The Issue Whether Petitioner, Cordelia Brown, is eligible to receive a scholarship offered by the 2015 Florida Best and Brightest Teacher Scholarship Program.
Findings Of Fact The Florida Legislature created the Scholarship Program during its 2015 Session. Through the 2015 General Appropriations Act, the Legislature adopted proviso language in Specific Appropriation 99A (“Appropriation 99A”) allocating $44,022,483.00 to “award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT.” See Ch. 2015-232, § 2, 99A, at 27, Laws of Fla. To be eligible to receive the scholarship, Appropriation 99A stated that, “a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment.”2/ Appropriation 99A further provided that an “eligible teacher” was to apply to the employing school district no later than October 1, 2015. Thereafter, each school district was to submit to the Department the number of eligible teachers who qualified for the scholarship by December 1, 2015. By February 1, 2016, the Department was to disburse scholarship funds to each school district for each teacher who was to receive the scholarship. By April 1, 2016, each school district was to pay the scholarship award to each eligible teacher. Appropriation 99A further stated that if the number of eligible teachers exceeded the total appropriated amount ($44,022,483.00), the Department was to prorate the per teacher scholarship amount. On September 3, 2015, Petitioner timely applied to the School Board to receive the scholarship award under the Scholarship Program. On November 11, 2015, the School Board notified Petitioner that it had been determined that she did not qualify for the Scholarship Program. The School Board explained that Petitioner was not a “classroom teacher.” Therefore, she was not eligible to receive the scholarship. Petitioner is a first-year employee with the School Board. The School Board hired her at the start of the 2015-2016 school year. The School Board hired Petitioner as a speech- language pathologist. Prior to working for the School Board, Petitioner taught in Fulton County, Georgia. One factor in her decision to accept the School Board’s offer of employment and relocate to Florida was the Scholarship Program. For the 2015-2016 school year, Petitioner entered into a “Probationary Contract of Employment for Instructional Personnel of the Public Schools” with the School Board.3/ Petitioner holds a two-year, temporary teaching certificate issued by the Department in the area of Speech-Language Impaired. For the 2015-2016 school year, the School Board assigned Petitioner to work as a speech language pathologist at Brentwood Elementary. All of Petitioner’s students were identified as exceptional student education or “ESE” students. At Brentwood Elementary, Petitioner led two class subjects, Speech Therapy and Language Therapy. In her Speech Therapy class, Petitioner addressed her students’ problems with speech and fluency (e.g., stuttering). Petitioner’s Language Therapy class focused on the content of what is being said (i.e., expressive and receptive language). Petitioner instructed students in areas including reading, reading aloud, and analysis. Petitioner instructed a total of 25 students over six class periods. Her classes consisted of small groups of two-to- four students. Petitioner’s students ranged in age from pre- kindergarten through fifth-grade. For her six classes, Petitioner prepared daily lesson plans. Her lesson plans targeted the goals and objectives on each of her students’ individualized education plans. She aligned her lesson plans with Florida state standards. Some of the state standards are general education grade-level standards, and some are specific to speech or language therapy. Each lesson plan included sections addressing “Setting the Purpose for Learning,” “Instruction and Assessment,” “Teacher Supported Guided Instruction,” and “Application.” Petitioner submitted her lesson plans to her assistant principal for a quarterly review. Petitioner was observed and evaluated by her assistant principal using the same form used for evaluating other teachers at Brentwood Elementary. Petitioner was observed and evaluated on criteria related to the instruction she provided to her students as well as the culture of her classroom. The School Board reported that Petitioner is “outstanding” in her role and was doing “a great job” according to the Brentwood Elementary administration. The School Board further relayed that “there is no question that [Petitioner] is an up-and-coming great professional.” The School Board denied Petitioner’s application because it did not consider a speech language pathologist to be eligible for the Scholarship Program. The School Board explained that it understood the term “teacher” as used in Appropriation 99A to mean a “classroom teacher” as that term is defined in section 1012.01(2)(a). The School Board did not believe that Petitioner fit into the definition of a “classroom teacher.” The School Board described a “classroom teacher” as a “person who is in charge of the whole classroom who is doing the daily instructional services to the kids.” In contrast to a “classroom teacher,” the School Board considers speech-language pathology as a type of “related service.” Related services are services provided to exceptional- education students to assist them in accessing and benefiting from classroom instruction. The School Board considers its “classroom teachers” and speech language pathologists to possess different skill-sets, bases of knowledge, and job goals and responsibilities. Speech-language pathologists have a specific role to support other teachers by helping students meet their educational goals. The School Board described Petitioner’s job duties as “therapeutic services.” In general, speech-language pathologists are professionals who assess, diagnose, and provide therapeutic treatment for various speech, language, and hearing disorders. In her role at Brentwood Elementary, Petitioner provided a comprehensive program to her ESE students to treat those students’ specific speech or language impairments. Petitioner’s Speech Therapy and Language Therapy classes were provided to two- to-four students at a time who were evaluated and deemed to have a disability that impacted their educational classroom performance. Petitioner taught her selected students specific skills or coping mechanisms that would allow them to overcome their impairments in order to better access instruction and curriculum. In other words, Petitioner’s focus was to give her students the ability to learn. The School Board further explained that Petitioner’s “lesson plans” are referred to in the therapy setting as “plans of care.” Plans of care are similar in form to lesson plans created by classroom teachers, but they differ in substance. Classroom teachers’ lesson plans set forth strategies for an educator to deliver instruction to an entire classroom. Speech- language pathologists’ plans of care, on the other hand, set forth tailored therapy plans that address an individual student’s specific impairment. In addition, Petitioner’s class roster is referred to as a “caseload.” Furthermore, while the Petitioner’s Speech Therapy and Language Therapy classes were assigned course codes similar to general education course codes, her two classes were specially coded. Petitioner’s students did not receive course credit for attending her classes with the therapy course code designation. Testimony at the final hearing, however, revealed that in an academic setting the goals and responsibilities of a speech-language pathologist have objectives similar to a “classroom teacher’s.” Sonia Figaredo-Alberts, the School Board’s executive director of pupil support services, who is also a speech-language pathologist, recognized that Petitioner “is instructing students with communication disorders.” Ms. Figaredo-Alberts explained that “we, as speech and language pathologists assist with very specific targeted areas . . . we do a very therapeutic intervention. We’re teaching [our students]. There’s no question that our therapy is about teaching that student specific skills . . . in a very thorough and specialized area.” According to Appropriation 99A, the Legislature gave the decision regarding a “teacher’s” eligibility to receive a scholarship to the school districts. Appropriation 99A directed each Florida school district to receive teacher applications for the Scholarship Program and to submit the number of eligible teachers who qualified for the scholarship to the Department. While processing applications, several school districts sent questions to the Department regarding the implementation of the Scholarship Program. In particular, the Department received inquiries regarding who should be considered a “teacher” for purposes of the scholarship. Although the Department administered the Scholarship Program, Appropriation 99A did not grant the Department rulemaking authority. Therefore, the Department did not adopt rules regarding what teachers were eligible for the scholarship. The Department, however, did prepare and issue a memorandum addressing school districts’ commonly asked questions. On July 27, 2015, Hershel Lyons, chancellor of the Division of Public Schools for the Department, issued a memorandum entitled “Guidance on Best and Brightest Teacher Scholarship” (the “Memorandum”) to the Florida School District Superintendents. The Memorandum provided that “[t]eachers eligible for the Best and Brightest Teachers Scholarship Program are classroom teachers as defined in [section] 1012.01(2)(a), F.S., who are employed by Florida school districts, charter schools, or the [Florida School for the Deaf and Blind].” The Department based its interpretation of the term “teacher” on the various classes of employees set forth in section 1012.01(2)(a). The Department determined that the term “classroom teacher” in section 1012.01(2)(a) provided the best definition of the word “teacher” for purposes of the Scholarship Program. On September 4, 2015, Chancellor Lyons issued a second memorandum to School District Superintendents with an attached Frequently Asked Questions document. The Frequently Asked Questions provided, in relevant part: What are the eligibility criteria for the Best and Brightest Teacher Scholarship Program? In order to meet eligibility requirements for the scholarship, the individual must: Be a classroom teacher as defined in section 1012.01(2)(a), Florida Statutes . . . * * * According to section 1012.01(2)(a), F.S., what is the definition of a classroom teacher? Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education and adult education, including substitute teachers. Upon reviewing the Memorandum, the School Board believed the Department confirmed its view that “classroom teachers” were the only individuals eligible for the Scholarship Program. The Department did not follow up to determine whether any school district followed its guidance. The Department did not believe that Appropriation 99A gave it that authority. The Department received the names of 5,332 teachers that the school districts determined were eligible for the scholarship awards. Appropriation 99A directed the Department to act as the fiscal agent for the Scholarship Program. As Appropriation 99A directed, the Department disbursed scholarship funds by February 1, 2016.4/ The Department prorated the scholarship funds so that each eligible teacher received approximately $8,300. Based on the evidence and testimony presented during the final hearing, Petitioner proved, by a preponderance of the evidence that she qualifies for the Scholarship Program. Accordingly, the School Board should take the necessary steps to ensure that Petitioner receives the appropriate scholarship award contained in Appropriations 99A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County, Florida, issue a final order fulfilling its responsibilities under Appropriation 99A, i.e., submitting Petitioner’s name to the Department of Education as a teacher eligible for the scholarship created by the 2015 Florida Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 13th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 13th day of June, 2016.
