The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: During the 1986-87 school year the Petitioner was employed by the Respondent as a Compensatory Education Teacher at Lake Butler Middle School. Additionally, he served as Assistant Football Coach and Junior Varsity Baseball Coach. The Petitioner is over the age of eighteen years. During the 1986-87 school year the Petitioner possessed a temporary teaching certificate issued by the Florida Department of Education (Certificate Number 562142) disclosing "Highest Acceptable Level of Training - Bachelor's Degree." The Petitioner also possesses a permanent teaching certificate with a validity period of July 1, 1987, through June 30, 1992. Superintendent of Schools, James H. Cason, III, met with M. H. Boyd, Principal, Lake Butler Middle School and Petitioner's principal, prior to formulating his decision to recommend Petitioner to Respondent for additional year of employment. Boyd advised Superintendent Cason that she was not entirely satisfied with Petitioner's performance but that she could "live with" Petitioner's reappointment for the 1987-88 school year. Superintendent Cason also conferred with the head coach, James F. Niblack, Petitioner's supervisor for the athletic duties performed by Petitioner, prior to formulating a recommendation to Respondent concerning Petitioner's reappointment for the 1987-88 school year. Coach Niblack recommended Petitioner's reappointment for the 1987-88 school year. Superintendent Cason made a timely written nomination that Petitioner be reappointed by the Respondent in an instructional position for the 1987-88 school year. On April 27, 1987, Respondent conducted a meeting for the purpose, inter alia, of acting upon the recommendation of Superintendent Cason for personnel appointments. The Respondent voted unanimously to reject the recommendation of Superintendent Cason that Petitioner be reappointed to an instructional position for the 1987-88 school year. No reason for the rejection of the nomination of the Petitioner by the Respondent was verbally stated at the April 27, 1987, meeting nor spread upon the minutes of such meeting. During the hearing, and after conferring with the members of the board, counsel for Respondent stipulated that Petitioner met the statutory requirement to be eligible for appointment to a position with Respondent in that he is of good moral character, is over the age of eighteen (18) years and holds a certificate issued under the rules of the State Board of Education. School Board member, W. S. Howard, Jr., a cousin of Boyd, requested that Boyd prepare an evaluation of Petitioner. The record is not clear as to whether the evaluation was made before or after the Superintendent conferred with Boyd on Petitioner's reappointment. Petitioner was evaluated "satisfactory" in ten (10) of the eighteen (18) areas measured on the evaluation instrument that was utilized, "unsatisfactory" on two (2), "not applicable" was marked on two (2) criteria and four (4) were left unmarked by the evaluator. The evaluation instrument utilized by the Respondent in evaluating the Petitioner's performance was not the instrument which should have been utilized during the 1986-87 school year although such instrument was utilized by the principal for other employees at the Petitioner's school. The Respondent officially sponsors, maintains and funds the athletic programs in which the Petitioner rendered services during the 1986-87 school year. Such programs constitute an integral part of the overall educational program offered by the Respondent to children of Union County. The Petitioner's service to the athletic program conducted by the Respondent was rated satisfactory or above.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Respondent, School Board of Union County, enter a Final Order GRANTING the Petitioner an annual contract for the 1987-88 school year and reimbursing Petitioner for any loss of wages due to his non-pay status which resulted from Respondent's rejection of his nomination. RESPECTFULLY SUBMITTED AND ENTERED this 27th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-11. Adopted in Findings of Fact 1 through 11, respectively. 12.-15. Adopted in Findings of Fact 13 through 16, respectively. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 7. Adopted in substance in Findings of Fact 5, 6 and 7. Adopted in substance in Finding of Fact 1. Adopted in Finding of Fact and 6. The fact that Boyd had some reservations concerning Petitioner's abilities to teach the compensatory education class is adopted in Finding of Fact 5, the balance of paragraph 6 is rejected as not supported by substantial competent evidence in the record. The fact that Niblack recommended Petitioner for reappointment is adopted in Finding of Fact 6, the balance of Paragraph 7 is rejected as not supported by substantial competent evidence in the record. The fact that the Union County School Board voted not to rehire Petitioner is adopted in Finding of Fact 9, the balance of paragraph 8 is rejected as not supported by substantial competent evidence in the record. The fact that the reason for Respondent's vote to reject Petitioner's reappointment was not verbally stated or spread in the minutes is adopted in Finding of Fact 10, the balance of paragraph 9 is rejected as not being supported by substantial competent evidence in the record in that the testimony of the individual School Board members lacked credibility. Rejected as being presented as an argument and not as a Finding of Fact. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32302 Bobby Lex Kirby, Esquire Route 2, Box 219 Lake Butler, Florida 32054 James H. Cason, III, Superintendent The School Board of Union Co. 55 Southwest Sixth Street Lake Butler, Florida 32054 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether respondent should be dismissed from his employment with the Palm Beach County School District on charges of engaging in misconduct and immorality which impaired his effectiveness as a teacher, in violation of Section 231.36, Florida Statutes, and of exploiting a professional relationship with a student for personal gain in violation of Rules 6B-1.06(3)(h) and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or "Garden Shop." Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. He then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. He had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Loss Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Palm Beach County dismiss respondent from his employment for violating Section 231.36(4)(c), Florida Statutes, and Rule 6B- 1.06(3)(h), Florida Administrative Code. DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1984. COPIES FURNISHED: John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Abbey G Hairston, Esquire School Board of Palm Beach County 3323 Belvedere Road Building 503, Room 232 West Palm Beach, Florida 33402 Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
The Issue The issue presented in DOAH Case No. 93-3290RX is whether Rule 46-3.028, Florida Administrative Code, is an invalid exercise of delegated legislative authority, and the issue presented in DOAH Case No. 93-5549RP is whether the proposed amendment to that Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Menhaden are a species of herring. They are tightly-schooling fish which travel at the water surface. Menhaden are generally harvested as bait or for industrial products. Menhaden are planktivorous, or plankton-eating, fish which thrive in highly eutrophic aquatic environments. Portions of the inside waters of Escambia and Santa Rosa Counties become highly eutrophic during the summer months. Each summer menhaden congregate in the highly eutrophic areas of the inside waters of Escambia and Santa Rosa Counties, resulting in overcrowding and consequent suffocation of large numbers of fish. These summer fish kill in certain regions of Escambia and Santa Rosa Counties are considered a nuisance and a public health problem. To alleviate the problem, the Department of Environmental Protection has issued Special Activities Licenses to permit purse seining of menhaden in these regions during the summer months. Petitioner Blanchard is a commercial fisherman and owner of a fish net business. He has fished in the local waters of Escambia and Santa Rosa Counties for many years. In 1978, the Legislature enacted Chapter 78-501 and Chapter 78-502, Laws of Florida, which prohibited fishing in the salt-waters of Escambia or Santa Rosa Counties with a net having a mesh of less than 2 5/8 inches stretched. After the effective date of those special laws, Petitioner Blanchard continued his fishing operations by using a purse seine net with a mesh of 2 5/8 inches. After the creation of the Marine Fisheries Commission in 1983, the Commission held hearings in various locations in the State of Florida where citizens could come and discuss local laws which they wanted changed or not. Such generic local public hearings were held in Escambia County and in Santa Rosa County in August of 1987 and in November of 1989. No evidence was offered that changes to Chapters 78-501 and 78-502 were discussed at those meetings or that any notice that such changes would be discussed was published. During 1991, the Commission engaged in rulemaking to promulgate a statewide rule regulating net sizes and meshes and types of fishing gear. During the final public hearing in August of 1992 held in