Findings Of Fact UniPsych is a Florida corporation that provides managed mental health and substance abuse services to Florida residents. The company was founded by Dr. Leo Bradman, a recognized authority in managed mental health care. UniPsych currently provides mental health and substance abuse services and has been providing mental health services, on a managed care basis to the Lake County School District and its employees for the last five (5) years. In July 1995, the Board issued Request For Proposals No. 883 (RFP). The RFP sought proposals for a managed behavioral health program that includes an employee assistance program and a mental health/substance abuse program for the School District employees, their spouses, and their children. The RFP at a minimum requires that each member would be entitled to three visits a year with a counselor. The first visit would be at no charge to the member and a $10.00 charge to the member for visits two and three. The RFP also states in pertinent part: Rights are reserved by the School Board of Lake County to reject any and all proposals and to waive all technicalities. * * * THE SCHOOL BOARD RESERVES THE RIGHT TO ACCEPT OR REJECT PROPOSALS IN WHOLE OR IN PART; AND TO AWARD A CONTRACT IN THE MANNER IN WHICH THE BOARD DETERMINES TO ITS BEST INTEREST. Award of this proposal is intended to be made by the School Board at its regular meeting on August 8, 1995. Conformity to specifications, price, quality of network, quality of program, response to worksheet and financial stability will be determining factors in the awarding of the proposal. All proposals must include the following: Completed Managed Behavioral Health Program Worksheet signed by an authorized representative. Completed Statement on Public Entity Crimes. A copy of your company's Florida Private Review Act Certification. Sample EAP and Managed MH/SA communi- cations to employees. A sample contract stating the provisions that would apply if your company is selected. Any additional information which your company deems pertinent to the proposal. The RFP does not define the term financial stability. The RFP does state a preferred method of calculating price. The preferred method of calculating price is the per employee contracts per month model. Total employee contracts is 2855 employees. Six (6) vendors submitted proposals prior to the submission deadline for RFP 883, including the prior contract holder UniPsych. The Board's plan for evaluating the six proposals was to submit them to the Board's insurance committee and the Board's expert consultant, John D. Robinson. The Board elected to have Mr. Robinson screen the submitted proposals for responsiveness to the RFP. Of the six (6) proposals submitted to the School Board, only the proposals of UniPsych, FPM, and Mathar Behavioral Health Systems, Inc. were deemed to satisfy the criteria of the RFP. These three proposals were sent to the Board's insurance committee so that the committee members could review and interview the three remaining proposers. The committee members as well as the Board had each proposers' proposal as well as a spreadsheet prepared by Mr. Robinson during his screening process. However, the evidence was clear that the committee relied on the price representations and guarantees contained in the spreadsheet. The Committee voted 9-0-1 to recommend the award to FPM. The Petitioner received no votes. The third finalist received one vote. Around August 10, 1995, UniPsych received written notice that the School District's ten-member district-wide health insurance committee decided to recommend that the School Board award its contract to FPM. As indicated earlier in screening the proposals, Mr. Robinson prepared a spreadsheet containing comparative data. The spreadsheet was not meant to be a complete listing of all the items in a company's proposal. He obtained the information contained in the spreadsheet mostly from the proposers' proposals. However, in at least two instances relevant to this case. Mr. Robinson contacted certain proposers over its proposal. Mr. Robinson felt he could seek corrections or clarifications from FPM, and other proposers because "[t]his is a proposal, not a bid. Proposals have the ability to be questioned and clarified " One such call was made to FPM. The call to FPM was made regarding at least two portions of FPM's proposal. FPM stated in Part 3 of its proposal that 14 average employee assistance program (EAP) visits per 1000 members were handled by FPM; and stated in Part 7 of its proposal that it would offer the benefit design outlined in the Board's specifications at $5.00 per employee contract per month. The $5.00 rate would be guaranteed for "two years without significant Consumer Price Index (CPI) increases." FPM was permitted to change the information contained in Part 3 of its proposal to 80-85 average employee assistance program visits per 1000 members because the original number was an error. The evidence did not demonstrate that this change was significant or material. More importantly however, FPM was allowed to change it price guarantee to three years without the CPI provision. These changes contradicted the plain language of FPM's proposal. Mr. Robinson inserted the newly-provided information in his spreadsheet and reported these changes to FPM's proposal to the committee. The change made to FPM's price guarantee was not a mere clarification but a significant change in a material bid term. The evidence was clear that the information in the spreadsheet was utilized and relied on by the Board and its insurance committee. The spreadsheet also contained information on each proposer's price. However, the spreadsheet was unduly detrimental to UniPsych because it overstated UniPsych's price. Health benefit contracts are typically priced under one of two methods: per employee per month (PEPM) or per member per month (PMPM or additive method). Members include the employee as well as any non-employee persons such as children of the employee covered under a health plan. The RFP stated a preference for pricing on a PEPM basis. UniPsych proposed to charge $4.01 on a PEPM basis. In determining UniPsych's PEPM average, the individual employee price was not added onto the price charged per employee and child(ren), per employee and spouse, or per employee and family. However, the spreadsheet erroneously stated all prices in the spreadsheet on a PMPM basis and reflected that UniPsych proposed to charge $4.80 PMPM instead of $4.01 PEPM. Moreover, the price was incorrectly based on an interpretation of documents relating to UniPsych's pricing scheme under its prior contract with the School Board. The erroneous interpretation served to inflate the spreadsheets price calculation for UniPsych. FPM proposed to charge $5.00 PEPM. Mr. Robinson recognized that if UniPsych's price was $4.01 PEPM, it would be substantially different from FPM's price, and could be sufficient to justify an award of the contract to UniPsych over FPM. Given the price guarantee change to FPM's proposal and this error in calculating UniPsych's price, these two factors warrant the rejection of all the bids in this case. As indicated earlier, the financial stability of a proposer was one of the criteria for review of this RFP. Neither the committee nor the RFP members required that any proposer submit financial information with its proposal or in its presentation to the committee. The only information supplied was general company information showing business activity, clients served and providers under contract. The committee members generally only asked the proposers if such information was available and if the proposer was financially stable. At the hearing, the evidence showed that FPM is the wholly-owned subsidiary of Ramsay Managed Care, Inc. (Ramsay). Ramsay essentially has two operating divisions: a health maintenance organization (HMO) division and a mental health and substance abuse division. FPM is Ramsay's mental health and substance abuse operating division. Ramsay's 10Q filing for the quarter ending March 31, 1995, reported that Ramsay had $17,508,893 in assets, $13,236,246 in liabilities, shareholder's net worth of $4,272,647, and $87,802 in losses that quarter. Ramsay has current assets of $2,957,912 and current liabilities of $4,362,714. These two figures give Ramsay a current ratio of 1:1.47. Generally a 1:1 or better ratio is deserved for financially stable companies. However, the ratio by itself does not show financial instability. It is simply a red flag worthy of more scrutiny. Ramsay's largest asset is "goodwill" totaling $9,959,745. Ramsay's 10Q explains that it booked most of this goodwill to account for its acquisition of FPM and two other mental health companies at prices exceeding the book values of those companies. Again the amount of goodwill does not demonstrate financial instability of a