The Issue Whether respondent discriminated against petitioner on account of his age in terminating his employment, in violation of the Florida Human Relations Act, Section 760.10 et seq., Florida Statutes (1989)?
Findings Of Fact On July 3, 1989, when he was fired, Neal C. Currow, who was born on January 20, 1927, was by far the oldest employee (T.180) at the Panama City Marine Institute, (PCMI) a non-profit corporation that contracts with the Bay County School Board to provide alternative education programs; and with co- respondent Associated Marine Institutes, Inc. (AMI) to rehabilitate juvenile delinquents or furnish other services for young people. AMI "consists of" (T.225) or "operates" (T.226) 28 schools or institutes like PCMI, of which 13 are in Florida. AMI contracts with the Department of Health and Rehabilitative Services (HRS) to provide services, then subcontracts with its constituent schools. AMI has "central bookkeeping . . . all the payroll is done in Tampa." T.228. But AMI does not maintain complete personnel files on each employee centrally. A "40 year Water Safety Instructor Trainer with the American Red Cross," (T.181) Mr. Currow also holds a "100 ton Master's license for . . . Auxiliary Sail," id., issued by the U.S. Coast Guard. After 18 years as an independent building contractor, he became a junior college teacher and "started all of the building programs for the Gulf Coast [Junior] College." Id. Mr. Currow wears a hearing aid, but he still does aerobics five days a week. Before he went to work for PCMI as a paid employee on September 29, 1980, Mr. Currow had worked as a volunteer for approximately a year, donating money and the use of his motor home, as well as time. A "stable employee, he had all the knowledge . . . [and was] relied on for information . . . [about] how to do things." T.139. Other employees looked up to him and the children respected him more than most of the other teachers. Id. At PCMI, he suffered the gibes of Jack Ross, George M. "Mike" Larson, who was director of operations at the time, Mr. Larson's successor, with apparent good humor. In staff meetings, Messrs. Ross and Larson referred to him as "the old man" and "the old fossil." T.140-1. When Mr. Larson did "his hearing aid thing" (T.140), i.e., telling Mr. Currow to "turn it up Neal, or turn it down, Neal, or something referring to it . . . Jack would laugh." T.140. Danny Grizzard referred to Mr. Currow as "the old man" five or ten times a week, sometimes behind his back, and frequently asked questions like "Does Neal have his hearing aid turned up?" T.121. Danny Grizzard is "in his 40's" (5.12) and Jack Ross is "[m]aybe a couple of years younger." Id. As seamanship and vocational instructor at PCMI, Mr. Currow taught sailing and woodworking. T.30. He also had duties as a "Deep Sea Captain" (T.615) and "did all the training of the staff in aquatics." Id. He regularly took student teams to sailing regattas. Petitioner chaperoned "more student trips that anybody [else] in the institute. In fact, [he] taught about student trips at . . . staff conferences every year." T.172. On such trips and otherwise, PCMI students required supervision, an institute policy that was "stressed continually." T.221. The policy is that "[c]hildren should remain within the eyesight of the staff that they're assigned with," (T.17) but the policy was not always followed. T.105, 158. On overnight trips, official policy specified that the ratio of students to staff should not exceed 5 to 1. Petitioner's Exhibit No. 1, but compliance with this policy, too, was a sometimes thing. The Early Years As executive director of PCMI from March of 1983 to August of 1988, Larry Schmidt spoke to Mr. Currow about supervising children at least twice. Early on in this five-and-a-half-year period, on two occasions, students under petitioner's supervision reoprtedly misbehaved, both times at Etheridge Marina in Panama City. Once students smoked in the bathroom there and another time there "was a theft . . . [of] sodas or something," (T.221) or so Mr. Schmidt heard. Mike Larson, PCMI's Director of Operations for approximately a year ending in the middle of March 1989, testified that petitioner "would become insubordinate with me." T.214. He also testified: "[H]is students might be out on the dock and he would be in his classroom, okay, out of his supervision. There's other times, one case in memory, the students was in his classroom and he was next door at a business getting parts." T.213. (Of course, testimony that something "might be" cannot establish what in fact occurred.) Mr. Larson spoke to Mr. Currow about supervising the students on "several occasions." T.213. Jack K. Ross succeeded Mr. Schmidt as PCMI's Executive Director, approximately half way through Mr. Larson's tenure as operations director. Mr. Ross remembered an occasion in August of 1988 when Mr. Currow was in his classroom while "the kids were outside in the back yard without a staff member" (T.39) and another time when "there were kids out there on the dock . . . [and petitioner was in the seamanship] room getting fishing gear." T.39. On the latter occasion, Mr. Ross testified, he "walked into the seamanship room and I said, 'look Neal, you need to be with your kids', and he said, 'well, I can't be in two places at one time.' And I said, 'well then, you need to bring your kids with you in the class and do it as a group.' And at the staff meetings I reiterated the supervision on a couple of occasions." T.39. On at least one other occasion, Mr. Ross spoke to Mr. Currow individually about supervising children. Written Expectations Like Mr. Larson, Mr. Ross felt Mr. Currow was insubordinate at times. After Mr. Ross spoke to O.B. Standard, AMI's vice-president of operations, about petitioner, Mr. Standard visited PCMI, where he spoke further with Mr. Ross "worked with . . . [Mr. Larson] on his people skills" (T.51); and "had a nice conversation [with Mr. Currow] . . . for two or three hours . . . about supervision [and] everything else you could imagine." T.190. At Mr. Standard's suggestion, Mr. Ross then wrote Mr. Currow this memorandum, dated November 28, 1988: Neal, as a veteran staff member at PCMI, you are a vital part of a very elite team. Your commitment to PCMI and the kids over the past 10 years is of the finest standards. Your hard work and dedication has made you a legend within PCMI. As you are aware, there have been a few changes at PCMI over the previous months. As a professional, I am soliciting your help in supporting me with some of these often difficult changes. There comes a time in everyone's life when we have to stop and decide whether we can adapt and change, or whether we need to step down to reach a new personal challenge. Should you decide to remain with PCMI and continue using your expertise towards helping the troubled youth of Bay County, there are a few expectations I ask that you must consider. Below I have outlined what I expect from every member of the PCMI staff to continue to make PCMI a winning team. Supervision--a maximum of 7:1 ratio of students to staff member. You are to remain with the students you are assigned. Everything during the course of the day that you are involved with, should be done with every member of your class. Never separate the class and put yourself in a position where you cannot intervene with a situation. Negative comments--to display teamwork and integrity among the kids, we cannot expose ourselves as being negative around the students. Talking negative around the students about other staff members is not acceptable behavior. As a member of the PCMI team we are being observed the community 24 hours a day. When comments are made concerning the institute, they should always be made with PCMI's best interest at heart. Supporting the D.O.--The Director of Operations is the conductor of the orchestra. If he is not supported by the rest of the team, then the kids suffer. As the Executive Director I will not allow the kids to suffer. It is your responsibility to support the Operations Director if you are to remain a part of the team. Insubordination--insubordination is not accepting authority. As a captain you know that every member of your crew cannot give orders to control the boat. You expect every crew member to lend a hand and accept orders to ensure the success of the cruise. The same is true at PCMI. Insubordination is not acceptable at PCMI. These are the only changes I have made that I think you should re-evaluate. What I am talking about are values. Values are what we are trying to teach the kids. If we do not display them, then we are being hypocritical with the students. Neal, we need you at PCMI, and I sincerely hope you decide to personally accept these challenges and join the team again. Should you decide to continue with PCMI, and I hope you do, I and the rest of the PCMI team are willing to help you work on these problem areas. If this is asking too much, then I understand and I wish you the best of luck in the future. Respondent's Exhibit No. 3. Aside from this memorandum, no writing in respondent's personnel file made mention of any problems supervising students. T.50. Not long after the memorandum was written, PCMI sent Mr. Currow to Dallas with five or six students to pick up a sailboat. (T.193). Single Incident Next Year In years past staff and students alike had attended regattas on St. Andrew Bay as spectators when the PCMI team Mr. Currow coached participated. T.20. Again in 1989, the PCMI team won the regatta. But, when at least one instructor asked to take her students to watch, Danny Grizzard, who had taken over from Mr. Larson as operations director on March 6, 1989, had denied