St. Augustine, Florida, the Commission changed its proposed statewide gear rule which had proposed to ban all seine nets, determining instead that it would prohibit purse seining but would allow haul seining and beach seining. The statewide gear rule, which went into effect, prohibited the use of purse seine nets in the waters of Escambia and Santa Rosa Counties. No evidence was offered as to the notices issued or the steps engaged in during that rulemaking process. At the time that the Commission passed its statewide gear rule prohibiting the use of purse seine nets in Escambia and Santa Rosa Counties, it was aware that it was repealing Chapters 78-501 and 78-502, Laws of Florida, which had become rules of the Department of Natural Resources pursuant to Chapters 83-134 and 84-121, Laws of Florida. At the time that it adopted the statewide rule, however, the Commission believed that purse seine netting was already banned in the waters of Escambia and Santa Rosa Counties and believed, therefore, that it was making no change to the local fishing regulations in those counties. At the time, the Commission did not know that a small scale menhaden purse seining fishery existed in the waters of Escambia and Santa Rosa Counties. The Commission's reading of the unambiguous language of Chapters 78- 501 and 78-502 was clearly erroneous. The Commission had not intended to ban an existing menhaden purse seine fishery in those waters. Petitioner Blanchard filed a lawsuit in the Circuit Court in Escambia County over the repeal of the allowance of purse seine nets with a minimum mesh of 2 5/8 inches and the ban on purse seine nets in those local waters. That litigation was dismissed due to his failure to exhaust administrative remedies. Petitioner Blanchard then filed the challenge to the existing rule which is the subject of this proceeding. In an attempt to resolve the issues raised in Petitioner Blanchard's rule challenge, the Commission proposed to amend Section (3) of Rule 46-3.028, Florida Administrative Code, to correct its unintended ban of an ongoing menhaden purse seine fishery by permitting instead a limited harvest of menhaden using purse seines in the inside waters of Escambia and Santa Rosa Counties. Under the proposed rule, which is also the subject of this proceeding, menhaden may be harvested in specified areas of the inside waters of Escambia and Santa Rosa Counties landward of the Colregs Demarcation Line with the use of a purse seine net only from a vessel with a documented length of less than 40 feet and with a purse seine net no longer than 400 yards. The proposed rule further provides that no harvesting of menhaden with a purse seine shall occur during any weekend or on any state holiday, limits any incidental bycatch to 2 percent by weight of all fish in possession of the harvester, and requires that any fish for which the Commission has established a bag limit shall be released free, alive, and unharmed. The proposed rule also includes a two-stage quota and an established fishing season for the commercial harvest of menhaden in the inside waters of Escambia and Santa Rosa Counties which opens on June 1st of each year and closes on May 31st of the following year unless it is closed earlier in accordance with quota limits. The summer quota allows a commercial harvest of menhaden in those Counties' waters of 1,000,000 pounds during the period from June 1st to October 31st of each year. If that quantity is not netted, the season is closed on November 1st by the Secretary of the Department of Environmental Protection and not reopened until the following June 1st. The winter season offers a quota of an additional 2,000,000 pounds. If the total commercial harvest of menhaden in those counties reaches 3,000,000 pounds (the 1,000,000 pounds during the summer plus the 2,000,000 pounds during the winter) before May 31st, the menhaden season for the inside waters of Escambia and Santa Rosa Counties shall be closed on the date that the harvest is projected to reach that amount and shall not reopen until the following June 1st. The Commission began the rulemaking procedures for the proposed amendment to Section (3) of Rule 46-3.028, Florida Administrative Code. Petitioner Florida Conservation Association (hereinafter "FCA") filed its challenge to the proposed rule. In the proposed rule, the Commission makes a specific finding that the harvest of menhaden through the use of purse seine nets in the inside waters of Escambia and Santa Rosa Counties during the summer months serves the public purpose of avoiding the nuisance and public health problems associated with the menhaden die-offs. The Commission also specifically finds that harvesting menhaden with purse seines will not adversely affect the long-term abundance of menhaden in the area so long as appropriate restrictions on seasonal and total annual harvest are adopted. Menhaden bring a low economic return in the marketplace. During the summer months when demand is low, commercial fishermen are paid approximately $.05 per pound for menhaden. The price increases slightly during the winter months when there is a demand for menhaden, for example, in Louisiana where it is used as bait for crawfish traps and crab traps. That demand is primarily served by large commercial operations using large vessels and long nets to harvest menhaden in the Gulf of Mexico, not in the inside waters of Escambia and Santa Rosa Counties. Similarly, the fish reduction industry (the processing of fish such as menhaden to make fish meal and to extract fish oils for industrial purposes) is primarily served by large commercial operations harvesting menhaden in the Gulf of Mexico. There is a Marine Fisheries Information System maintained by the Florida Marine Research Institute of the Department of Environmental Protection. Licensed wholesale seafood dealers fill out trip tickets reporting the type of fish, amount of fish caught, and the county where the fish are landed, whenever those dealers purchase fish from licensed fishermen. The Department receives approximately 30,000 trip tickets per month from its approximately 700 licensed wholesale seafood dealers in the State of Florida. The data from those trip tickets is entered into a computer, and the resulting statistics are relied upon by the State of Florida and by the federal government to make fishery management decisions. It can take as long as six months for the data to become part of the computer data base and as long as two years for all of the data to be edited and considered to be in final form. Because of that time lag, the Florida Marine Research Institute has implemented procedures for fish which are subject to quotas. For those fish, employees of the Institute do not wait to receive trip tickets from the dealers; rather, they commence telephone contact with the dealers who historically deal in that type of fish, maintaining telephone contact on a daily basis if necessary when it is projected that the harvest quota may be reached. Although menhaden are both a bait fish and an industrial fish, they are required to be coded on the trip tickets specifically as menhaden and not under the general category of industrial fish. Reporting on the trip tickets the name of the county where the fish were landed is mandatory although reporting the area fished, i.e., where the fish are actually caught, is optional. Although there is some evidence that menhaden caught in Tampa Bay were sometimes landed there and then transported by truck along the interstate highway system to fish houses and processing plants in Alabama, Louisiana, and Mississippi, there is no evidence that menhaden caught in the inside waters of Escambia and Santa Rosa Counties have been transported by boat and landed outside of those counties. Further, there is no likelihood that such will be done under the limited boat and net size required under the proposed rule. There is no evidence that it is economically feasible for such small boats to travel through Escambia Bay and into the Gulf of Mexico to other counties or states to avoid reporting their menhaden harvest. Although it would be better for the Department's trip tickets to report the area where the fish were caught, it is likely that menhaden harvested by boats under 40 feet in the inside waters of Escambia and Santa Rosa Counties will be landed in those counties and, therefore, captured by the Department's information gathering system, as it is currently operated. The menhaden team of the National Marine Fisheries Service, in cooperation with the Gulf States Marine Fisheries Commission, has calculated the maximum sustainable yield for Gulf of Mexico menhaden at 1.75 billion pounds. The maximum sustainable yield is the amount of fish that can be harvested annually without depleting the population of that fish. The 1993 menhaden harvest from the entire Gulf of Mexico was 1.19 billion pounds. The National Marine Fisheries Service performs annual stock assessments of Gulf menhaden. Its current assessment is that menhaden are not being overfished in the Gulf of Mexico. The federal government considers Gulf of Mexico menhaden as a single stock for management purposes. There are no indications that there is a biological problem in the Gulf-wide menhaden fishery. The Gulf stock of menhaden has been increasing in numbers since 1960. The proposed rule provides for a managed fishery for menhaden in Escambia and Santa Rosa Counties by allowing a limited harvest. The 