reduce the ultimate penalty by 25 percent if she would timely, i.e., within 20 days, provide certain business records to the Department. Mrs. Benson obtained a $1,000 money order the very next day and, along with the records she believed had been requested, delivered the money order and the financial documents to the Department within two days. About two months later, on October 11, 2017, the Department issued an Amended Order of Penalty Assessment (“OPA”) and served it on Digital. Despite having paid the $1,000 minimum penalty and providing all the records she believed had been requested--and even being told by someone at the Department that she had provided more than requested--the OPA asserted a penalty of $28,490.12. Mrs. Benson was incredulous at this assessment, because not only had Digital (and Central) always attempted to comply with workers’ compensation requirements, she had tried to do exactly what the Department asked of her. In fact, while Gallegos was still at her office that day, she copied the additional records he requested and gave them to him. On December 6, 2017, Mrs. Benson went to the Department’s local office. She was hand-served the Second OPA, which amended the penalty to $27,485.68. Again, Mrs. Benson was incredulous. She had continuously attempted to cooperate with the Department and acted in good faith. But not only did she fail to receive the 25 percent discount alluded to earlier, her efforts seemed to have made little difference in the assessment. The Second OPA contained a notice of rights which directed Digital as follows: “You have a right to request a hearing . . . to contest this agency action. [Y]ou must file the petition for hearing so that it is received by the Department within twenty-one (21) calendar days of your receipt of this agency action.” The Second OPA concluded, in capital letters and in bold font: “FAILURE TO FILE A PETITION WITHIN THE TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION.” The notice of rights did not specify a time of day that the request for hearing must be filed with the Department. Mrs. Benson presumed she had until 11:59 p.m. on December 27, 2017, of the twenty-first day to file her request for a hearing. (The notice of rights did not specify a date either, leaving it up to the affected business to calculate the twenty- first day on its own.) After being served with the Second OPA, the holiday season ensued, including Christmas, Hanukah, and Kwanzaa, among others. Mrs. Benson and others from Digital took time off from work to be with family and celebrate the holidays. Upon returning to work on December 26, 2017, the day after Christmas and the first workday after the holidays, Mrs. Benson was inundated with numerous work-related tasks. At some point she remembered the request for hearing and turned to that item of business. She discovered that the request was due the next day, December 27, 2017, and immediately set about preparing the request for hearing and related attachments. She put together all of the information, not without considerable effort, and made arrangements to ship it to Tallahassee for submission to the Department. Through social media, her family contacted a friend in Tallahassee who agreed to pick up the request from a printer and deliver it to the Department. Mrs. Benson had rationally assumed that she had until 11:59 p.m. to submit the petition, as neither the SWO nor the OPAs contained a 5:00 p.m. deadline. The family friend picked up the request from the printer sometime on December 27, 2017. He immediately drove to the Department’s headquarters at 200 East Gaines Street, Larson Building, Tallahassee, Florida. When he arrived, at just after 8:00 p.m., the building was locked and there was no one available to accept the request. The friend then slipped the request under the door of the building, taking a picture of it through the glass door to show that it had been “delivered” to the Department on the date that it was due. Meanwhile, Mrs. Benson diligently searched the Department’s website and found that she could also email the request, which she did at 9:42 p.m. that same day. The Department, as is its custom and practice, clocked the request in as received on the next morning, December 28, 2017, i.e., one day after it was due. The Department relied upon rule 28-106.104(3), which states that: “Any document . . . received after 5:00 p.m. shall be [deemed] filed as of 8:00 a.m. on the next regular business day.” Based on that rule, the Department rejected the request for hearing, finding that it was not timely filed. Digital requested an administrative hearing to contest the rejection of its request for hearing on the Second OPA. The instant proceeding ensued. Mrs. Benson credibly explained the reasons that Digital’s request for a hearing was late. She noted that, to begin with, she was very angry at the Department for rejecting her sincerely-filed financial documents when first requested. Digital has always paid its taxes and has tried to be a good corporate citizen. Digital had no frame of reference to help it understand the SWO and related documents; it had never been in that position before. Digital had never been fined or cited for improper workers’ compensation insurance, always striving to do what was right and legal. The holiday season was also a major contributing factor. Whoever at the Department decided to deliver the Second OPA to Digital on December 6, making the response due just two days after Christmas, may just have had a