The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of July, 2005.
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
The Issue The issue is whether Petitioner has good cause to suspend Respondent, an assistant principal, for ten days, without pay, for misconduct and unprofessional conduct in reporting student enrollments at her school.
Findings Of Fact At the time in question, Respondent was an assistant principal at Independence Middle School (IMS). She has been an assistant principal in Petitioner's school district for ten years and has been the assistant principal at IMS since 2003. Toward the end of each school year, Petitioner plans for the assignment of its approximately 170,000 students to schools for the following school year. Assuming that each student will be promoted and, where necessary, transferred to the appropriate middle- or high-school, the planning exercise initiates the process that culminates, during the summer, in the creation of a school-specific class schedule for each student. Based on these class schedules, each school circulates among the teacher, during the ensuing school year, a biweekly attendance sheet, so that each teacher may take attendance by class. The biweekly attendance sheet contains bubbles to be filled in by the teacher, so an automated scanner can transfer the information from the sheet to a computer file. In accordance with the practices of Petitioner, a classroom teacher is not to mark a student as "absent" until he first attends the class and then misses the class. A student who has not yet attended a class is classified as a "no-show." However, the biweekly attendance sheet lacks a bubble to indicate "no show," so classroom teachers typically handwrite the information on the sheet after the first two weeks of school. At the time in question, a student assistant collected the biweekly attendance sheets and fed them into the scanner, and the handwritten information contained on the sheet could easily be lost. Enrollment data are kept on Petitioner's TERMS program, which contains a wide range of information relevant to Petitioner's operations. In the main office of each school, a staffperson enters and updates enrollment data in TERMS. The staffperson removes a student from a school's enrollment by entering into TERMS the name of the new school that the student is attending or by entering "DNE," meaning "did not enter," if the student is a no-show, but the staffperson does not know what school the student is attending. Until the staffperson enters DNE, though, a no-show student--meaning a student who has never appeared in his assigned classroom--would continue to be shown as enrolled at the school to which he has been assigned the previous summer. During the fall of the 2007-08 school year, each school in the Palm Beach County School District performed two student counts. Mandated by Petitioner, the 11-day count, which took place on September 7, 2007, allowed Petitioner, early in the school year, to reallocate teachers and administers, among individual schools within the district, based on enrollments. Mandated by state law, the fall FTE count, which took place in October 2007, allowed the Florida Department of Education (DOE) to allocate funds, for the first half of the school year, among the various school districts within the state. By bulletin dated August 23, 2007, to all principals and approved by the Superintendent, Petitioner's Chief Academic Officer and Chief Operating Officer stated that DOE was conducting a survey count on August 31 for enrollment. The bulletin states: "Therefore, on Monday, August 27, 2007, any student not in attendance from the first day of school, at least one period, must be withdrawn. It is imperative that all schools adhere to this directive. An accurate assessment of student enrollment across the state may help mitigate budget reductions." The bulletin reminds the principals: "a DNE should be entered into [TERMS] for students whose current school location is unknown. For students transferring out of state, to another Florida school district, or private school, please enter the appropriate withdrawn (WD) code." By bulletin dated August 31, 2007, to all principals and approved by the Superintendent, the Chief Academic Officer and Chief Operating Officer stated that "Count Day" was September 7, 2007, and the data was to have been taken "directly from . . . TERMS" without any "self-reporting by schools." The bulletin advises that personnel assignments within the district would be made based on this information obtained from the September 7 count. The bulletin notes that all student enrollments and class schedules "must be accurately reported in . . . TERMS." The bulletin discloses that, on September 14, area superintendents would notify individual schools of personnel adjustments based on the information obtained from the September 7 count. At IMS, for the 2007-08 school year, the principal was Dr. Gwendolyn Johnson and the staffperson assigned the job of entering enrollment data in TERMS was Angela Jones. Respondent was one of three assistant principals at IMS. Among her other duties, Respondent was responsible for creating student