1,000,000 pound quota for the summer portion of the fishing season is consistent with the volume of menhaden harvested in the inside waters of those Counties at the behest of those local governments and pursuant to the Department's Special Activities Licenses issued to reduce the fish die-offs in those areas, plus the volume of dead menhaden which the local governments haul to the landfill yearly. The overall 3,000,000 pound annual harvest quota was determined by calculating the peak landings for that area which had been approximately 2.1 to 2.2 million pounds yearly, plus the approximate 640,000 pounds of dead menhaden hauled away. Therefore, the summer quota of 1,000,000 pounds, plus the winter quota of 2,000,000 pounds, comprising the annual quota of 3,000,000 pounds, is a reasonable sustainable harvest. The proposed rule will serve a public purpose by helping to alleviate the summer menhaden kills in the upper bayous in Escambia and Santa Rosa Counties and will not adversely affect the menhaden population for the Gulf of Mexico. Until 1988, there was an active menhaden fishery in Tampa Bay. Suddenly, there was a dramatic decline or collapse of the Tampa Bay menhaden fishery. There still exists a lively debate on whether the disappearance of menhaden from Tampa Bay was caused by over-fishing and/or the 1988 massive acid spill into the Alafia River by the Gardinier Corporation and/or improved water quality in Tampa Bay and/or whether the disappearance of menhaden in Tampa Bay was caused by a shift in the range of where menhaden are found. There are dissimilarities between Tampa Bay and Escambia Bay. Tampa Bay was on the edge of the range for menhaden, while Escambia Bay is in the middle of the range of the menhaden population. Spotter planes were used in Tampa Bay to locate the schools of menhaden, but spotter planes have not been used to locate menhaden in Escambia Bay. Moreover, there were no regulations in place for the menhaden fishery in Tampa Bay. The proposed rule would limit and control the menhaden harvest in Escambia Bay at a time when the population is plentiful and a decline is not expected. The proposed rule with its two-phase quota has been developed by the Commission in a conscious attempt to avoid what happened in Tampa Bay. The quota prevents the dramatic increase in menhaden harvests which occurred in Tampa Bay and provides that if the summer quota is not met, which would signal a decline in the population, the fishery is automatically closed. Although menhaden have been harvested by large "motherships" in the Gulf of Mexico, mothership operations have not been conducted in Escambia Bay or the other waters in Escambia and Santa Rosa Counties. Even with mothership operations, fish are removed from the nets and loaded directly onto the mothership. They are not caught by small boats, loaded onto those small boats, then off loaded from the small boats onto the mothership. Motherships would also be prohibited in those waters since the proposed rule limits the size of vessels to under 40 feet. The Commission does not have a mandate to ban commercial fishing in the State of Florida. Rather, its mandate is to allow reasonable means and quantities of harvest, which the proposed rule does but which the total ban under the existing regulation does not. The proposed rule also allows for a reasonable management of resources, while the existing rule does not. The proposed rule is based upon the best information available to the Commission at this time. On the other hand, the ban contained in the existing rule was enacted in the absence of data showing the need for a ban. Prior to passage of the existing ban, no studies were done, no data was gathered, and there was no finding as to any problem with the menhaden fishery in the waters of Escambia and Santa Rosa Counties.
The Issue The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.
Findings Of Fact The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract. The Respondent was employed at Boone Middle School for 47 days. She did not complete the probationary period. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999. The Respondent was employed at Bartow High School for 42 days. She did not complete the probationary period. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee." The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further testified that Respondent’s recollection is contrary to school board policy. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of April, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Sections 112.313(2), (4), (6) and (7)(a), 112.3143(3), and 112.3145, Florida Statutes, and if so, what penalty should be recommended.
Findings Of Fact Respondent, Dennis Wardlow (Wardlow), served as mayor of the City of Key West from 1991 until 1997. In that public position, Wardlow was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees. In March 1991 Lisa Macy began operating a business at Smathers Beach in Key West. The business was known as Jammin' Jim's Wave Runners. John Bigler (Bigler), a lawyer in Key West and boyfriend of Ms. Macy, went into the jet ski rental business with Ms. Macy during the early fall of 1992. The new business was named Warren Watersports, Inc., d/b/a Ridley Turtle Watersports. In addition to being a lawyer, Bigler was a retired Navy Captain and JAG officer. He was involved in a partnership that owned a mini-warehouse in the Keys and was in the business of leasing an airplane to law firms under the name of Legal Eagles. On or about October 13, 1992, Wardlow entered into a letter of agreement with Bigler to provide consulting services to Warren Watersports. The written agreement stated that Wardlow was being retained as a public relations consultant under the following terms: You will be provided a weekly expense account of $100.00 per week commencing Friday, October 16, 1992, for a minimum period of six (6) months from the date hereof. You will be paid a success fee of $5,000 each, payable at the rate of $100.00 per week upon the award of an exclusive wave runner concession for a period of not less than three (3) years by the Hyatt Hotel at Key West, by the Holiday Inn Beachside, and/or the Galleon Marina, or any of them. You will not compete with and/or divulge any trade secrets and/or plans of the company for a period of six (6) months should this relationship be terminated for any reason. According to Wardlow, he was supposed to solicit the hotels and the marina for a concession for Warren Watersports. After signing the agreement and thinking about it, he decided that, as mayor, it would be a conflict for him to solicit the hotels because it might be considered that he was trying to use his official position as mayor to influence the businesses to grant a concession to Warren Watersports. However, Wardlow did not terminate his contract with Bigler nor did he amend the written agreement. As a result of his association with Bigler and Warren Watersports, Wardlow was paid $100 per week from October 1992 until April 22, 1994. The total amount received from Bigler and Warren Watersports was $7,900. Ms. Macy was upset when she learned that Bigler had agreed to pay Wardlow $100 a week. She felt that it was an unnecessary expense for the business. Bigler personally delivered the checks to Wardlow each week. Ms. Robin Downing worked as a bookkeeper for Bigler from April 1993 to September 1994. She handled the books for Bigler's businesses, including Warren Watersports. Over the period of time that Ms. Downey worked for Bigler, the business at Warren Watersports declined, and there were times when Warren Watersports had difficulty making payroll. However, it was Bigler's policy that payment to Wardlow would be made first. At times when Warren Watersports could not make payroll, Wardlow was the only person who received a check. Ms. Downing did not know what Wardlow did as a consultant for Warren Watersports. Ms. Judy McGill worked full time as a legal secretary for Bigler from July 1992 to September 1994. In April 1993, Ms. McGill became signatory on Bigler's office accounts, including Warren Watersports. She signed only three checks to Wardlow during her employment and refused to sign the other checks to Wardlow even though she was aware that it was Bigler's desire that Wardlow's check go out each week without fail. Ms. McGill did not know what work Wardlow did for Warren Watersports. In approximately March or April of 1994, Ms. McGill spoke with Wardlow on the telephone concerning the weekly checks, and Wardlow stated that he "wished that John would quit doing this." Dan Bosco, the manager for Warren Watersports, never saw Wardlow at any of the places where Warren Watersports was operating. Mr. Bosco was not aware of anything that Wardlow did for the business except make a short speech at the company's Christmas party. Soon after Wardlow began working for Warren Watersports, Wardlow was approached by Bigler who said that he had been cited by Code Enforcement for a violation and he wanted Wardlow to get it "straightened out." Wardlow contacted Gene Favors, a Key West Enforcement Officer, and helped resolve the problem. On several occasions Bigler approached Felix Cooper, the Key West City Manager, to discuss Bigler's desire to have a franchise from the City of Key West for a sales booth for his jet ski rental business on the beach at Smathers Beach and to erect a sign on the beach with the name of the jet ski business