company. The 10Q also reflects that FPM proposes to obtain working capital via a line of credit that is collateralized by security interests in FPM's accounts receivable and its stock. The significance of these security interests is magnified by Ramsay's debt service obligations, which (as of March 31, 1995) would require it to pay out $2,211,100 by June 30, 1997, and $2,407,600 by June 30, 1998. Again these figures do not demonstrate financial instability of a company. To confirm its financial stability, UniPsych offered the Committee audited financial statements that were being prepared on a statutory accounting basis. The statements were never requested by the Committee and the Committee never considered financial statements for any of the proposals. However in this instance, the committee did consider the financial stability of all the proposers to its satisfaction. The evidence did not show that the committee's consideration was unreasonable or unfair to any proposer. In fact, the proposers were treated equally in the quality and quantity of financial information sought by the committee. The fact that more information or better information could have been sought is irrelevant since the committee and Board under the RFP specifications were free to determine the level of inquiry they deemed appropriate. If the specification as used by the Board was unclear or undefined to UniPsych, it should have challenged the specifications within the 72 hour period for such challenges under 120.53, Florida Statutes. Finally, the evidence was clear that UniPsych's proposal was a superior program to FPM's. In short UniPsych offered more benefits for less money. Indeed UniPsych's experiences during those five (5) years gave it first-hand knowledge of several ways it could improve and enhance the managed care program specified by the Board's RFP. FPM's proposal fails to offer any enhanced benefits. To enhance and improve the RFP's managed care program, UniPsych offered to provide two (2) additional benefits to the Board: (a) an out-of-network benefit; and (b) a chronic condition benefit. The out-of-network benefit gives potential patients complete choice of out-patient providers and increased choice of in-patient (hospital) providers, by allowing those potential patients to select a provider who is outside a designated network of providers. The chronic condition benefit addresses another restriction that is prevalent in most managed mental health care programs. As is the case with the RFP in issue, most managed mental health care programs routinely fail to require the plan provider to contract for coverage of chronic, recurrent or long-term mental health conditions (chronic conditions). This omission forces chronic condition patients to look to publicly funded community agencies for mental health care. Publicly funded facilities in Lake County have not produced patient satisfaction, partly because they are too few in number or they offer too few services. In addition to these two (2) major benefits, UniPsych's proposal also offered several other valuable benefit enhancements that improved upon the RFP's minimum requirements: 10 additional out-patient visits (above the 20 required by the RFP); and 5 free visits (i.e., no co-payment for members) under UniPsych's Employee Assistance Program, instead of the RFP's requirement of three visits, only the first of which is not subject to co-payment. The evidence did not demonstrate any reason with a basis in fact which would have caused the School Board to reject UniPsych's proposal in favor of FPM. The evidence only hinted at a general dissatisfaction with UniPsych. No basis for this dissatisfaction was shown. Since no basis was given for the Board's decision to reject a proposal which offers more benefits for less money the only conclusion is that the Board acted arbitrarily in awarding the contract to FPM. Therefore, all the proposals should be rejected and the process begun anew.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order rejecting all proposals. DONE and ENTERED this 29th day of January, 1996, at Tallahassee, Leon County, Florida. Officer Hearings 1550 Hearings DIANNE CLEAVINGER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4827BID The facts contained in paragraphs 2, 3, 4, 5, 7, 8, 13, 14, 15, 17, 19, 20, 21 and 22, of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 1, 6, 10, 11, 16, 18, 24, 25 and 26 of the Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 12 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8(a) and (b) and 15 of Respondent's Proposed Findings of Fact* are adopted in substance is so far as material. The facts contained in paragraphs 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraph 8(c) of Respondent's Proposed Findings of Fact contained only legal argument. *Paragraphs 7 through 15 of Respondent's Proposed Findings of Fact were unnumbered. Therefore, the Hearing Officer supplied sequential numbers for these paragraphs for reference purposes. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Richard Langley, Esquire Post Office Box 120188 Clermont, Florida 34712-0188 Dr. Thomas E. Sanders, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Frank T. Brogan, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Section 112.041, Florida Statutes, by failure to select Petitioner for the position of Supervisor, Forensic Social Work Unit, South Florida State Hospital. This case arises from the filing of a complaint byPetitioner alleging that he was unlawfully discriminated againstin failing to be promoted at the South Florida State Hospital because of his national origin. Although Respondent had in existence a procedure for the handling of such complaints of discrimination, HRS regulation No. 60-1, dated December 18, 1974, it was stipulated at the hearing that both parties waived the procedural requirements of that directive and agreed that the matter would be determined solely as a result of evidence presented at the hearing herein.
Findings Of Fact Petitioner has been employed at the South Florida State Hospital (Hospital), Hollywood, Florida, since 1969. He started in the Hospital Day Care Center as a Social Worker. He was promoted in 1975 to Clinical Social Worker I and has held thatposition until the present time. He came to this country from Cuba in 1960, where he had been a practicing attorney since 1938,upon his graduation from the School of Law, University of Havana.During the nine years previous to his employment by Respondent he had been an insurance agent in New York and a teacher inMichigan. In 1975, he completed a special law program at the University of Florida. (Testimony of Gonzalez, Petitioner'sExhibit 6) The Social Services Department at the Hospital includes all social workers assigned to the various hospital services. The director of the Department since 1960 has been Mrs. Dorothy H. Alberts. Clinical Social Workers are classified in grades I, II and III. The job description of the lowest position, Clinical Social Worker I, provides that such an employee is responsible for obtaining pertinent information from patients upon admittance to the hospital and thereafter serves as a member of a psychiatric team administering treatment and therapy to patients on an individual and group basis. A team is headed by a psychiatrist and includes a clinical psychologist, therapist, psychiatric aide, and social worker. The duties of the social worker also include counseling patients on adjustment problems, pre-release activities, and working with patients' families in order that they may assist in the rehabilitation process. Minimum training and experience for this position is a baccalaureate degree and one year of social work or guidance counseling experience; however, a master's degree in a social or rehabilitative science may be substituted for the required experience. The Clinical Social Worker II performs essentially thesame services as the Clinical Social Worker I, but works with more acute cases, serves as a team leader in the rehabilitative process, and provides supervision of subordinate social workers. The Clinical Social Worker III assists in supervising the clinical social services activities of a major program, supervises subordinate social workers and assists the Social Service Director in implementing the team treatment approach in a mental hospital. Although the above delineation of duties is reflectedin hospital job descriptions, as a practical matter the Clinical Social Worker III in the Forensic Unit of the South Florida State Hospital not only performs administrative tasks, but also deals with individual patients due to shortage of personnel. In addition to a baccalaureate degree, a Clinical Social Worker II is required to have two years of social worker guidance counseling experience. A Master's Degree in a social or rehabilitative service may be substituted for one