mean streak. Why not just serve the Second OPA on December 4, making it due on Christmas day? It is completely reasonable for a layperson to believe that the holiday season would have an effect on time frames for filing a petition for hearing. It would have been simple for the Department’s representatives to have made the requirement for filing BEFORE FIVE O’CLOCK clear and precise, but there is no legal requirement for the Department to do so. The Second OPA did not, in its bold print, capitalized statement regarding a response, indicate that there was a 5:00 p.m. cutoff for filing the request. Nor, apparently, did the person who served the Second OPA on Mrs. Benson address that fact. Alas, these very understandable and rational reasons for not filing the request for hearing timely do not obviate the requirement to do so. Nor does lack of familiarity with the Florida Administrative Code excuse a layperson from complying with its rules. Mrs. Benson simply did not know. Best intentions, and all that.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: Petitioner, Department of Financial Services, enter a Final Order deeming the request for hearing filed by Respondent, Digital Accessories Corporation, not timely filed. DONE AND ENTERED this 7th day of November, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 7th day of November, 2018. COPIES FURNISHED: Taylor Anderson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Laura J. Benson Digital Accessories Corporation Suite 100 2021 Art Museum Drive Jacksonville, Florida 32207 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue 1. Whether the Petitioner (Lanier) has established, by a preponderance of the evidence, that the bid submitted by Intervenor (Dictaphone) is. not materially responsive to the Invitation to Bid (ITB) issued by the Respondent Department of Health and Rehabilitative Services (HRS). 2. Whether Lanier has established, by a preponderance of the evidence, that HRS improperly evaluated the bids. 3. Whether Lanier has established, by a preponderance of the evidence, that the HRS decision to award the contract to Dictaphone is arbitrary and capricious, or is otherwise not authorized by law.
Findings Of Fact I. Background 1. HRS has been using a lanier analog central dictation system for approximately ten years. 2. Prior to April, 1990, HRS determined that it needed to upgrade its central dictation system and decided that the most cost-effective procedure would be to replace the analog system. 3. HRS issued a Request for Information to vendors of dictating equipment and received responses from Lanier, Dictaphone, and one other vendor. 4. In July, 1990, Dictaphone made a presentation to HRS in the HRS Tampa office. This presentation was made based upon Dictaphone’s initiative and Lanier was offered the opportunity to make a presentation also. Lanier did not make a presentation to HRS. an 5. Dorea Sowinski, Operations and Management Consultant for the Office of Disability Determinations (OPDD), prepared an Invitation to Bid (ITB) for a central digital dictation system with the assistance and approval of William Cox, the Director of Purchasing for HRS. 6. A digital dictation system differs from traditional forms of dictation equipment. With a digital dictation system, dictation is converted from analog sound waves into digital impulses. The digital impulses are then stored on a magnetic disk in the recorder. 7. Generally speaking, the use of a digital dictation system requires the use of a telephone system to gain access to the recorder. 8. Ms. Sowinski had no prior experience with digital dictation systems prior to her involvement with this ITB and does not have technical expertise with respect to the configuration, operation and features of a digital dictation system. 9. Mr. Cox, who provided administrative assistance and oversight prior to the issuance of the ITB, also had no previous experience with digital dictation systems. Ii. The ITB 10. The Invitation to Bid No. 91-15BC for a digital dictation system was issued on October 8, 1990. The purpose of the ITB. is to acquire a digital dictation system for use within HRS offices statewide. 11. The special conditions of the ITB include the following relevant and material requirements: 5. Method of Cost Presentation: A separate cost presentation describing the proposal system/equipment for each OPDD location should be submitted. In addition, a separate cost presentation listing optional features and equipment should be submitted. 13. Evaluation and Award: Each bidder shall supply a separate bid price for each proposed system by location. Consideration of bid prices shall include any additional expense for telephone lines to support the system. The bidder with the lowest price and who meets all other requirements of this invitation to bid will win the award. (emphasis in original) 15. Bid Prices: Bid prices shall be submitted on the Summary Bid Pricing Sheet shown as Attachment D of this invitation. The bid prices must be firm for a period of one year (12 calendar months) from the date of contract award). The prices bid must include all delivery, installation, and testing of equipment. Included with submittal of the Summary Bid Pricing Sheet, bidder must provide a description of the offered equipment, ail other necessary items to be provided for each location, the amount for the offered trade in allowance, and any ongoing costs to OPDD after installations. In addition, the cost of maintenance for the entire system should be broken out on the Summary Bid Pricing Sheet. Maintenance services must be provided by the bidder’s company, and cost must include all parts, labor and related costs for the services. (Lanier, Ex. 1.) 