permission. Mr. Currow and seven PCMI students were together day and night during the regatta, which began on the last Monday in June and finished the following Thursday, June 29, 1989. At the banquet and awards ceremony with which the regatta concluded, Mr. Currow told Mr. Grizzard that "he and the kids were going out for ice cream with one of the other teams and that he was going to spend the night [with the students on a sailboat anchored] at the park." T.62. One of the young sailors in petitioner's charge that night, Shane Hernandez, lived on the same street as Fran, petitioner's "lady friend." At least as early as the banquet, there was talk of watching television at Shane's house. After the banquet and after ice cream, petitioner acquiesced, taking the students to Shane's house, where they found "the lights on . . . and the cars . . . there." T.171. While the others waited outside in the van, Shane went inside ostensibly to learn, as respondent had asked him to find out, if it would be "okay for [them] to watch TV." T.171. Shane reappeared saying it was "okay," and petitioner let the other students out of the van, saying he would be right back. Only later did Mr. Currow learn that neither Shane's parents nor any other adult had been at home when he left the children there. T.207. After dropping the students off at the Hernandezes', he drove "two doors down" "probably around 75 yards" (T.13) to his friend's house, parked and went inside. Before the awards banquet, Mr. Currow had gotten word that his mother was "in the hospital in Pensacola again, and . . . [had] a blood clot in her leg." T.170. Using Fran's telephone, he spoke to a hospital nurse in Pensacola. Fifteen or twenty minutes after dropping the children off, he started for the Hernandez home on foot. The students met him before he reached the house, asking for something to drink. Evidently Mr. Hernandez's girlfriend, who arrived at the Hernandez house shortly after the children did, (T.136) had nothing to offer. After Fran served the boys soft drinks, Mr. Currow drove them back to the sailboat where they all spent the night. Friday morning they returned to PCMI. Petitioner Discharged The next day Danny Grizzard telephoned Shane Hernandez. In response to his questions, Shane told him that the students had been unsupervised for 15 or 20 minutes. Immediately after talking to Shane, he telephoned Mr. Ross, and relayed the news. The next Monday, a day off for petitioner, Mr. Grizzard summoned him to PCMI's offices, where he and Jack Ross told him he no longer had a job. "Neal, you['ve] finally done it," (T.169) Mr. Ross said. Perplexed, Mr. Currow did not realize what he was talking about at first. Then he or Mr. Grizzard told him of the report that the children had been left unsupervised for 15 or 20 minutes, but nothing was said about his having sole supervision overnight of seven (rather than five or less) students, a ratio his supervisors had countenanced. Learning that Mr. Currow had resigned or been discharged, students prepared a petition which stated, in part: "We feel it is unfair that the most valued and loved instructor at PCMI be punished because he trusted us." Respondent's Exhibit No. 5. The petition was signed by 27 students, perhaps all of the students at PCMI. (Eric Hernandez, Shane's father, testified for petitioner at hearing.) Younger Men Hired The preceding Thursday (the day of the awards banquet), PCMI had hired Eddie Prevost, at the time 27 or 28 years old, to instruct in scuba diving and to do woodworking. "He did some vocational work, that was his background." T.34. Mr. Prevost, who, when hired, filled a newly created position, took over petitioner's duties as vocational instructor, after petitioner was discharged. The vacant slot created by petitioner's termination was filled by 25- year-old John Penland, who took over petitioner's duties as seamanship instructor. To the extent the place Mr. Currow had held in the organization was filled, younger men took his place. PCMI "had additional funding in July and . . . split the position into two positions . . .." T.74. PCMI "replaced [petitioner] with a vocational instructor and a seamanship instructor." Id. Some time after the discharge, PCMI proposed to petitioner that he continue training staff in aquatics on a contract basis, but petitioner turned down this offer to work two weeks a year for $75.00 a day. T.177. At no time after July 3, 1989, did AMI or PCMI offer petitioner any other employment. T.176. Nobody was hired to train staff in aquatics, as far as the evidence disclosed. Incident Was Pretext AMI and PCMI attach understandable importance to supervision of children for whom they are responsible. Yet, as far as the record shows, PCMI has never terminated any other employee for failure to supervise students. T.244. This is so even though it "was not unusual" (T.105) at PCMI for students to be out of sight of the instructors responsible for their supervision. T.158, 176. Sometimes as many as 14 students would be assigned clean-up out of doors (as punishment) and left without supervision, except for checks every 40 minutes or so. T. 106, 142. Certain staff members frequently permitted children to walk between the PCMI campus and the civic center unsupervised. These facts were known to some, probably all, supervisory personnel. Between November of 1988 and February 1, 1991, some of the 27 other schools that, together with PCMI, comprise AMI discharged a total of 43 employees citing problems supervising children. Respondent's Exhibit No. 7. The severity and frequency of such problems are not a matter of record, however, and nobody who had worked nearly as long as petitioner had was terminated for this reason. Id. Respondents showed that, of the 44 people discharged for student supervision problems during this period by all 28 schools, petitioner was the oldest: eight others were over 40 years old and four of them were also over 50. Respondent's Exhibit No. 7. The fact that Mr. Currow left the sailing team unsupervised for 15 or 20 minutes at the Hernandez house was not the real reason for his discharge, although, as petitioner himself conceded, Respondent's Exhibit No. 4, this lapse was a breach of institute policy for which discipline was appropriate. Messrs. Ross and Grizzard did not themselves view the incident as an adequate reason to discharge petitioner. Petitioner's dismissal was out of keeping with past practice at PCMI. His firing came as a genuine and understandable surprise to him and others, and was viewed by virtually everyone other than the decision-makers as an injustice. E.g., Respondent's Exhibit No. 5. The reaction to his discharge reflected how drastic the departure from ordinary practice was, and how implausible the reason assigned for the termination was.
Recommendation It is, accordingly recommended that the Florida Commission on Human Relations enter an order requiring respondents to reinstate petitioner (or make an appropriate award of front pay) and award back pay, attorney's fees and costs; and, in the event the parties cannot agree on the details of relief, that the Commission remand for further hearing as necessary. RECOMMENDED this 14th of October, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7301 With respect to petitioner's proposed findings of fact Nos. 1 and 2, Mr. Currow was a paid employee for less than nine years. Petitioner's proposed findings of fact Nos. 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, and 21 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except for the date. With respect to petitioner's proposed findings of fact Nos. 6 and 8, somebody else was sent to help at one point. With respect to petitioner's proposed finding of fact No. 16, no such termination occurred after November of 1988, except for Mr. Currow's. With respect to petitioner's proposed finding of fact No. 19, the evidence did not show that the hearing impairment was age related. Respondent's proposed findings of fact Nos. 1, 2, 4, 9, 10, 11, 12, 13, 14, 15, 18, 24, 25, 26, 27, 28 and 30 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 3 and 33, numerous instances of students' going unsupervised were proven, including a 45-minute lapse by Mr. Grizzard. With respect to respondent's proposed findings of fact Nos. 5, 6, 7 and 8, nobody present at the time testified to these events. With respect to respondent's proposed finding of fact No. 16, the letter did not warn "that any further occurrence . . . would result in disciplinary action or termination." With respect to respondent's proposed finding of fact No. 17, it was not shown this was attributable to supervision as opposed to insubordination problems. Respondent's proposed findings of fact Nos. 19 through 23 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 29, petitioner was not offered work in a residential program. With respect to respondent's proposed finding of fact No. 31, Prevost was hired before July 3, 1989. With respect to respondent's proposed finding of fact No. 32, Penland assumed some of petitioner's duties. COPIES FURNISHED: Ronald M. McElrath, Executive Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Rhonda S. Clyatt, Esquire P.O. Box 2492 Panama City, FL 32402 E. John Dinkel, III, Esquire Macfarlane, Ferguson, Allison & Kelly P.O. Box 1531 Tampa, FL 32601 Dana Baird, Esquire Harden King, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue Whether Petitioner has defaulted on student loans and, if so, the principal amounts due on the loans, as well as accrued interest, and collection costs. Whether Petitioner's employer should be required to withhold payments from Petitioner's pay pursuant to Section 112.175, Florida Statutes.