year of the required experience. The Clinical Worker III is required to have a degree and three years of such experience for which a Master's Degree in a social or rehabilitative science may be substituted for one year of the required experience. To perform effectively, a social worker must be dedicated to patient care and effectively relate to the patient.Although a knowledge of the Spanish language and culture is anasset because approximately ten percent of the patients at thehospital are Spanish-speaking or of Hispanic origin, such knowledge or background is not mandatory, particularly when occupying a supervisory position. Those social workers assigned to the Forensic Unit perform additional functions involving court liaison and therefore a legal background is helpful, but not required. (Testimony of Hahn, Hernandez, Reinoso, Alberts, Petitioner's Composite Exhibit 1) In August 1976, the incumbent Clinical Social WorkerIII in Forensic Services at the Hospital, Robert Bohler, told Mrs. Alberts that he intended to leave that position for a promotion elsewhere. At that time, there were in existence no agency rules establishing the criteria or procedures for filling such a vacancy other than in broad general terms. Prevailing practice in the district where the Hospital was located was that a vacant position be advertised in a job opportunity bulletin for a period of ten days and then filled from applications received by the promoting authority. In this case, the promoting authority was the Department Head, Alberts, who exercised complete authority in determiningwho was eligible for and should be appointed to the position. Since Bohler's position was non-competetive, there was no need for a candidate to be on a state register of eligible personnel and anyone meeting the minimum training and experience requirements set forth in current job descriptions could be considered. (Testimony of Rudominer, Copp, Nichols) Bohler had notified Alberts of his intentionto resign, effective September 3, 1976, in a memorandum, datedAugust 23, 1976. Bohler also told Dale Frick, the Clinical SocialWorker II in the Forensic Services of his plan to depart. Frickmet with Bohler and Alberts, at which time the latter told him that he would have to apply for the position and that she would consider him along with any other applicants. Frick proceeded to file his application, dated August 24, 1976 and, on August 25, Alberts sent a memo to the Hospital Personnel Officer stating that she would like to fill the vacancy by promoting Frick who was well qualified. On August 31, Bohler sent a memorandum to Albertsrecommending Frick highly for the anticipated vacancy. On orabout September 1, Job Opportunity Bulletin No. 18 of HRS District 10 was published which included the position of Clinical Social Worker III with a closing date for applications of September 14, 1976. (Testimony of Alberts, Frick, Copp, Petitioner's Exhibits2, 5, Respondent's Exhibit 1) Petitioner learned of the upcoming position vacancy in August and asked Dr. Pedro Hernandez, Clinical Director of the Forensic Services, about it. Hernandez told him that promotions were made in the Social Work Department solely by Mrs. Alberts and suggested that he see her. Petitioner thereafter had a conversation with Alberts in which he told her he would like to be considered for the position. She informed him that she did not believe he was professionally qualified for the job. Nevertheless, Petitioner filed an application on August 31, 1976. (Testimony of Hernandez, Alberts, Gonzalez, Petitioner's Exhibit 6) The Job Opportunity Bulletin listing the position was posted in several places at the hospital during the time the job was being advertised. Frick was appointed to the position on an acting basis pending selection of an applicant. At the conclusion of the advertising period, Frick's application was the only one that Alberts had received. She had solicited a former employee of Hispanic origin to apply, but that individual, Angela Lavernia, declined the invitation as she had received a prior offer in the teaching field. For some reason, Petitioner's application was not transmitted to Alberts. On September 17, Frick was appointed as the Clinical Social Worker III to replace Bohler. Alberts testified at the hearing that she had considered Frick the most logical employee to fill the vacancy from the outset, and that, therefore, her premature recommendation could be termed a "prejudgment." However, she stated that she was familiar with Petitioner's record and qualifications over past years and that she would have selected Frick even if she had had Petitioner's application before her. However, if a much more qualified individual than Frick had applied, she would have changed her mind. She based her selection of Frick not only because his was the only application received. She was of the opinion that, in comparison with Petitioner, Frick's educationaland experience qualifications were superior. Additionally, he had supervisory experience, whereas Petitioner did not. She was more interested in the type of experience an applicant possessed than the amount of such experience, together with prior performance, interest in the field, knowledge, efforts to improve oneself by taking courses and workshops. In these areas, she considered Frick to excel Petitioner. Although she obtained a list of eligible applicants in Broward County from the Department Of Administration, she was not required to use that list because the position was noncompetitive. Frick was on the list but not Gonzalez, since he had never applied for certification prior to that time. (He later did so after the appointment had been effected and received certification from the State as Clinical Social Worker II and III) (Testimony of Alberts, Copp,Gonzalez, Frick) Frick held a Master's Degree in psychology and, before his employment commenced at the South Florida State Hospital in March, 1976, he had been successively a special psychiatric attendant in an Indiana hospital for six months in 1973, a "house parent" with the Youth Service Bureau of Porter County, Indiana, and a director of a residential treatment center for almost a year. His duties had involved counseling and supervision of delinquent and emotionally disturbed adolescents. He served as a vocational rehabilitation counselor in Fort Lauderdale from July, 1974, to March 1976, with duties involving counseling, placement, and coordination of vocational services for psychiatrically handicapped persons, including group counseling for emotionally disturbed adolescents at South Florida State Hospital. In March 1976, he was appointed as a Clinical Social Worker II in the Forensic Service at the Hospital. Bohler's most recent performance evaluations resulted in an outstanding rating for Frick and an above satisfactory rating for Petitioner. Both employees are considered competent and equally capable of performing the duties of a Clinical Social Worker III by the Forensic Clinical Director and several of the psychiatrists. ( Testimony of Frick, Hahn, Hernandez, Reinoso, Copp, Petitioner's Exhibit 5) Petitioner testified that he has been the subject of discrimination by Alberts ever since he was first employed atthe Hospital. He claims that his only promotion from Social Worker to Clinical Social Worker I in 1975 did not come about until the Hospital personnel director personally interceded with Alberts. He is further of the belief that although Alberts has not made any derogatory ethnic remarks, she has shown her prejudice by failing to promote persons of Spanish origin in her department. He further believes that she downgrades his degree from the University of Havana and considers it of no value. However, written statements of two employees at the hospital, and a former employee, all of Hispanic origin, state that Alberts had never shown any discrimination toward them or anyone else due to ethnic background. Alberts denied any discrimination on her part toward Petitioner or any other employee. (Testimony of Alberts, Gonzales, Respondent's Exhibits 2-4) Although Petitioner submitted a further applicationfor Frick's former position as Clinical Social Worker II in October, 1976, that position was "frozen" and never filled after being advertised as a vacancy. (Testimony of Alberts, Gonzalez)
Recommendation That Petitioner's complaint be dismissed. DONE and ENTERED this 30th day of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Doug Whitney, Esquire 1350 Orange Avenue Winter Park, Florida 32789 Roger Besu, Esquire Roberts Building, Suite 900 28 Flagler Street Miami, Florida 33130
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on either of three factors: fitness for duty; being absent without leave; and gross insubordination, as defined by Section 1012.67, Florida Statutes (2009), and Florida Administrative Code Rule 6B-4.009(1) and (4).