on the sign. Mr. Cooper had not taken action on the discussions, hoping that Bigler would go away and drop the subject. However, Mr. Cooper received a letter dated October 6, 1992, from Bigler, stating Warren Watersports wanted to be a franchisee or concessionaire of the City of Key West at the eastern end of Smathers Beach. In exchange for allowing Warren Watersports to operate its jet ski rental business on Smathers Beach, to erect a sign on the beach, and to store wetsuits on the beach, Warren Watersports was willing to erect and maintain a buoy system at Smathers Beach and name the city as an additional insured on Warren Watersports' liability insurance policy. The letter was copied to Wardlow and to the Director of Parks and Recreation for the City. Mr. Cooper asked Ron Herron, Assistant City Manager for Key West, to review the letter and to make a recommendation concerning the request. Mr. Herron's responsibilities included leases, franchises and rentals of city property. Mr. Herron responded to Mr. Cooper's assignment with a memorandum dated October 14, 1992. Basically, the memorandum recommended against a franchise to Warren Watersports, stating that the city had been trying to remove the wave runner business operation from Smathers Beach since 1991, that the City Commission had previously indicated that it did not want further commercialization of Smathers Beach, and that the City would need to seek approval from the Department of Natural Resources before allowing further commercial use of the beach. Some time after October 14, 1992, Wardlow called Ron Herron to his office regarding Bigler's request to place a sign on Smathers Beach. Wardlow wanted to know the reasons why Mr. Herron had turned down the request from Warren Watersports. Wardlow's tone seemed a little hostile and a little aggressive to Mr. Herron. After Mr. Herron explained his reasoning for recommending that the request be denied, Wardlow asked Mr. Herron to contact the Department of Natural Resources to see if Warren Watersports' request could be approved. As a result of that meeting, Mr. Herron drafted a letter for Wardlow's signature to the Florida Department of Natural Resources. Wardlow signed the letter, dated December 7, 1992, and sent it to the Department of Natural Resources. The letter specifically referred to the signs that Warren Watersports wanted erected and included photographs of the signs. Mr. Herron was not aware of any other businesses for which Wardlow, as mayor, wrote a letter to the Department of Natural Resources seeking approval for a sign to be erected on the beach. At the time that he signed the letter, Wardlow was a paid consultant of Warren Watersports and John Bigler. Wardlow did not discuss the request from Bigler concerning the franchise and the sign with the City Manager. Section 3.04 of the City of Key West Charter discusses the duties of the City Commission regarding administrative officers and employees of the city and provides: (b) Except for the purpose of inquiries and investigations, the commission or its members shall deal with the city manager and employees who are subject to the direction and supervision of the city manager solely through the manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately. In Key West the watersports business is very competitive. Warren Watersports operated from a barge 300 feet off the shoreline of Smathers Beach, a tourist area in Key West. Other watersports businesses operated out of a public boat ramp, while another competitor, Steve Kocis, pulled his barge up to the seawall. By Kocis' business being up against the seawall, Mr. Kocis' customers were able to step directly onto his barge without wading into the water. The customers of Warren Watersports had to wade 300 feet into the water in order to rent a jet ski. Mr. Kocis' operation had a serious negative effect on Warren Watersports' business. Bigler, as well as other Key West residents, were upset that Mr. Kocis was operating his jet ski business next to the seawall. The City received numerous complaints about the operation of jet skis at Smathers Beach. On April 5, 1994, Wardlow voted in favor of an ordinance restricting the operation of jet ski rental companies to an area at least 600 feet beyond the Key West shoreline. On April 19, 1994, Wardlow sponsored and voted for an amended ordinance that restricted the operation of jet ski rental companies to an area at least 300 feet beyond the Key West shoreline. The amendment to the ordinance passed by a four to three vote of the City Commission. Between April 5 and 19, 1994, Bigler called Wardlow to discuss the 600-feet restriction. Lisa Macy placed at least two telephone calls to Wardlow for Bigler on Bigler's car telephone after the April 5 meeting. One of the conversations was on speaker telephone, and Wardlow said that he had spoken to several people on the commission about the 600-feet restriction and that they were going to have to go back and make some changes. Prior to the April 19, 1994, vote, three Warren Watersports employees, including Bigler, addressed the Key West City Commission and requested the Commission to reduce the restriction for operation of jet ski rentals from 600 to 300 feet beyond the shoreline, stating that the 600 feet restriction would be detrimental to Warren Watersports' business. Wardlow never publicly announced at the City Commission meetings on April 5, 1994, and April 19, 1994, that he had financial ties to Warren Watersports and Bigler. Sara Sally Lewis, Charles Percy Curry, Jimmy Weekly, Harry Bethel, and Joseph Pais were Key West City Commissioners at the time of the April 5 and April 19 votes on the watersports ordinances. At no time prior to the votes did Wardlow disclose to them that he was being paid $100 per week by Warren Watersports. At the time Wardlow voted to amend the proposed ordinance to a 300-feet restriction, there were approximately twenty jet ski operators in Key West. The total amount Wardlow received from Bigler and Warren Watersports in 1992 was $1,000. Wardlow earned $8,717.17 as Mayor of Key West for 1992. He also received $5,009.00 in taxable interest and had a capital gain of $441.00. On his income tax return, he reported gross income from Aqua Clean Pool and Spa Service as $4,739.00, which included $700.00 for consulting. His total gross income for 1992 was $18,906.17. The total amount Wardlow received from Bigler and Warren Watersports in 1993 was $5,300. The parties stipulated that Wardlow earned $16,347.00 in total income from his public employment. Wardlow's income tax return filed for 1993, indicated that he received $16,047.63 from his public employment in 1993. The 1993 income tax return also stated that Wardlow received $4,071.00 as taxable interest. Wardlow's income tax return listed $5,200.00 as consulting income associated with Aqua Clean Pool and Spa Service. His total gross income for 1993 was $25,318.63. Wardlow sold his business, Aqua Clean Pool and Spa Service, in November 1991. The consulting fees listed on Wardlow's income tax return attributed to Aqua Clean Pool and Spa Service were apparently those received from Bigler. However, the contract was between Warren Watersports and Wardlow and not between Warren Watersports and Aqua Clean Pool and Spa Services Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1992 Form 1 Statement of Financial Interests. Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1993 Form 1 Statement of Financial Interests. The total amount that Wardlow received from Bigler and Warren Watersports in 1994 was $1,600. Wardlow did not file a Form 1 Statement of Financial Interests for 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dennis Wardlow did violate Sections 112.313(2),(4), (6), and (7)(a), 112.3143(3) and 112.3145, Florida Statutes; imposing a civil penalty of $5,000; issuing a public censure and reprimand; and ordering restitution to the State of Florida of the $7,900 that Dennis Wardlow received from Warren Watersports and John Bigler. DONE AND ENTERED this 26th day of June, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1998. COPIES FURNISHED: Eric S. Scott, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Michael Halpern, Esquire Michael Halpern, P.A. 209 Duval Street Key West, Florida 33040 Mel Black, Esquire 2937 Southwest 27th Avenue Miami, Florida 33133 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Did Respondent leave the Southside Middle School campus without permission in the 1989-90 school year; in that same year, did Respondent make a threatening complaint in writing to Vice Principal, Peggy Williams; in that same year, did Respondent fail to submit a written report of a fight between students; did Respondent use profanity in the school year 1990-91 while employed at Southside Middle School; did Respondent leave campus without permission and leave his classes unattended in the school year 1991-92 while employed at Lake Shore Middle School; did Respondent engage in inappropriate conduct with students by grabbing a male student, M.F., by the shoulders and squeezing that student's shoulders and making that student go to his knees in the school year 1992-93 while employed at Lake Shore Middle School; did Respondent in that same year grab and hit A.H. in the chest and in the stomach; did Respondent in that same year pull the student, J.W.'s ear; did Respondent in that same year plan a field trip to Walt Disney World, Florida, without approval from the Duval County School District; did Respondent fail to follow district procedures for purchasing t-shirts and sweatshirts for students; did Respondent in the school year 1993-94 while employed at the Lake Shore Middle School fail to comply with guidelines in submitting a "no show" list related to student attendance; and did Respondent engage in profanity in the presence of students in that same year?