Findings Of Fact Petitioner is Johnny Martin. Petitioner's mailing address is 11431 Quailhollow Drive, Jacksonville, Florida. Respondent is the Florida Department of Education. The Department's business address is 325 West Gaines Street, Tallahassee, Florida. The Department is a guarantee agency which holds the loan account in question after paying the claim of the lender on July 28, 1994. All loans in this proceeding are Supplemental Loan(s) for Students (SLS), also known as Florida Auxiliary Loans. SLS loans are not subsidized by the federal government. Therefore, the federal government has no responsibility for payment of interest during periods of deferment or forbearance and there is no grace period for SLS loans. During any period of deferment or forbearance, such as when a borrower is unemployed, the borrower's repayment obligation may be suspended; however, interest accrues to the account for which the borrower is responsible. When the deferment or forbearance ends, the outstanding interest is capitalized on the loan. SLS loans accrue interest at the rate of 12 percent per year from the date of disbursement. Persons eligible to receive SLS loans include parents of dependent undergraduate students. As set forth below, Petitioner, as parent of an eligible dependent undergraduate student, received four SLS loans. Loan 1: Petitioner applied for and received Loan A000000442 in 1983. This loan, in the amount of $3,000.00, will be referred to as Loan 1. Although the Department is the guarantor of Loan 1, the lender never declared the loan in default or sold it to the Department. Therefore, Loan 1 is not at issue in this proceeding. Loan 2: Petitioner applied for and received Loan A000001064 in 1984. This loan, in the amount of $3,000.00, will be referred to as Loan 2. The lender declared Petitioner in default and sold Loan 2 to the Department as guarantor. Because Loan 2 was in repayment status for more than seven years, exclusive of suspensions of the repayment period, Loan 2 was discharged in bankruptcy. Therefore, Loan 2 is not at issue in this proceeding. Loan 3: Petitioner applied for and received Loan A000003767 in 1985. This loan, in the amount of $3,000.00, will be referred to as Loan 3. The lender declared Petitioner in default and transferred Loan 3 to the Department as guarantor. Because Loan 3 was in repayment status for more than seven years, exclusive of suspensions of the repayment period, Loan 3 was discharged in bankruptcy. Therefore, Loan 3 is not at issue in this proceeding. Loan 4: On or about August 5, 1986, Petitioner executed an Auxiliary (SLS) Loan application on behalf of his daughter, Kelly Aleta Martin, an eligible dependent undergraduate student. On or about September 8, 1986, Petitioner executed the promissory note for this loan. This SLS Loan was in the amount of $3,000.00. This loan was disbursed on or about October 9, 1986. The Department guaranteed this loan. Throughout exhibits presented by the Department, the loan number for this SLS Loan is A000007005; however, for convenience, herein this loan will be referred to as Loan 4. Loan 4 is the only loan at issue in this proceeding. Petitioner's first payment for Loan 4 was due October 25, 1986. The payment due date later changed to the 20th of each month. Petitioner's last payment to the lender was made on July 17, 1990. However, as Petitioner was behind in his payments, this payment was applied to the payment due May 20, 1990. The Petitioner is considered in repayment status for 44 months, from October 1986 through May 1990. A borrower is not considered in repayment status during any suspension of the repayment period, including any period of forbearance or deferment. Petitioner applied for and received an unemployment deferment on September 18, 1990. This deferment was for the period from July 21, 1990 through December 28, 1990. Because Petitioner was not current in his payments, he requested and received a forbearance from the lender for the payments due on June 20 and July 20, 1990, in order to qualify for the unemployment deferment. The forbearance together with the unemployment deferment brought Petitioner current in his payments; however, they suspended the repayment period for Loan 4 for seven months (two months for the forbearance and five months for the deferment). Petitioner failed to make any payments following the deferment period ending December 28, 1990. Petitioner applied for and received an unemployment deferment on April 23, 1991. This deferment was for the period from February 24 through July 23, 1991. Because Petitioner failed to make any payments following the deferment ending December 28, 1990, he again requested and received a forbearance for the payments due January 20 and February 20, 1991. The forbearance and unemployment deferment brought Petitioner current in his payments; however, they again suspended the repayment period for Loan 4 by another seven months (two months for the forbearance and five months for the deferment). Following Petitioner's unemployment deferment ending July 1991, he failed to resume payment to the lender beginning August 20, 1990. Thereafter, the lender declared Petitioner in default and made application to the Department for claim payment based on the guarantee. However, the Department refused to pay the lender's claim citing due diligence violations, and as a result, Petitioner is considered in repayment status from August 20, 1991 through April 20, 1992, or nine months, even though no payments were actually received by virtue of his Fresh Start Application. Petitioner submitted a Fresh Start Application to the lender dated May 13, 1992. This document reaffirmed the student loan obligation and, when received by the lender on May 19, 1992, reinstated the Department's guarantee of Loan 4. In an application dated May 24, 1992, Petitioner requested another unemployment deferment. The lender refused Petitioner's request for an unemployment deferment due to the fact that Petitioner was working at the time. However, the lender granted Petitioner a forbearance. This forbearance covered payments due from May 20 through December 20, 1992. Thereafter, Petitioner again requested and was granted forbearance of payments due through June 20, 1993. These forbearances, from May 20, 1992 through June 20, 1993, suspended the period Loan 4 is in repayment status by 14 months. Petitioner failed to resume payments beginning July 20, 1993, the final due date at default. In 1994, the lender declared Petitioner in default on Loan 4 and made application to the Department for claim payment based on the guarantee. The Department paid the default claim on Loan 4 on July 28, 1994. Although no payments were received from July 20, 1993 through July 20, 1994, or 13 months, Petitioner is considered in repayment status for that time because there was no forbearance or deferment in place. When the Department acquired Loan 4, Petitioner owed $2,195.68 in principal and $290.19 in accrued (claim) interest. These figures were capitalized by the Department and yield the figure of $2,484.18 in capitalized principal which is subject to interest at the rate of 12 percent per year. Beginning in 1995, Petitioner entered into a voluntary wage garnishment agreement with the Department. Under this agreement and through the period Petitioner was under the bankruptcy court's jurisdiction, a total of $383.95 was received by the Department and applied to Petitioner's account in accordance with Title 34, Code of Federal Regulations Section 682.404(f), relating to how borrower payments will be applied. The entire amount received was applied to outstanding interest. Prior to filing bankruptcy, Petitioner's Loan 4 was considered in repayment status from July 29, 1994 through January 5, 1995, during the time it was held by the Department. The Petitioner was credited for being in repayment status for five months, even though he made no payments. Additionally, Petitioner was credited for being in repayment status for 12 months in 1995, whether or not regular payments were received under Petitioner's voluntary wage garnishment agreement. Because Petitioner filed for bankruptcy prior to the January 20, 1996, the payment due date, the month of January 1996 cannot be counted as being in repayment status. Petitioner filed for Chapter 13 bankruptcy protection on January 11, 1996. The Department filed a proof of claim with the bankruptcy court for Loans 2, 3, and 4 in the principal amount of $5,571.91, the amount of capitalized principal due on the accounts. The Department filed with the court the claim of $5,647.02 due on the accounts through date of filing the case. See item 5 on page 2 of Department's Exhibit 5. This amount was the capitalized principal and interest due. On February 4, 1999, the United States Bankruptcy Court for the Middle District of Florida, Jacksonville Division, issued an "Order Discharging Debtor After Completion of Chapter 13 Plan" in Petitioner's case, number 96-00175-3F3. That order provides in pertinent part, "The debtor is discharged for all debts provided for by the plan or disallowed under 11 U.S.C. [Section] 502, except any debt . . . for a student loan or educational benefit overpayment as specified in 11 U.S.C.[Section]523(a)(8)." In 1996, Title 11 United States Code Section 523(a) provided in pertinent part: A discharge under . . . this title does not discharge an individual debtor from any debt-- for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an education benefit, scholarship or stipend, unless-- such loan, benefit, scholarship, or stipend overpayment first became due more than 7 years (exclusive of an applicable suspension of the repayment period) before the date of the filing of the petition . . . Pursuant to this order, Petitioner's debt to the Department for Loans 2 and 3 was discharged. The first payment for Loan 4 was due October 25, 1986. Petitioner filed for bankruptcy on January 11, 1996, nine days prior to the payment due date of January 20, 1996. There were 111 months from the month the first payment of Loan 4 was due through the month prior to the filing of bankruptcy (the month that bankruptcy was filed cannot be counted if the payment due date was after the date Petitioner filed for bankruptcy). Petitioner was in forbearance or deferment status for 28 months which suspends the period Loan 4 is considered in repayment status. Petitioner was in repayment status on Loan 4 for 83 months regardless of whether he actually made payments on the account. Therefore, Loan 4 was not discharged. Section 682.410(b)(2) of Title 34, Code of Federal Regulations, provides that the Department shall impose collection costs as follows: Collection charges. Whether or not provided for in the borrower's promissory note and subject to any limitation on the amount of those costs in that note, the guarantee agency shall charge a borrower an amount equal to reasonable costs incurred by the agency in collecting a loan on which the agency has paid a default or bankruptcy claim. These cost may include, but are not limited to, all attorneys fees, collection agency charges, and court costs. Except as provided in [Sections] 682.401(b)(27) and 682.405(b)(1)(iv), the amount charged borrower must equal the lesser of -- The amount the same borrower would be charged for the cost of collection under the formula in 34 CRF 30.60; or The amount the same borrower would be charged for the cost of collection in the loan was held by the U.S. Department of Education. The Department established that the amount of the annual collection cost mandated by Title 34 Code of Federal Regulations Section 682.410(b)(2) for the loan at issue in this proceeding should be calculated at least annually at the rate of 25 percent of the outstanding principal and accrued interest. Petitioner agreed to pay these costs in the application and promissory note he executed. Petitioner is employed by the Duval County School Board, a political subdivision of the State of Florida. As an employee of a political subdivision of the State of Florida, Petitioner is subject to the provisions of Section 112.175, Florida Statutes, and Chapter 28-40, Florida Administrative Code. These provisions pertain to employees of the State of Florida or its political subdivisions who have defaulted on an education loan made or guaranteed by the State of Florida. The Department notified Petitioner by letter dated August 13, 1999, that he had one or more student loans in default and offered him the opportunity to make voluntary payments on the loans. The letter also advised Petitioner that the Department would seek to make involuntary withholdings if he did not make voluntary payments. Petitioner elected to request the formal hearing which triggered this proceeding. As stated above, the capitalized principal due the Department for Loan 4 is $2,485.87. This amount reflects the principal due and the outstanding interest accrued on the account at the time the Department acquired the loan from the lender. All payments received by the Department were applied to outstanding interest which accrued on the account after the loan was bought by the Department, and no payment was applied to the capitalized principal. The capitalized principal accrues interest at the rate of 12 percent per year of $.82 per day. As of February 4, 1999, after taking into consideration the $383.95 received by the Department, the unpaid accrued interest for Loan 4 was $881.74. Pursuant to federal regulations collection costs assessed at the rate of 25 percent of principal and interest due as of February 4, 1999, were $867.08. Therefore, as of February 4, 1999, the total principal, interest, and collection costs due for Loan 4 totaled $4,234.69. Interest continues to accrue to the account as provided by law and collection costs may be reassessed as provided by law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order that adopts the findings of fact and conclusions of law contained herein, finds that Petitioner, as of February 4, 1999, owes the sum of $4,234.69, and orders the involuntary wage withholding of Petitioner's pay through his employer, Duval County School Board, pursuant to Section 112.175, Florida Statutes, and Chapter 28-40, Florida Administrative Code. DONE AND ENTERED this 22nd day of December, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 22nd day of December, 2000. COPIES FURNISHED: Johnny Martin 11431 Quailhollow Drive Jacksonville, Florida 32218-3621 Ronald G. Stowers Assistant General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent, Lissa Nappier, committed the violations alleged in the Notice of Specific Charges and, if so, whether such allegations are just cause for termination of her employment with the School Board.