12. The relevant, material technical specifications of the ITB are found in paragraph 18 and are outlined as follows: 18. Technical Specifications: The Office of Disability Determinations (OPDD) requires a he statewide telephone accessible digital dicta- tion system for processing medical documenta- tion, disability insurance adjudications, letters and general correspondence. The system must be capable of producing manage- ment reports on total workload, record of dictation and transcription production, and work location in the system. The system must have upgrade capabilities with expansion by ports and hours storage for staff increases. It must be a unified system with capabilities and interoffice communication. In the event one office system fails, the ability to access the system for dictation or trans- eription from another location by dialing into the system without specific unit assignment. Proposals must be for all new equipment. Configurations of systems/equipment for each geographical location must be fully described and justified, and must meet the following minimum requirements: A. Ports for dictation/transcription which optimize system usage as listed on Attachment B. B. Storage capabilities as listed on Attachment B. I. Remote dictation/transcription capa- bilities; Ability to access systems from locations other than installation location for use in the event of one system’s failure. Oo. The system must provide a management console with visual prompts to assist users for each location. R. The system must provide for remote diagnostics. System options: Bidder should include in the bid submittal any optional features/equipment which enhance the system’s function. These options should an be submitted with prices on a separate bid sheet for each location. (Lanier, Ex. 1, Special Bid Conditions and Technical Specifications, pp. 9-10, paragraph 18.) 13. As a result of questions from both Lanier and Dictaphone, HRS issued Clarification #1 to the ITB on October 15, 1990. Addendum #1 to the ITB on October 18, 1990, and Addendum #2 to the ITB on October 22, 1990.+ 14. Addendum #1 to the ITB provides as follows: The purpose of this Addendum #1 to HRS Bid 91-15BC is to revise information contained in item numbers 15 and 18 as follows: Item 15: 1. Paragraph Number two (2) is revised to read as follows: Included with submittal of the Summary Bid Pricing Sheet, bidder must provide a description of the offered equipment to include model number and company literature, all other necessary items to be provided for each location, the amount for the offered trade in allowance, and any ongoing costs after installation. 1 Mr. MacDonald, Lanier’s Eastern Region Systems Manager, testified that after the ITB was issued and prior to submission of bids, he engaged in a telephone conversation with Mrs. Sowinski regarding whether additional expense for telephone lines to support the system should be itemized (i.e., separately stated) in the bids. Mr. MacDonald does not remember the exact words Ms. Sowinski used in the conversation but testified that the gist of the conversation was that a separation of costs was required. (MacDonald, Vol. III, pp. 281-283.) Ms. Sowinski testified that bidders were not required to submit a separate itemization for such costs. (Sowinski, Vol. I, pp. 56-57 and 86.) oe Item 18: 1. Paragraph Number two (2) is revised to read as follows: Proposals must be for all new equipment. Configurations of systems/equipment for each geographical location must be fully. - described and ‘justified. Bidders must meet all technical specifications and minimum requirements and all line items, A through R, must be fully explained and described in detailed (sic). 2. Line Item A is revised to read as follows: Parts for dictation/transcription which optimize system usage as listed in Attachment B. See Attachment A for number of transcribe stations required per location. 7. Line Item R is revised to read as follows: The system must provide for on line or self diagnostics and remote diagnostics. The ability of the system to detect a problem and automatically notify a service representative. Upon notification, the ability of the representative to examine/repair the problem without traveling to the installation location. All other bid terms and conditions remain the same. (Lanier, Ex. 2, pp. 2-3.) 15. Addendum #2 to the ITB added the following footnote to the Minimum Requirements for each location’s Ports and Hours Storage contained in Attachment B to the ITB: *Note: System/equipment configurations offered could minimize the number of parts/hours needed. Bidders offering alternative configurations must clearly indicate the variations and must | fully : describe the equipment, including model number and company literature, and ‘justify the configuration offered. The evaluation committee is not bound to accept any variation which, in its opinion, is not in the best interest of the Office of Disability Determinations. (Lanier, Ex. 2, p. 5.) IIL. Bid Opening and Evaluation 16. The bids were opened at 2:05 p.m., on Monday, October 29, 1990, by William Cox, Purchasing Director of HRS. Only two bidders submitted bids in response to the ITB, Dictaphone and Lanier. Both Lanier and Dictaphone submitted timely bids. 17. The bids were then reviewed by a three member Evaluation Committee during one meeting which lasted approximately three hours to three and one-half hours. 