Findings Of Fact At times relevant to the inquiry Respondent has held Florida teaching certificate number 638543 covering the areas of health, biology, and physical education. In the fall of 1989, Respondent began employment with the Duval County, Florida, School Board in a teaching position at Southside Middle School. While serving as a teacher at Southside Middle School, Respondent broke up a fight between two students that was occurring in a hallway. Following the incident his obligation was to file a written report detailing the facts. That report was due immediately. The Respondent had to be reminded twice before rendering the report. The report was rendered before the students met with a school hearing officer to resolve the incident. In the fall of 1991, Respondent voluntarily transferred to an assignment at Lake Shore Middle School. That school is also part of the Duval County School District. On one occasion while Respondent was employed at Lake Shore Middle School, Timothy Hamel, another teacher at that school, observed that Respondent's class had been left unattended from approximately 3:40 p.m. until 4:00 p.m. On another occasion, while Respondent was employed at Lake Shore Middle School, Respondent left campus at a time when he did not have classes and did not return until after school had concluded for the day. As a consequence, he missed instruction periods for some classes that he was responsible for teaching. This circumstance was established through testimony from Arlene Guthrie, Assistant Principal for Curriculum at Lake Shore Middle School. The proof submitted at hearing did not satisfactorily demonstrate that the Respondent had made arrangements to cover classes which he missed on this occasion. In the spring of 1993, Respondent was interested in taking some students on a field trip to Walt Disney World, Florida. A conversation was held between the Principal at Lake Shore Middle School and the Respondent concerning this field trip. The principal was persuaded that it was too late in the year to schedule a field trip. Nonetheless, Respondent replied that he was going on the field trip and would rent a van on his own to transport the students, separate and apart from school sanctioned transportation. In the conversation concerning the field trip, the principal asked Respondent if he had obtained parent/guardian permission slips for the students to attend the outing. Respondent replied in the affirmative. A permission information sheet directed to the parents or guardians pertaining to the nature of the field trip was prepared on the Lake Shore Middle School letterhead and signed by Respondent, as sponsor for a school club known as Manhood, Achievement, Community Service. That information sheet indicated that the trip would take place on May 28-30, 1993. Further, it indicated that expenses would be taken care of, except for meals and spending money for the students. The correspondence went on to indicate that the parents or guardians would be informed of the hotel address after receipt of confirmation of room reservations. The information sheet indicated the departure and return time. Respondent confirmed the knowledge of the parents about those details by having them sign the information sheet. As discussed between Respondent and the principal, there was no mention in the information sheet about Respondent arranging for transportation on his own by renting a van. When the principal asked Respondent about the duration of the trip, Respondent indicated that it was more than a single-day trip. The principal wanted to know if Respondent had made arrangements for a place to stay. At that time, Respondent replied that no such arrangements had been made but that Respondent would obtain a place to stay. The principal was not convinced that the parents and guardians were sufficiently apprised of the nature of this outing and told Respondent that Respondent could not take the trip. After the conclusion of the conversation between the Respondent and the principal, Respondent still insisted that he was going on the field trip to Walt Disney World. In the conversation between the principal and Respondent concerning the field trip, the issue related to the payment for the trip was addressed. The principal was concerned that there was not enough money to pay for the trip and asked the Respondent how the balance of the money was to be paid. Respondent replied that the parents would pay. When the principal asked if Respondent had consulted with the parents concerning this additional cost, the answer was no. The conference between the principal and Respondent was held two or three days before the trip was to take place. When it became obvious that the school district, from the principal's perspective, did not wish to sanction the trip, matters were left in the posture that if the Respondent wanted to go on the trip as an adult in charge of those children, then that arrangement would have to be carried out between Respondent and the parents. In that setting of a private trip the school district did not want the Respondent to create the appearance that the trip was a trip sanctioned by the school district. Eventually correspondence was given to the Respondent from Gerlieve R. Oliver, Assistant Superintendent, Middle Schools, Duval County School System, confirming that the Respondent did not have permission to take an official school trip to Disney World. The correspondence also informed the Respondent that he could not take a non-school related trip, given that the written communications to parents concerning the trip was made on school letter head, thus creating the appearance of being a school sponsored trip. This appearance caused the school district to instruct the Respondent that he could not take a non-school trip either. This communication dated May 26, 1993, informed the Respondent that the parents or guardians of the students who were to be taken on the trip would be made aware of the telephone conversation between the Respondent and Ms. Oliver concerning the field trip. The conversation between Respondent and Assistant Superintendent Oliver was instigated by Respondent. It is that telephone conversation that led to the preparation of the correspondence. The correspondence from the assistant superintendent to the Respondent reminded the Respondent that if he failed to follow the directions that he might put himself in jeopardy concerning employment with the district and admonished Respondent to be more careful in adhering to directions. The correspondence from Ms. Oliver to Respondent also mentioned that if Respondent were more careful about following procedures in the future that this would result in the Respondent being able to provide opportunities for his students. This is taken to mean opportunities such as field trips. While Respondent was employed at Lake Shore Middle School there was a policy related to what is referred to as a "no show" list. In particular, at the commencement of the school year a given school counts the number of students in attendance as a means of determining the amount of money the school is entitled to for conducting its operations. The expectation is that the individual school teacher will document this count by calling a roll each day and turning in a slip to the administrative offices verifying the students who did not attend school on that day. Respondent did not comply with that requirement. While Respondent was teaching at Lake Shore Middle School an incident occurred between male students K.A. and M.F. in the school lunch room. K.A. and M.F. were arguing. Respondent came over and broke up the argument by grabbing both of the students by their respective shoulders. On two other occasions while Respondent was in the lunch room with the students, he grabbed A.H. around the neck in the first encounter and the second encounter grabbed that student by the shoulder. When Respondent grabbed A.H. around the neck the student winced and frowned. The reason for that initial encounter between the Respondent and A.H. is not clear. On the second occasion Respondent grabbed A.H. by the shoulder, A.H. had similar expression in that he winced and frowned. Again it is unclear concerning the reason for Respondent's actions. In the experience of K.A., while attending a class taught by Respondent, he observed Respondent curse in class on a somewhat frequent basis. That frequency was as much as four times a day, three days a week. On one occasion K.A. observed Respondent grab D.A. around the neck and tell D.A. to sit down or Respondent was going to be "kicking his fucking ass." Other curse words that K.A. heard the Respondent use were words like "ass", "damn", and "asshole". According to Ms. Guthrie, an expert in education, cursing in front of students, using inappropriate discipline such as grabbing necks and shoulders of students and leaving the class unattended on more than one occasion, constitutes a circumstance in which the Respondent has lost his effectiveness as a teacher. That opinion by Ms. Guthrie is accepted.