class schedules during the preceding summer, ensuring that all class conflicts were resolved at least one week prior to the start of the school year, and distributing the schedules on the day prior to the start of school. At the start of the 2007-08 school year, Dr. Johnson assigned to Respondent the responsibility for the 11-day count. Due to the challenges of the task, eventually, Dr. Johnson and two other assistant principals helped Respondent collect the relevant data from different teachers. These four administrators brought all of the data to Respondent's office where they compiled the data. The enrollment data from the 11-day count revealed 26 fewer students at IMS than were shown in TERMS. After the fall FTE count noted below, an audit revealed that the actual discrepancy was 24 students: 23 no-shows and one who had withdrawn prior to the eleventh day of the school year. Respondent reported this discrepancy to Dr. Johnson and stated that it needed to be rectified. At this point, Respondent fully discharged the responsibilities that Dr. Johnson had placed on her, and this was the last involvement of Respondent in the reporting of enrollment information to the district office or DOE. The 11-day count was correct, at least after the minor correction required after the audit, and the TERMS data were inflated. After learning of the discrepancy and despite the August 23 and 31 bulletins that had been sent to her, Dr. Johnson failed to take any action to correct the over- enrollment contained in TERMS. Exacerbating the situation, the subsequent audit revealed that someone at IMS "updated" TERMS for 17 of the students shown in the computer as enrolled, but never attending IMS, with inaccurate withdrawal dates after the 11-day count, implying, incorrectly, that the students actually had been in attendance on the date of the 11-day count. In the presence of Respondent, after the 11-day count, Dr. Johnson directed Ms. Jones not to enter DNEs for no-show students until Ms. Jones learned where the students were attending school during the 2007-08 school year. The effect of this directive from Dr. Johnson, which ignored the instructions that she had received from the district office, was to maintain inflated enrollment figures for IMS for an extended period of time after the 11-day count. The practical effect of Dr. Johnson's directive was to preserve an assistant principal position that had been provisionally assigned to IMS and to obtain an additional teaching position for IMS. After Dr. Johnson instructed Ms. Jones to delay updating TERMS, in the manner described in the preceding paragraph, Respondent later repeated this directive of Dr. Johnson to Ms. Jones. But no evidence suggests that Respondent played any role in the formation of this IMS policy. The fall FTE survey took place from October 8-12, 2007. The fall FTE survey numbers for Petitioner were drawn from the TERMS data, which were inflated for IMS. The subsequent audit revealed that, due to Dr. Johnson's directive to delay updating TERMS, the student count at IMS was inflated by 23 students: 21 no-shows and two who had withdrawn prior to the FTE survey week. As the first grading period approached, toward the end of October, IMS teachers began to question what they were to do about the 24 no-shows who were still shown as enrolled on TERMS, but had never attended one day of school. Some of the teachers settled on assigning Fs to the no-show students. This raised a problem with the IMS policy to send a letter home to every student who received an F in any course. When the guidance counselor approached Respondent and asked whether the teachers should send letters to the homes of the no-show students receiving Fs, Respondent told her not to, but to talk to the data-processing staffperson to see how this issue could be resolved. The guidance counselor, who was not alleged to have been involved with the scheme to inflate enrollments at IMS, believed that Respondent's advice not to mail the letters was proper to avoid "looking stupid." On October 26, 2007, the data processing staffperson sent an email to the teachers and administrators acknowledging that TERMS would not accept an input to show an incomplete or missing grade. In another email on the same date, the data processor advised the teachers to give the no-show students a C and to assign them a conduct score as well, although an F was also "acceptable." Fortunately, Petitioner learned that the TERMS enrollment numbers were inflated in time to correct the FTE data without incurring a financial penalty from DOE. Charging misconduct in connection with the misrepresentations and fraudulent statements that maintained inflated enrollment numbers in TERMS for IMS, Petitioner proposed a 20-day suspension without pay for Dr. Johnson and a five-day suspension without pay for Ms. Jones. Petitioner later dropped the charges against Ms. Jones, but the charges against Dr. Johnson resulted in a formal administrative hearing in DOAH Case No. 08-3986, after which Petitioner issued a final order on June 3, 2009, finding her guilty and sustaining the penalty, although this case is now on appeal. Based on similar charges in this