Findings Of Fact Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. She failed to achieve a passing score on that examination. At the final hearing, Petitioner challenged the score given for her answers to question numbered 56 on Part I and her answers to questions numbered 11 and 47 on Part II of the examination. Part I, Item 56, was correctly scored as "A" rather than Petitioner's choice of "C". "A" required the client to make eye contact within 2 seconds of the prompt or instruction, which is an acceptable standard in the field of behavioral analysis. However, "C" allowed a 10-second latency period, which is an unacceptably long standard. Part II, Item 11, was correctly scored as "A" rather than "C" as selected by Petitioner. The question asked about a behavioral goal, and "A" is a good example of a goal, which is a general statement of behavioral change intended. "C" is a good example of an objective rather than a goal because it involves a short time frame and includes specific performance standards. Part II, Item 47, was correctly answered as "total duration of screaming in seconds" or "total duration of screaming in minutes." Petitioner's answer of "total duration of screaming" was incorrect because the question required showing the length of time, and no measure of time was given by Petitioner. At the formal review process conducted by the Department of Professional Regulation in Tallahassee, Petitioner was given for her review all questions from the examination and her answers to the multiple choice questions. She was also given grading sheets indicating the correct answer according to the "key" for the multiple choice questions and indicating which of her answers to the essay questions had been marked as being correct or incorrect. Inadvertently, she was not given her answers to the essay questions, and Petitioner failed to advise anyone that she had not been given that one component of the materials. At the conclusion of that review process she filed challenges to the three specific questions in dispute in this proceeding. On July 31, 1990, a prehearing review was conducted by the Department of Professional Regulation at which time Petitioner was again given materials to review in preparation for her presentation at the final hearing. She was permitted to review questions, her answers, and the correct answers to those questions which she had challenged. She was not given a copy of her answers to all of the essay questions on the Examination. Again, she said nothing. During the final hearing in this cause, Petitioner challenged the review process alleging that she was given incomplete materials and there for was not permitted to prepare properly for the final hearing. She admitted that she had not advised either the Department of Health and Rehabilitative Services or the Department of Professional Regulation that she had been given incomplete materials, deciding instead to say nothing about that mistake until the final hearing. One of the three questions challenged by Petitioner was one of the short essay questions. Petitioner was not prejudiced by the Department's mistake during the formal review process. Petitioner voluntarily waived any other challenges she may have had to the short essay portion of the Examination or to the formal review process. Petitioner limited the challenges that she did file to three specific questions, and this proceeding has been limited to those three challenges which were timely and properly made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the September 19, 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24 day of September, 1990. LINDA M. RIGOT 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 24 day of September 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2405 Petitioner's first and second unnumbered paragraphs have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's third and fourth unnumbered paragraphs have been rejected as being unneccessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1-6 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John W. Hedrick, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Kristin Korinko Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024
The Issue The issue for consideration in this case is whether Petitioner should be granted extra credit for questions numbers 320, 321, 322, and 323, for which he gave allegedly incorrect answers, on the October 1996, Environmental Engineer Examination administered by the Department.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the professional testing and licensing of professional engineers, and the regulation of the engineering profession in Florida. Petitioner is a graduate engineer, specializing in environmental engineering, who took the Environmental Engineer Examination administered by the Bureau on October 25 and 26, 1996. By Examination Grade Report dated February 17, 1997, the Bureau notified Petitioner that he had achieved a score of 67.00 on the examination; that a minimum score of 70.00 is required for passing the examination; and, therefore, that Petitioner had failed the examination. Petitioner thereafter filed an appeal of the examination results, challenging the grading of questions numbers 320, 321, 322, and 323 of the examination in question. Question 320 tests the candidate’s ability to understand the characteristics of pumps both in series and parallel. The engineering principle involved is Bernouli’s Theory. The problem is in two parts, A and B. The first part asks which of two impellers are in the pump, based on a given set of data using Bernouli’s Principle. Petitioner answered Part A correctly. Part B repeats Part A, except that the candidate has to recognize the difference between series and parallel pumps, and Petitioner did not get the question correct. The National Council of Examiners for Engineering and Surveying (NCEES) published a scoring plan for each question on the examination. The maximum award a candidate can receive on this question is “10.” The NCEES’ scoring plan for this question provides a score of “4,” which Petitioner received, when the candidate gets one part of the question correct and one part incorrect. To earn a score of “6” for the question, the candidate must present a correct parallel pump analysis, and in this case, Petitioner doubled head pressure instead of flow. Question 321 also consists of two parts and deals with a sewer which is facing overload based on population projections. A relief sewer is proposed and the candidate must do two things. He must first analyze the flow of the existing sewer, and then determine what the invert of the new sewer line would be at the outer end of that sewer In this instance, Petitioner got the second part of the problem correct but not the first. Petitioner started off correctly, but then incorrectly used a piece of information that was given. The problem must be solved using Manning’s Equation, and then checked for scouring velocity. Petitioner used the minimum velocity in determining what the flow is and, according to Mr. Hutchinson, this is not the way to solve the problem. Hutchinson suggests that in solving the problem, the candidate first finds out how much flow will exist in the years ahead by knowing the population and the flow per capita. Then, using Manning’s Equation, the candidate calculates the flow the existing sewer can take. Subtracting the second from the first, the answer is the flow the new pipe will have to be designed for. In the examination question, all the required information is given except the diameter, which is determined through the use of Manning’s Equation. Once that is done, the candidate must check the new scouring velocity. This is done by calculating the velocity in the new sewer to be sure it is in excess of the number given in the problem statement. Here, Petitioner took the minimum scouring velocity and used that figure to calculate the size of the pipe. As a result, he arrived at the wrong answer of ten inches, when the correct answer was twenty-four inches. Petitioner was awarded a grade of “4” for his answer to problem number 321. According to NCEES’ Scoring plan, a “4” reflects the candidate got only one of the two parts correct. Question 322 deals with a hazardous waste incinerator. The first part of the problem calls for a determination of the amount of air needed to complete combustion if the additional air (excess air) is 100 percent. This means twice the air needed to perfectly combust the material. The candidate must first put down the chemical equation, all the constituents of which are given in the problem. Then, the candidate must balance the equation, and for 100 percent excess air, one multiplies the air input by a factor of two. The second part of the problem asks for the amount of water necessary to quench the gasses. Petitioner did not correctly balance the chemical equation called for in the first part even though he made an effort, and he was given some credit for trying. His answer to the second part was twice what it should have been. Since Petitioner did not do either part of the problem correctly, the award of “4” for his answer was, in Hutchinson’s opinion, generous. Question 323 involves a situation wherein a vehicle which gives off carbon monoxide is used inside a facility. Some of the workers have experienced dizziness. Readings are given for the carbon monoxide levels. The candidate is asked to calculate several factors. The first is what the eight-hour time weighted exposure is. There are certain limits involved. The second is how much ventilation air would be necessary to reduce the concentration to a lower stipulated level in one hour. The size and other specifics of the facility are given. The third part of the question is a non-mathematical essay question wherein the candidate is asked to define the disadvantages of having a combustion engine internal to a facility. The fourth part of the problem asks why mere dilution of the pollution is not the solution to the problem. Petitioner answered the first part of the problem correctly. He overstated the amount of air called for in part two of the problem by a magnitude of two. Petitioner answered the third part of the problem correctly, but in the fourth part, provided only one of the two reasons called for. He was awarded a score of “4” for his answer to this problem. The NCEES’ scoring plan indicates a score of “4” is appropriate when the candidate gets the first part correct; commits a logic error in the second part; and provides only two of three answers called for in the combined third and fourth parts. This is exactly what Petitioner did. In Mr. Hutchinson’s opinion, none of the problems in issue here were beyond the scope of knowledge that should be expected of a candidate for licensure. In addition, the questions as written are not ambiguous or unclear, and they give the candidate enough information to properly answer the questions. The examination is not a test of a candidate’s ability to do mathematical calculations. The examiners look at the ability to calculate as something which a high school student should be able to do. What is being tested is the candidate’s understanding of the engineering particulars and concepts. For example, in problem 320, the examiners are testing the candidate’s understanding of the difference between parallel flow and series flow for a pump. Under the scoring plan, that issue carries as much or more weight that the ability to solve the mathematics. Petitioner did not demonstrate the requisite understanding. The examination is structured so as to administer four questions in the morning session and four questions in the afternoon session. The examination is made up of questions which are submitted by members of that committee of the NCEES which drafts the examinations. The proposed questions are tested by committee members who solve each question in no more than twenty minutes. If the committee members judge the question to be appropriate and acceptable, it goes into a question bank and is subsequently reviewed several times before it is first incorporated in an examination two or more years later. In each question, the subject matter and the language of the question are reviewed to determine that there is no trick information involved; that all information necessary to correctly solve the question is incorporated; and that the scoring plan is valid. If any changes are made to a question during the evaluation time, two additional independent reviews are required. The examination is given nation-wide at the same time. At that time, the NCEES selects fifty to sixty tests at random, which are sent in for scoring. Of those, ten are selected and sent to a monitor to insure uniformity of scoring and appropriateness of the scoring plan. Once the examination is determined to be satisfactory, fifteen expert judges are called in to evaluate the fifty to sixty tests and to review them for demonstrated minimum competence by the candidates whose examinations are under scrutiny. At that point, a minimum numerical score is reached, and the remaining tests are graded. In his cross examination of the Respondent’s expert Mr. Hutchinson, regarding not only each of the examination problems in issue but also the methodology of the development and grading of the examination, Petitioner prefaced his questions by extensive, comprehensive statements of his position as to the matter at issue. Notwithstanding frequent and repeated reminders by the Administrative Law Judge that the matters being expressed were unsworn and not testimony, and therefore could not be considered as evidence, Petitioner persisted. The majority of his comments and arguments made in his Proposed Findings of Fact and