18. The individuals present. at the Evaluation Committee meeting were the committee, Ms. Mary Simmons, Ms. Beth Bruce, and Ron Atchinson and Ms. Dorea Sowinski who served as bid officer. 19. As bid officer, Ms. Sowinski acted as the coordinator of the Evaluation Committee and as liaison to the HRS Purchasing Director, Mr. Cox. Ms. Sowinski did not conduct a separate and independent evaluation of the bids. 20. The members of the Evaluation Committee were not technical experts on the configuration and features of digital dictation systems. 21. Ms. Mary Simmons, a member of the Evaluation Committee, is the supervisor of the clerical staff that works on 10 all the dictating equipment and correspondence that leaves the Office of Disability Determination of HRS. Ms. Simmons has never dealt with digital dictation systems. 22. Ms. Beth Bruce has been an employee of HRS almost 17 years. Ms. Bruce has extensive experience in working with dictation equipment in HRS. Ms. Bruce has no technical expertise in dictation systems. 23. The Bid Officer, Dorea Sowinski, has ten years experience in purchasing and procuring equipment for HRS. 24, William Cox has over 20 years experience in procurement. Mr. Cox has extensive experience in drafting Invitations to Bid and reviewing many more. 25. The Evaluation Committee first reviewed Lanier’s bid. The committee found that Lanier had failed to provide equipment model numbers for system equipment components (other than the recorder) and failed to provide sufficient explanation and description of equipment and its capabilities as required by the ITB. The Evaluation Committee therefore rejected the Lanier bid as nonresponsive. 26. Although Ms. Sowinski stated that during the Evaluation Committee Meeting she did call Lanier regarding certain aspects of the Lanier bid, she did not attempt to obtain further information or clarification from Lanier because the nonresponsive aspects of Lanier’s bid went directly to material requirements of the ITB. 27. After determining that Lanier’s bid was not responsive to the ITB, the Evaluation Committee moved on to the Dictaphone bid. 11 28. There is a conflict in testimony regarding one aspect of the evaluation process. Mary Simmons testified that the committee compared the responsiveness of the Dictaphone bid to that of the Lanier bid. Both Beth Bruce and Ms. Sowinski testified that the Evaluation Committee first compared the Lanier bid to the ITB and then compared the Dictaphone bid to the ITB. 29. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee improperly compared the Dictaphone bid to the Lanier bid, as opposed to comparing both responses to the ITB. Overall, the testimony of Ms. Bruce and Ms. Sowinski is more convincing on this point. 30. The Committee examined Dictaphone’s Summary Bid Pricing Sheets and concluded that if Dictaphone’s pricing included all costs to HRS, an award should be made to Dictaphone. 31. On the following day, Ms. Sowinski discussed the Evaluation Committee’s conclusions and remaining questions concerning Dictaphone’s pricing with Mr. Cox. Mr. Cox then called a Dictaphone representative and assured himself that the prices shown in the bid covered everything relative to purchasing and installing necessary equipment, implementing the dictation system and training personnel to operate the system and that there would be no additional charges not covered in the bid. This telephone conversation with a Dictaphone representative occurred after the Evaluation Committee had rejected the Lanier bid as being materially non-responsive in several aspects. 32. Following Mr. Cox’s telephone conversation with the Dictaphone representatives, Ms. Sowinski- called the .three 12 members of the Evaluation Committee to convey the information regarding Dictaphone’s pricing sheets and to confirm the committee’s October 29, 1990 recommendation to award the bid to Dictaphone. 33. On October 31, 1990, Ms. Sowinski prepared and issued the Evaluation Committee’s written Recommendation of Award. The Recommendation stated that the Dictaphone bid was complete and recommended that HRS "accept a single responsive bid and award the contract to Dictaphone Corporation." 34. On November 1, 1990, HRS posted a Bid Tabulation recommending the award of the contract pursuant to the ITB to Dictaphone as the lowest responsive bidder. 35. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee’s evaluation of the bids was arbitrary, capricious, or not rationally related to the public policy objectives in the procurement process. 36. Lanier has failed to prove, by a preponderance of the evidence, that the Evaluation Committee was biased in its evaluation of the bids. IV. Dictaphone’s Bid 37. In Addendum #1 to the ITB, paragraph number two of Item 18 is xrevised and requires that "Configurations of systems/equipment for each geographical location must be fully described and justified." 38. In challenging the Dictaphone response to the ITB, Lanier offered the testimony of Mr. John MacDonald, the Eastern Regional Systems Manager for Lanier. Mr. MacDonald was accepted 13 as a witness qualified to render opinions in the area of design, implementation, and operation of digital dictation systems. 39. Mr. MacDonald testified that “system configuration," “simultaneous activities," and "telephone connectivity" are terms commonly used in the field of designing and implementing digital dictation systems. 