case, Petitioner has proposed a 10-day suspension without pay for Respondent. In contrast to the case against Dr. Johnson, this case does not involve the person responsible for implementing district policy, as set forth in the two bulletins, or the person who decided to ignore this district policy. As IMS principal, Dr. Johnson ordered her subordinates, including Ms. Jones and Respondent, to implement her policy, which was to ignore district policy to maintain an inflated enrollment at IMS. Repeating the policy, as Respondent did to Ms. Jones, and helping to solve one of the problems that this unsustainable policy presented, as Respondent did when she told the guidance counselor not to send letters home to the no-show students who received Fs, do not so much represent marked departures from the honesty demanded of educational professionals, as they represent the behavior expected of subordinates to the principal. The administration of a middle school requires strong leadership, which is vested in the principal. Insubordinate staff undermine this leadership and risk adverse job action for their dissent. The facts of this case do not approach the point at which the demands of professional honesty imposed on Respondent override her obligation to conform to the directives of her principal, who was placed in this position of authority by Petitioner or the Superintendent. Respondent honestly discharged her duties in connection with the 11-day count and mentioned the enrollment discrepancies to Dr. Johnson, who misled Petitioner and DOE by maintaining the inflated enrollment numbers, even though she did not personally enter the data in TERMS or solve every problem, such as letters to the homes of phantom students, that her wrongful policy created.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the charges against Respondent. DONE AND ENTERED this 14th day of January, 2010, 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 14th day of January, 2010. COPIES FURNISHED: Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3310 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 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 Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Stuart Kaplan, Esquire Kramer, Ali, Fleck, Hughes, Gelb Kaplan & Bornstein 6650 West Indiantown Road, Suite 200 Jupiter, Florida 33458
The Issue The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.
Findings Of Fact Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not appear to have been any action by the School District to place Respondent on a teacher assistance plan. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of concern: Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal Demonstrates Knowledge of Subject Matter Also included on Respondent's 1994-95 annual evaluation form were the following comments: Mrs. Steel has had a difficult time transitioning from second to third grade. A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty- five were not engaged. In general, the classroom was chaotic. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching. On December 4, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan. Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively, (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form: Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The evaluation rated Respondent's performance as unsatisfactory. The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments: It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern. It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows: On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: verbal and Nonverbal Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Self Control Adheres to and Enforces School Policies I have discussed my concerns with Ms. Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows: Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS). If the deficiencies are not corrected during the prescribed time period, a change in your employment status may be recommended. If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone. On each occasion that Ms. Samango raised the issue of Respondent's request for a transfer to another school, Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the 231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4 Dr. Barbara Jeanne Burdsall is employed by the School Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr. Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5 Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School. Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the 231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson, Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively. By way of example, Dr. Mary B. Gray observed Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers. There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed to be present. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in Respondent's teaching at the second observation, but the improvement was not sufficient to be effective. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. 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 30th day of July, 1999.