Conclusions are based on that material and it is impossible for the undersigned to recommend Petitioner be granted the relief he proposes, based on the evidence admitted at hearing, as his testimony, when received, was not persuasive. Petitioner also submitted at hearing, as his Composite Exhibit 1, a series of documents which, for the most part, include personal information regarding his credentials, and copies of the pleadings, orders, and correspondence which make up the case file. Also included was a letter from Petitioner’s supervisor testifying to his hard work, industry, and professionalism; and a breakdown of the raw scores he achieved on the examination in question. None of this has a significant bearing on the merits of his challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to problems 320, 321, 322, and 323, on the October 1996 Environmental Engineer Examination. DONE AND ENTERED this 17th day of February, 1998, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1998. COPIES FURNISHED: Scott D. Walker 14535 Bruce B. Downs Boulevard Number 918 Tampa, Florida 33613 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent's proposed decision to award a computer-maintenance contract to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On November 20, 1998, Respondent issued a Request for Proposals titled "The Maintenance of Network Terminal Equipment" (RFP). The purpose of the RFP is to obtain a three-year maintenance service contract for video display terminals, printers, microcomputers, and related components located throughout the State of Florida. The RFP seeks a three-year, labor-intensive contract projected at the hearing to be worth between $3 million and $3.5 million. RFP Section 6.1 promises a "comprehensive, fair, and impartial evaluation" of all timely submitted offers by an "Evaluation Committee," which is an undefined term. Nothing in the RFP describes the Evaluation Committee, in terms of number or qualifications, except that repeated references to "each evaluator" imply the existence of more than one member. Section 6.1.A identifies four evaluation categories: Corporate Experience (100 points), Project Staff (200 points), Minimum Maintenance Service Requirements (200 points), and Cost (500 points). The category at issue in this case is Corporate Experience. Section 6.1.B states that the Procurement Officer will evaluate whether each offer meets the "fatal criteria." The only relevant fatal criterion is 10, which states: "Are there three (3) years of financial statements for the proposer and any proposed subcontractors, TAB 6?" RFP, Section 6.3.A.10. The RFP does not define "financial statements," nor does it require audited financial statements. The Procurement Officer bore the responsibility for determining whether offers complied with the fatal criteria, and he testified that he applied this fatal criterion by checking for a balance sheet, income statement, and statement of changes in financial position. Tr., p. 84. However, the Procurement Officer, acknowledging the absence of any definition of "financial statements," testified that he would accept "even a balance sheet and income statement," which is exactly what he received from Intervenor. Tr., p. 99. The Procurement Officer added: "I didn't throw out anyone for lack of submitting any other financial statements that are commonly included in audited financial statements." Id. Section 6.1.B also provides that offers meeting the "fatal criteria" will be scored by the Evaluation Committee, which will score each responsive offer "based on the evaluation criteria provided in Section 6.3 " Regarding Corporate Experience, Section 6.1.C.3 states: "The criteria, which will be used in evaluating Corporate Experience, are listed in the Rating Sheet, see Section 6.3.B." Section 6.3 states that the non-fatal criteria for each of the four categories are listed on the Rating Sheet, which is part of the RFP. Each evaluator must assign a score from 0-4 for each of these criteria. The meaning of each point value is as follows: 0 = no value; proposer has no capability or has ignored this area 1 = poor; proposer has little or no direct capability or has not covered this area, but there is some indication of marginal capability 2 = acceptable; proposer has adequate capability 3 = good; proposer has a good approach with above average capability 4 = superior; proposer has excellent capability and an outstanding approach Section 6.3.B lists 40 evaluation criteria divided among three categories. (The fourth category is Cost; its scoring methodology is irrelevant to this case.) Project Staff and Minimum Maintenance Service Requirements contain a total of 37 criteria. Corporate Experience contains only three criteria. The three criteria of Corporate Experience are: Does the proposal present financial information that supports the proposer's ability to perform this work required by this Request for Proposal? (RFP section 5.6.B) Is the ratio of current assets to current liabilities at least 2:1? Is the debt to net worth ratio (total liabilities/net worth) equal to or less than 1? Has the cash/operating capital exceeded projected monthly operating expenses over the past three years? Does the proposer have sufficient financial resources to complete the project? Does the proposal document the proposer's experience, organization, technical qualifications, skills, and facilities? (RFP section 5.6.B) Is the experience supplied (including subcontractor experience) relevant? Has the proposer (including any subcontractors) previously provided the maintenance services required by the department? Have the proposer and any subcontractors previously worked together? Does the proposer[-]supplied organization chart demonstrate the capability to perform well on this project? Have the projects supplied by the proposer or for any subcontractors been performed recently enough to be relevant? What percentage of the work is to be done by the proposer and each subcontractor? Does the proposal present maintenance projects similar to the requirements of this RFP as references? (RFP section 5.6.B) Is each project described in sufficient detail so that the department is able to judge its complexity and relevance? Are projects similar or greater in scope? How broad is the range of equipment that was serviced? How current is the project? The challenge focuses exclusively on the first criterion under Corporate Experience. On this criterion, the evaluators gave Intervenor an average of 3.0 and Petitioner an average of 2.0. The Procurement Officer prepared an Evaluation Manual for the evaluators. The Evaluation Manual states: Scoring should reflect the evaluator's independent evaluation of the proposal's response to each evaluation criterion. Following each evaluation criterion are considerations each evaluator may use in determining an evaluation score. These considerations are only suggestions. The considerations provided are not intended to be an all-inclusive list and will not be scored independently for the criterion that they address. Joint Exhibit 8, page 4. Nothing among the documents given prospective offerors informed them explicitly that the evaluators were not required to consider any of the bulleted items listed under each of the criteria. However, the Procurement Officer conducted a Proposers' Conference, at which he stated that the bullets under all of the criteria were strictly suggestions that the evaluators were free to ignore. Tr., p. 115. The Procurement Officer provided this information in response to a question asked by a representative of Intervenor. Joint Exhibit 23, pp. 63-64. The RFP did not require attendance at the Proposers' Conference, nor did Respondent publish the response following the conference. The three bullets under the first criterion under Corporate Experience appear in Respondent's manual titled "Developing a Request for Proposal (RFP)." The exhibit in evidence is a copy of the manual issued on April 1, 1998, but this manual has been in existence well prior to that. The manual suggests that the RFP include a criterion for evaluating the adequacy of the offeror's financial resources. Under the category of reviewing financial statements, the manual lists the first three bullets, as well as other considerations. However, nothing in the manual requires the inclusion of these bulleted items as scoring criteria or the consideration of these bulleted items within one or more scoring criteria. The rating sheets contain a space for comments. The following are the scores and comments from each of the five evaluators for the challenged criterion regarding the financial resources of Petitioner and Intervenor. Evaluator 1 assigned Intervenor a 2, noting "high debt, loss in income 1998." Evaluator 1 assigned Petitioner a 1, noting "financial information limited. Total assets less than value of contract." Evaluators 2 and 4 each assigned Intervenor a 3 and Petitioner a 2 without any comments. Evaluator 3 assigned Intervenor a 3, noting "Exceeds all requirements." Evaluator 3 assigned Petitioner a 3, noting "financials appear to meet this requirement. However, the replacement parts-inventory [sic] dollars seem very low in relations [sic] to the mentioned state contracts that are currently existing [sic]-[.]" Evaluator 5 assigned Intervenor a 4 without any comments, but citing the presence of a 10-K report in response to where he found the financial information. Evaluator 5 assigned Petitioner a 1 originally, noting "asset/liabilities 1:1." However, he changed his score to a 2 and lined out his comment. In general, the five evaluators have technical backgrounds in telecommunications or information management. They do not have significant backgrounds in business or financial matters. Evaluator 1 has a limited financial background, having taken a couple of accounting courses in college. His testimony during his deposition was evasive. Unwilling or unable at the deposition to discuss substantively the financial statements, Evaluator 1 claimed not to recall nearly all material aspects of the evaluation that had taken place about four months earlier. Evaluators 2 and 3 testified at the hearing. Evaluator 2 owns a company, although he has never read the financial statements of any company besides his own. However, he believes that he can read financial statements to determine if a corporation is profitable. On the other hand, Evaluator 2 admits that he does not know how to calculate the ratio of current assets to liabilities from the financial statements or the difference between a balance sheet and an income statement. Evaluator 2 also admits that he does not know how the value of determining whether the ratio of debt to net worth is less than 1. Evaluator 2 concedes that he does not know how to determine if an offeror had sufficient cash to complete the contract. However, during his deposition, Evaluator 2 testified that he checked the financial statements for cash on hand and monthly income, although he admitted that he did not know how much cash a company would need to perform the contract. Evaluator 2 also admitted in his deposition that, in giving Intervenor a 3 and Petitioner a 2, he did not compare the net worth or ratio of cash to operating expenses of the two offerors. Evaluator 3 testified that he has some relevant education in college, but he has not previously examined financial statements for Respondent. Like Evaluator 2, Evaluator 3 testified that he did not compute any of the bulleted ratios and was incapable of calculating the current ratio described in the first bullet or the other ratios described in the second and third bullets. Evaluator 3 conceded that he did not determine whether the offerors had sufficient resources to complete the project. In his deposition, Evaluator 3 admitted that his review of the financial criterion was largely confined to checking to see if an offeror's assets exceeded its liabilities. Evaluator 3 conceded that he did not compare debt loads. In two respects, Evaluator 3 approached the evaluation differently from his counterparts. First, he assumed that someone had already determined that the offerors were financially able to service the contract. Second, evidently relying on information not contained in the offers or RFP, Evaluator 3 determined that Petitioner's parts inventory was too low. In his deposition, Evaluator 4 stated that he felt that it was optional whether he had to consider whether the financial information supported an offeror's ability to perform the contract. In rating Intervenor, Evaluator 4 admitted that he was unaware of its debt load. Evaluator 4 testified in his deposition that he did not feel qualified to decide whether an offeror could perform financially under the RFP. In his deposition, Evaluator 5 testified that he did not know what financial resources an offeror must possess to be able to complete the contract. He also admitted that he never determined if Intervenor had operated at a loss for the past two years. In addressing the qualifications of the evaluators to score the financial criterion, it is useful to compare their evaluations to what was being evaluated. The Administrative Law Judge rejects Petitioner's implicit invitation to assess the qualifications of the evaluators without regard to the extent to which their evaluations corresponded with, or failed to correspond with, that which they were evaluating. It is impossible to perform much of a comparative analysis of the financial resources of Petitioner and Intervenor because of the paucity of financial information supplied by Petitioner. Petitioner did not submit audited, reviewed, or even compiled financial statements, so that a credibility issue attaches to its owner-generated