40. According to Mr. MacDonald, the term "system configuration" identifies how a digital dictation system needs to be built, how many individuals are going to dictate and transcribe into a system and how individuals are going to transcribe from that system so that a determination can be made as to the number of simultaneous activities or ports within the system. 41. To rebut the testimony of Mr. MacDonald, Dictaphone presented the testimony of Mr. James Montali, District Manager for Dictaphone. Over the objection of Lanier, Mr. Montali was allowed to express opinions with respect to the terminology and terms of art used in the general marketing and sale of central dictation systems. 42. Mr. Montali testified that the term "system configuration" relates to a description of the components of a dictation system which is presented to a client. 43. Mr. MacDonald’s testimony centered, in significant part, on the failure of Dictaphone to specifically describe "telephone connectivity" to: (1) achieve access to the minimun number of ports required by the ITB; (2) provide remote dictation and transcription capability for all dictators--and -transcribers at each location; and (3) provide remote: diagnostics. 2 : 14 at) 44. Mr. MacDonald testified extensively as to the technical aspects of how digital dictation systems are built, how such systems are connected and how the systems work. 45. The ITB in this case does not require that bids submitted contain descriptions of how the proposed digital dictation system is built, the technical aspects of how components of the system are connected, or the technical aspects of how the system works. 46. The ITB does not require a bidder to provide a definitive description of "telephone connectivity." 47. The ITB does not require that the system handle a minimum number of simultaneous activities. | 48. In a dictation system such as the one described in the ITB, each recorder has a certain number of ports for dictating and transcribing depending on the needs of the system purchaser. Each port in the recorder allows one dictating or transcribing activity. 49, There are also ports or channels in the telephone system which interface with the recorder. In order to provide access to a designated number of ports, there needs to he sufficient telephone equipment in the form of ports in the existing telephone systen. 50. Attachment B of Addendum #2 of the ITB establishes minimum ports and storage hours required for each location in the statewide HRS digital dictation system. 51. The system that Dictaphone bid shares the existing telephone lines and ports at HRS and thereby includes sufficient 15 telephone lines to connect users of the system to the minimum number of ports required for the recorders in all locations as required by the ITB. 52. The ITB does not. require that the bidder provide dedicated lines to operate the proposed system. The ITB does not preclude or prohibit a bidder from using the existing HRS telephone lines in installing the system. 53. The technical specifications in the ITB require that the system bid provide remote dictation and transcription capabilities as well as remote diagnostics. 54. Remote dictation involves dictation by an individual in one location (e.g. Miami) which is transmitted by a telephone line into the system and recorder located at a different location (e.g. Orlando). Remote transcription involves the same activity for a transcriber. 55. Remote diagnostics involves the capability to ascertain problems or malfunctions in a recorder from an off premises location through the use of telephone lines. 56. Dictaphone’s bid utilizes existing telephone lines at HRS and thus provides for remote diagnostics of each recorder throughout the state. 57. Dictaphone’s bid adequately responds to Item 18(R) of the ITB. 58. The ITB does not require 24 hour on Iline diagnostics. 59. Dictaphone’s bid includes Summary Bid Pricing Sheets which reflect all costs to HRS for equipment and 16 peripheral equipment associated with providing the digital dictation system described in its bid. 60. The system described in Dictaphone’s bid does not require the installation of telephone lines in addition to those already existing in the HRS locations reflected in the bid. 61. The Dictaphone bid describes and justifies its proposed system and equipment configuration for each location as required by Item No. 18 of the ITB as amended. 62. A system capable of using the existing ports and telephone lines within the present HRS system saves HRS the cost of installing additional lines (and the ongoing monthly charges for such lines). . 63. Addendum #2 to the ITB contains a note which permits a bidder to offer system/equipment configurations which minimize the number of ports and storage hours otherwise required. 64. The Dictaphone bid offers such an optional configuration by proposing to combine the Central Area I and Tallahassee locations. 65. Dictaphone’s optional system for the combined Central Area I and Tallahassee location was designed to minimize the number of ports and storage hours as permitted in Addendum #2 to the ITB. 66. Dictaphone’s optional bid for the combined Central Area I and Tallahassee locations provides adequate justification for the optional configuration in accordance with Attachment B as revised in Addendum #2 to the ITB. 17 67. Dictaphone’s bid explains and describes. its system's storage capabilities as required by Addendum #2, Attachment B to the ITB. Lanier has failed to prove, by a preponderance of the evidence, . that Dictaphone’s bid is materially nonresponsive to Item 18B of the ITB as amended. 