Findings Of Fact Petitioner is the School Board responsible for hiring, firing and overseeing all employees at Manatee Technical Institute (the "School"), which is a post-secondary training center for adults. The School provides a variety of vocational training opportunities for adults. At all times relevant hereto, Respondent was a custodian at the School. Respondent was at all times material hereto working the night shift. Respondent is a former construction worker whose business suffered from the bad economy. He took the position as a custodian at the school, even though it paid less than he had been making in construction. When Respondent first began working at the School, he seemed to get along well with his co-workers and did not seem to have any problems. Respondent considered his co-workers to be his friends and they seemed to like him. However, as time passed Respondent seemed to become frustrated and angry. His wife was in poor health, and Respondent was having financial difficulties, including the foreclosure of his home. Respondent's primary co-workers were Amerson, Quijano, and Gutierrez, although there were approximately ten custodians in all on the main campus of the School. Gutierrez was the lead custodian on the night shift, making her Respondent's immediate supervisor. Quijano was the head custodian. Both Gutierrez and Quijano are Hispanic; Respondent is a Caucasian male. In January 2009, Respondent filed a complaint against Quijano claiming racial discrimination. The complaint was investigated by the Office of Professional Standards, and the complaints were deemed unfounded. By way of a letter dated March 19, 2009, Respondent was notified that his equity complaint against Quijano was being closed. (A final investigative report was eventually published on May 11, 2009.) On March 26, 2009, just a week after being notified that his complaint against Quijano was deemed unfounded, a custodian's meeting was held at the School. Such meetings were fairly common occurrences and would be scheduled so that all custodians could attend. Quijano called the meeting and addressed all of the custodians in attendance. Each custodian was handed a sheet of paper which outlined various issues to be addressed within that custodian's realm of responsibility. Some custodians had several items on their lists, others had only a few. Respondent says that his list was the longest of all the custodians. When Respondent was handed his list of issues at the meeting, he was not pleased. He felt as though he was being chastised more than his co-workers. Respondent crumpled up the sheet of paper and tossed it to the floor. This action was witnessed by the other attendees. (Respondent maintains that he did not crumple and throw the paper, but the testimony of other witnesses as to that event is more credible.) Upon exiting the meeting at its conclusion, Respondent walked down a hallway leading out of the building. Amerson was walking down the hallway ahead of Respondent, but she could hear him mumbling and making noise. At one point, Amerson heard a loud noise as Respondent hit a metal support pole in the hallway. To her perception, Respondent had hit the pole extremely hard. Respondent denies he hit the pole, but Amerson's testimony is more credible. Further, Quijano testified that Respondent had a habit of hitting and kicking objects almost on a daily basis. That fact lends credence to Amerson's statement, as well. As Respondent caught up to Amerson in the hallway, the following conversation occurred: Amerson: "What"? (Because she had not heard Respondent's initial comment.) Respondent: "I repented of all my sins last week." Amerson: "Well then, God forgave you." Respondent: "God isn't going to forgive me what I'm gonna do now. It's personal. I'm gonna do personal things now. The school board said there is no discrimination so they can stick it up their f---ing big fat ass." Respondent denies saying anything about the matter getting personal. Nonetheless, Amerson heard the comments and took them to mean that Respondent was going to hurt someone. She believed that someone was probably Quijano. So, on the very next day, Amerson told Quijano what she had heard Respondent say. Quijano immediately reported what he had been told, first to the director's assistant, and then to the director, Cantrell. Cantrell took the matter very seriously and considered Respondent's comments to be a legitimate threat against Quijano. Cantrell was worried, in part, because "Quijano is slight in stature." Respondent, on the other hand, is an obviously stout and physically imposing person. The differences in the physical stature of Respondent and Quijano concerned Cantrell. Cantrell was familiar with Respondent, although she did not regularly supervise him or view him doing his work. Part of her concern about the incident at issue was based on the fact that during Respondent's 90-day probationary period, her assistant director, Dr. Berry, had concerns about Respondent's level of anger. Cantrell advised Dr. Berry to effect some changes in that behavior or else Respondent would have to be terminated. Dr. Berry reported that Respondent had some serious financial issues and family problems which contributed to his anger. Cantrell called in Quijano to make a specific recommendation that Respondent be retained despite the anger issues. Quijano supported Respondent's continued employment, so Cantrell allowed him to stay despite her reservations. Upon hearing the report about Respondent's actions after the March 26, 2009, meeting, Cantrell raised the possibility of a restraining order to protect Quijano, but no such order was ever sought. Cantrell considered Respondent to be somewhat dangerous. Quijano was worried about the alleged threat because he knew that Respondent knew where he lived. Quijano was concerned about his wife and children. Cantrell believed Quijano's concerns to be legitimate. As a result of the concerns by Cantrell, Respondent was summoned to her office the next day so that she could interview him. Based upon her conversation with Respondent, he was placed on administrative leave with pay. Respondent was directed to undergo an examination by a medical professional in order to obtain a Fitness for Duty Report, i.e., a determination that the physician believed Respondent did not have any issues which would make him a threat to co-workers. Respondent was given a list of three doctors to choose from and he selected Dr. William B. Crockett. On April 23, 2009, Respondent reported to Dr. Crockett at Manatee Glens for an evaluation. Respondent says he believed the examination was to be physical in nature, rather than a psychological evaluation. However, upon reporting to Dr. Crockett, Respondent said that he was there because of his "recent behavior" and the fact that they (the School Board) "say I made a threat." He then said that he had made the following statement which concerned the School Board, "I said two words, that I repented my sins, please forgive me for what I have to go through." That statement is different from what Amerson remembered, and Respondent stated that she was simply mistaken. Nonetheless, it is obvious Respondent knew that he was seeing Dr. Crockett for something other than a physical examination. Dr. Crockett completed his evaluation of Respondent and issued a Fitness for Duty Evaluation Report on May 5, 2009. The report did not specifically say, in so many words, that Respondent was not fit for duty. Rather, the report concluded that: Therefore, my recommendation, in order to perhaps help to further delineate [Respondent's] difficulties and personality issues or thought abnormalities, would be to get some psychological testing and I have asked that that be done and I would like to review the results of that prior to making a determination that [Respondent] could safely go back to work. The other thing I am recommending is five sessions of individual psychotherapy. . . I have no specific recommendations for any kind of medication at this time and I am not inclined to approve him or give my recommendation that he return to work until he has had the psychological testing and his sessions of individual psychotherapy and I have been apprised of the results of those. I will provide that in an addendum to this evaluation. Petitioner interpreted Dr. Crockett's recommendation to be a finding that Respondent was not, at that point in time, fit for duty. That interpretation is reasonable based upon the plain meaning of Dr. Crockett's words. Respondent contends that Dr. Crockett's report is neither a finding of fitness for duty, nor a finding of unfitness. Petitioner's interpretation is more reasonable. Respondent further contends that Dr. Crockett's report includes a directive to have additional psychological evaluations by way of five personal sessions with a psychologist. If those sessions are deemed part of the overall evaluation for fitness, then the costs of the sessions would have to be borne by Petitioner. Conversely, if the sessions are a means of helping Respondent become fit for duty, then the costs would have to be borne by him. The cost of psychotherapy sessions under Respondent's insurance plan would be $50.00 per session as long as Respondent used one of the 15 psychologists in the health insurance network. On July 8, 2009, Petitioner notified Respondent that Dr. Crockett's report was being interpreted to mean that Respondent was not fit for duty. As a result, Respondent would no longer be on administrative leave, but would need to take regular leave or sick time if he wished to continue being paid. Petitioner instructed Respondent to undergo the