statements. Also, Petitioner did not submit a statement of changes in financial position, which is the first financial document that the Procurement Officer testified that he would consult in assessing a corporation's financial resources. Tr., p. 88. Absent this data concerning cash flow, it is not possible to identify reliably the information necessary to consider the third bullet, which asks the evaluator to compare historic cash flow from operations (which is derived from the statement of changes in financial position) with the "projected monthly operating expenses" (which is derived from the income statement). Subject to these important qualifications concerning Petitioner's financial statements, Petitioner's balance sheet reveals a current ratio of 5:1 and a ratio of total liabilities to net worth of well under 1. By contrast, Intervenor's audited financial statements (for DecisionOne Corporation and Subsidiaries) reveal a current ratio of barely 1:1, total liabilities in excess of total assets, and a negative shareholder's equity of $204,468,000. Intervenor's income statement discloses a net loss of $171,641,000 in fiscal year ending 1998 with a note suggesting that $69,000,000 of this loss is attributable to nonrecurring merger expenses. If interest is included, as it should be (given its impact on real-world cash flow), Intervenor's statement of changes in financial position reports negative cash flows for the past three years. Counting interest and taxes, the negative cash flow in 1998 is $37,298,000. This negative cash flow is attributable to the payment of a $244,000,000 to Intervenor's parent, but negative cash flows of $13,144,000 and $11,961,000 in 1997 and 1996, respectively, do not include any dividend payments. Perhaps partly due to the already-discussed problems in ascertaining the role, at hearing, of the accuracy of the scoring, Intervenor did not elicit explanatory testimony concerning its relatively complicated financial statements, although Intervenor's forbearance seems directed more to not developing the evidentiary record concerning the formal and substantive deficiencies of Petitioner's financial statements. However, it is clear that, except for Evaluator 1, Respondent's evaluators could not and did not understand much more of Intervenor's financial statements than that they were professionally prepared and contain large numbers. Turning to the extent to which the scores correspond to what the evaluators were scoring, Petitioner's financial statements are incomplete and owner-generated. Given these facts, the evaluators could legitimately give Petitioner a 2, which is an "acceptable" score, reflective of "adequate capability." The evaluators could also have legitimately given Petitioner a 1, indicative of a "poor" score with "some indication of marginal capability." The evaluators could not have given Petitioner a 0 because its financial statements are at least partly present in the offer and reflect some financial capability. By contrast, Intervenor's financial statements are completed and audited. However, they portray a company that is in financial distress with substantial losses, a negative shareholder's equity, and ongoing negative cash flows. Although much better in form than the financial statements of Petitioner, Intervenor's financial statements raise at least one question as to form because, although disclosing interest and tax payments, they attempt to stress a modified cash flow without regard to these substantial cost items. Given the sizeable losses suffered recently by Intervenor, the evaluators could not rationally assign Intervenor a 3, which is "good" and reflective of "above average capability." Without dealing with Intervenor's losses and specifically identifying cash flow that would be available, after debt service and other expenditures, to service the contract, the evaluators could not rationally assign Intervenor even a 2. Except for Evaluator 1, the evaluators never identified the financial condition of Intervenor and thus never considered it in their scoring. Undermined from the start by a lack of knowledge of roughly how much financial capacity would be necessary to service the three-year contract, the scoring process, as applied to Intervenor, is further undermined by the near-total absence in the record of any informed reason for the scoring of Intervenor's offer. Evaluator 3 erroneously believed that someone not on the evaluation team had already determined that the offerors were financially capable of performing the contract. Evaluator 4 erroneously believed that evaluating the financial condition of the offerors was optional, and admitted that he was unqualified to perform this task in any event. Evaluator 2 claimed to be able to identify losses on a financial statement, but, if he did so as to Intervenor's statements, there is no evidence in the record that he gave the matter any thought. Evaluator 5 expressly admitted that he never made this determination. The only informed bases in the record, either contemporaneous with the scoring process or at any later time through the hearing, for the scoring of the subject criterion in the offers of Petitioner and Intervenor are the evaluation forms of Evaluator 1. In these forms, Evaluator 1 correctly noted the loss suffered by Intervenor in 1998 and the already- mentioned formal deficiencies of Petitioner's financial statements. However, the sole contribution of Evaluator 1 to this case is in the comments on his forms. He was unwilling and unable to discuss any aspect of his scoring when questioned at his deposition. The case of the financial qualifications of the evaluators thus comes down to four evaluators who had no idea what they were doing and one evaluator who offers only two spare, handwritten notes suggestive of a rational basis for distinguishing between the financial capabilities of the two offerors. This is insufficient. The RFP promised an informed evaluation by more than one evaluator. Even if the RFP did not so promise, the promising comments of Evaluator 1 are not indicative of his qualifications when, for no good reason, he could not recall the recently completed evaluation process or could not or would not respond meaningfully to questions concerning the financial materials that he was evaluating. For the purpose of assessing the qualifications of Evaluation 1, the hint of rationality present in his two comments is overwhelmingly offset by the actual financial condition of Intervenor. Rejecting a chance to discuss his evaluation, Evaluator 1 has chosen to let his evaluation be judged on the strength of its correspondence to the subject matter of the evaluation, Intervenor's financial statements. Under all of the circumstances, Evaluator 1's evaluation of the subject criterion in Intervenor's offer was clearly erroneous and contrary to competition. The remaining evaluators' evaluations of this criterion were clearly erroneous, contrary to competition, arbitrary, and capricious. However, Petitioner has elected not to make a direct issue of the accuracy of the scores. Addressing the qualifications of the evaluators, then, their evident lack of qualifications, coupled with the already-described grave deficiencies in the results of their scoring the first criterion of Intervenor's offer and the material impact on the outcome of the relative scoring of the offers of Intervenor and Petitioner, has rendered the evaluation process clearly erroneous, contrary to competition, arbitrary, and capricious.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order rejecting all offers. DONE AND ENTERED this 3rd day of September, 1999, 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 3rd day of September, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 William E. Williams Andrew Berton, Jr. Huey Guilday Post Office Box 1794 Tallahassee, Florida 32302-1794 R. Beth Atchison Assistant General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory P. Borgognoni Kluger Peretz 17th Floor, Miami Center 201 South Biscayne Boulevard Miami, Florida 33131
The Issue Whether the Petitioner is eligible for developmental services provided by the Department of Children and Family Services?
Findings Of Fact The Petitioner, Sharon G. Young, is a 23-year old white female, who is currently a patient in a rehabilitation facility for treatment of permanent disabilities suffered when she contracted encephalitis when she was 19-years old. After a series of serious seizures as an infant, Petitioner was identified has having a seizure disorder and mental disabilities. As a result she was medicated with Phenobarbital and placed in special education programs in the public school system. She was tested in this program periodically. Because Petitioner's current condition prevents assessing her status now to determine what her condition was prior to contracting encephalitis, the degree of her mental disability must be determined using the tests performed by the school system. Reports of tests performed in 1978, 1983, 1986, and 1989 were introduced. The Department's expert, Filipinas Ripka, conducted the review of these tests' reports to determine whether Petitioner was eligible for services. Ms. Ripka was accepted as an expert in psychological testing. She did not examine the Petitioner, and had never tested the Petitioner. Her opinion was based solely upon review of the reports prepared by the school psychologists in the years indicated above. According to her testimony, Ms. Ripka gave different emphasis to the various tests and reached different conclusions regarding Petitioner's condition than the school psychologists. The initial test in 1978 was conducted when Petitioner was approximately 3 years, 7 months old (40 months). That test report references an earlier evaluation on February 16, 1978, when Petitioner was 33 months old. At 33 months the Petitioner exhibited expressive language development of 12 months, receptive language development of 16-20 months, perceptual performance abilities in the range of 20-25 months, social skills at 30 months, fine motor skills at 18-23 months, cognitive/linguistic/ verbal skills at 17-20 months, and gross motor skills at 18-20 months. The school psychologist examined and tested Petitioner, and observed that she was easily distracted and had a short attention span. Assessment of Petitioner was attempted using several different tools. On those tests upon which Petitioner could be scored, she tested in the mild range of retardation with an IQ of 50. She was unable to perform certain of these tests sufficiently to reliably score her; however, the results of those tests were consistent with the findings that she was mildly mentally retarded, i.e., had an IQ of 50. In 1983, the Petitioner was retested. That report references tests performed in 1981, and their results showed Petitioner had a Verbal IQ of 82, a Performance IQ of 73, and a Full Scale IQ of 76. The examiner found the Petitioner was functioning at the borderline level according to a Wechsler Intelligence Scale of 70. However, she demonstrated an inability to copy abstract symbols, which placed her six standard deviations below the expectancy of her age group on the Bender Visual Motor Gestalt Test. She was two standard deviations below her expectancy on the VADS score, indicating a significant weakness for processing digits. Her Draw-A-Person Test was interpreted to indicate neurological impairment. The Petitioner was re-tested in 1986 when she was 11 years old because she was not performing well and was having academic difficulty in her school placement. Petitioner had scored in the 19th percentile in reading, the 16th percentile in math, and 23rd percentile in language on the Stanford Achievement Test. Upon testing, Petitioner had a Verbal IQ of 70, and Performance IQ of 68, and a Full Scale IQ of 68 on the Wechsler Intelligence Scale for Children-Revised. Petitioner had a score of 58 on the Peabody Picture Vocabulary Test, or an age equivalence of 6 years, 6 months. Her Bender Visual Motor Gestalt Test showed an age equivalency of 5 years, 8 months, and her error score was more than four standard deviations below the mean age. Her short-term retention was within one standard deviation relative to chronological are. In 1989, Petitioner was tested for triennial evaluation. Petitioner was 13 years old and cooperated with the examiner. On the Wechsler Intelligence Scale, Petitioner received a Verbal IQ of 64, a Performance IQ of 80, and a Full Scale IQ of 70 plus or minus 3. The examiner concluded that there was a 68 percent probability that her true IQ was between 67 and 73. She showed a significant difference between her Performance IQ and Verbal IQ. The examiner found Petitioner functioned in the lower end of the Borderline range of intelligence, and that her strengths were her ability to visually analyze and her fine motor skills. Her lowest scores were in the area of word knowledge. She demonstrated a processing deficit in visual-motor integration. The Respondent is the state agency charged with providing developmental services to eligible persons in Florida. A score of 70 or less places a person two standard deviations below the mean score on the Wechsler Intelligence Scale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is eligible for developmental services. DONE AND ENTERED this 10th day of August, 1998, 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) 921-921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998. COPIES FURNISHED: Robert Bencivenga, Esquire Jacksonville Area Legal Aid, Inc. 126 West Adams Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This is a licensure examination proceeding in which the Petitioner asserts entitlement to a higher grade on the examination.