The Issue The issue to be determined is whether Respondent, Joan Bannister, has violated the provisions of section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact Joan Bannister is a licensed educator in the State of Florida, holding certificate number 893735. Her certificate covers biology and math, and is valid through June 2015. During the time period relevant to the Administrative Complaint, Respondent taught math at Eustis Middle School. On or about January 30, 2012, Respondent had a student in her first-period math class named B.T. B.T. came to school that morning in a tank top and a shirt. From the testimony provided, it is inferred that the shirt was worn unbuttoned, like a sweater or jacket, over the tank top, but with the tank top showing. As B.T. entered Ms. Bannister’s classroom that morning, Ms. Bannister noticed that B.T.’s stomach was showing below the tank top. Ms. Bannister asked B.T. to adjust her shirt so that her stomach would not show. B.T. pulled her tank top down as requested. The adjustment that B.T. made to her tank top resulted in a new problem: too much cleavage visible to comply with the school dress code. As B.T. and Ms. Bannister walked into the room, Ms. Bannister asked B.T. to adjust her shirt again, so that she did not show so much cleavage. B.T. did not appreciate the second request to adjust her shirt, but Respondent’s claim that B.T. engaged the class by asking them whether her shirt was too low is rejected. B.T. was, however, apparently visibly annoyed and did not think that her tank top was too low. Considering the evidence in the light most favorable to Respondent, Ms. Bannister picked up a ruler off a desk near her own and said, “well, we could always measure it.” There was conflicting testimony regarding what term Respondent used to describe B.T.’s exposed chest. Whether Respondent used the term “chest,” “cleavage,” or “boobage,” is irrelevant. What matters is that Respondent made a statement in front of the class suggesting that it would be appropriate to measure the amount of B.T.’s cleavage that was visible in order to make her point about the dress code violation. The statement was loud enough that other students in the classroom could hear it. Respondent did not actually approach B.T. with the ruler or attempt to measure her in any way. However, B.T. was very upset and embarrassed by the comment, picked up her books, and left the classroom. She did not seek permission before doing so. B.T. admitted at hearing that she never liked Ms. Bannister. However, her version of the incident is credible and corroborated in several key points by other students who were present that day. By contrast, Ms. Bannister’s testimony was internally contradictory and conflicts with the testimony of the students in many respects. B.T.’s testimony that she left the classroom immediately without getting a pass or asking permission to do so is credited. B.T. went to see Erin Porter, her guidance counselor. Initially, Ms. Porter was not in her office, so B.T. consulted with the school resource officer, Deputy King, and told him about the incident. While B.T. was in his office, Ms. Porter returned to her office and B.T. told her about the interaction with Ms. Bannister. Ms. Porter felt that the situation was more a teacher issue than a guidance issue, and reported it to administration. The school district conducted an investigation of the incident, and interviewed several students, Ms. Porter, and Ms. Bannister. Ms. Bannister was notified of the investigation by letter dated February 2, 2012. Ms. Bannister was removed from the classroom during the investigation and directed to work at the District Copy Center until a decision was reached. On February 6, 2012, Respondent was notified by the Superintendent of Schools, Susan Moxley, that Superintendent Moxley was recommending that she be suspended for five days without pay, and that she participate in a professional development practicum designed to assist teachers with classroom issues. The date of the suspension was to be determined once Respondent’s due process rights were satisfied. On February 8, 2012, Respondent was notified that the investigation was concluded and that she would return to her classroom effective February 9, 2012. B.T. was reassigned to another math class. The incident was publicized in the local community, through the internet, newspaper, and local television. Both Ms. Bannister and B.T. were embarrassed by the news coverage. B.T. was also embarrassed by the amount of attention the incident received at school, because other students talked about the incident and made fun of her. Respondent resigned from her position with the Lake County School District, effective March 30, 2012, in order to take a job in another school district. Respondent submitted her resignation with an effective date of April 6, 2012, but for reasons that are unclear, the effective date was changed to March 30, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(j) and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e). It is further recommended that Respondent be issued a reprimand; be