Recommendation Based on the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered finding Respondent in violation of the four counts in the Administrative Complaint and suspending the Respondent's teaching certificate for thirty (30) days. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 24th day of March, 1995. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way, Suite G Tallahassee, Florida 32308 J. David Holder, Esquire 1408 Piedmont Way Tallahassee, Florida 32312 Steven A. Williams 6200 South Barnes Road, P-20 Jacksonville, Florida 32216-5633 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent holds a valid teaching certificate issued in accordance with the provisions of Chapter 231, Florida Statutes. Prior to March, 1980, the Respondent had been employed at the Eau Gallie High School in Brevard County, Florida, as an "audiovisual specialist" for more than ten years. During his tenure at Eau Gallie High School, the Respondent received satisfactory evaluations, and he generally performed his responsibilities in a diligent and acceptable manner. The Respondent's basic responsibilities were to coordinate audiovisual programs at Eau Gallie High School. Students would be assigned to work with the Respondent as student assistants or aides. He would have a number of students, generally approximately four, to assist him during each period of the school day. The Respondent was considered the students' teacher and his room was the students' classroom during the period that they served as student assistants. During February, 1980, two of the Respondent's female students found a copy of "Hustler" magazine and "Penthouse" magazine in the Respondent's classroom. The students reported this to the school's assistant principal. An investigation ensued, and resulted in the Respondent's being terminated from his teaching position, and in these proceedings. During the 1979-80 school year, Michelle Douglas was a student in the eleventh grade at Eau Gallie High School. She served as an aide in the Respondent's class during the sixth hour of the school day from 1:00 p.m. until 2:00 p.m. Her duties were to log equipment in and out, and to run errands for the Respondent. On several occasions, the Respondent embarrassed and humiliated Michelle Douglas by making suggestive comments about her in the presence of other students, and on one occasion by physically touching her in a sexually suggestive manner. On one occasion, Miss Douglas was seated in the classroom. The Respondent approached her and put his hand on her knee, and moved his hand up her leg on the outside of her dress approximately six inches before she stopped him and ran out of the classroom. On several occasions, the Respondent made comments to Michelle Douglas such as, "Here comes your friend with a nice butt," in connection with one of Michelle Douglas's friends. In conversations with some of the male students in his classroom, the Respondent said that Michelle Douglas would be a "good lay" and, "I bet you'd like to hop on her," in the presence of Michelle Douglas. These were not the only comments of this sort that the Respondent made in the presence of Michelle Douglas, but are demonstrative. During the 1979-80 school year, Vicki Kendall was a student at the Eau Gallie High School. She served as an audiovisual aide in the Respondent's class during the fourth hour of the day during the school year. Her duties were to log in films and equipment, and to assist in the ordering of films. On several occasions during the school year, the Respondent made sexually suggestive comments about Vicki Kendall in the presence of other students. He commented about her figure and about the clothes she was wearing. On one occasion he said in reference to a portion of her anatomy, "Look at the shape of that thing." On one occasion in the presence of other students he called her a "cold fish." While the Respondent did not make any direct physical contact with Vicki Kendall, on one occasion he did blow in her ear while she was in the classroom. During the 1979-80 school year, Kelly Huskey was a student in the twelfth grade at Eau Gallie High School. During the second semester of the school year, she served as an audiovisual aide in the Respondent's classroom during the fourth hour. On one occasion Miss Huskey was trying to learn how to thread a projector. The Respondent came up behind her and grabbed her around the waist very tightly. This was not an innocent touching, but was provocative, and from the perspective of the student could easily have been taken, and was taken as a sexual advance. During the 1979-80 school year, Deborah Ann Bowman was a student in the twelfth grade at Eau Gallie High School. She was not a student in the Respondent's class, but she frequently ate lunch in his classroom with a friend. On one occasion Respondent talked with the male students in the classroom about how nice Miss Bowman's sweater looked on her and how nice it fitted. On another occasion on school property Miss Bowman was laying out material for a sewing project. The Respondent approached her from behind, put his hand on her back and whispered in her ear, "I wanted you to know I like your bikini underwear." There was no appropriate reason for this remark. During the 1979-80 school year, Ramonda Shannon was employed at the Eau Collie High School as an occupational placement specialist. Ms. Shannon utilized an office or storage facility which she could only enter through the Respondent's classroom. On one occasion she walked through the Respondent's classroom to get to that facility. The Respondent said to her, "You are wearing a bra, aren't you?"; he then said that some students said that she must not be because her "boobs" were bouncing up and down. This was said in the presence of students, and students were in a position to overhear the comments. Apparently several students had suggested to the Respondent that Ms. Shannon was not wearing a bra, but there was no appropriate reason for the comment to be made, and Ms. Shannon was understandably humiliated. Approximately four years ago, Ms. Shannon went through the Respondent's classroom, and several female students were looking at literature which included pictures of nude girls. In reference to the literature, the Respondent said that he did not need to look at such pictures in order to get a "hard-on." During February, 1980, the Respondent had an issue of "Penthouse" magazine and "Hustler", magazine in his classroom. The evidence is unclear as to precisely how these magazines came to be in the Respondent's classroom. The Respondent was aware that they were there, and had placed them at the bottom of several stacks of magazines. These stacks of magazines were available to be read by students in the Respondent's class during the lunch hour, and he knew that students in his class frequently perused the magazines. The magazines were actually viewed by several students. The magazines were received in evidence at the final hearing. The magazines included pictures and articles of a sexually provocative nature. The Respondent made numerous other sexually suggestive comments in his classroom in the presence or his students. While many or these comments were not specifically alleged in the administrative complaint, they are the same sort as those which were alleged. On one occasion he told Michelle Douglas that if he made love to her, she would not have to worry because he had had a vasectomy. Numerous other comments of this genre were made by the Respondent in his classroom. The Respondent's effectiveness as a teacher and an employee of the Brevard County school system has been seriously reduced as a result of his conduct as set out herein. It would not be possible for administrators in a school system to have confidence in leaving students, especially teenage female students, in the Respondent's charge. Furthermore, students, especially female students, could not feel secure in the Respondent's presence. While the evidence does not establish that the Respondent actually fondled or made overt physical sexual contact with any of his students, it is clear that he caused many of his students embarrassment and humiliation, and that they properly and logically regarded his comments and conduct as sexually threatening. The Respondent responded to the charges and the testimony by denying that some of the acts took place, by stating that taken in proper context the acts were not improper, and by alleging that other teachers were guilty of worse conduct and that the administrators of the school were corrupt. His testimony and explanations are not persuasive and demonstrate a failure to understand the seriousness of sexually, provocative language and conduct on the part of a teacher toward students, and a lack of any motivation for rehabilitation.