Findings Of Fact On October 20, 1995, the Department of Business and Professional Regulation notified Petitioner Ramon L. Arosemena that in response to challenges filed during the review of the Petitioner’s April 1995 Professional Engineering Examination, the National Council of Examiners for Engineering and Surveying (NCEES) had awarded the candidate an overall examination score of 68.10. The minimum passing examination score is 70.00. With regard to the Petitioner’s answers to problem 125, in a document titled “Rescoring Results” the NCEES offered the following explanation as to why it concluded that the appropriate grade for those answers was 4 points, rather than the 6 points sought by the Petitioner: SCORER’S COMMENTS: The examinee in the request for a regrade overlooked the error made in calculating the pavement volume. The examinee’s volume was 25% of the correct value which carried over to erroneous results in the constituent weights. This was an error which is referred to in the approved scoring plan as calling for a two point grade reduction. As the examinee has conceded the entrained air was ignored in his/her solution. The approved scoring plan specifically recognizes this error as calling for a four point grade reduction. Considering both errors a grade of four is appropriate. SCORER’S RECOMMENDATION: Recommended score = 4. The candidate information booklet includes the following information regarding the manner in which certain problems on the examination would be scored: Written solutions to the essay type problems are scored according to an Item Specific Scoring Plan (ISSP) which is prepared for each examination problem prior to its use within an examination. The ISSP is usually written by the author of the problem, who also is responsible for determining the kind of answer which would constitute “minimal” level of performance. The ISSP defines the kind of response (i.e., answer to the problem) that would receive a score of zero, a score of two, a score of four, a score of six, a score of eight, and a score of ten. Both the problem statement and the scoring plan are reviewed by persons familiar with each discipline prior to using a problem on an examination form. Each essay type examination problem is scored by referring to the scoring plan for that particular problem. Scoring is done by a professional engineer, who is familiar with engineering practice and with the knowledge and skills that are required for an applicable engineering task. The number of points obtained by each candidate on each of the eight problems submitted are totalled to determine an overall raw score, with a maximum raw score of eighty (80). The raw score is then converted to a scale on which the scores range between zero and one hundred. Please note that this converted score scale does not represent the percentage of problems answered correctly. In order to pass the Principles and Practice examination, candidates must achieve a raw score of 48, which represents a score of 70 on the scale of one hundred points. The examination problem at issue in this case, problem number 125, described a construction project for a concrete highway. Following the description of the project, the examinee was asked to provide a three part response. Part (a) required the examinee to calculate the quantities of several specified ingredients necessary to complete the project described in the problem. Part (b) required the examinee to compute the yield, in cubic feet per sack of cement, of the concrete mix described in the problem. Part (c) required the examinee to explain why concrete with a specified slump would or would not be suitable for slip-form paving. The Scoring Plan for problem number 125 reads as follows: SCORING PLAN 10 EXCEPTIONAL COMPETENCE: The analysis is correct in all aspects. The numerical results are within plus or minus 2 [percent] of the approved solution. The answer to part c is correct. 8 MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE: One of the following will result in a two point score reduction. part c explanation is incorrect or inadequate as a result of one computational error the numerical results of part a do not fall within the required tolerance (see 10 point score). the amount of required water was correctly calculated in cubic feet but not translated to gallons as required in the problem statement and/or the weights were not given in tons. the total volume was calculated incorrectly. 6 MINIMUM COMPETENCE: Two of the defaults described in the 8 point scoring were made, or, one of the following individual errors were made; the 5 [percent] waste factor was not incorporated into the solution, or used incorrectly. analysis of part b is incorrect. the given entrained air was ignored. 4 MORE THAN RUDIMENTARY KNOWLEDGE BUT INSUFFICIENT TO DEMONSTRATE COMPETENCE: The examinee was unable to correctly define all of the weight-volume relationships required to solve part a, (an error was made in the analysis or use of mix ratio, specific gravity, air volume or comparable relationship), or three of the defaults described in the 8 point scoring were made. 2 RUDIMENTARY KNOWLEDGE. Multiple errors were made in the weight-volume relationships required to solve part a, and part c is incorrect or inadequate. 0 ZERO: Nothing presented to indicate knowledge of the solution to the problem. Implicit in the definitions of the ten-point response, the eight-point response and the six-point response is the notion that the candidate did not make any errors in addition to the errors described in the definitions of those responses. The Scoring Plan was accompanied by a solution sheet which contained the details of all of the calculations necessary to arrive at the correct answers to parts (a) and (b), and also included a description of the correct answer to part (c). Problem number 125 is a reasonable and logical problem to include in an engineering licensure examination. The Item Specific Scoring Plan for problem number 125 is a reasonable and logical method for scoring responses to problem number 125. Problem number 125 is a problem that a minimally competent candidate for licensure should be able to answer correctly. The Petitioner’s response to part (c) was correct. The Petitioner’s response to part (b) was incorrect. It was incorrect because it failed to take into account the volume of the given entrained air. The Petitioner’s answer to part (a) was incorrect. It was incorrect because the Petitioner made at least two computational errors.1 One computational error was the failure to take into account the number of highway lanes, which caused the Petitioner’s answer to be one-fourth of what it would have been had that error not been made. The other computational error was the failure to take into account the volume of the entrained air. The Petitioner is entitled to have a grade assigned to his response to problem number 125 that is consistent with the scoring plan for problem number 125.2 Application of the scoring plan to the Petitioner’s response to problem number 125 is contained in the paragraphs which follow. The Petitioner is not entitled to ten points for his response to problem number 125 because his analysis is not correct in all respects and because none of his numerical results are within plus or minus two percent of the approved solution. The Petitioner is not entitled to eight points because he made at least two of the errors described in the definition of an eight-point response. First, as a result of computational error the Petitioner’s numerical results for part (a) of problem number 125 do not fall within the required tolerance of plus or minus two percent. Second, in the Petitioner’s response to part (a) the total volume was calculated incorrectly. Therefore the Petitioner’s response does not meet the definition of the eight- point response because the definition allows only one such error. The Petitioner is not entitled to six points because he made at least two of the errors described in the definition of the eight-point response and he ignored the given entrained air, and his analysis of part (b) is incorrect. The six-point definition applies to a candidate who makes two of the errors described in the eight-point scoring definition, but it does not apply to a candidate who makes those two errors and in addition makes one or more of the errors described in subsections (i), (ii), and (iii) of the definition of the six-point response. Therefore, the Petitioner is not entitled to six points for his response to problem number 125.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner has failed to demonstrate entitlement to the relief he seeks and dismissing the Petition. DONE AND ENTERED this 18th day of February, 1997, in Tallahassee, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997.
The Issue The issues to be determined are whether Eric Delucia (Respondent or Mr. Delucia) violated sections 1012.795(1)(c), (g), or (j), Florida Statutes, and implementing administrative rules, as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Delucia held Florida Educator's Certificate 915677, covering the areas of English, English for Speakers of Other Languages, Business Education, and Marketing, which is valid through June 30, 2019. At all times relevant to the Amended Administrative Complaint, Mr. Delucia was employed as a language arts teacher in the Broward County School District. Mr. Delucia stored the documents listed in Petitioner's Exhibit P-2 on his computer, as stipulated by the parties. Mr. Delucia was employed at Cooper City High School during the 2011/2012 school year. Ms. Doll was the principal. Principal Doll testified that Mr. Delucia was in the initial stages of a cycle of assistance during that year. He received a memo outlining expectations and concerns, and was observed by several people. Principal Doll indicated she believed that he had deficiencies in instructional planning, classroom management, lesson plan presentation, and lesson plan delivery. However, Principal Doll confirmed that Mr. Delucia's Instructional Practice Score was a 2.954 for the period January 2012 through May 2012 at Cooper City High School, which was within the "effective" range. Principal Doll stated that there were concerns about his performance based on observations that were done earlier that warranted an outside observer, but those observations were not used for the evaluation. He was never placed on a Professional Development Plan while at Cooper City High School. Respondent requested a hardship transfer and was moved to Ramblewood for the following school year. On January 1, 2013, Mr. Delucia was admitted to the hospital following a series of strokes. Respondent received "effective" scores in both the Student Growth and Instructional Practice components, as well as his overall Final Evaluation for the 2012/2013 school year at Ramblewood. Respondent was subsequently on medical leave of absence during the 2013/2014 school year. On July 1, 2014, Ms. Smith became the principal at Ramblewood. On August 11, 2014, Mr. Delucia returned to Ramblewood from medical leave. On August 14, 2014, Principal Smith was inspecting all of the classrooms at Ramblewood to ensure that they were prepared for the first day of school. She felt that Mr. Delucia's classroom was not ready for students, because it needed a little bit of "warmth." On August 28, 2014, Principal Smith conducted a formal evaluation in Mr. Delucia's classroom. She concluded that the lesson had no clear focus and that it was not on the appropriate grade level for the students he was teaching. In early September, there was a complaint that Mr. Delucia was putting up students' grades on a board in his room. However, Mr. Delucia testified that he posted the grades only by student number, not by name. There was no competent evidence to the contrary. On October 30, 2014, in introducing the genre of mythology to his students, Mr. Delucia made the comment that "[t]he gods viewed humans as pets or sexual toys." While not an appropriate comment for middle school students, there was no suggestion that Mr. Delucia elaborated or pursued this statement further, and this incident did not constitute ineffective teaching. There was no evidence that it caused students embarrassment or harmed students' mental health. There was testimony that on October 30, 2014, Mr. Delucia also spent class time explaining that the fact that a Star Wars' character had no father would have been taboo in 1976 and discussing that the episodes of that movie series were released out of the chronological order of the story. While the discussion may have gotten a bit off track, it was not clearly shown that discussion of fiction was unrelated to the concept of mythology, might not have enhanced students' understanding of the topic, or was ineffective teaching. While it was clearly shown that Mr. Delucia made the statement, "These kids have the memories of gnats," it was clear that this was said when no students were present and in defense of his actions in discussing fantasy and fables. On December 2, 2014, Respondent said to a student in an angry and loud voice, "Don't you even piss me off." This warning, given in response to the student's statement that the student did not understand something, was inappropriate in language and tone, harmful to learning, and harmful to the student's mental health. Mr. Delucia's statement that he was not visibly angry or speaking in a loud voice on this occasion is not credited. On December 8, 2014, Mr. Delucia met with Ms. Poindexter, his new peer reviewer. At one point in their conversation, he talked about his former principal, Ms. Doll, referring to her battle with cancer. He stated, "She will kick the bucket soon because she has cancer and no one will care when she is gone." He stated, "She's the devil." Mr. Delucia also referred to his current principal, Ms. Smith, as "the devil." He stated, "My motivation is to destroy her with everything I have" and that he "wished the ground would open up and swallow her." Mr. Delucia also referred to the administrative staff as "assholes" and used multiple profanities, stating, "They do not know who they are messing with, but they will find out soon." Student A.F. testified that he heard Mr. Delucia tell Student C.D. that he should jump off of a bridge with a bungee cord wrapped around his neck; tell Student C.D. that if he was a speed bump, he (Mr. Delucia) would run over him; and tell Student C.D. to kill himself a couple of times. However, Student A.F. provided no detail or context for these alleged statements, some of which seemed to involve an incident involving an entirely different student who he testified was not even in his class. He was not a credible witness. On January 8, 2015, Ms. Sheffield observed Mr. Delucia using a four-page packet to teach punctuation to his seventh- grade language arts class. Ms. Sheffield told Mr. Delucia that this was not really part of the seventh-grade curriculum. Mr. Delucia made a statement to the effect of "these students don't know anything, not even the basics, so we have to start somewhere." There was no allegation that this comment was made in front of the students. From the period August 21, 2014, through December 3, 2014, Mr. Delucia's Instructional Practice Score was 1.916, and he was placed on a 90-day Professional Development Plan. Numerous observations by Dr. Jones and Principal Smith followed through the remainder of the school year. Mr. Delucia's Instructional Practice Score improved slightly, but was still less than effective. On January 12, 2015, Ms. Sheffield noticed that one of the vocabulary words written on Mr. Delucia's board for his students was "retard." Ms. Sheffield said she assumed that Mr. Delucia meant the slang term sometimes used as a noun to refer to persons with mental disabilities. Such use of the term, as a shortened form of the