prescribed therapy sessions and that Respondent would be responsible for the costs of those sessions. Petitioner further advised Respondent that once the psychological sessions had been completed and Dr. Crockett was made aware of that fact, Dr. Crockett could then issue a Fit for Duty Report so that Respondent could return to work. Eight days later, Petitioner's attorney sent a letter to Respondent's attorney reiterating the need for Respondent to comply with the directive to undergo psychotherapy. Approximately eight months later, Petitioner notified Respondent that there was no evidence of Respondent's having received the psychotherapy. Thus, Dr. Crockett had not yet issued a Fit for Duty Report. As a result of the time that had passed, Respondent had exhausted his annual and sick leave. He was, therefore, considered absent without leave and subject to termination. The letter then gave Respondent 12 days to submit evidence that he had "made reasonable efforts to comply with the superintendent's written directive of July 8, 2009. Otherwise, the Superintendent would recommend termination of Respondent's employment with the School District of Manatee County." Reasonable efforts could be as little as scheduling one of the psychotherapy sessions. However, Respondent did not respond to Petitioner's letter and did not undertake any action to schedule an appointment. Respondent was under the mistaken belief that when he was placed on administrative leave, his insurance had been cancelled as well. In fact, while Respondent was on leave Petitioner paid the entire premium for Respondent's insurance, i.e., there was no employee share paid by Respondent. As a result of Respondent's failure to comply with the directive to undergo psychotherapy and his failure to request unpaid leave after his annual leave and sick leave were exhausted, Petitioner deemed Respondent absent without leave, effective July 31, 2009, the day his other leave was used up. Further, Respondent's refusal to schedule psychotherapy was deemed insubordination by Petitioner. An Administrative Complaint setting out Petitioner's intent to formally terminate Respondent's employment was then prepared and forwarded to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Manatee County School Board, upholding the termination of Respondent, Michael L. Seppala's, employment for the reasons set forth above. DONE AND ENTERED this 20th day of August, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2010. COPIES FURNISHED: Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Post Office Box 9069 Bradenton, Florida 34206-9069 Dr. Eric Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott A. Martin, Esquire Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069 Robert E. Turffs, Esquire Robert E. Turffs, P.A. 1444 First Street, Suite B Sarasota, Florida 34236-5705
Findings Of Fact Petitioner was a candidate for the clinical social worker examination given in February 1988. Due to excessive noise during the conduct of that examination and flaws in the examination itself and in the scoring of that examination, all the unsuccessful candidates, including Petitioner, were given an opportunity to take the April 1988, examination without cost. Petitioner obtained a raw score of 95 on the practical theory portion of the April 1988, examination and a raw score of 96 is required for passing. In the April 1988 test, Petitioner was initially issued a defective test booklet with two pages missing. Her discovery of the missing pages, attracting the proctor's attention to the problem, and then finishing the test using substitute pages from the proctors test copy created significant stress and anxiety for Petitioner in the course of the April 1988 testing procedure and lessened the time Petitioner could think about her answer to each question. However, Petitioner apparently was able to complete all the pages of the test and to turn it in for grading prior to the close of the testing procedure. Petitioner did not notice for production at formal hearing the questions and answers from this April test and therefore they were not available at the time of formal hearing. Therefore, the Petitioner was unable to show which were the substituted pages, whether she had left any questions blank on the substituted pages, or that any of the questions she had answered which had been scored incorrect were part of the substituted pages. Over Respondent's objection, the undersigned ruled that the Petitioner would be permitted to introduce evidence of the correctness of any of her answers which had been marked incorrect. In an attempt to do so, Petitioner testified to the content of a question she asserted was question 44 on the April 1988 examination, as she recalled that question. She testified to the wording of that question as she recalled it. Then she testified to the content of her answer as she recalled it and what she recalled to be the preferred answer of the graders. There was some confusion in Petitioner's mind as to whether she was recalling a question from the February test or the April test and whether the preferred answer she recalled from her opportunity to review her test score after the April test was an answer to the exact question given her or from a "like" question/examination. Therefore, there was no credible showing that the question as Petitioner recalled it was close to, or a facsimile of, a question that had been asked and incorrectly scored on Petitioner's April 1988 examination. Although Petitioner and her expert witness, Peggy Cummings, a licensed clinical social worker, each testified that the answer Petitioner recalled giving to the question as she recalled it to be worded was a preferable answer to that answer which Petitioner claimed had been the preferred answer of the examination graders, their testimony is insufficient to establish a score which would make a difference of pass/fail for Petitioner. Ms. Cummings did not take the April examination and had not viewed the actual questions or Petitioner's actual answers. Her testimony was based entirely on what Petitioner told her the question had been and told her had been the preferred answer as Petitioner recalled those matters many months after the actual examination. Due to the strong probability that other wording was employed either for the question or the answer at issue, and due to the absence of any clear evidence specifically setting out the exact content of a question which was answered correctly by the Petitioner but which was scored as incorrect by the Respondent Board, there is insufficient evidence to establish that Petitioner's score should be corrected to reflect a passing grade. Respondent stipulated that the first examination in February, 1988, does not count against Petitioner and that she may legitimately take the examination two more times before having to take remedial courses in order to qualify for permission to take the licensing examination a fourth time.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Board of Clinical Social Workers enter a final order denying Petitioner licensure upon the basis of the April 1988 examination but permitting her to take the next available licensure examination at no further cost. DONE and RECOMMENDED this 24th day of May, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to Section 120.59(1), F.S. upon the parties' respective proposed finding of facts (PFOF): Petitioner's PFOF: 1-2 Accepted, except as to the reference which is to materials outside the record created at formal hearing. Accepted, in part; the remainder is irrelevant, and it is also noted that the reference is to materials outside the record created at formal hearing. Accepted, in part; the remainder is subordinate and unnecessary to the facts as found. 5-15 Rejected, in part because the bulk of the materials referenced are outside the record created at formal hearing. Also, most of the proposals constitute mere argument upon matters immaterial to the disposition of the sole issue at bar, or constitute argument with regard to free form agency action subordinate and unnecessary to the facts as found. Rejected as argument, not a proposal of ultimate, material fact. Petitioner's qualifications by education, training, and experience are excellent but subordinate and unnecessary to the facts as found and are not dispositive of the sole issue at bar. 18-20 Rejected for the reasons set out in the Recommended Order, as subordinate to the facts as found, and as not dispositive of the sole issue at bar. 21 Rejected as a mischaracterization of opponent's legal argument. Respondent's PFOF: 1, and 5-8 Accepted as modified. 2-4 Rejected as further argument upon objections already ruled upon; and not a proposal of ultimate, material fact. COPIES FURNISHED: Thomas F. Oxner Qualified Representative 8155 Sarcee Trail Jacksonville, Florida 32244 E. Harper Field Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann, Executive Director Board of Clinical Social Workers, Marriage and Family Therapist, and Mental Health Counselors Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729
The Issue In this case, the Petitioners challenge the determination by the Respondent that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based upon the Division of Retirement's determination that Dr. Rush is not an independent contractor. The issue is whether Dr. Rush should be a member of the Florida retirement system. This determination which turns upon whether she is an employee of the school district. Which turns upon whether or not she is, and was, an independent contractor providing professional services to the school board pursuant to contract.