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Lissa Nappier, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. The Respondent’s employment relationship with the Petitioner began in 1984 when she was retained as a temporary instructor. In 1988 she was hired as a permanent teacher and was assigned to Homestead Senior High School where she has continued service until the instant issues emerged. From 2004 until the time of her recommended termination, the Respondent was employed as the Student Activities Director at the school. Prior to the instant matter, the Respondent has had no disciplinary issues or actions. As a condition of her employment with the Petitioner, the Respondent is subject to the terms and conditions of a contract between the School Board and the United Teachers of Dade (UTD contract). Article XXIV of the UTD contract provides for credential payment to encourage employees of the School Board to pursue further studies and expertise in their respective fields. Such pursuit enhances the quality of education for students in the school district. At all times material to this case, the credential payment increase for a teacher with a doctorate degree was $7000. The effective date for the implementation of the credential payment is computed “after completion of eligibility requirements, as indicated on the transcript by the issuing university.” The UTD contract further provides that: Completion of eligibility requirements shall be defined as: (a)filing an official M- DCPS/UTD application for credential payment with the Office of Human Resources (receipt acknowledged and dated by M-DCPS); and (b) completion of course work/degree requirements prior to the date of the quarter for which payment is requested, as indicated by the date on the transcript, or other appropriate evidence provided by the university. M-DCPS shall notify all new employees of the availability of the credential payment programs and the procedures for making application. Under the heading “Eligibility,” the UTD contract also states: To qualify as graduate level, credit must have been earned after the applicant was granted the Bachelor’s degree and must be clearly identified as such. Pursuant to the UTD contract, Applicants whose applications are disapproved shall be notified that they may appeal the decision to the committee by resubmitting and supplying such additional and germane information and/or documentation as will be helpful in reaching a decision regarding the appeal. The decision of the committee is final and not grievable or arbitrable. On or about April 8, 2004, the Respondent submitted a note to the Petitioner’s Office of Compensation Administration that stated: Enclosed please find my official transcript for my Doctorate Program. Along with the transcript is a verification form. My employee number is 152174. Thank you for your attention in this matter, and with the necessary adjustments with payroll. Attached to the note described above, was a document purportedly from Rochville University. The Rochville document contained the words “Official Transcript” and purported to indicate that the Respondent had completed the noted courses. The document represented the Respondent had obtained a “Doctor of Arts (Major: Education).” Also attached to the note described in paragraph 11 was a form purportedly executed by the Rochville University Registrar and President that stated: This is to verify that Lissa A. Nappier has successfully completed the Doctor’s Program from Rochville University in the year 2004. In order to obtain the “Doctor of Arts” from Rochville University, the Petitioner submitted her transcripts from Brenau College, Nova Southeastern University, the requisite fees required by the school, and a summary of her 18 years of teaching experience to Rochville. Rochville University is an “on line” institution. The Respondent did not complete additional course work, did not write a thesis, and did not attempt to verify that Rochville University was an acceptable, accredited school prior to paying her fees for the degree and submitting the documents to the Petitioner for credential payment. It is unlikely that Rochville is an accredited university. Its academic claims are related to its status as an accredited “on line” institution. For approximately $600.00 the Respondent received a doctorate degree. After reviewing the Respondent’s documentation, the Petitioner denied the credential payment increase. The Respondent did not challenge or seek additional review of that denial. The matter was referred to the Petitioner’s Office of the Inspector General because the Respondent had “submitted a transcript to obtain credential payment for an advanced degree using a transcript from an unaccredited university.” None of the courses depicted on the Rochville University transcript that was appended to the Respondent’s note were actually for course work completed by the Respondent while attending (even online) Rochville classes. None of the hours for the courses depicted on the Rochville University transcript were earned while attending (even online) Rochville classes. The Respondent knew or should have known that a credible doctor of arts degree requires more than the submission of prior coursework, life experience, and the payment of fees. Moreover, the Respondent did not present evidence of any “life experience” that would entitle her to a doctor of arts degree from any accredited university. That Rochville University accepted the Respondent’s experience and prior academic work as sufficient to award a doctorate degree dishonors the hours of work that are, in reality, required of post-graduate students who obtain doctorate degrees from reputable institutions. Although technically truthful in Respondent's representation to the Petitioner, the Respondent’s request for credential payment was clearly not supported by credible academic achievement. The Respondent attempted to obtain credential payment using a non-creditable source. This was a tremendous lapse of good judgment. The Respondent, did not, however represent that Rochville University is an accredited university. She only represented that she had obtained a doctorate degree from that entity. Her lapse of judgment was in attempting to parlay her worthless degree into a credential payment increase. Her effort failed due to the attentive review of her request. At the time the Respondent was going through a divorce and needed additional income. The online approach to obtaining the doctorate degree appeared to be an easy, affordable alternative. The Respondent did not verify that Rochville University was accredited by any national accreditation source or that the university was acceptable to the School Board for purposes of obtaining a post-graduate degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the Respondent’s suspension without pay for the amount of time it deems appropriate, but returning the Respondent to full employment thereafter. S DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Findings Of Fact The facts which resulted in the filing of these administrative charges are not in great dispute. The Respondent, Henry Gooch, taught the class of Marriage and the Family during the summer term of 1975 at Santa Fe Community College. The college class schedule listed this course and indicated that the course included the weekend of July 12 and 13. Classes began around July 2, 1975, and Respondent informed the students that class attendance was required for this course, any student who missed over three classes would receive a "W" (for which a student does not receive a course credit), that the weekend experience would count as five class sessions, and that the course would, because of this weekend, terminate two weeks earlier than normal. Respondent Gooch stated that the weekend experience was a requirement for the course and that any student that did not attend would receive a grade of "W." At no time were any students given an indication of what was to take place during this required weekend "experience." The weekend experience took place on Little Lake Santa Fe outside Gainesville, Florida. One student advised the Respondent that because of religious reasons, she could not attend. This student did not attend the weekend experience and received a "W" for the course. Failure to get credit for this course caused this student not to graduate after the summer term and required her continuing attendance and enrollment at Santa Fe Community College. Students were permitted to bring their spouses to the weekend experience and several of them did. After the students arrived, the Respondent began a group discussion on the topic of public nudity. This discussion became very heated and apparently some of the students got the impression that nudity was part of the program for this weekend. Several of them, in fact, asked Mr. Gooch whether he intended to require nudity as part of the weekend experiences. Mr. Gooch assured them it was not. After this discussion had ended Mr. Gooch began what has been called "the machine game." Basically what happened is that one student was asked to come into the center of the room and imitate a machine. After this had begun, the other students were advised to join in by forming a circle or a line and to imitate the machine in unison. Each student was then asked to exchange pants with the student in front of then. At this time, at least one student found this activity to be extremely objectionable. Several other students did not participate in the exchange of clothing. One student, Ron Griffith, who found the activities objectionable, left the room and shortly thereafter left the weekend with his wife. The student Griffith eventually filed a formal complaint with the School Administration outlining his version of the activities of the weekend and his feelings that the Respondent's conduct was extremely unprofessional. This statement was admitted into evidence as Petitioner's Exhibit No. 3. The Respondent stated that the factual allegations in that complaint are accurate. At least one other student left the weekend after the machine game had been completed and that student also received a "W." Shortly after student Griffith filed his formal complaint with the School Administration, the Respondent Gooch was suspended from teaching responsibilities at Santa Fe. This occurred on August 1, 1975. Another instructor took over the responsibilities for teaching Marriage and the Family and in that manner the course was completed. It is admitted that the school regulations regarding field trips was not complied with by the Respondent Gooch. A copy of the school regulations in the school policy manual had been assigned to Gooch as Department Coordinator. Mr. Gooch claims he was not aware of the field trip policy and would have complied with it had he known. For several students that did not attend the weekend trip or left before its completion and who received "W's" for their final grade, there was no real showing that an alternative requirement for course completion was made available to them. It is true that the Respondent Gooch testified he intended to give several of these students an opportunity to make up the missed time at this weekend, but whatever effort he put into this was certainly inadequate, particularly in light of the fact that his prior announcements would give any reasonable person the absolute impression that failure to participate and complete this weekend made the grade of "W" mandatory. There is certainly no question that the Respondent, Gooch, did violate provisions of the College Policy Manual. The pleadings filed in this case admit such did occur. The crucial issue is whether these were mere technical violations or whether the nature of the Respondent's conducts should be considered serious infractions. It is undisputed that the Respondent required the attendance of students in this course at this weekend experience. The charges filed on behalf of the college state that the students were coerced to attend this weekend. Perhaps coerced is not the most appropriate word to use, but it is certain attendance at this weekend was mandatory on a threat of receiving no credit for the course. It is also undisputed that the students were not given any indication of what to expect during this weekend. The Respondent should have known that his planned activities for this weekend would be objectionable or distasteful to at least some of the students in this class. Those students were given no choice or alternative course of study by which they could have received credit for this course as a substitute for this weekend experience. As a result, these students, as mentioned above, did not participate in the weekend experience and received a grade of "W" for the course of Marriage and the Family. The failure of these students to receive credit for this course was a direct result of the Respondent's not complying with school policy. Even though the Respondent advised the class the weekend experience was a mandatory requirement in time for the students to drop this course and add another one to receive required credit, that opportunity was not very meaningful without a better explanation of what was involved in the "weekend experience." The students could not be held responsible for having made a choice in this matter when they were uninformed as to what they were choosing. A student should not be subjected to requirements found to be personally distasteful without at least the sanction of the University and the informed consent of the student. In this case, neither occurred, as the school policy on field trips was not followed and the students were kept in total ignorance as to what the itinerary was for this weekend. The students who received a "W" grade cannot be said to have failed to meet the minimum requirements in this course when one of the announced requirements, the unapproved field trip, violated school policy. It must, therefore, be concluded the Respondent Henry Gooch did violate School Policy 1- 5.17 by causing several students to receive the grade of "W" for not participating in the weekend. Were it only that the weekend turned out to be less than completely successful, this matter might be dismissed as nothing more than exercise of poor judgement on the part of the Respondent that caused no real harm. However, the violation of school policy combined with this poor judgement caused several students to lose credit for the course and at least one not to graduate in time. The loss to the students cannot be replaced and the harm to them is real, not speculative. Therefore, it is recommended that the Respondent Gooch be found to have violated school policy, and suspended until the end of the Fall Quarter of 1975, thereupon to be returned to faculty Status on an annual contract status. Furthermore, he should not be considered for reinstatement on a continuing contract basis for one year and during this probationary period, not be eligible for pay adjustment. DONE and ORDERED this 10th day of November, 1975, in Tallahassee, Florida. KENNETH G. OERTEL Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1975. COPIES FURNISHED: Robert P. Cates, Esquire Attorney for Respondent 635 Northeast First Street Gainesville, Florida Robert V. Bookman, Esquire Attorney for Petitioner 222 Northeast First Street Gainesville, Florida
The Issue The issues in this case are (a) whether Respondent committed fraud in seeking to obtain funds from the McKay Scholarship Program, thereby warranting Petitioner's summary suspension of payments to Respondent; and (b) whether Petitioner should revoke Respondent's participation in the McKay Scholarship program for failing to comply with applicable laws.