68. Item 18-0 of the ITB requires that the system provide a management console with visual prompts, to assist users at each location. The Dictaphone bid responds to Item 18-0 of the ITB on pp. 71-74, and 127-136 of the bid. On page 71 of its bid, Dictaphone represents that its bid meets the specification of Item 18-O of the ITB but does not state that its management console provides visual prompts. There is a depiction of a Management console on page 132 of the bid, however. The copy provided in Lanier’s Exhibit 4 is of poor quality. Testimony at the final hearing established that this depiction indicated that the console provided visual prompts. Based upon this information in the Dictaphone bid, the bid coordinator and Evaluation Committee determined that Dictaphone’s bid was materially responsive to the "visual prompts" aspect of Item 18-O of the ITB. Lanier has failed to prove, by a preponderance of the evidence, that the Dictaphone bid is materially nonresponsive to Item 18-0 of the ITB. 69. The costs to HRS for any long distance telephone charges for use of the remote dictation, transcription, and diagnostics features of the systen bid by Dictaphone are not included in the Dictaphone bid. Due to varying toll charges depending on such variables as location, the telephone company 18 used, how long the calls last, and the number of calls made, it would be impossible to accurately include such costs in Dictaphone’s bid. 70. The Dictaphone bid does not provide a separate breakdown of the cost of peripheral telephone equipment necessary to support its system but such costs are included in Dictaphone’s total bid price. 71. Dictaphone’s bid includes all the costs of peripheral equipment associated with providing the digital dictation system described in its bid. 72. The ITB does not require a bidder to break out or itemize the costs for peripheral equipment in the bidder's Summary Bid Pricing Sheet. 73. Dictaphone’s proposed digital dictation system will perform as described in its bid in accordance with the ITB. 74. \Lanier has failed to prove, by a preponderance of the evidence that the Dictaphone bid is not materially responsive to any relevant provision of the ITB which is at issue in this proceeding. Vv. Costs Incurred by HRS 75. On February 18, 1991, HRS filed its Corrected Proposed Final Order with Attachments outlining its costs in this proceeding which are recoverable pursuant to Section 287.042(c), Florida Statutes. Recoverable costs incurred by HRS in this proceeding are as follows: 19 Transcripts and Court Reporters Hearing $ 815.00 Sowinski $ 219.65 William Cox $ 40.70 John MacDonald/James Montali $ 134.35 George Hume/John MacDonald § 221.05 Art DeWitt $ 71.50 TOTAL $1,502.25 Employee Hours William F. Cox 12 hours at $19.56/hr. = $234.72.
Conclusions For Petitioner Lanier: Kenneth A. Hoffman, Esquire MESSER, VICKERS, CAPARELLO, FRENCH & MADSEN Post Office Box 1876 Tallahassee, FL 32302-1876 For Respondent HRS: Robert L. Powell, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 For Intervenor Daniel Marino, Esquire Dictaphone: SEYFPARTH, SHAW, FAIRWEATHER & GERALDSON Suite 500 815 Connecticut Avenue, N.W. Washington, D.C. 20006-4004
Recommendation Based on the forgoing, it is recommended that the Respondent enter a Final Order dismissing Lanier’s protest of the award of Bid Number 91-15BC to Dictaphone. DONE and ORDERED this ,>H. day of March, 1991, in Tallahassee, Florida. Ji aS W ORK, Hearing Officer DivisionmOf Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 904/488-9675 31 FILED with the Clerk of the Division of Administrative Hearings this [+4 day of March, 1991. Copies furnished: Kenneth A. Hoffman, Esquire MESSER, VICKERS, CAPARELLO, FRENCH & MADSEN First Florida Bank Building, Suite 701 215 South Monroe Street Post Office Box 1876 Tallahassee, Florida 32302-1876 Robert L. Powell, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Daniel Marino, Esquire SEYFARTH, SHAW, FAIRWEATHER & GERALDSON Suite 500 815 Connecticut Avenue, Northwest Washington, D.C. 20006-4004 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500 Case No. 90-7201BID 32 12. 13-15. 16-24. 25. 26-27. 28. 29-36. 37-39. 40. 41. APPENDIX A TO RECOMMENDED ORDER CASE NO. 90-7201BID Rulings on Petitioner Lanier’s Findings of Fact Proposed. findings of fact in paragraphs 1 to 9 are adopted in material part in the Recommended Order. Proposed findings of fact are cumulative and not necessary to the conclusions reached in the Recommended Order. The proposed findings of fact as stated in paragraph 12 are not supported by the record and are rejected. Proposed findings of fact in paragraphs 13 to 15 are addressed in footnote 1 on page 8 of the Recommended Order. Proposed findings of fact contained in paragraph 16 are accepted in material part in the Recommended Order. Proposed findings of fact in paragraph 25 are adopted to the extent such facts are relevant within the operative pleadings filed. Proposed findings of fact in paragraphs 26 and 27 are adopted in material part in the Recommended Order. The proposed finding of fact in paragraph 28 is rejected because it is not supported by the record. The findings of fact proposed in paragraphs 29-36 are essentially argument which is addressed in the Conclusion of Law in the Recommended Order. Proposed findings of fact in paragraph 35 are further discussed in Appendix B. Proposed findings of, fact in paragraphs 37-39 are adopted in material part in the Recommended Order. The proposed finding of fact contained in paragraph 40 is essentially argument and is discussed in the Conclusions of Law in the Recommended Order. Proposed finding of fact in paragraph 41 does not accurately state the record as sighted. Mr. MacDonald was accepted as qualified to express opinions in the areas of design, implementation and operation of digital dictation systems. The record also reflects that Mr. Montali is qualified to express certain opinions with regard to dictation systems and his testimony was accepted in rebuttal to certain aspects of Mr. MacDonald’s testimony. 