The Issue The issues in this case are: whether Respondent's intent to award a contract to Intervenor for an immediate response notification system pursuant to Request for Proposal 2007-01 (the RFP) was contrary to Respondent's governing statutes, rules, policies, and solicitation specifications and whether Petitioner has standing to protest the intended award.
Findings Of Fact The Florida legislature designated funds in the amount of $1,500,000 in Specific Appropriation 116 of House Bill 5001, the 2006 General Appropriations Act (Specific Appropriation 116) for pilot implementation of an immediate response notification system in seven Florida school districts. The appropriation provided: Funds for School Safety/Emergency Preparedness are provided for pilot implementation of an immediate response information system in one large, two medium, and four small school districts. The system will serve to enhance the safety of school children in emergency situations, such as impending hurricane and severe weather, fire, bomb threat, homeland security and other critical school safety events. The system must be real-time and multi-lingual with the ability to notify parents of emergency and non-emergency situations in at least ten different languages through email, telephone, and other communication devices. The Department of Education shall competitively bid this project in accordance with the provisions of chapter 287, Florida Statutes. To allow for early implementation, all funds shall be under contract no later than September 15, 2006. The Department issued the RFP on or about September 1, 2006. Pertinent portions of the RFP provided: PROPOSALS ARE DUE BY: 2:30 EST, ON SEPTEMBER, 15, 2006. ESTIMATED POSTING BEGINS SEPTEMBER 25, 2006, AND ENDS SEPTEMBER 28, 2006. [Cover Sheet] The Department is seeking qualified vendors to provide pilot implementation of an immediate response notification system to be piloted in seven (7) Florida school districts. Additional school districts may be added in subsequent years based on appropriations and periodic performance reviews. The Proposer must have a notification system that currently exists. The system must have undergone rigorous field testing and evidence must be provided to demonstrate successful implementation for similar school districts. The Proposer must have demonstrated the ability to coordinate and integrate all components of the system. The proposed system shall not require the school districts to purchase or lease any additional hardware or software or infrastructure upgrade to obtain the service. The pilots will be in one large, two medium, and four small districts. For purposes of this proposal a large district would be any district with over 150,000 students, a medium would be any district of 50,000-100,000 students and a small district would have up to 50,000 students. [Page 29] The State's performance and obligation to pay under this contract are contingent upon an annual appropriation by the Legislature. [Page 11] Any protest concerning this solicitation shall be made in accordance with Sections 120.57(3) and 287.042(2) of the Florida Statutes and chapter 28-110 of the Florida Administrative Code. Questions to the Procurement Office shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and that specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. [Page 16] Any person who is adversely affected by the specifications contained in this RFP must file the following with the Department . . . A written Notice of Intent to Protest within seventy-two (72) hours after posting of this RFP specifications, and The Formal Written Protest by petition and Protest Bond in compliance with Section 120.57(3), Florida Statutes, within ten (10) days after the date on which the written Notice of Protest is filed. Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. [Page 19] A responsive proposal is a proposal submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation. A responsive and responsible vendor is a vendor that has submitted a proposal that conforms in all material respects to the solicitation and who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good-faith performance. Material requirements of the RFP are those set forth as mandatory, or without which an adequate analysis and comparison of proposals is unreasonable or impossible, or those which affect the competitiveness of proposals or the cost to the State. Proposals may be rejected if found to be irregular or non- responsive by reasons that include, but are not limited to, failing to utilize or complete prescribed forms, modifying the proposal requirements, submitting conditional proposals or incomplete proposals, submitting indefinite or ambiguous proposals, or executing forms or the proposal sheet with improper and/or undated signatures. Proposals found non- responsive will not be considered. Proposers whose proposals, past performance or current status do not reflect the capacity, integrity or reliability to perform fully and in good faith the requirements of the Contract may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP, and which proposers are responsible. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. [Page 21] The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. [Page 25] REFERENCES: (ATTACHMENT 3) Provide at least three (3) references, which demonstrate efforts comparable to the one described in the RFP. Provide a list of school districts and other venues where this technology is currently in use. The Department reserves the right to contact the references regarding the services provided. [Pages 27-28] ATTACHMENT '3' WORK REFERENCES Provide the following reference information for a minimum of three (3) similar school districts or other venues where services of similar size and scope have been completed. [Page 37] Proposals will be evaluated and graded in accordance with the criteria detailed below. a. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding the project, qualifications, approach and capabilities, to assure a quality product. Only those proposals that are found to meet the verification of Section 4.2 Mandatory Submittal Documents will have the technical proposal evaluated. For this purpose, evaluators will consider a Proposer's description and explanation of the proposed products and services as described in the proposal and the supporting documents. The proposal evaluation committee, acting independently, will assign ratings of the quality of the proposed technical solutions to the work tasks specified in the RFP. Of these ratings the high and the low score will be discarded and the remaining scores averaged. The following point system is established for scoring the technical proposals: . . . Qualifications and Experience including rigorous testing of the system (10 [points]). . . Price Proposal Price analysis is conducted through the comparison of price quotations submitted. By submitting a proposal, Proposers agree to serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. Only proposals that are found to meet the mandatory minimum requirements and which receive an average rating of seventy (70) or more points for the Technical Proposal will have the cost proposal evaluated. The Department will determine if a cost proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. Any cost proposal that is incomplete may be rejected by the Department. Cost analysis is conducted through the comparison of price quotations submitted. A total of 20 points is possible. The fractional value of points to be assigned will be rounded to two decimal points. The criteria for price evaluation shall be based on the following formula: (Low Price/Proposer's Price) x Price Points=Proposer's Awarded Points [Pages 32-33] The price proposal must be submitted on the form provided as Attachment '4'. [Page 29] ATTACHEMENT '4' VENDOR'S BID SHEET We propose to provide the services being solicited within the specifications of RFP 2007-01. All work shall be performed in accordance with this Request for Proposal, which has been reviewed and understood. It is also understood that the Proposer will serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. DESCRIPTION TOTAL COST____ PRICE PER STUDENT $ /per student [Page 38] NTI did not file a protest concerning any of the specifications of the RFP within 72 hours of the issuance of the RFP. Addendum No. 1 to the RFP was issued on or about September 8, 2006, to provide answers to questions submitted by vendors during a question and answer period. Addendum No. 1 was the only addendum to the RFP and provided an answer to a question submitted by Roam Secure, Inc. (Roam