Findings Of Fact The Board, in compliance with the statutory mandate requiring special education programs for emotionally-handicapped students, contracted with the Child Guidance Center, Inc., (CGC) to provide assessment and counseling of qualified students. See, Ex. A-B and Tr. 215-217. The Board obtained additional funding from grants to provide its students with these mandated special educational programs relating to mental health. See, Ex. E, F, G, H, and M. The Board contracts with neighboring school boards which are unable to afford their own programs and pay the Baker County Board to provide services to severely emotionally disturbed children in their counties as required by the statute. The Board's contracts with mental health specialists are dependent upon funding for special students from state monies allocated based upon the total number of students and upon grant money. See, Tr. 38 and 215-216. The Board has not established a permanent position for a health care professional to render clinical mental health services. See, Tr. 72 and 217. The Board has contracted for these professional services to severely emotionally handicapped students, as well as for the professional services of occupational therapists and physical therapists. See, Tr. 79. CGC, the first provider of services to emotionally-handicapped students, is a corporation whose business is providing mental health care. See, Tr. 29. The Board contracted annually with CGC beginning in 1982 to provide a specified number of hours of counseling for its qualifying students. See, Tr. 31-33. The number of hours stated in the contract with CGC varied according to the availability of funding and established a financial liability limit on the contract. Each contract between the Board and CGC was for the term of the school year and could be terminated by either party upon 30 days notice. See, Ex. B. The contracts between the Board and CGC provided that the services would be rendered in the Baker County public schools. See, Ex. B. CGC billed the Board for each hour of counseling provided by its employees. See, Ex. B. CGC did its billing and accounting on a quarterly basis and arranged with the Board to be paid on a quarterly basis for its convenience. See, Ex. B; Tr. 145-146. Dr. Rush was an employee of CGC and first began providing mental health services to the students of Baker County in the early 1980's. See, Tr. 142. Dr. Rush is a licensed psychologist specializing in child psychology. Dr. Rush received a graduate degree in psychiatric social work from the University of Athens, Greece, and received a Ph.D. in clinical psychology from the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field of mental health for approximately 20 years. Dr. Rush began her own practice while still working for CGC through Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and 183. In 1990, Dr. Rush no longer wanted to be an employee of CGC and became an independent contractor with CGC. See, Tr. 146-147. Dr. Rush's private practice grew gradually and prior to 1991, she had resigned her employment with CGC, concentrating on her private practice. See, Tr. 146. In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38. Wanda Walker, administrator of the special education programs, approached Dr. Rush and asked her if she would provide the mental health care as an independent contractor, as previously provided by CGC. See, Tr. 37-38. On August 16, 1991, the Board entered into two contracts with Dr. Rush to provide different types of mental health counseling to its students. See, Ex. A One contract between Dr. Rush and the Board provided that Dr. Rush would provide mental health services to the Board for at least nine hours per week, from which two hours would be committed to the special needs of the students in the Opportunity Program at Baker County High School. The contract services were for 37 weeks of the 1991-1992 school year. The cost of the service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount not to exceed $14,460.00 for the service. The agreement required Dr. Rush to perform the services at Baker County public school sites, and provided that the mental health services should include psychological evaluations, classroom observations, participation as a member of the crisis intervention team, and consultations with teachers, guidance counselors and other appropriate school personnel. Dr. Rush submitted a statement of hours worked every two weeks, and was paid the contractual rate for each hour of professional services rendered. The contract provided that either party could terminate upon 30 days written notice. The other contract between the Board and Dr. Rush provided that Dr. Rush would provide mental health services to severely emotionally disturbed students in the Day Treatment Program at Southside Educational Center. This contract provided that Dr. Rush would provide case management, assessments and evaluations, consultation to school personnel, mental health services appropriate to the program, and direct the counseling services provided to Day Treatment Program students. The contract provided that Dr. Rush would provide for 10 hours of professional services per week for 37 weeks at a cost of $40.00 per hour not to exceed $14,550.00. The contract provided that Dr. Rush would submit a statement of hours worked every two weeks, and that the agreement could be terminated by either party upon 30 days written notice. On June 4, 1992, Dr. Rush entered into an agreement to provide professional services to the Board for the 1992-1993 school year. This contract duplicated the previous contract for nine hours per week of mental health services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour not to exceed $14,460.00. The only significant change in this contract was that the contract covered the provision of services by Dr. Rush or her associate, Nancy Davie. On June 4, 1992, Dr. Rush entered into a contract with the Board to provide mental health services to severely emotionally disturbed students similar to the previous contract for the 1991-1992 school year. The contract for mental health services to severely emotionally disturbed students did not provide for the provision of these services by Nancy Davie. When the June 1992 contracts were executed, Dr. Rush had incorporated her professional practice; however, she entered into the contracts with the Board in her individual name. The Board was unaware of Dr. Rush's incorporation. Dr. Rush did not believe that there was a difference between contracting in her name or the name of her corporation; however, this contract was subsequently amended to indicate that her corporation was the contracting entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in the name of her corporation, Protepon Counseling Center, in 1993. Dr. Rush maintained two offices, one in Jacksonville and one in Macclenny, where she held herself out to the public as a individual providing psychological counseling and where she conducted her professional business. Generally, Dr. Rush and her associates provided their services at the schools within the district; however, Dr. Rush maintained a professional office in Macclenny, Florida, and met with students and their parents at her professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided services at the various schools within the district to alleviate the need to transport children and disrupt their schedules. Dr. Rush and her associates used the offices of guidance counsellors when at the various schools. See, Tr. 14 and 85. During the time that Dr. Rush has provided mental health services to the Board, Dr. Rush has provided her own tools for counseling and assessing students. She provides all of her own supplies. See, Tr. 88 and 297-298. Dr. Rush is not reimbursed for the use of her supplies or standardized tests. See, Tr. 211 Dr. Rush provides mental health counseling to private individuals and agencies, to include St. Johns River Hospital, the Center for Life Enrichment, Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative Insurance Program. See, Tr. 160-165. Dr. Rush provides a profit sharing plan to her associates and maintains workers compensation insurance for her employees. See, Tr. 174 and 208. The contracts with the Board make up only a fraction of Dr. Rush's gross income from her professional practice. See, Ex. J(2); Tr. 169-170. Dr. Rush maintains her own retirement fund and has done so since she left CGC in 1991. See, Ex. J(3); Tr. 172-173. Neither the Board or Dr. Rush consider their relationship to be an employment relationship. See, Tr. 149 and 217. It was never the intent of Dr. Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the continuation of the independent contractor relationship. The Board paid Dr. Rush for the services rendered by her and her associates from the special fund and not from a salary or payroll account. See, Ex. I. Every two weeks, Dr. Rush submitted statements of professional services rendered by her or her associates and charged the Board per hour for these services. See, Tr. 180-182. Dr. Rush was paid for each hour of service which she or her associates provided, and was not paid a salary or reimbursed or compensated for travel costs or supplies. See, Ex. I; Tr. 297 The statements do not indicate whether Dr. Rush or one of her associates provided the service to the Board. The Board never paid any of Dr. Rush's associates. See, Tr. 43-44, 106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr. 151-152. The Board never deducted withholding taxes from its payments to Dr. Rush. See, Ex. I. Dr. Rush paid her own social security tax. See, Tr. 207. Dr. Rush was paid by the Board as she is paid by all of her clients at the agreed-upon hourly rate for her professional counseling services. See, Ex. I; Tr. 182. In making its determination, the Division of Retirement relied upon the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered the questionnaire without help from legal counsel and without understanding its purpose or legal implications. See, Tr. 77-79, 82, and 176. Dr. Rush provided an annual orientation to new personnel and students; however, she did not take any training program required by the Board during the period of these contracts. The answers provided by Dr. Rush and Ms. Walker were ambiguous regarding the fact that the annual orientation in which Dr. Rush participated was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and 178-179. Using the school calendar, Dr. Rush prepared a schedule calendar indicating the dates, times, and school locations at which she or her associates would provide professional services under the contract with the Board. See, Tr. 178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided professional services for the Board at the times and dates when students were attending school. See, Ex. C. Dr. Rush set her own schedule within the confines of the school day and the school year. The purpose of the calendar schedule was to alert teachers as to Dr. Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her associates did not check in with a supervisor at the various schools. Dr. Rush called Ms. Walker, who notified the appropriate school when a new counsellor would be going to that school. See, Tr. 121-122. This practice was designed for security reasons to let the school know for security reasons that a new individual would be providing services. Dr. Rush was available if there was an emergency. When paged, Dr. Rush called the school and determined from the facts if it was necessary for her or one of her associates to respond. See, Tr. 131 and 297. Dr. Rush was not subject to being summoned by Board employees, but exercised her professional judgment about the by of response which was necessary. See, Tr. 131 and 297. Dr. Rush and her associates evaluated students and recorded the results of their testing and observations. They participated as part of the multidisciplinary team required by law to assess special education students and prepare their educational programs. In this regard, the reports of Dr. Rush and her associates were expressions of their professional expert opinion. See, Tr. 66. It was the experience and expertise of Dr. Rush and her associates which the Board sought in contracting with Dr. Rush. The Board did not direct Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates conducted their counseling without any control from the Board. See, Tr. 83-84 and 227.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Rush be treated as an independent contractor and denied participation in the Florida Retirement System. DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3378 Both parties submitted proposed findings which were read and considered. Contrary to the Division's rules, Baker County did not number its findings and did not limit them to short statements of fact. Therefore, although most of its findings were adopted in the order originally presented, it is virtually impossible to identify which of the findings were adopted. In order to assist those attempting to determine which facts were adopted, and which were rejected and why, the numbers listed under the Recommended Order column below reference the paragraphs in the Recommended Order which contain the findings suggested by the Division, or the alternative findings suggested by Baker County which the Hearing Officer determined were based upon the more credible evidence. It is readily apparent when the reason is stated for rejecting the proposed findings. Retirement's Findings Recommended Order Paragraphs 1-3 1,2,3,6,7,13 Paragraph 4 14 Paragraph 5,6 19 Paragraph 7 Rejected as contrary to more detailed descriptions of the contracts at issue. Paragraph 8,9 20,21,22 Paragraph 10 Irrelevant. Paragraph 11 As indicated in the Conclusions, there is no issue concerning the fact that employees of school boards are qualified for membership in the retirement system. The issue is whether Dr. Rush was an employee. Paragraph 12,13,14 23,24,25,49,50 Paragraph 15 26,32,34 Paragraph 16 The differences in the terms of the board's contracts with CGC and Dr. Rush are not relevant. Paragraph 17 1,53,54 Paragraph 18 48,49 Paragraph 19 37-44 Paragraph 20-23 2-4,37-44. The manner in which some non-instructional staff are paid is irrelevant. Paragraph 24 26,28-31 Paragraph 25 45-47 Paragraph 26 51,52 Paragraph 27-28 53 paragraph 29 26,28 Paragraph 30,31 25 Paragraph 32,33 Irrelevant argument. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, FL 32399-0950 John W. Caven, Jr., Esquire Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A. 3306 Independent Square Jacksonville, FL 32202 Jodi B. Jennings, Esquire Assistant General Counsel Florida Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 William H. Linder, Secretary Department of Management Services 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent has been a classroom teacher in the Dade County public school system since 1964. During the 1988-89 school year, he was employed under a continuing contract and assigned to Homestead Senior High School, where he taught social studies. Percy Oliver has been the Principal of Homestead Senior High School for the past six years. For the last five years, Reid Bernstein has been his Assistant Principal for Curriculum. As Principal, Oliver exercises supervisory authority over all of the School Board employees assigned to the school. Bernstein assists Oliver in supervising the school's instructional personnel. In accordance with the School Board's Teacher Assessment and Development System (TADS), both Oliver and Bernstein have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. On October 20, 1988, Bernstein conducted a formal observation of one of Respondent's social studies classes. Following her observation, in accordance with Dade County School Board policy, Bernstein prepared a written post- observation report. In her report, Bernstein noted that, Respondent's performance was deficient in the areas of classroom management and instructional technique and she therefore directed that Respondent take the following remedial action by November 23, 1988: Observe 2 exemplary Social Studies teachers. Write a summary after each observation on the techniques used to keep the students on-task. Submit each summary to the APC [Assistant Principal for Curriculum). Have the Social Studies coordinator work with you on off-task behavior and complete the attached observation sheet. (pp 91-92) Ask the department chairperson to observe you once a week and give you feedback on off-task behavior. He can also complete an observation survey. Have one of your classes videotaped. Observe the tape yourself and see what you do and do not do with off-task students Read pp. 221-244 in the TADS RX Manual. On page 231 use the four questions and answer them on your lesson plan for day of the week through November 21, 1988. Have the Social Studies department chairperson observe you and complete the sequencing checklist attached. The chairperson will then go over it with you after the observation. Complete activities 2 & 3 on P. 260 of the TADS RX Manual (see attached). Neet with the administrator after the class and compare lists of confused students. After you observe another Social studies teacher, meet with him and go over the students who appeared to be confused and how he attempted to clear up their confusion. The report recommended that Respondent use the following persons as "resources" in taking such remedial action: Coordinator of Social Studies Department Chairperson Exemplary Social studies teachers Assistant Principal for Curriculum Audio Visual Specialist Bernstein had a post-observation conference with Respondent on October 25, 1988. During the conference, Bernstein gave Respondent a copy of her report and explained its contents to him. Respondent indicated to Bernstein that he would take the remedial action prescribed in the report. He did not mention to Bernstein that he anticipated having any difficulty in completing the prescribed activities within the allotted time. Nor did he complain to Bernstein that the prescribed activities were unreasonable. Moreover, he made no suggestion that Bernstein change any of these prescribed activities. Bernstein's directive that Respondent complete these prescribed activities by November 23, 1988, was a reasonable one with which Respondent was capable of complying. Nonetheless, Respondent failed to take any of the remedial action by the November 23, 1988, deadline imposed by Bernstein. His inaction was intentional, not inadvertent. He knew what he was required to do and was capable of doing it, but made a conscious decision to spend his time on other matters. Respondent was again formally observed on November 29, 1988. The observation was done by Principal Oliver. Oliver prepared a post-observation report following the observation. In his report, Oliver noted that Respondent was deficient in the areas of preparation and planning and classroom management and he therefore directed that Respondent take the following remedial action by January 10, 1989: For the next two weeks compare the objectives and activities you planned with those actually accomplished and completed. At the end of each lesson make a written note of each time you deviated or markedly digressed from the plan and provide a brief reason for it. At the end of each week these notes should be discussed with the assistant principal of curriculum and a should b e given to the assistant principal of curriculum to be used as an aid in plotting your progress. Observe 2 exemplary Social Studies teachers. Write a summary after each observation on the techniques the teacher used to keep the students on- task. Submit each summary to the APC) Have the Social Studies coordinator work with you on off-task behavior and complete the attached observation sheet. (pp 91-92) Ask the department chairperson to observe you once a week and give you feedback on off-task behavior. He can also complete an observation survey. Have one of your classes Observe the tape yourself and see what you do and do not do with off-task students. The report recommended that Respondent use the following persons as "resources" in taking such remedial action: Assistant Principal of Curriculum Department Head Subject Area Coordinator Exemplary Social Studies