Findings Of Fact Respondent Muskateer's Academy, Inc. ("MAI") is a Florida corporation that, at all times relevant to this case, operated a private school known as Muskateer's Academy ("Muskateer's"). MAI was closely held by Erick and Jacqueline Cermeno, a married couple. Together, they ran the school, holding (and sometimes swapping) various titles of importance, such as "principal" and "superintendent," which signified their supervisory roles. Located in Hialeah, Florida, Muskateer's served mainly at-risk students who, for one reason or another, were unable or unlikely to succeed in the public school system. On paper, the school's tuition was quite steep. The undersigned infers, however, that few parents, if any, actually paid the "sticker price" for tuition and other expenses that Respondent reported to the Florida Department of Education ("Department") in its student fee schedules, which charges totaled $24,000 per year, per child. Rather, the undersigned infers that, for most students at least, Respondent agreed to accept as payment in full whatever amount was available annually for a particular student under the John M. McKay Scholarships for Students With Disabilities Program ("McKay Scholarship Program"). Respondent operated two separate high schools at Muskateer's. One was a "regular," four-year high school that followed the traditional model, where instructors taught various academic subjects to classes of students, who attended classes for the purpose of learning academic subjects from their teachers. In this high school, tests were given periodically, as a means of measuring the students' mastery of the material. The other program was an "accelerated" high school where each student worked individually, at his own pace. Teachers played a relatively small part in this program, doing little but overseeing the "testing room" in which the students took tests——their primary scholastic activity. Students received course credit for passing tests.1 At the relevant times, there were three or four teachers at Muskateer's. To be a teacher there, a person did not need a bachelor's degree. Instead, MAI was willing to hire individuals having some type of educational background, preferably including at least 40 college credits, more or less. One of the teachers at Muskateer's was Amneris Mesa, whose brother, O. F., attended the school for some period of time. As will be seen, O. F. is one of the key figures in the instant dispute. In August 2006, the Department's Office of Independent Education and Parental Choice ("Choice Office") received a complaint about Muskateer's, the gravamen of which was that MAI was continuing to receive funds under the McKay Scholarship Program for former students who had stopped attending the school. The Choice Office, which administers the McKay Scholarship Program, referred the complaint to the Department's Office of Inspector General ("OIG") for investigation. The OIG's investigation led to the discovery of evidence sufficient to persuade the Commissioner of Education ("Commissioner") that MAI had engaged in fraudulent activity with regard to the McKay Scholarship Program. Consequently, on November 1, 2006, the Commissioner issued an Administrative Complaint against MAI, which charged MAI with fraud and other violations of the laws governing the McKay Scholarship Program. At the same time, the Commissioner immediately suspended all payments to MAI under the McKay Scholarship Program. Being thus cut off from its primary source of revenue, MAI closed Muskateer's on November 18, 2006. As of the final hearing, the school had not reopened. The Commissioner's present case against MAI hinges on allegations that, to induce the payment of funds under the McKay Scholarship Program, the company falsely represented to the Department that three students——O. F., N. P., and C. M.——had "reenrolled" at Muskateer's for the 2006-07 school year, when in fact two of them (O. F. and N. P.) previously had graduated, and the third (C. M.) had dropped out midway through the preceding school year. MAI disputes these allegations, and hence the focus of the hearing largely was on whether the three individuals in question had attended Muskateer's during the 2006-07 school year. Before addressing the contested factual issues, however, a brief examination of the McKay Scholarship Program is in order, to provide context for the findings of fact that will follow. The McKay Scholarship Program affords a disabled student the option of attending a different public school from the one to which he is assigned, or, if he is eligible, the opportunity to receive a scholarship to defray the cost of attending a private school of choice. Once awarded, a McKay scholarship remains in force until the student returns to a public school, graduates, or turns 22, whichever first occurs; provided, however, that he does not drop out, which would render the student ineligible for the scholarship, at least during the period of non-enrollment. To participate in the McKay Scholarship Program, a private school must meet certain conditions as well. Inasmuch as the Commissioner has alleged that MAI failed to comply with some conditions of continued eligibility, the relevant ones will be discussed in greater detail below. For the moment, however, it is sufficient to note that McKay scholarship funding is potentially available to most private schools operating lawfully in the state, for the program is designed to be inclusive in this regard. A private school that wants to participate in the McKay Scholarship Program must notify the Department of its interest and submit information demonstrating compliance with the eligibility requirements. This information——and other data necessary to secure the disbursement of scholarship funds——must be transmitted to the Department electronically, through forms available online to registered users, at a secure website maintained by the Department. To access this site, a private school must first obtain a unique code and establish a confidential password, both of which must be entered correctly in order to logon to the Department's secure web page. If the parent of an eligible student chooses the private school option and secures a place for his child at the private school of choice, then the parent must notify the Department of his decision before the child begins attending the private school. After receiving such notice, the Department verifies the student's enrollment in the private school, obtains from the private school a schedule of the tuition and fees, and receives from the student's school district a "matrix of services" reflecting the student's special educational needs. The maximum amount of the McKay scholarship for a particular student is the lesser of (a) the "calculated amount" (which is roughly equal to the estimated cost of educating the student in the public school to which he is assigned) or (b) the actual amount of the private school's tuition and fees.2 The amount of the student's scholarship is deducted from his public school district's total funding entitlement.3 McKay scholarship payments are made in four equal amounts during the school year to which the scholarship applies. The payment dates are September 1, November 1, February 1, and April 1. Payments are made by warrant payable to the student's parent. The Department mails each warrant to the private school of the parent's choice. The parent is required restrictively to endorse the warrant, authorizing the funds to be deposited only in the private school's account.4 To remain eligible for the McKay scholarship, the student must have regular and direct contact with his teacher(s) at the private school's physical location. Thus, ahead of each payment (after the initial payment), the private school must verify, through the Department's secure, password-protected website, that the student continues to be enrolled in, and to attend, the private school. It is in connection with this ongoing duty to verify continued enrollment and attendance at the private school that MAI is alleged to have engaged in fraudulent activity, namely, reporting to the Department that O. F., N. P., and C. M. were still enrolled in, and attending, Muskateer's when, in fact, they were not. The undersigned will now turn to these allegations, which lie at the heart of this matter. But first: It must be acknowledged that the evidence is in conflict concerning the historical facts relevant to the allegations of fraudulent activity. Given the evidential conflicts, the undersigned supposes that reasonable people might disagree about what happened here. Ultimately, however, it falls to the undersigned, rather than a group of hypothetical "reasonable people," to resolve the evidential conflicts and settle the disputed issues of material fact. Thus, to the extent that any finding below (or herein) is inconsistent with the testimony of one witness or another, or with some documentary evidence, the finding reflects a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed, in the exercise of his prerogatives as the fact-finder, to be more believable and hence entitled to greater weight. O. F. In January 2006, halfway through the 2005-06 school year, O. F. was enrolled as a student of Muskateer's. He began attending the accelerated high school on January 26, 2006. At the same time, his sister, Ms. Mesa, started working for MAI as a teacher in the regular high school. About five months later, O. F. graduated from Muskateer's. O. F. participated in a graduation ceremony on June 3, 2006, and, according to the transcript maintained in his student file, O. F. was awarded a diploma or certificate on that date. The transcript notwithstanding, it is undisputed that O. F. did not actually receive his diploma until several months after his graduation date. MAI contends that it withheld O. F.'s diploma because he had not finished all the tests necessary for graduation. The undersigned finds, however, that the evidence is insufficient to support a finding that O. F. had not finished his degree requirements as of June 3, 2006; indeed, the greater weight of the persuasive evidence is to the contrary. Accordingly, MAI's assertion that O. F. did not graduate from high school at the end of the 2005-06 school year is rejected. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that O. F. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that O. F.'s tuition and fees for the upcoming school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding O. F.'s reenrollment in Muskateer's for the 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that the representations were false, or they recklessly disregarded the truth or falsity of the matters asserted.5 Despite having graduated, O. F. returned to Muskateer's on three or four occasions in September and October 2006, at which times he took a few tests that he had previously taken and passed. This happened because the Cermenos refused to give O. F. his diploma unless he retook these tests——a condition that was repeated both to O. F.'s mother and his sister (the teacher).6 The undersigned infers that, more likely than not, the Cermenos used the threat of withholding O. F.'s diploma as a means of coercing his "attendance" at Muskateer's during the 2006-07 school year, to create plausible deniability in the event the charge were brought (as it was) that MAI had fraudulently sought to obtain McKay scholarship funds for O. F. At any rate, post-graduation "attendance" such as O. F.'s——to retake exams for no apparent legitimate reason——is not the kind of regular attendance that would support the reasonable inference that the student had enrolled for the 2006-07 school year.7 N. P. N. P. enrolled in Muskateer's on May 3, 2004, and began attending classes in the accelerated high school on August 16, 2004. He graduated (at least in the ceremonial sense) at the end of the 2004-05 school year but never received a diploma. N. P. testified that he never returned to Muskateer's as a student after he (ceremonially) graduated. In other words, N. P. claims that he was not a student of Muskateer's during either the 2005-06 school year or the 2006-07 school year. N. P.'s testimony in this regard is corroborated by the testimony of his aunt (and legal guardian), Altagracia Moreta. Additionally, N. P.'s testimony is corroborated by the absence of well-kept, reliable documentation——such as enrollment registers and attendance records——attesting to his ongoing attendance at Muskateer's after the 2004-05 school year. The undersigned considers the lack of such documentation to be a telling fact. Consequently, although there is conflicting evidence, the undersigned finds that, more likely than not, N. P. did not attend Muskateer's during the 2005-06 and 2006-07 school years, as he testified. On May 4, 2005, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2005-06 school year, and that he would resume attending the school on August 8, 2005. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2005-06 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. On May 26, 2006, MAI reported to the Department, through the Department's secure, password-protected website, that N. P. had reenrolled in Muskateer's for the 2006-07 school year, and that he would resume attending the school on July 1, 2006. On the same date and in the same manner, MAI reported that N. P.'s tuition and fees for the 2006-07 school year would total $24,000. These representations were made for the purpose of obtaining funds from the McKay Scholarship Program. The foregoing representations regarding N. P.'s reenrollment in Muskateer's for the 2005-06 and 2006-07 school year were false. Moreover, the greater weight of the evidence persuades the undersigned that, more likely than not, the individuals responsible for making these representations——namely Mr. And Mrs. Cermeno——actually knew that these representations were false, or they recklessly disregarded the truth or falsity of the matters asserted. C. M. In July 2004, C. M. registered to attend Muskateer's. He began attending the accelerated high school on August 16, 2004. C. M. testified at hearing (via deposition) that he continued to attend Muskateer's while this proceeding was pending, having been in class there as recently as "yesterday" (January 17, 2007). C. M. did not know what courses he was currently taking or how many other students currently were attending Muskateer's. (Recall that Muskateer's closed its doors on November 18, 2006, and, as of the final hearing, had not reopened).8 Whatever credibility C. M. still possessed after giving testimony such as that just described was shredded when Petitioner impeached him with a prior inconsistent (actually, contradictory) statement. On August 22, 2006, C. M. told the OIG's investigator that he had stopped attending Muskateer's in December 2005 and never returned. The investigator made an audio recording of C. M.'s statement, which was received in evidence, but C. M. was not under oath at the time he gave the statement. The undersigned finds that C. M. is not a believable witness, and his testimony, being unreliable and unpersuasive, is given no weight.9 The documents in C. M.'s disorderly (and seemingly incomplete) student file are likewise insufficient to establish, to the required degree of persuasiveness (namely, that the fact is more likely true than not), the dates on which C. M. attended Muskateer's as an enrolled student. The bottom line is that the evidence is insufficient to permit the undersigned to make a finding as to when (or whether) C. M. stopped attending Muskateer's (prior to its closure on November 18, 2006).10 Lacking sufficient proof regarding the dates during which C. M. attended Muskateer's as a duly enrolled student, it is impossible to determine whether MAI engaged in any fraudulent activity with regard to C. M. Determinations of Ultimate Fact The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of O. F., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department that O. F. had reenrolled in Muskateer's for the 2006-07 school year, while either (a) knowing that this representation of material fact was false or (b) recklessly disregarding the truth or falsity of this material representation, which was, in fact, false. The greater weight of the evidence establishes that, to induce the state to disburse McKay scholarship funds for the benefit of N. P., MAI engaged in fraudulent activity, to wit: MAI intentionally reported to the Department, on separate occasions, that N. P. had reenrolled in Muskateer's for the 2005-06 and 2006-07 school years, while either (a) knowing that these representations of material fact were false or (b) recklessly disregarding the truth or falsity of these material representations, which were, in fact, false. The greater weight of the evidence is insufficient to establish that MAI engaged in fraudulent activity in connection with its efforts to obtain McKay scholarship funds for the benefit of C. M. The greater weight of the evidence establishes that, by failing to keep and maintain complete and orderly records of enrollment and attendance, MAI failed to meet its obligation under Section 1002.39(8)(a), Florida Statutes, to comply with all of the requirements set forth in Section 1002.421, which mandates that private schools participating in the McKay Scholarship Program must, among other things, conform to all the requirements outlined in Section 1002.42, Florida Statutes, including Section 1002.42(4), which directs that private schools must prepare and keep attendance records in accordance with the provisions of Section 1003.23(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (a) suspending payment of McKay Scholarship funds to MAI in connection with the 2006-07 school year (b) revoking MAI's participation in the McKay Scholarship Program. DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 2nd day of April, 2007.
The Issue Whether the suspension of Petitioner was for good cause shown as indicated in the letter of suspension dated August 19, 1976.
Findings Of Fact Ralph L. Wilson was suspended for a three (3) day work period August 20, 1976 through August 24, 1976. The certified mail letter to Mr. Wilson stated, "This suspension is caused by your unauthorized absence for the period August 10 through August 13, 1976." Appellant Wilson is an Accountant at Florida A & M University working under the direct supervision of William Schnitt, Acting Budget Officer at Florida A & M University. Vinod K. Sharma Associate University Comptroller at Florida A & M University, is the supervisor of William Schmitt. James R. Barrett, Comptroller of Florida A & M University, is the supervisor of Vinod K. Sharma. Appellant Wilson requested a leave of absence from his position to attend a church conference to be held in Lake City, Florida, on August 10-13 1976. His immediate supervisor, Mr. Schmitt, orally refused the request but advised Mr. Wilson that the denial could be appealed to Mr. Vinod K. Sharma. Mr. Wilson appealed in writing the denial by Mr. Schmitt on August 4, 1976 to Mr. Sharma. Mr. Sharma, on August 4, 1976, sustained the denial of the request citing as the basis an August 1, 1976 memorandum to all fund accountants from J. R. Barrett, University Comptroller, asking all fund accountants not to request annual leave during the period from August 3, 1976 through September 7, 1976. The Appellant called in sick on August 9, 1976. He also called in sick on August 10, 1976. He did not call in to explain his absence on August 11, 12, and 13, 1976. Appellant Wilson presented a memo signed by W. H. Baker, M.D., as follows: "8-9-76 Mr. Ralph Wilson visited my office today because of illness." There was uncontroverted testimony that Appellant Wilson attended a church meeting on August 11, 12 and 13, 1976, in Lake City, Florida. Evidence was submitted that Appellant Wilson was an active member of the conference in Lake City who served, according to a portion of the program for the conference, as a member of the Board of Examiners at said conference. Appellant Wilson was transferred to the Comptroller's Office on July 10, 1976. His job description included the following statement by Mr. Barrett: "Your immediate supervisor will be Bill Schmitt, who at his discretion, may assign you additional duties." Appellant Wilson admitted that he was in Lake City, Florida on August 11, 12 and 13, 1976, and took an active part in a church conference in Lake City during that period. He admitted that he knowingly violated the personnel rules of being absent without proper authorization. The Appellant contends that he is discriminated against by his supervisors in that a statement from the doctor is required of other employees and that he is required to bring in certification on sickness anytime that he is sick for more than two (2) days. Appellant contends that his duties assigned are not nearly as much as the Respondent claims them to be, that he was given no credit for coming to work before 8 o'clock or while he stayed at work while his supervisors went on coffee break daily from around 8:15 to 9:00 A.M., that each time he was going to be more than fifteen (15) minutes late he did call in and report the same. Appellant further contends that the Respondent did not prove that he was not sick on the days claimed. He stated he was sick August 9-13, 1976. Appellant Wilson was notified by mail that he was suspended for three (3) days by the Agency Head, President B. L. Perry, Jr. Said suspension notice stated that the suspension was for being absent without authorization. He was without authorized leave.