required to complete a three-hour college-level course on classroom management; and be placed on probation for a period of one year, subject to such terms and conditions as the Commission may require. DONE AND ENTERED this 21st day of May, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399-0400 Joan Bannister 9256 New Orleans Drive Orlando, Florida 32818-9076 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent, Thomas Masters, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Amended Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence and testimony presented at the final hearing, the following Findings of Fact are made: Background Respondent holds Florida Educator’s Certificate 743504, covering the areas of Elementary Education and Physical Education, which is valid through June 30, 2024. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Since 1994, Respondent has been responsible for the care and development of elementary school-aged children. He became certified to teach elementary education in Florida in 1995, and at that time began teaching physical education (P.E.) for the Archdiocese of Miami. In approximately 1999, Respondent was certified in P.E. He taught P.E. for 19 years and theology for one year. He was the Athletic Director for 18 of those 20 years. In 2015, Respondent relocated from South Florida to St. Johns County to assist with the care of his mother after his father’s passing. He taught P.E. in the St. Johns County School District (SJCSD) from 2015 through 2019. At the time of the allegations in the Amended Administrative Complaint, Respondent was employed as a P.E. Teacher at W.D. Hartley Elementary School in the SJCSD. Mr. Masters also served as the volunteer coach for the Gamble Rogers Middle School girl’s softball team, also known as the Gamble Rogers Stingrays. The SJMSAA is an independent, private non-profit corporation. SJMSAA uses district middle school names and facilities under a license agreement with the district. SJMSAA is solely responsible for the operation of the SJMSAA middle school sports programs and their individual teams. The organization’s mission is to promote community citizenship, good sportsmanship, and physical and mental development through healthy, organized competition’ and team work for 12 to 15-year-old middle school students. SJMSAA is responsible for operation of the sports programs for 13 middle school sports teams and seven different sports. Thus, all middle school students from various schools within the district may participate in sports. The sports the SJMSAA oversees are: football, baseball, softball, golf, tennis, cheer, and soccer. Middle school students J.M., H.B., and S.P. were on the SJMSAA girls’ softball team Respondent coached. Allegations in the Complaint The allegations in the Amended Administrative Complaint took place during softball practice and did not involve any of Respondent’s students at Hartley. The allegations stem from a complaint made by the mother of J.M. (softball team member). At the time of the incident, J.M. was a middle school student at Gamble Rogers and a member of the softball team within SJMSAA. She was 13 years old at the time of the incident. J.M. is now a 15-year-old high school student. On April 3, 2018, J.M. told Mr. Masters that her stomach hurt because she did not have “[any] food in her stomach.” Mr. Masters then asked other players if they had any food that he could give J.M. Since none of the players had food, Mr. Masters gave J.M. a soda from his car to help her feel better. Shortly after she drank the soda, J.M. returned to practice. Before practice, Mr. Masters told the girls that they must do push-ups if they drop the ball. While throwing the ball with her partner, J.M. dropped the ball. J.M. then positioned herself to do the push-ups. Since the push-ups were modified, her hands and knees were on the ground. J.M. testified that while doing the push-ups, Mr. Masters kicked her in the stomach and placed his foot on her back. She was confused and embarrassed because she did not expect him to kick her. J.M. didn’t say anything after the incident, but rather, she looked at Mr. Masters with a shocked facial expression. Shortly thereafter, she returned to practice. She remained in practice for the duration, which was approximately 1.5 to two hours. J.M. stated that the kick caused her stomach to hurt more, increasing the pain to 9 out of 10, with 10 being the highest level of pain. However, there was no evidence offered to establish the level of stomach pain before the incident. J.M.’s teammates, S.P. and H.B., witnessed the incident. Before practice, J.M. told S.P. that she was not feeling well. Later, during warm-ups, she was standing nearby when J.M. dropped the ball. While J.M. was doing the requisite push-ups, S.P. witnessed Mr. Masters kick J.M. in the stomach. S.P. was shocked and believed Mr. Masters’ actions were wrong. S.P. did not see Mr. Masters place his foot on J.M.’s back. H.B. did not testify at the hearing. However, she provided a written statement to described what she witnessed on the date of the incident. Similar to