Teach.ers Audio Visual Specialist Oliver's directive that Respondent complete these prescribed activities by January 10, 1989, was a reasonable one with which Respondent was capable of complying. Oliver had a post-observation conference with Respondent on December 5, 1988. During the conference, Oliver gave Respondent a copy of his report and explained its contents to him. Respondent indicated to Oliver that he would take the remedial action prescribed in the report. He did not mention to Oliver that he anticipated having any difficulty in completing the prescribed activities within the allotted time. Nor did he complain to Oliver that the prescribed activities were unreasonable. Moreover, he made no suggestion that Oliver change any of these prescribed activities. On December 8, 1988, Oliver held a midyear conference-for-the-record with Respondent to further discuss with him, in a formal setting, his deficiencies. Bernstein and a union representative were also present at the conference. Following the conference, Oliver sent a memorandum to Respondent. The memorandum, which was dated December 8, 1988, read as follows: The following summarizes a conference- for-the-record held with you, Mr. Petta, Mrs. Bernstein and myself on Thursday, December 8, 1988. In this conference I discussed the following three things with you: You are currently on prescription and if you continue in the prescriptive mode your annual evaluation will be unsatisfactory and this would adversely affect your future employment with the Dade County Public Schools. If you end the year unsatisfactory, you are not eligible for next year's financial increase. You were observed on October 20, 1988 with a November 23, 1988 deadline by Mrs. Bernstein and given a prescription for categories III and IV. You did not complete any of the prescriptive activities. This is insubordination and results in you being unsatisfactory in Category VII. The conference concluded by you being directed to complete all prescriptive activities on or before January 10, 1989, in order to be remediated in Category VII.# 1/ Respondent received `the memorandum and signed it on December 9, 1988. Sometime after the conference-for-the-record, Respondent advised Bernstein in writing that on December 6, 1988, he had observed an "exemplary" social studies teacher at the school and that on December 7, 1988, he. had observed another "exemplary" social studies teacher at the school. Except for observing these two "exemplary" social studies teachers, Respondent did not complete any of the activities prescribed by Bernstein and Oliver by the January 10, 1989, deadline he had been given. In the two months that followed the expiration of the January 10, 1989, deadline, the school administration received complaints from other teachers, parents and students regarding the misbehavior of students in Respondent's classes. As a result of these complaints, Respondent was directed by his superiors, as he had been instructed in the past, to control his students. Notwithstanding these directives, Respondent failed to maintain control in his classroom. His failure to control his students, however, was the product of his inability to do so, not of any intention or desire on his part to disobey his superiors. By March 14, 1989, Respondent Still had not completed all of the activities that had been prescribed by Bernstein and Oliver. He had had more than enough time to finish these activities and had understood that he was under an obligation to complete them in a timely fashion. Respondent, however, in defiance of the directives he had been given, had made a conscious decision to devote his time to other endeavors which he had deemed more important. He had failed to comply with these directives, not because of any inability on his part, but because he had been unwilling to do so. Respondent's lack of compliance with Bernstein's and Oliver's directives were the subject of a conference-for-the- record that was held on March 14, 1989. The conference was attended by Respondent, a union representative, Oliver, Bernstein, the School Board's Personnel Director, and the Director of the School Board's Office of Professional Standards. On the day of the conference, Respondent sent a letter to Oliver, which read as follows: Please allow me more time to finish the prescription activities that were prescribed by you and Mrs. Bernstein. Immediately after the prescription by you I had to prepare two one hundred word exams for the mid year. Now I find that I am getting ready for progress reports in another week and a half. I have been calling homes of students who need to improve and the ones I can't get in touch with I will write. There are also the lesson plans that need to be kept up with you and I have kept up. What I would really like is to change the prescription. I think that it would benefit me more if I took a course in discipline or management of students in the summer. That way I could concentrate my full efforts on making improvements in my classes at the present time. I have really tried to get the activities done in the prescriptions, but if it was changed I feel it would benefit me more. The decision is up to you. This request, which was made more than two months after the expiration of the January 10, 1989, deadline, was not granted. A recommendation was made to take disciplinary action against Respondent for his failure to comply with administrative directives. The matter was considered by the Dade County School Board at its March 22, 1989, meeting. After considering the matter, the Board took action to suspend Respondent for a period of 30 days for gross insubordination and willful neglect of duty. At the time of his suspension, Respondent had still not completed all of the remedial activities that Bernstein and Oliver had prescribed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the school Board of Dade County issue a final order sustaining Respondent's 30-day suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of May, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990.
The Issue The issue is whether the licensee, Robert Schmidt, should be subject to an administrative fine for failure to meet the background screening requirements at Dixie Lodge, an assisted living facility (hereinafter Respondent), and, if so, the amount.
Findings Of Fact The Agency for Health Care Administration (hereinafter the Agency) is the state agency responsible for the licensing and regulation of assisted living facilities. Respondent is licensed to operate as an assisted living facility in DeLand, Florida. Robert A. Cunningham was called as a witness for the Agency. Mr. Cunningham is a Health Facility Evaluator II. His duties include surveying assisted living facilities, adult family homes and adult day care centers. Mr. Cunningham testified that he was familiar with Dixie Lodge because he has been surveying this facility for approximately 15 years. On or about May 16, 2001, Mr. Cunningham conducted a complaint investigation of Dixie Lodge. Mr. Cunningham identified Petitioner's Exhibit One as a complaint investigation form. This contains a summary of his investigative findings. The last finding was that a care- giving employee, who did not meet the screening requirements, had been retained as an employee in a "contact" position. Mr. Cunningham identified Petitioner's Exhibit Two as a copy of the Agency's letter to the facility administrator outlining the findings of the complaint investigation. It states that the facility was in violation of Section 400.4174(2), Florida Statutes, and Rule 58A-5.019(3), Florida Administrative Code, regarding background screening on employees. The letter dated June 26, 2001, states that the inspection findings have been revised to reflect Tag A 1115, a Class II deficiency, as the result of an amendment in the law, effective May 15, 2001. Mr. Cunningham identified Petitioner's Exhibit Three as a copy of the recommendation for sanction inspection report narrative of the inspection conducted on May 16, 2001. Mr. Cunningham testified that the recommendation for sanction was prepared by Robert Dickson, a Facility Evaluator Supervisor in the area office. Mr. Robert Dickson was called as a witness for the Agency. His duties included supervising the field surveyors, who conduct the surveys of the licensed facilities, and reviewing and approving the survey work findings. Mr. Dickson is familiar with the survey at issue in this proceeding. Mr. Dickson identified Petitioner's Exhibit One through Nine. Mr. Dickson identified Petitioner's Exhibit Three as a copy of the sanction recommendation that he prepared. Mr. Dickson identified Petitioner's Exhibit Five as a copy of Section 400.414, Florida Statutes (2000), which gives the Agency the authority to deny, revoke licenses, and impose administrative fines. Mr. Dickson identified Petitioner's Exhibit Six as a copy of Section 400.4174, Florida Statutes (2000), regarding background screening and exemptions. Mr. Dickson identified Petitioner's Exhibit Seven as a copy of Rule 58A-5.019, Florida Administrative Code, regarding staffing standards and background screening. Mr. Dickson identified Petitioner's Exhibit Eight as a copy of Respondent's assisted living facility (standard) license for Dixie Lodge. Mr. Dickson identified Petitioner's Exhibit Nine as a copy of Respondent's request for a formal administrative hearing. Mr. Walker testified that at the time in question on May 16, 2001, his staff employee, Mr. Michael Roberts, did not have an exemption from background screening.
Recommendation Based upon the Findings of Fact, Conclusions of Law, and in consideration of the mitigating factors, it is RECOMMENDED: That the Agency enter a final order imposing a fine of not more than $500.00 against Respondent for failure to remove an employee who failed to meet the background screening requirements from a position working in direct contact with residents. DONE AND ENTERED this _____ day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Walker Richardson, Administrator Dixie Lodge 507 South Woodland Boulevard DeLand, Florida 32720 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