Recommendation Inasmuch as the Appellant has been orally reprimanded and reprimanded by written notice, it is recommended that the three (3) day suspension without pay be sustained. DONE and ORDERED this 9th day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Ralph L. Wilson Post Office Box 2392 Tallahassee, Florida 32304 Bishop Holifield, Esquire Legal Department Florida A & M University Tallahassee, Florida 32307 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Respondent committed misconduct in office by applying for credential payment in reliance upon an online doctorate degree obtained without academic effort and thus violated Section 1012.33(6)(b), Florida Statutes, and Florida Administrative Code Rules 6B-4.009(3) and 6B-1.006(5).
Findings Of Fact Respondent is an assistant principal at Toussaint L'ouverture Elementary School in Miami. He graduated from the United States Naval Academy in Annapolis, Maryland, in 1978. While serving in the military in Pensacola, Respondent obtained a master's degree from Troy State University in 1985 by way of its extension program. Respondent is 54 years old. In 1994, when first employed as a teacher in the Miami- Dade County public school system, Respondent was admitted to the doctoral program in education leadership at the University of Miami. He attended classes a couple of times per week per course and submitted tuition reimbursement vouchers to Respondent. Respondent left that program the following year without completing the requirements for a doctoral degree. In 1996, Respondent reviewed brochures that he had received in the mail and decided to pursue his doctorate degree at Northwestern University, Ltd. He sent Northwestern International University, LLC, (NW) a check for about $8000 to a post office box in Brussels, but did not seek reimbursement from Respondent. For some reason, Respondent also decided to obtain a doctorate degree from Northeastern University (NE) and sent them a check for about $7000 to a post office box in New York, but again did not seek reimbursement. Respondent testified that he believed that he had already obtained the maximum reimbursement available to him. Respondent engaged in academic activities with both institutions from 1996-2000, but the activities did not rise in scope or intensity to those associated with a legitimate doctoral program. In 1998, Respondent applied for an assistant principal position, omitting any mention of his academic activities with NW and NE. He obtained the job. In 2000, Respondent completed his academic activities with NW and NE. NW sent him a transcript showing the completion of 19 courses and the Ph.D. dissertation, with grades assigned to each. Only one typo undermines the credibility of the transcript itself: the second "i" is dropped from "Administration" in a human resources course, but the transcript omits dates for the courses. Respondent received very good grades with only one C and A+s in Education Program Evaluation and his dissertation. Less care went into the preparation of the NE transcript, which also appears to culminate in the award of a Ph.D. "Curriculum" is spelled "Cirriculum, ""Philosophy" is spelled "Philosphy," and "Evaluation" is spelled "Evaluaton." The NE envelope covering the transcript misspelled "transcript." Respondent received all As and Bs. Shortly after obtaining his dual doctorates, Respondent submitted them to Petitioner. The credential payment program for administrators went into effect in April 2006, so Respondent's motivation at the time that he submitted the transcripts was to obtain the prestige, and perhaps advancement, that went with the advanced degrees. However, on June 8, 2006, Respondent submitted an application for the credential pay increment due to an administrator in possession of a relevant, legitimate doctorate degree. In the application, Respondent stated that he possessed a Ph.D. from NE, which he had obtained in 2000. He signed the application beside a statement, "I certify that all the foregoing information is true to the best of my knowledge." Respondent claims that he submitted papers, including dissertations, in connection with both programs, but offered no detailed description of his academic activities. Instead, he seems to be "sticking to his story" that he thought he was completing coursework from legitimate educational institutions, even though it is indisputable that he did not. At all material times, Respondent has known that NE and NW were diploma mills. He never explained why he spent the money and, presumably, time pursuing doctorate degrees at both institutions over the same timeframe. He is aware of the rigor of legitimate programs, having attended the Naval Academy, Troy State, and University of Miami. Respondent was undaunted by the sloppiness apparent in the transcripts. He claims now that, "[i]f there is any fault, in this matter, it is one of trusting the advertisements that I saw, brochures I received and the syllabi, course work and transcripts I received from the [sic] non-accredited institution." However, it is inescapably apparent that there was fault, and the fault is that Respondent, with the intent to deceive Petitioner, submitted these transcripts and a fraudulent application for credential pay, to which Respondent knew he was not entitled. There is no testimony explicitly to the effect that Respondent's fraudulent application for credential pay is so serious as to impair his effectiveness in the school system. However, this fact is inferred from the nature of a fraudulent application, to Respondent's professional employer, for credential pay based on fraudulently obtained academic credentials. After a conference for the record, Petitioner proceeded to discipline Respondent for his misconduct. By letter dated December 10, 2007, Petitioner informed Respondent that the Superintendent would be recommending to the School Board suspension without pay for "30 workdays," effective at the close of the workday on December 19, 2007. The School Board subsequently approved this recommendation and, by letter dated December 20, 2007, the Assistant Superintendent informed Respondent that he was suspended for "30 workdays" without pay and he was not to report to any work location from December 20, 2007, through February 13, 2008. The penalty is not excessive. At the final hearing, Respondent elected not to admit to his misdealings with his employer, but instead produced exculpatory witnesses, one of whom testified that she had done some typing for him and one of whom testified that he had seen the damage done to Respondent's home by a hurricane and a lot of water damage to Respondent's belongings. Respondent has evidently not yet accepted responsibility for his misconduct. Respondent rightly questions the accuracy of the Assistant Superintendent's calculation of the period of the suspension, which was to cover "30 workdays." Equating workdays with days for which Respondent was to be paid, Respondent claims that the suspension actually covers 40 workdays, not 30 workdays. The Manual of Procedures of Managerial Exempt Personnel, dated April 18, 2006, states at Section B-3 that a 12-month employee works a 260-day work year. This means that he works 52 weeks times five days per week, for a total of 260 days. Respondent's suspension started December 20, so, in accordance with the determination of the School Board, the suspension should have ended at the close of the workday on January 30.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of misconduct in office for intentionally misrepresenting his academic qualifications in applying for credential pay for a doctorate degree and imposing a 30-workday suspension, as previously authorized by the School Board, but paying Respondent back pay for the period after January 30 through which the suspension was mistakenly implemented. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 9th day of May, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 James C. Casey, Esquire Law Offices of Slesnick & Casey, LLP 2701 Ponce de Leon Boulevard, Suite 200 Coral Gables, Florida 33134 Janeen L. Richard, Esquire Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact Harold Thomas Scott obtained a bachelor of science degree in elementary education from Florida A & M University (FAMU) in 1961. He was employed by Petitioner, School Board of Dade County, as an elementary school teacher from 1961 until his suspension without pay in September, 1980. Scott obtained nine graduate credits from FAMU by attending night classes in Miami in 1968 and 1969. He did no further work toward a valid masters degree after that time. He met Eugene Sutton, a FAMU employee, during the 1977-78 school year when Sutton was in Miami to supervise FAMU students interning in education. Sutton discussed a "Graduate Independent Study Program" with Scott, and told him that he could obtain a masters degree working at his own pace in his own home. Sutton also held out the possibility that Scott could become a part-time educational consultant when he obtained the masters degree. During the year following their meeting, Scott gave Sutton a total of $2,500 in cash and checks made payable to Sutton. This amount purportedly represented fees for tuition and "service." Although Scott knew this amount was substantially more than the cost of other graduate programs, he did not question Sutton on this point and obtained only a partial accounting for these fees. Exhibit 3, a receipt for $231 on FAMU form, was the only documentation offered at the hearing. Scott has no contact with any instructor or FAMU representative other than Sutton. He received no course outline or syllabus and was not required to produce a thesis or dissertation, or take any written examinations. Scott prepared assignments given to him by Sutton which he delivered during Sutton's periodic visits to Miami. The assignments consisted mainly of assembling existing teaching materials in a manual or booklet format. Scott received no grades on these assignments nor was he aware of any specific courses which the work related to. He did, however, receive a FAMU transcript on completion of the program. In late 1978 or early 1979, Sutton advised Scott that his degree had been awarded and that he had registered it with the State Department of Education. Scott then applied to Petitioner for the masters degree pay increase and began receiving the higher salary in March, 1979. In September, 1980, Dade County School Board officials learned that Scott's masters degree was fraudulent and confronted him with this information. Scott offered to resign but was suspended instead. Scott concedes that he owes the $2,951.41 in salary overpayments demanded by Petitioner. As a result of criminal charges filed in this and related cases, Scott was arrested in Dade County and ordered to Leon County to stand trial. He entered a plea of nolo contendere to a charge of uttering a forgery and received three years probation. Scott did not contest the criminal charge as he feared a prison sentence was probable if he had gone to trial and lost. Respondent denies that he knew the masters degree he obtained was fraudulent. This denial is not credible in the circumstances of this case. Scott holds a bachelors degree from FAMU and had obtained nine graduate credits from that institution prior to his involvement with Sutton. Thus, he was thoroughly aware that university credits and degrees are awarded only upon meeting specific educational requirements. Scott's familiarity with the education system, both as a student and as a teacher, precluded his deception by Sutton. The exorbitant fees, the manner of payment, the non-existence of course materials, the absence of faculty and the lack of any substantial academic requirements would have, and did in fact, alert Scott to the fraudulent nature of his undertaking.