word "retarded," would be offensive and disparaging. Ms. Sheffield said that they talked about the fact that it is not appropriate to use the word "retard" as a noun as a reference to the disabled. She testified that he did not respond. At hearing, Mr. Delucia admitted using "retard" as a vocabulary word, but testified that he included the word as a verb, meaning to slow down or delay. Ms. Sheffield testified she did not hear him speak the term, or say anything about it, and there was no other testimony regarding this event. Mr. Delucia admitted that he often said, "If your writing looks like garbage and smells like garbage, then it is garbage." Ms. Sheffield stated that she told Mr. Delucia he might try to find another way to encourage students to write neatly in their journals that was a more positive comment or allowed students to take pride in their writing. On January 26, 2015, Ms. Sheffield testified that when a student returned late from lunch, Mr. Delucia and the student began arguing. Ms. Sheffield credibly testified that Mr. Delucia screamed at the student, "This isn't going to end up good for you. Just shut up." On February 4, 2015, Student A.W. had come in late to Mr. Delucia's class and was acting out in the back of the classroom. When asked why, her response was that other people also did it. Mr. Delucia responded, "If other people jump off of a bridge, would you jump off a bridge, too?" Student A.W., after a moment of silence, retorted, "Yeah, if you give me a bungee cord." Mr. Delucia replied, "If there is a bungee cord, you should wrap it around your neck before you jump." The class started laughing. Student A.W. replied, "You just told me to kill myself, I am telling the office." Mr. Delucia then asked Student A.W. to leave the classroom. While Student A.W. had a disrespectful attitude, Respondent's caustic comments to her were intentionally made in a spirit of mocking humor to subject Student A.W. to embarrassment in front of the class. A class grade graph prepared during the third quarter of the 2014/2015 school year documented that 68 percent of his students were failing at that time. No similar graph for any other quarter of that year, or for other years, was submitted in evidence. On April 7, 2015, the students in Mr. Delucia's class were supposed to be studying Latin and Greek roots of words, but one student did not have a packet and asked Mr. Delucia for one. After Mr. Delucia handed him the packet, the student said, "There is a footprint on this." Mr. Delucia responded, "Get working on studying or else I will call your father." The student replied, "Please don't." Mr. Delucia then said, "Why, because you don't want to get a footprint on your face?" Ms. Sheffield testified that during her observations, she never saw Mr. Delucia standing up interacting with his students. She said she never saw him deliver a lesson to students. For the 2014/2015 school year, Mr. Delucia's score for the instructional practice component on his evaluation was 2.002, a "needs improvement" rating, while his score for both the deliberate practice/growth plans and student data components was recorded as exactly 3.0. The final evaluation for Mr. Delucia in 2014/2015, computed by combining these unequally weighted scores, was 2.511, an "effective" rating.1/ Mr. Delucia was transferred to Piper High School for the 2015/2016 school year. The administration there did not place Mr. Delucia on a Professional Development Plan. Mr. Delucia has not been subjected to disciplinary action during his time at Piper High School, and he has exhibited positive rapport with his students and colleagues. Mr. Delucia's weighted overall evaluation score for the 2015/2016 school year at Piper High School was 2.831, "effective." Mr. Delucia's demeanor at hearing was defiant. His testimony was sometimes evasive and defensive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Eric Delucia in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), (3)(e), and (5)(e); imposing a fine of $3,000.00; placing him on probation under conditions specified by the Commission for a period of two years; and imposing costs of investigation and prosecution. DONE AND ENTERED this 20th day of November, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 November, 2017.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact At all times material to this proceeding, Respondent was a music teacher at Lehigh. His primary areas of interest and teaching responsibility were vocals and keyboard, and he taught varying levels and types of chorus and piano/keyboard classes. Respondent also was very proactive in initiating and coordinating extra-curricular music programs and competitions for the benefit of his music students. Respondent received a bachelor's degree in music education, with a choral emphasis, from Florida A & M University (FAMU) in 2002. He completed a summer master's program at the University of Florida and received his master's degree in music education in 2010. Respondent is a certified educator in music, K through 12, meaning that he is qualified to teach music at all levels from kindergarten through 12th grade. Respondent has been employed by Petitioner since August 5, 2002, but has only been at Lehigh since the 2008-2009 school year. Respondent was the choral director at Dunbar High School for three years; music teacher at Orange River Elementary for one year; and music teacher at Orangewood Elementary for two years. Respondent testified that these frequent transfers were his idea, and there was no evidence to the contrary. Respondent testified that he left Dunbar High School because that school's music program downsized, and the school wanted to hire a music teacher whose emphasis was on band, instead of chorus, so he requested a transfer elsewhere and Orange River Elementary was what was available. Respondent testified that things did not work out there between the administration and him, so he transferred to Orangewood Elementary. However, Respondent did not feel challenged teaching music to elementary school students, and so he requested a transfer to Lehigh when the music teaching position opened up. Respondent testified that he believes his talents are best used in a high school setting, where he can work with talented singers and pianists to prepare them for college and professional careers. By all accounts, Respondent is a very talented musician. His performance evaluations show that he was generally considered a satisfactory teacher throughout his years in Petitioner's employ; some areas needing improvement tended to balance out with other areas in which his performance was above average. Petitioner's performance as a teacher is not in question in this proceeding. Instead, what is in question in this proceeding is Respondent's conduct with several female students. This matter first came to Petitioner's attention when Douglas McKeever, assistant principal at Lehigh, contacted Petitioner's Department of Professional Standards and Equity (DPS), which is responsible for investigating allegations of misconduct by school district employees and making recommendations to the superintendent as to discipline. Mr. McKeever informed the DPS that he had received information regarding possible inappropriate physical contact by Respondent with several female students. At DPS' direction, on November 3, 2011, Mr. McKeever conducted interviews of two students, P.P. and B.G., who alleged they were subjected to Respondent's inappropriate physical contacts, and one student, M.M., who was a witness to one student's encounter with Respondent. Mr. McKeever had these three students summarize what they told him in written statements. He provided this information to DPS. The students' statements were reviewed by DPS, and based on the seriousness of the allegations, Respondent was suspended with pay and benefits on November 7, 2011. Thereafter, the allegations were investigated by DPS' chief investigator, Craig Baker. Mr. Baker took the written statement of an additional student, C.R., who had been identified as someone who had allegedly been subjected to Respondent's inappropriate contacts, but who had not been present when Mr. McKeever conducted the initial student interviews. As part of his investigation, Mr. Baker made inquiries to identify any other alleged victims or witnesses. After the investigation was completed, a pre- determination conference was held on December 7, 2011, at which Respondent was given an opportunity to present his side of the matters described in the student statements, which were provided to him. Respondent was represented by counsel at that conference. The results of the investigation and pre-determination conference were then reviewed and discussed by the school district's chief human resources officer, the head of the DPS, other human resources staff, and counsel for the school district, to formulate a recommendation. The recommendation was to terminate Respondent. Respondent was informed of the recommendation and was advised that he was suspended without pay or benefits, effective December 19, 2011, pending a final determination as to whether Respondent would be terminated. The Petition for Termination of Employment sets forth the alleged conduct by Respondent on which Petitioner relies to establish the charges of misconduct in office and policy violations. The alleged misconduct involves three different students; the findings with respect to the allegations for each student are addressed in turn below. P.P. P.P. is a 15-year-old female. In the 2011-2012 school year, P.P. was in the tenth grade at Lehigh. Respondent testified that P.P. was "one of the best singers." As a ninth- grade freshman during the 2010-2011 school year, P.P. took Respondent's beginning chorus class. There were approximately 20, mostly-freshmen, students in this class, about three-quarters of whom were female. During that first year in Respondent's chorus class, P.P. sometimes would feel like she was being watched and would notice Respondent staring at her. She also observed him "checking out" other girls. The manner in which P.P. saw Respondent looking at other girls gave her discomfort, because she thought Respondent should not be conducting himself that way. As the 2010-2011 year progressed, when P.P. would get that feeling that she was being stared at, she would look up and catch Respondent looking down the v-neck of her shirt; P.P. always wore v-neck style shirts and blouses. When P.P. looked up at Respondent, he would look away. This bothered her. Respondent denied ever trying to look down P.P.'s shirt or blouse; however, he specifically recalled that she would wear v-neck type shirts and blouses. P.P. is a friendly, outgoing young lady, and as she acknowledged, it is not unheard of for her to hug a teacher. Respondent testified that while he may have hugged P.P. during her first year, there were not hugs every day, like the frequency of hugs between them in P.P.'s sophomore year. Consistent with that testimony, P.P. testified that when she began her sophomore year at Lehigh, she noticed a difference with Respondent. As she described it, she would get hugs from Respondent, but those hugs were not like other hugs. When Respondent hugged her when they were both standing, he would grab at a lower altitude than normal, considering he is taller than her, with his hands dropping down from her lower waist to the edge of her pants. These low-altitude hugs made P.P. feel uncomfortable. The hugging between P.P. and Respondent took place in his office, in the big classroom at the piano or the projector, or at the classroom doorway. There were other students around most of these times, but not for those hugs taking place in Respondent's office. P.P. described the hugs Respondent would give her in his office when he was seated and she was standing. According to P.P., Respondent would put his arm around her at a relaxed stance, "over my butt," instead of reaching his arm upward to account for their differing heights with him seated and her standing next to him. Then, when he would release back out of the hug, she would feel his hands brushing over her buttocks. Though the impropriety of these "hugs" is obvious from P.P.'s description of them, P.P. said that she was not sure if Respondent was "intentionally improperly touching" her. Respondent freely admitted hugging P.P. and others. As Respondent put it, he is "a hugger." Though there was some disagreement as to whether Respondent always initiated the hugs with P.P. (as P.P. testified) or whether Respondent only sometimes initiated the hugs with P.P. (as Respondent admitted), it was clear that there was frequent hugging going on between P.P. and Respondent during the few months of P.P.'s sophomore year prior to Respondent's suspension in November. Additionally, though there was some disagreement as to where Respondent placed his arms and hands during all of these hugs, Respondent acknowledged that he could have made "coincidental contact" with lower waists, buttocks, or other parts while releasing from hugs. P.P. described an incident that took place in October 2011, at school, in the evening after she attended a performance of The Fantasticks. Respondent was also at school after hours, as were many others, because Respondent was coordinating an all-county music competition that took place on the same evening as The Fantasticks. According to P.P., she had seen Respondent earlier that evening when she and others were milling about at intermission. There were concession stands set up by parents and other volunteers, but P.P. did not have any money. Respondent was walking by with some chips in his hands and asked P.P. if she was hungry. She said no, she was going home for dinner later. After the show, she left the "Black Box Theater," where The Fantasticks show was performed, and parted ways with her friend so she could go down the outside corridor to the parking lot where her grandmother was picking her up. P.P. ran into Respondent, and he again asked her if she was hungry and if she needed a ride home. She said that she had a ride and was going home to dinner. At that point, he hugged her in a way that she felt was even more out of the ordinary than his other hugs. He had his arms around her waist and then he moved his hands to her belt area and gripped her tightly. This hug lasted for five-to- ten seconds, until someone came out of another door and then he released her. Respondent admitted the core facts of this encounter, but disputed some of the details. According to Respondent, he was under the misimpression that P.P. had been helping him with the all-county music competition, which is why, he said, that he went up to her to hug her when he saw her leaving. Thus, he admitted to having initiated this hug, but claims it was a simple "thank-you" hug. Respondent denied any belt-gripping or tight grabbing. He thought that the hug lasted for more like two-to- three seconds, not five-to-ten seconds. Whether the hug lasted two, three, four, or five seconds, that is a long hug that could fairly be described as more of an embrace than the sort of split-second pat-hug that might be viewed as a handshake equivalent and that one could arguably accept as not beyond the bounds for a teacher. Between the time of his pre-determination conference and the final hearing, Respondent added a few details that would have been material, but inexplicably were missing from his early version of events. One new detail added by Respondent at the final hearing, which he did not offer at the pre-determination conference was that there were a lot of other people around when he hugged P.P. on the evening of The Fantasticks. He admitted that this fact was important and had no explanation for why he would not have offered this information at the pre-determination conference. Moreover, despite offering the testimony of