33 42-65. Proposed findings of fact in paragraphs 42-65 are adopted in the Recommended Order only to the extent that such facts are relevant and necessary to the conclusions reached. The issue of the necessity for the technical detail contained in the testimony cited is discussed in the Conclusions of Law in the Recommended Order. 66-68. The proposed findings of fact in paragraphs 66-68 are adopted in the Recommended Order only to the extent such facts are relevant. To the extent that the proposed findings of fact in paragraphs 66-68 are argument, such arguments are discussed in the Conclusions of Law in the Recommended Order. The proposed findings of fact in paragraph 68 are further discussed in paragraph 69 of the Recommended Order. 69-73. Findings of fact proposed in paragraphs 69-73 are rejected as not relevant. The requirements are discussed for ports and storage hours pursuant to Addendum 2 to the ITB in paragraphs 63-65 of the Recommended Order. These issues are further addressed in the Conclusions of Law in the Recommended Order. 74. The proposed findings of fact in paragraph 74 are not supported by the evidence. 75. The proposed findings of fact in paragraph 75 are adopted to the extent material in paragraph 68 of the Recommended Order. Rulings on Respondent HRS’ Findings of Fact (As Proposed in the HRS Corrected Proposed Recommended Order) 1-12. The proposed findings of fact in paragraphs 1 to 12 are adopted in material part in the Recommended Order. 13. Proposed finding of fact in paragraph 13 is rejected as not necessary to the conclusions reached. 14-23. Proposed findings of fact in paragraphs 14 to 23 are adopted in material part in the Recommended Order. 24. The proposed finding of fact in paragraph 24 is not necessary to the conclusions reached. 25-29. The proposed findings of fact in paragraphs 25 ta 29 are adopted in material part in the Recommended Order. 30-31. The proposed findings of fact in paragraphs 30 and 31 are rejected as stated. These proposed findings of fact are addressed in paragraphs 35 and 36 in the Recommended Order. a 34 32-37. The proposed findings of fact in paragraphs 32 to 37 are adopted in material part in the Recommended Order. 38-39. The proposed findings of fact in paragraphs 38 and 39 are addressed in the Statement of Issues portion of the Recommended Order. 40. The proposed finding of fact in paragraph 40 is addressed in paragraph 74 of the Recommended Order. 41-47. The proposed findings of fact in paragraphs 41 to 47 are adopted in material part in the Recommended Order. 48-49. The proposed findings of fact in paragraphs 48 and 49 are adopted, in material part, in paragraph 51 of the Recommended Order. 50. Proposed finding of fact in paragraph 50 is addressed in paragraph 67 of the Recommended Order. 51-55. Proposed findings of fact in paragraphs 51 to 55 are adopted in material part in the Recommended Order. 56. Proposed finding of fact in paragraph 56 is subordinate to the conclusions reached in the Recommended Order. Rulings on Intervenor Dictaphone’s Findings of Fact 1-3. The proposed findings of fact in paragraphs 1 to 3 are not necessary to the conclusions reached in the Recommended Order. 4-17. The proposed findings. of fact in paragraphs 4 to 17 are adopted in material part in the Recommended Order. 18. The proposed finding of fact in paragraph 18 is not necessary to the conclusions reached in the Recommended Order. 19-26. The proposed findings of fact in paragraphs 19 to 26 are adopted in material part in the Recommended Order. 27. The proposed finding of fact in paragraph 27 is not necessary to the conclusions reached. 28-60. The proposed findings of fact in paragraphs 28 to 60 are adopted in material part in the Recommended Order. 35 APPENDIX B TO RECOMMENDED ORDER CASE NO. 90-720i1BID Lanier also seeks to raise the issue of Dictaphone’s response to Paragraph 18 (G) of the ITB. Lanier concedes that it failed to raise the issue in its pleadings. Instead, Lanier cites Rule 1.190 (b), Fla. R. Civ. P. as authority to amend its pleadings to conform to the evidence. Lanier adduced testimony regarding this portion of the ITB in the first day of the final hearing. At this time in the proceedings Lanier was still maintaining that it bid was materially responsive. The reference to this item in the ITB came about by comparison of the respective responses in the bids of Lanier and Dictaphone at a time in the proceedings when such a comparison was relevant. Lanier argues that there was no objection at that time and apparently contends that Dictaphone and HRS thereby allow the issue to be tried by "implied consent." The failure of a party to object to testimony which may touch upon an unpleaded claim does not amount to consent to trial simply because such testimony might be pertinent to a different issue that is pled. National Aircraft