S.P., H.B. stated that Mr. Masters kicked J.M. in the stomach while she was doing push-ups. Although the statement is hearsay, it further explains and is corroborated by admissible evidence in this matter. S.W. arrived late to practice to pick-up her daughter, J.M. S.W. recalled that her daughter seemed as if she was not as engaged as the other team members. J.M. told her mother that Mr. Masters kicked her and placed his foot on her back while she was doing push-ups. S.W. observed that her daughter was “very upset” about the incident. S.W. believed Mr. Masters’ placement of his feet on J.M. was disrespectful. S.W. contacted the SJMSAA commissioner to report what happened to her daughter. Justin Palesotti, the President of the SJMSAA, received a complaint from S.W. that Mr. Masters had inappropriately touched her daughter. Mr. Palesotti approached Mr. Masters before a softball game and asked him about the complaint. Mr. Masters told Mr. Palesotti that he swept his foot underneath J.M. while she was doing push-ups to confirm the student had space between her stomach and above the ground. After the discussion, Mr. Palesotti asked for Mr. Masters’ resignation, and he complied. Mr. Masters disputes J.M.’s complaint. He testified that J.M. arrived at practice and she did not look well. She told Mr. Masters that she was not feeling well because she had not eaten all day. He did not have snacks and none of the other girls had snacks, so he gave her a soda that he had in his car. After giving her the soda, he gave her the option to return to practice when she could. During warm-ups he told the girls that they would need to do three push-ups if they dropped the ball. J.M. and other players had to do push-ups. When J.M. had to do push-ups she had already drunk the soda. As J.M. was doing push-ups, he was being silly to help change her mood, and “pretended to fake kick her under her stomach.” J.M. unexpectedly “came down onto his foot.” She then gave him a look to communicate, “are you kidding me?” He was not trying to harm J.M., but, rather, he was “kidding” with her to lighten her mood. His attempt to make J.M. feel better was not well received. While he acknowledged that his foot made contact with J.M.’s stomach, he denied placing his foot on J.M.’s back. Character Witnesses The allegations were a surprise to Respondent’s character witnesses who disagreed that he would kick a student. Ms. Ivey Brown, the assistant softball coach at the time, testified that Mr. Masters enjoyed coaching. She had never witnessed Respondent kick a student. Likewise, John Samuels who coached basketball with Mr. Masters for a few weeks at Hartley only observed positive interactions with students. Mr. Samuels described Mr. Masters as a compassionate coach who helped improve the player’s self-esteem. Ms. Gonzalez, another assistant coach and former player coached by Respondent, testified that Respondent was always positive and encouraged players. Even at a time when players were disciplined, including herself, he spoke to them with compassion. St. Johns County Circuit Court Judge Mathis (ret.) met Mr. Masters in 2016. Judge Mathis volunteered to help coach the basketball team, of which his grandson was a member, and observed Respondent regularly interact with the students. Judge Mathis testified that Respondent had positive interactions with students, even the students who may have been difficult. He also had a reputation for helping people. Disciplinary History Although he had favorable experiences about other students, this is not the first time Mr. Masters has been subject to allegations of inappropriate contact with students. Mr. Masters was disciplined for a prior incident in Richard Corcoran, as Commissioner of Education, Case No. 19-6071PL, (Fla. DOAH Apr. 28, 2020; Fla. DOE Oct. 7, 2020), for his actions, filed on September 16, 2020.2 Respondent was issued a reprimand, placed on probation for 12 months, and required to pay administrative costs of $150.00. Ultimate Findings of Fact Petitioner has established by clear and convincing evidence that Respondent’s foot made contact with J.M.’s stomach. While the undersigned acknowledges J.M.’s recollection of Mr. Masters placing his foot on her back, the other witnesses present did not recall this and Respondent disputes it. While the possibility exists that Mr. Masters placed his foot on J.M.’s back, J.M.’s uncorroborated statement is not sufficient, without more, to establish by clear and convincing evidence that Respondent placed his foot on her back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rule 6A- 10.081(2)(a)1., that Respondent receive a Reprimand, and that he be placed on suspension for 30 days, followed by probation for a period of 12 months following reinstatement, with conditions of probation to be determined by the Education Practices Commission. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 4th day of January, 2021. COPIES FURNISHED: Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Heidi B. Parker, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 2nd Floor 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