several supportive witnesses, including two who confirmed they were concession volunteers that evening, there was no witness to testify that he or she was one of the "many people" around to see Respondent hugging P.P. The other embellishment of this incident at the final hearing was Respondent's new claim that his hug with P.P. on the night of The Fantasticks was the last time they hugged, because he "told her that it wouldn't look appropriate."2/ Respondent testified that "it concerned me that P.P. would think it was more than--more to our interaction than was there." Respondent's only explanation for failing to mention this detail at his pre-determination conference was: "I thought about it, but I didn't think, you know, I needed to go into more detail. I would go into more detail here, if we had come to it." Respondent's testimony, offering new details about this incident that he did not provide in December 2011, was not credible. It is not credible that Respondent would have held back material details at the pre-determination conference, which was his opportunity to tell his side of the story before the decision was made whether to initiate disciplinary action. Respondent's failure to provide what would have been material details at a point when those details may have affected the decision regarding disciplinary action, suggests that those new details are not true and were made up to bolster Respondent's story. Respondent urges that P.P.'s allegations should not be believed, because she never told Respondent that she was uncomfortable with their hugs. Respondent suggests that if P.P. were truly uncomfortable after her freshman year, she never would have enrolled for advanced chorus for the 2011-2012 school year because his class is an elective.3/ P.P. never told Respondent that she did not want him to hug her and never expressed her discomfort to him. P.P. explained that she felt like she was supposed to trust her teacher, and she would feel uncomfortable saying something to him because she would feel even more uncomfortable every time she saw him after that. Acknowledging, as Respondent does, that P.P. was one of the best singers at Lehigh, it is understandable that after her freshman year, P.P. would have enrolled in Respondent's advanced chorus class, despite her discomfort. While chorus may have been technically an elective, there were no other options besides taking Respondent's classes for talented singers wanting to pursue their area of interest and talent. M.M., a 15-year-old female sophomore who was a friend of P.P.'s, was an eyewitness to one of Respondent's improper hugs with P.P. M.M. is a quiet, soft-spoken student who took Respondent's chorus classes as a freshman and as a sophomore. M.M. testified that she saw Respondent hug P.P. with his hand on her buttocks. She did not think much about that until, in conversation with P.P. and B.G, P.P. was describing an incident outside the classroom when Respondent had pulled her close and grabbed her buttocks, when B.G. piped up that that had happened to her, too. That is when M.M. told P.P. and B.G. that she had seen Respondent hugging P.P. and grabbing her buttocks. M.M. also said that C.R., a senior, told M.M. that she also had something happen with Respondent. After this discussion, M.M. went home and told her stepmother what P.P. and B.G. had said about Respondent, what M.M. had observed, and what C.R. had told her about Respondent. M.M.'s stepmother contacted Lehigh to report the matter. Immediately thereafter, on November 3, 2011, M.M., P.P., B.G., and C.R. were called down to the assistant principal's office. The assistant principal, Mr. McKeever, separately interviewed M.M., P.P., and B.G.; C.R. was not in the class when she was called. Mr. McKeever had the three girls write down what they told him in the interviews. The students were separated throughout this interview-statement process. M.M.'s written statement is consistent with her testimony, that she witnessed Respondent hugging P.P. in Respondent's office about two weeks earlier (i.e., approximately October 20, 2011), and that she saw "Mr. Sparrow growp [sic] P[.]'s butt while hugging her."4/ M.M. testified that Respondent never hugged her or made any other overtures toward her. M.M. said that she and Respondent were not close at all. In his pre-determination conference, Respondent characterized M.M. as "noble." By this, he meant that M.M. may have offered to support the allegations of P.P. and B.G. to help them out and be their friend after seeing the other students treating P.P. and B.G. badly after their allegations against Respondent came to light. However, M.M.'s statement came before any allegations against Respondent came to light; indeed, M.M. was the catalyst for the information coming to light by telling her stepmother, who reported the matter to the school. Trying another tack to cast doubt on M.M.'s testimony, Respondent suggested that perhaps M.M. was just looking to share in the spotlight by testifying against him. He added that M.M. had academic troubles in his keyboard class and was not a very good student. However, M.M. transferred to a different school shortly after Respondent was suspended and was not at Lehigh any longer when she testified in this case. Respondent's attempts to discredit M.M. were ineffective. B.G. B.G. is a 15-year-old female, who was P.P.'s best friend and a fellow sophomore at Lehigh in the 2011-2012 school year. From the first time B.G. met Respondent in her freshman year taking his beginning chorus class, B.G. observed that Respondent looked at girls in ways she thought were inappropriate for a teacher, such as "checking them out" when they turned away or staring at girls' chests when standing together talking. B.G. did not discuss her observations with P.P. that year. However, she did tell her mother. Besides B.G.'s observations of Respondent looking at female students inappropriately, there was nothing else about Respondent's conduct that caused B.G. concern that first year. B.G. described an incident with Respondent occurring on October 31, 2011, that made her extremely uncomfortable. Since this incident was so recent at the time B.G. and the others were interviewed and wrote statements on November 3, 2011, B.G. was able to provide a very detailed description and repeated the same details in her testimony in this case. Respondent acknowledged the incident and admitted many of the details. B.G. had to see Respondent after class to obtain a signed pass authorizing her absence from class a day or two earlier. The bell had rung, and B.G. was waiting at his office while he finished up with other students. After everyone else had left the classroom, Respondent went into his office and sat at his desk. B.G. stood in the doorway while he signed the pass. Respondent then told B.G. to "come here," directing her to stand next to him while he remained seated. B.G. had a large book bag hanging from her right shoulder, and she stood next to Respondent's left side. Respondent then reached his arm under her book bag and touched her buttocks on the way to stretching his arm under her book bag to encircle her around her lower waist area. That made her very uncomfortable. She thought maybe Respondent touched her buttocks by accident; however, that was somewhat difficult to accept because as she made clear, "it was not a brush past. It was like reaching around and like touching as you're going." Respondent, with his arm around B.G., started talking to her about a piano performance she had that morning at which she had gotten nervous. With Respondent's arm around B.G., he told her that she needed to get over that if she wanted to be a performer some day. Then Respondent retracted his arm, pulling it back under her book bag. This time, he "kind of grabbed as he went"--"it was pretty much a firm grasp all the way back around." This made her extremely uncomfortable and she did not know what to do, so she gave a nervous laugh. As she noted at that point, if it had been an accident, she would have expected him to quickly apologize and back away, but that did not happen. As she stated, "But if you think about it, most people, most teachers wouldn't hug a student anyways." Nonetheless, like P.P., B.G. testified that she honestly could not say that Respondent's intention was to do something inappropriate. B.G. left to go to her next class, but was preoccupied thinking about what had happened, worrying about what she was supposed to do, and talking to a boy sitting next to her about what had happened and what he thought she should do. She was concerned about whether she should report the incident to an administrator, because, as she put it, she did not want to ruin Respondent's life. B.G. told her mother about this incident that night or the next night. They discussed whether B.G. should report the incident and that it was a big deal that could ruin his life. B.G. also told M.M. about the incident and M.M. told her stepmother, who reported the matter to assistant principal McKeever, triggering the investigation that led to this proceeding. Respondent acknowledged the October 31, 2011, encounter in his office, alone, with B.G. He admitted that he was the one who asked her to come stand next to him while he was seated and that he put his arm around her despite the fact that his arm would have been aligned with her hips and rear end. His rationale was that he thought she needed comforting while he talked with her about getting nervous at her piano performance. However, it was not as if she came to see him about the performance or said anything to indicate she was upset about it when she came to his office--she just needed him to sign her absentee pass. Respondent initiated the proximity, then brought up the subject of the piano performance after he had already engaged B.G. in the "comfort" grip that did anything but comfort her. At Respondent's pre-determination conference, he admitted that B.G.'s statement describing the setting was accurate, including the fact that he was seated at his desk and beckoned her to come stand next to him, the fact that she had a book bag on her shoulder, and the fact that he reached under her book bag to put his arm around her waist. While Respondent did not admit to having purposely grabbed or touched her buttocks, he admitted that he had to get his hand back, and in pulling his hand down from B.G.'s waist and out from under her book bag, he could have brushed or touched her buttocks. Indeed, it may have been physically impossible for Respondent to retrieve his arm from across B.G.'s body and under a large book bag without his hand sliding across her buttocks. At the final hearing, four months after the pre- determination conference, Respondent modified his story regarding the October 31, 2011, incident with B.G. Respondent testified at hearing that he did not put his arm around B.G.'s waist; instead, he said that his hand was perhaps at the small of her back. Of course, from B.G.'s description, with which Respondent agreed at the pre-determination conference, the small of B.G.'s back was probably covered by her book bag. Therefore, Respondent also changed the part of his story where he had agreed with B.G.'s description that Respondent snaked his arm under her book bag. At the final hearing, he claimed that he did not reach under the book bag, because he remembered that her book bag was on her left side. Respondent reiterated that "[i]f there was any incidental contact [with her buttocks], that's what it was, in passing." Respondent's changed story was not credible. As described three days after the incident by B.G., confirmed in her testimony and confirmed in all salient respects by Respondent's admissions in the pre-determination conference, Respondent's physical contact with B.G. on October 31, 2011, was intentional and clearly inappropriate. Respondent's attempt to change the story supports the finding that he acted intentionally. Respondent attempted to eliminate the facts showing that he put himself in a position that virtually assured that his hand would have to slide across B.G.'s buttocks at least twice, once on the way out to the left side of her waist and once on the way back. Respondent's improper touching was distressing to B.G. and understandably so. B.G. described one other time earlier in the 2011-2012 school year when Respondent touched her in a way that made her uncomfortable. This incident occurred while B.G. was sitting at a piano practicing, alone, in one of the small piano practice rooms. Respondent came in and reached over her shoulders to put his hands on the keys, which he had done several times before, to demonstrate how to correctly play the piece she was practicing. In this position, his upper arms were touching her shoulders. After about ten seconds of demonstrating on the piano keys, he brought both arms back, and while doing so, his left hand touched the area of her chest right above her left breast and then continued up onto her shoulder. B.G. said that Respondent did not actually touch her breast, but it was close enough to make her feel uncomfortable, especially in such a small room with him standing right behind her and no one else there. The door to the piano practice room was open, and Respondent's hand encounter with the area above B.G.'s left breast was witnessed by C.R., who had walked by and looked in the room because she was looking for Respondent. B.G. told her mother about this incident in the piano practice room, but did not tell anyone else. B.G. did not mention this incident in her written statement, because her focus was on what she considered the more significant incident, when Respondent did not just come close to touching a private body part; he actually grabbed her buttocks, not once, but twice. When asked if she had witnessed any conduct of Respondent's with another student that she considered inappropriate, B.G. referred to the way he would always hug P.P. B.G. testified that she never saw Respondent hug other students. B.G. did not ever witness any inappropriate interaction between C.R. and Respondent, but C.R. told her about things. Lehigh has been an uncomfortable place for B.G. since Respondent was suspended in November 2011. A group of students have banded together to support Respondent, even going so far as to discuss making up "Free Sparrow" tee-shirts to wear in protest of his suspension, but they abandoned that idea when Respondent told them that they could get in trouble if they did that. There has been a lot of animosity directed to the three girls--P.P., B.G., and C.R.