Services, Inc. v. Aeroserv International, Inc., 544 So.2d 1063, 1064 (Fla. 3d DCA 1989). On the second day of the hearing, after Lanier had stipulated that its bid was not responsive, Dictaphone raised a timely objection to testimony regarding paragraph 18(G) on the basis of relevance. The objection was sustained. Dictaphone also objected to Lanier’s motion to amend its pleadings regarding Paragraph 18(G) on the grounds of 36 An prejudice. In an accelerated proceeding such as this, time for discovery is limited and a failure to limit issues tried to the issues properly pled is important to avoid "trial by ambush." Based on the foregoing reasons, attempt to argue this issue in its proposed recommended order is inappropriate and the issue is not considered in the resolution of this dispute. See, Rule 22I1-6.004(4), Florida Administrative Code. 37
The Issue The issue for consideration in this case is whether the Respondent's Rule 21E-17.001(20) is a valid exercise of delegated legislative authority.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, William R. Muldrow, was a licensed contractor and the Respondent, Construction Industry Licensing Board, was the state agency responsible for the licensing and regulation of contractors in Florida. Such regulation includes the promulgation of rules governing the practice of the contracting profession in this state. Section 489.129(1), Florida Statutes, authorizes the Board to, inter alia, "... require financial restitution to a consumer ..." by a licensee when it determines the licensee has committed any of the violations stipulated in that section. The word, "consumer" is not further defined anywhere in the statute. Thereafter, the Board promulgated Rule 21E-17.001(20) which, for any violation occurring after October 1, 1988, permitted the Board to order the contractor involved to make restitution in the amount of financial loss suffered by the "customer, subcontractor, or materialman", in addition to any other penalties provided by the guidelines set out within the rule. Petitioner, a contractor, is convinced that the statutory use of the term "consumer" is not so broad as to include the Board's application of it not only to customers but also to subcontractors and materialmen. He testified to that effect in support of his position, and presented the Final Order of the Board in DOAH Case No. 92-3951, Department of Professional Regulation v. William R. Muldrow, April 1, 1993. In that Order, the Board imposed discipline against the Petitioner herein to include suspension of his license, which suspension was stayed upon the condition that he satisfy a civil judgement entered against him within 30 days. On the other hand, Terry Manrique and Robert E. Watts, both contractors and both members of the Board, indicated it was the intention of the pro-active Board when it proposed the enabling legislation that reimbursement be required to any member of the public facing loss from the acts of a contractor. Its position was predicated upon the recognition by Board members, whose membership includes two consumers, that many contractors were failing to pay materialmen and upon its understanding that the law, as it existed, did not protect materialmen whose claims were for a sum less than $2,500.00. They claim it was the Board's intention that legislation be enacted to cover claims by a contractor's customers, materialmen, and subcontractors and assert the language of the legislation proposed by the Board made reference to all three classes. The proposed legislation was not provided, however. When the legislation was enacted it made reference only to consumers. Mr. Watts, the residential contractor member of the Board, has extensive experience in the legislative process having worked for the legislature for several years. He is directly familiar with the legislative revision section which "cleans up" proposed legislative language. In his experience, he found that drafters of legislation would often select a single word which was intended to include other, unstated matters. In that regard, Mr. Watts is of the opinion the use of "consumer" in the act was an umbrella word intended to include consumers, customers and the public. Mr. Watts concedes that throughout the Board's rules, the term, "consumer" is defined separately and other persons are defined elsewhere. These other rules were not introduced. Review of the instant rule, however, fails to indicate any other use of the term "consumer" though the word "customer" is used frequently. The Construction Industry Licensing Board serves not only the purchaser of a building but the public in general. One of the biggest problems within the construction industry is the contractor who fails to pay his bills and this failure constitutes a substantial danger to the public. If the contractor does not pay his suppliers of either material or labor, he injures the public. With this in mind, Mr. Watts urged that the intent of the enabling legislation here is to insure the contractors operate safely, competently and in good faith, and pay their bills. According to Mr. Watts, in the most recent legislative session, in furtherance of that aim, the Board secured the passage of legislation to establish a recovery fund, as opposed to a restitution fund. Repeatedly using the term "public", as opposed to "customer", "consumer", or "materialman", Mr. Watts is of the opinion the new fund "should" protect anyone who is injured by a contractor, including suppliers and materialmen.