--who gave the interviews and statements reporting incidents of Respondent's inappropriate conduct with each of them. B.G. testified that she and the others have been accused of lying, and she cannot understand why. Even though apparently everyone knows the details of what Respondent was accused of, B.G. has not discussed the details with others, and if asked by others about the details, she has denied them because she was told she should not discuss the subject with anyone. C.R. C.R. was a 17-year-old female senior at Lehigh for the 2011-2012 school year; by now, she has graduated. She was a vocal major and took many classes over the years in chorus and piano, which were her musical areas of interest. C.R. did not attend Lehigh as a freshman, but has been there for three years and took Respondent's chorus and keyboard classes in each of her three years. C.R. did not know P.P., B.G., or M.M. before her senior year, when they were in Respondent's advanced chorus class together. The three sophomore girls described C.R. as more of an acquaintance than a friend. C.R. got along fine with Respondent and had no problems with him or his conduct in either her sophomore or junior years. By the end of those two years, C.R. had grown comfortable with Respondent, as he had been her music teacher for a while. In C.R.'s senior year, she had four classes with Respondent: two different keyboard classes, AP music theory, and advanced chorus. According to Respondent, because C.R. had two keyboard classes, he often used her as his aide during the second keyboard class, because she had already learned what she needed to in the first class. Respondent would have C.R. do copying, run to the library, and clean his office. Unlike in her first two years at Lehigh, in the first few months of her senior year, C.R. experienced numerous problems with Respondent, including improper physical contacts and inappropriate comments by Respondent. C.R. described multiple encounters with Respondent while she was playing the piano or keyboard, either in the private piano room or another practice room. At first, C.R. would be seated in a chair at the piano or keyboard playing, and Respondent, while standing, would reach one hand to the keys to show her the proper position and would rest his other hand on her chest area, below her shoulder and above her breast. When this first began in the early part of C.R.'s senior year, Respondent's "resting" hand would be towards the upper part of her chest, closer to the shoulder, but with each successive time, his hand went further and further down until it was resting on her breast. C.R. estimated that she was touched inappropriately this way by Respondent more than ten times in the first few months of the 2011-2012 school year until Respondent was suspended in November. C.R. testified that about halfway through the progression of these keyboard incidents, she was walking by the door to the piano practice room and saw through the door that Respondent was engaged in a similar hand-to-chest area encounter with B.G. Afterwards, C.R. approached B.G. and told her that Respondent does the same thing to her. C.R. said she wanted B.G. to know that she needed to tell someone because she was only a sophomore. When asked why C.R. did not tell Respondent to stop, she said, "I wouldn't know how to approach someone like that. I wouldn't, I wouldn't be able to tell you please don't touch my breast. It would make me very uncomfortable. I would rather just suck it up and deal with it." Respondent's description of his keyboard encounters was somewhat different than C.R.'s and B.G.'s descriptions, but he admitted key parts of those descriptions. Respondent explained that he frequently assisted his keyboard students while they are seated in a single chair at a piano or keyboard. Respondent chooses to remain standing, instead of pulling up another chair. Respondent emphatically denied standing behind his students; he claims to have always stood next to the playing student. However, Respondent admits that he would reach over the student (from the side) and lean over to the keyboard to demonstrate with one hand how to position the fingers on the keys. Respondent also admits that providing assistance this way puts him in a precarious position, so that he has to use his other hand to brace himself on the student's shoulder. Respondent said that he puts his hand "on their shoulder that's nearest me or on the shoulder that's on the opposite side of me," which means that Respondent would put an arm around the playing student, a strange way of bracing himself with his hand on their far shoulder. Thus, Respondent admits regularly touching C.R. and B.G., and presumably all of his other keyboard students, with his hand braced on their shoulders for the duration of the piece the student is playing. The only part Respondent disputes is the hand slippage from its shoulder perch down to the chest area in B.G.'s case, and still further down to the breast in C.R.'s case. However, C.R.'s and B.G.'s testimony was otherwise undisputed, and each of their stories was corroborative of the other's. Respondent's denial was not credible. In addition to the keyboard encounters, on multiple occasions in the few months before Respondent was suspended, C.R. would go to see Respondent in his office and he would ask her to come stand by him when he was sitting at his desk. When C.R. complied, Respondent would wrap his arm around her waist and rub or stroke her buttocks and thigh, while showing her something on the computer or telling her something he wanted her to do. C.R. estimated that these office encounters occurred ten or 15 times, until C.R. started trying to avoid going to his office or ignore his requests to come stand next to him. C.R. also began leaving Respondent's classroom between classes, instead of just staying in the room where she also had her next class with Respondent. To avoid encounters with Respondent between classes, C.R. would wait in the bathroom until students for the next class would arrive, and then she would join them for her next class. When asked whether she knew if Respondent intentionally touched her inappropriately, C.R. responded: "I think if a man touches you on your breast and on your hips and boob and your butt that he is being inappropriate." Once again, Respondent admitted frequent encounters with C.R. in his office, because, after all, he put her to work cleaning it and running errands for him. In addition, Respondent admitted that he would make physical contact with C.R., putting his arm around her while she stood next to him when he was seated at his computer. Once again, Respondent's description of these encounters stopped a bit short of C.R.'s version. According to Respondent, he would reach his arm (awkwardly) around and upward so that he could pat C.R. on her back for emphasis as he showed her something on the computer or showed her paperwork that he wanted her to copy. Once again, Respondent testified that although it was possible that his hand had an accidental encounter with C.R.'s buttocks, any such accident was just that-- accidental. C.R. also described Respondent's inappropriate conduct one day in her AP music theory class, in the presence of four or five other students. On that day, any time C.R. had a question or needed help, Respondent made her hug him before she could ask her question. Respondent also kissed her forehead when she answered a question correctly. She found this behavior objectionable. Respondent did not address this aspect of C.R.'s testimony, which stands unrebutted. C.R. also recounted her discomfort with Respondent's running brassiere commentaries. This string of incidents started during homecoming week, when there was a celebrity dress-up day on which C.R. went to class wearing an outfit that featured a neon-colored bra. Respondent made a joking comment, saying something like, "C., why is your bra so bright?" C.R. did not take this comment in the wrong way, because Respondent said it jokingly. What bothered C.R., however, was the progression of Respondent's brassiere comments and touchings that followed after that day. For example, when C.R. wore a low-cut or v-neck shirt, Respondent stood above her and looked down her shirt, and made comments such as, "I'm glad you're not wearing your neon bra today"; or "this bra is much nicer." Once when C.R.'s bra strap was showing, Respondent pushed the bra strap over and repeated one of the comments about the color of her bra. Respondent gave a slightly different story. He testified that after the neon bra joke, on another day when C.R.'s shirt had slipped and exposed her bra strap, he moved her shirt to cover up the bra strap, while commenting that he was glad she was not wearing the neon bra today. Respondent's version is almost as bad as C.R.'s description. Respondent has no business rearranging clothing of his female students in such a personal manner, nor commenting on their intimate apparel. Respondent often gave nicknames to his students, naming them some kind of "smurf" that suited them, such as "good singer smurf." C.R. described an encounter with Respondent that bothered her, when he pushed up the bottom part of her shirt in the back and said, "We should call you "love handle smurf." Finally, C.R. described what she thought was the final incident with Respondent before his suspension. This incident occurred in the piano room. C.R. had gone in the room between classes when no one else was there. She was tired from soccer practice, so she moved several chairs together so they were touching. She laid down across the seats, which formed a kind of bench. Her shirt had ridden up so some of her waist was exposed, though she had a jacket on over it. Respondent came into the room, pushed up her jacket, and started rubbing her waist and sides. C.R. was uncomfortable so she jumped up, said she had to go do something, and walked out. Respondent admitted that he found C.R. lying down as she had described. Respondent testified that he used his hands to rhythmically beat on her back as he told her to get up, that it was time to get to work. Respondent denied pushing up C.R.'s jacket and he denied that his hands made contact with her skin. Respondent offered a new fact at the final hearing regarding this incident that he did not mention at the pre- determination conference. According to Respondent, after he had been beating on C.R.'s back, she commented, "oh, this feels better than my boyfriend. And at that point I stopped, because that was an inappropriate statement, and that was not the nature of any of that. I left, and that was it." He later elaborated on why he stopped: "Because that was very inappropriate, and that was not--that was not my intention to make it--for her to compare me to her boyfriend or anything like that was way above-- I mean way crossed the line." Respondent also offered his opinion that the reason why C.R. had said all these things about him was because he thinks she had a crush on him and was jealous, or felt threatened, when she saw Respondent touching B.G.'s chest while she was playing piano. This too was a new twist to Respondent's final hearing testimony that Respondent did not see fit to share at his pre- determination conference. No other testimony was offered to support Respondent's new theory; none of the witnesses testifying on Respondent's behalf were even asked if they knew about C.R.'s supposed crush on Respondent. Respondent's unsupported speculation lacks credibility, in part because C.R. was not the one to report Respondent to the school administrators; in fact, she was the last of his victims to give a statement. General Defenses An overall theme of Respondent's attempt to refute the allegations against him was that the three young ladies misunderstood his intentions, which were not sexual in nature. Respondent attempted to prove that B.G., P.P., and C.R. were impressionable and that each of them was influenced to embellish what happened because of the stories that each of them told about Respondent. This effort was ineffective. Respondent, having admitted the core facts of each of the young ladies' allegations, was not credible in his denials of some of the details, as found above. Respondent's admission of serial "accidents" suggests that the incidents were no accident at all. Respondent also attempted to cast doubt on the allegations of the three young ladies by emphasizing the visibility of his office from the classroom and the partial visibility of the classroom and the piano and keyboard practice rooms from the hall, through window panels on the tops of the doorways. Respondent also attempted to suggest that there were always students in these areas. While the testimony established that most of Respondent's inner office would be visible to persons in the classroom, the testimony also established that there were times when Respondent would be in his office with a student and no one else around. The same is true with respect to the piano and keyboard rooms--the testimony established that these rooms may have been at least somewhat visible, but others were not always around. All of the student witnesses, including the four witnesses who attempted to support Respondent with their testimony, confirmed this fact; each of them had, on occasion, been alone with Respondent. The witnesses testifying in support of Respondent think highly of him as a teacher and do not believe the allegations against him. However, their testimony lacked substance to refute the allegations in any respect. For example, all of Respondent's student witnesses admitted that they were not always with B.G., P.P., M.M., and C.R. when those four girls were in Respondent's presence. All but one of Respondent's student witnesses said that they would be surprised to hear Respondent describe himself as a hugger. One student witness never saw Respondent hug any student; another student witness said that Respondent hugged everyone. The shame of it is that Respondent has been a very good and talented teacher. Indeed, after he was suspended, each of the young ladies who made statements against Respondent stated publicly that they wished he was still teaching because he was such a good teacher (and also because they did not think much of his replacement). But each of these young ladies made clear that they were speaking only of teaching ability, and if he had actually come back to teach them, they would have felt very uncomfortable because of his misconduct and because they spoke up against him. Prior Notice Respondent makes much of the fact that the three students whose allegations are the predicate for the charge of misconduct never complained to him about his conduct, so that he could change his conduct to address their concerns. Under the circumstances found above, notice should not have been required for Respondent to realize that serial "accidents" in which his hands found themselves on the buttocks of female students and other "accidents" in which his bracing hand slipped from shoulder perches downward in the direction of the breasts of female students, was improper conduct on his part. Moreover, Respondent admitted that he was indeed on notice about Lehigh's concern with him breaching body boundaries with female students. Respondent testified that he met with Lehigh Assistant Principal Niki Carthan sometime during the 2010-2011 school year, about a student complaint. Ms. Carthan informed Respondent that a student had complained to another teacher that Respondent made her feel uncomfortable. That teacher reported the complaint to Ms. Carthan, who spoke with Respondent about it. The student who had complained was a senior who was going to apply to FAMU, where Respondent attended. Respondent invited the student to his office to pull up her application essays on his computer. According to Respondent, the student was sitting down at his computer, and he reached around her for the mouse which was on the other side of her. He claims he did not touch her, but he acknowledged that by the nature of him reaching around her to click on the mouse that was on her other side and "being in close proximity to her looking at the computer screen, it might have made her uneasy " Respondent testified that Ms. Carthan warned him to be more careful and that he needed to be "very cognizant of your spacing" when it came to students. Rather than heeding Ms. Carthan's warning, Respondent was plainly less careful, not more careful. He did not learn his lesson from his close encounter that violated body space boundaries and made the FAMU-bound student uneasy enough to complain during the 2010-2011 school year. Instead, that too-close encounter in 2010-2011 progressed to numerous incidents of improper physical contacts by Respondent, with actual touching of private body parts, making three different young ladies very uncomfortable, fearful, and anxious about encounters with the one teacher who could teach them the music they loved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, enter a final order terminating Respondent, Willie Sparrow's, employment. DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 18th day of July, 2012.
The Issue The issue is whether Petitioner's son is eligible for assistance from the Developmental Services Program.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Petitioner, Donald Hall, Sr., has appealed an eligibility decision of Respondent, Department of Children and Family Services (Department), which denied an application for mental retardation assistance for his son, Donald Hall, Jr. (Don), now almost 21 years of age, under the Developmental Services Program (Program). As a ground, the Department simply stated that the son was "not eligible for assistance." As clarified at hearing, Respondent takes the position that Don does not meet the statutory definition of a retarded person and therefore he does not qualify for assistance. The test for assistance The Program provides services to persons with specific developmental disabilities, such as mental retardation, cerebral palsy, spina bifida, and autism. In order to be eligible for mental retardation assistance, an individual must meet the definition of "retardation," as that term is defined in Section 393.063(44), Florida Statutes (1999). That provision defines the term as meaning "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." As further defined by the same statute, the term "significantly subaverage general intellectual functioning" means "performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department." In this case, the mean score is 100, and the standard deviation is 15; thus, an individual must have general intellectual functioning of at least two deviations below 100, or a score of less than 70, in order to qualify under this part of the definition. To determine intellectual functioning, standardized testing is performed; one such test is the Wechsler Intelligence Scale for Children (Wechsler), as revised from time to time, which was administered to Don. "Adaptive behavior" is defined as "the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community." In plainer terms, adaptive behavior means the individual's ability to function in everyday tasks in the world. This includes such things as providing personal care to oneself, expressing oneself, and finding one's way around. This behavior is measured by instruments such as the Vineland Adaptive Behavior Scale (Vineland). Finally, both the subaverage general intellectual functioning and deficits in adaptive behavior must have manifested and been present before the individual reached the age of 18. In this case, the Department asserts that it is "eighty percent" sure that Don is not mentally retarded. It acknowledges, however, that he does have "significant difficulties in all areas of functioning." More specifically, the Department bases its denial on the fact that Don's 1995 tests indicated that his adaptive behavior was equivalent to other children of the same age, and that his intellectual functioning tests, principally the 1990 test and one score in 1995, revealed that he is in the borderline range between low average and mentally retarded. Don's background Don was born on November 5, 1979. Even while attending an educable mentally handicapped class at Parkwood Heights Elementary School, a public school in Duval County, Florida, Don experienced difficulty in coping with the curriculum. Indeed, after he had already repeated the first and third grades, and he was in danger of failing the fourth grade as well, public school officials transferred Don from the public school to Morning Star School (Morning Star), a private school for students with learning disabilities, including those who are mildly mentally handicapped. Later, when teachers at Morning Star expressed concern that Don had "gone as far as they could help him," and he was too old to retain eligibility, Don was referred by a child study team to Alden Road Exceptional Student Center (Alden Road), a public school (grades 6-12) for mentally handicapped students. Due to his present age (almost 21), he has only one year of eligibility left at Alden Road. At the school, Don receives limited academic instruction and has a supervised job. Don became eligible for Social Security death benefits when his natural mother died. Recently, his parents (father and stepmother) made application for those benefits to be converted to greater, more permanent Social Security benefits because of his condition. Their request was quickly approved, and Donald now receives lifetime monthly Social Security benefits. Don's test results for general intellectual functioning On April 24, 1990, when Don was 10 years old, he was given a psychological evaluation, which included the Wechsler test, to produce verbal, performance, and full scale intelligence quotients (IQs). The verbal IQ is a composite score of several subtests that make up the intelligence scale, including verbal reasoning, verbal memory, and verbal expressive skills. The performance score is based on a group of nonverbal tests, such as putting blocks and puzzles together, sequencing pictures, and marking coded symbols in a timed environment. Those results indicated a verbal IQ of 78, a performance IQ of 77, and a full scale IQ of 76. These scores placed him in the "borderline range" of intellectual functioning somewhere between low average and mentally retarded. The Wechsler test was revised in 1991 to provide a more valid estimate of intellectual functioning compared to the current day population. This resulted in students who retook the test scoring at least 5 points lower, and sometimes even lower, than they did on the earlier version of the test. Therefore, it is not surprising that Don attained lower scores on subsequent tests. The evidence establishes that a child will typically attain higher IQ scores at an earlier age, and that as he grows older, his scores will "tail off." This is because a child's intellectual skills reach a plateau, and the child is not learning new skills at a higher level as his age increases. Therefore, later tests scores are more indicative of Don's intellectual functioning. In 1993, when he was 13 years old, Don was again evaluated by the Duval County School Board and received a verbal IQ of 65, a performance IQ of 54, and a full scale IQ of 56 on the Wechsler test. More than likely for the two reasons given above, these scores were substantially lower than the scores achieved in 1990, and they indicated that Don was "in the range of mild mental retardatation" and therefore eligible for services. In 1995, when Don was 16 years old, he was again given the Wechsler test by a psychologist and was found to have a verbal IQ of 71, a performance IQ of 54, and a full scale IQ of Except for the verbal score, Don's IQ scores placed him in the range of mild mental retardation. On the 1995 verbal IQ score, which is made up of ten subtests, Don had one subtest with a score of 91, which raised his overall verbal IQ score to 71. Without that score, the verbal IQ would have been in the 60s, or in the mildly mentally retarded range. The evidence shows that it is quite common for children with mild to moderate deficiencies to score within the average range on some types of achievement measures. For example, some mildly retarded children will achieve a high level on academic tests, such as in the 80s or 90s, but they have little comprehension as to what those words mean. More than likely, Don fits within this category, and an overall verbal score of less than 70 is more reflective of his intellectual functioning. Based on the 1993 and 1995 tests, Don has general intellectual functioning of at least two deviations below 100, and therefore he qualifies for assistance under this part of the test. Adaptive behavior skills As noted above, this category measures Don's ability to deal with everyday tasks. To be eligible for services, an applicant must have deficits in his adaptive behavior which manifested before the age of 18. Presently, and for eight months out of the year, Don works from noon until 8:00 p.m. Monday through Friday at Jacksonville University "in the skullery room and [doing] tables." He relies on community transportation (from door to door) to get to and from work. When not working, he attends Alden Road where he receives limited academic instruction. According to a Vineland instrument prepared by an Alden Road teacher in December 1995, Don then had an overall adaptive behavior composite of 16 years old, or one roughly equivalent to other children of the same age. More specifically, in terms of communication, he was functioning at the age of 16; in terms of daily living skills, he was reporting at a greater level than the 18-year-old level; and in terms of socialization, he was slightly lower than a 16-year-old. The teacher who prepared the raw data on which the test score was derived was surprised to learn that her data produced a result which indicated that Don had adaptive skills equivalent to someone his own age. Based on her actual experience with him in the classroom, she found Don to be "functioning way below" her own son, who was the same age as Don. She further established that he can follow only the most "simple" instructions, and he will always need someone "looking out for him." This was corroborated by Don's parents and family friends. The Vineland test result also differs markedly from Don's real life experience. Don lives at home with his father and stepmother; he requires "constant supervision all day," even while working; and he is unable to live by himself. He is a "very trusting person," is easily subject to unscrupulous persons who could take advantage of him, and cannot manage his own money. Indeed, his psychologist described him as being "an easy target to be taken advantage of [by others]." Although Don is able to administer to some of his basic personal hygiene needs, he still requires constant reminders to do such things as wash his hair or brush his teeth. Finally, Don has minimal problem solving skills, and he is easily confused by instructions unless they are "very simple." In short, these are real deficits in adaptive behavior and are sufficient to make Don eligible for Program services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for Program benefits for Donald Hall, Jr. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 July, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josefina M. Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kathryn L. Sands, Esquire 1830 Atlantic Boulevard Jacksonville, Florida 32207-3404 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue here is whether the Superintendent has shown "good and sufficient reasons" for recommending that Mr. Udell be returned to annual contract status as a teacher employed by the School Board of Hamilton County, Florida.
Findings Of Fact For fourteen years, Mr. Udell has been employed by the Hamilton County School Board as a teacher. He is presently assigned as an auto-mechanics instructor at Hamilton High School. He has held a continuing contract for the last seven years. The principal of Hamilton High School has been Mr. Maurice Hammond for the last two years. It appears that he is less indulgent of rule violations than was the former school principal, Mr. William Edwards. Mr. Hammond has cracked down on activities such as student card playing which at one time were tolerated by the former administration. This has been at least a partial cause of friction between the old teachers like Mr. Udell and the new principal. It is the school policy that if a student is absent for more than nine days in a nine-week grading period, he will receive a sixty-five or lower grade for that period. With respect to the grade of Tim Holland, a student of Mr. Udell's for the 1979-1980 school year, Mr. Udell did not follow that policy. The policy was known to him through the teachers' handbook which he received at the beginning at the school year. In Mr. Hammond's opinion, Tim Holland would not have graduated if it has not been for Mr. Udell's violation of the nine-day rule. Tim Holland missed a total of seventy-five days of the 1979-1980 academic year. According to Hamilton High School policy, each student must receive nine grades during each nine-week grading period. Mr. Udell has not complied with that policy. During the last complete school year, his students received on the average only three grades. Hamilton High School students who are seniors and have a class grade average of ninety-five or above are exempt from quarter examinations. During the 1979-1980 year, on at least one occasion, Mr. Udell exempted from quarter exams several senior students who had less that a ninety-five average. The teachers of Hamilton High School compute the grades for their assigned students. In the 1979-1980 year, Mr. Udell had one of his students compute grades for him. The result was numerous computation errors, all in favor of the students. For instance, Leonard Phillips had a seventy-four for the first grading period and an eighty for the second period yet he received an average grade of eighty for the whole semester. Jack Alford received a sixty the first period, a sixty-four for the second period and an average of seventy for the semester. For the first semester of 1979-1980 alone, at least sixteen of Mr. Udell's forty-nine students received incorrect grades. Prior to Mr. Hammond's administration at Hamilton High School, there were occasions when students were allowed to play cards during class periods. On April 2, 1979, during a visit to Mr. Udell's classroom, Mr. Hammond observed numerous students playing cards in the third and fourth periods. Halter in the afternoon when the principal spoke with Mr. Udell about the indent, he responded that card playing occurred in other parts of the campus and "the best thing to do was to give me that oil [needed to operate an engine]." This response is typical of Mr. Udell's attitude when deficiencies in his teaching have been pointed out to him. He attempts to rationalize them by shifting repairability onto others. He explained his grading errors by complaining about not having a student assistant or a planning period; yet, with only three grades per student for the whole year, it would take little time for him to accurately compute the grades himself. In one instance, on January 14, 1980, Mr. Udell left an inadequate lessor plan for a substitute teacher. The plan which was for three classes for two periods stated in its entirety (spelling etc. as on original): 1-14-80 Auto Class 1-2 P. Class Basic Tune-up on six cyl. engine Practice on training unit that is on roll cabinit tools are in top drawer in roll cabinit Check training unit with sun scope This is for all classes one group work on engine one on training unit, then change over. Udell A 30-gallon drum of cleaning solvent was sent to Mr. Udell's auto mechanic shop without a purchase order being first submitted. This is contrary to the purchase procedure established at Hamilton High School. It resulted, however, because the salesman sent the solvent before he had Mr. Udell's approval. Mr. Udell was therefore not at fault for there not being a purchase order prior to the delivery of the goods. Evidence was presented which shows that Mr. Udell adequately handles many of the instructional aspects of his teaching responsibilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Hamilton County, Florida, enter a final order pursuant to Section 231.36(4), Florida Statutes, returning Mr. Lawrence Udell to an annual contract of employment as a member of the instructional staff, effective from the beginning of the 1980-1981 school year. DONE AND RECOMMENDED this 7th day of January 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1981.