Secure) regarding pricing. The question and answer provided: Q. Our pricing is based on total number of users. Because there is a significant amount of up front work involved, i.e. server setup, network optimization, data import, registration customization, and training, it is not feasible for us to supply a solution based on a few users. As such we are hoping that [the Department] will allow us to provide a total price for this RFP based on unlimited number of users for the 7 districts. Would that be acceptable to [the Department]? A. This would be acceptable, as the RFP states the vendor will serve the entire population of the seven districts chosen by the Department of Education. The large district will have more than 150,000 students, the two medium districts will range between 50,000 students and 150,000 students and four small districts will include districts with student populations of up to 50,000. See page 29.5.0 Scope of Services in the RFP. Addendum No. 1 did not address how the Department was going to compare a total price with a per student price as set out in the original RFP. The RFP does not specify what process the Department would have used to determine whose cost proposal would be the lowest or how the Department would determine the number of cost points to be awarded when there is a mix of per student prices and total prices. The Department had not determined which school districts would participate in the pilot program prior to the submission of the proposals and, as of the date of the final hearing, it was still not determined which school districts would participate. The deadline for receipt of proposals in response to the RFP was September 15, 2006, at 2:30 p.m. The Department received ten proposals in response to the RFP. The Department determined that six of the ten proposals submitted did not meet the mandatory requirements of the RFP. The Department's Selection Committee evaluated proposals submitted by NTI, US Netcom, TechRadium, and Roam Secure. Based on the RFP tabulation posted by the Department on September 29, 2006, NTI received the highest technical points of all the proposers. The technical points that were awarded by the Department's Selection Committee were as follows: NTI 89 points US Netcom 84.4 points TechRadium 80.6 points Roam Secure 67.4 Roam Secure's proposal was disqualified, and its cost proposal was not evaluated because it failed to receive an average rating of 70 or more points for its technical proposal as required by Section 6.1 of the RFP. By submitting a proposal, all proposers agreed to provide the services being procured through the RFP for a price of no more than $1,500,000 regardless of the districts selected by the Department or the number of students in such districts. TechRadium submitted a proposal to provide the requested services for $1.95 per student. US Netcom submitted a cost proposal of $3.00 per student and included a charge of $135.00/hr for [a]dditional customization [that] may be required to meet some of the application requirements." NTI submitted a cost proposal as follows: PRICE PER STUDENT Large District shall not exceed $2.60/per student Medium District shall not exceed $3.00/per student Small District shall not exceed $3.00/per student. SUPPORT FEE $1,000/per district $100/per site/per district The Department determined that NTI's cost proposal was non-compliant. The Department awarded TechRadium 20 cost points for a total score of 100.6 and awarded US Netcom 13 cost points for a total score of 97.4. At the final hearing, the Department represented that it now considered US Netcom's cost proposal as non-compliant, but, as of the date of the final hearing, the Department had not posted its intent to determine US Netcom's proposal non-compliant. In response to the RFP requirement that the proposers provide at least three references, "which demonstrate efforts comparable to the one described" in the RFP, TechRadium listed the Klein Independent School District, Northwest Indiana Educational Service Center, and Goose Creek CISD. The Klein Independent School District has a total population of less than 50,000 students. The software license agreement between TechRadium and the Klein Independent School district states that the authorized number of seats is 37,000.1 The Goose Creek Consolidated Independent School District has a total student population of less than 25,000. The contract between TechRadium and Goose Creek Consolidated Independent School District provides for 21,500 authorized seats. The contract between TechRadium and the Northwest Indiana Educational Service Center provides for 185 authorized seats, but TechRadium has provided services to approximately 90 individuals annually in the Northwest Indiana Educational Service Center. The Department reserved the right to contact the references listed in the proposals. None of the references of any of the proposers was contacted by Department during the evaluation process to verify the experience of the proposers with systems comparable to the one required by the RFP. The Department considered the listing of the references sufficient if the references included some school districts. On September 29, 2006, the Department posted its intent to award the contract arising out of the RFP to TechRadium. On October 4, 2006, NTI filed a Notice of Intent to Protest the Department's intent to award the contract to TechRadium. NTI filed its Formal Written Protest and Petition for Formal Administrative Hearing on November 7, 2006. The protest was accompanied by a bond which satisfied the requirements of applicable statutes and the RFP. NTI is not contesting whether TechRadium has the infrastructure or capacity to fulfill the pilot program requested in the RFP. No funds allocated for School Safety/Emergency Preparedness in Specific Appropriation 116 were under contract on or before September 15, 2006. NTI was aware of Specific Appropriation 116 prior to the Department's issuance of the RFP. NTI did not object to the time limitations for opening bids or posting the rankings until it filed its formal written protest on October 13, 2006. NTI was aware of the time limitation of which it now complains more than 72 hours prior to the filing of its formal written protest. Prior to the issuance of the RFP, Michael Arnim, the Director of Sales at TechRadium, sent e-mails to school districts in Florida containing multiple untrue representations regarding the pilot project. Mr. Arnim had misunderstood some conversations he overheard at the TechRadium office in Texas and thought that TechRadium had been awarded the pilot project. He sent e-mails to some of the school districts stating that the Commissioner of Education could verify that TechRadium would be providing the notification systems for the pilot project and requesting the school districts to send letters of intent on the school districts' letterhead indicating the school districts wanted to participate. When the Department brought the e-mails to the attention of others at TechRadium, Mr. Arnim was reprimanded, and no further representations were made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding the contract for an immediate response notification system pursuant to RFP 2006-01 to TechRadium. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S ___________________________________ SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings 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 this 9th day of January, 2007.
The Issue The issue for consideration in this case is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Florida's Commissioner of Education, was the state official responsible for the certification of teachers in this state. Respondent held and currently holds Florida Teaching certificate No. 086279 in the areas of reading and social science. This certificate , unless otherwise revoked for cause, will be valid through June 30, 2000. During the school years from 1990 to 1992, Respondent was employed as a reading teacher at the Lake Alfred Career Development Center operated by the Polk County School Board, having been hired into that position by the Center's Principal, Mr. Williams, in 1990. During the 1991-1992 school year, Respondent taught T.B., a minor female. During the same school year, 1991-1992, O.B., T.B.'s sister and a minor female, also was a student at the Center, and though not a pupil of the Respondent, served as a tutor to Respondent's class. Starting in January, 1992, Respondent gave O.B. small amounts of money for personal expenditures such as drinks and lunch. He also gave her items of clothing and a check to pay for a subscription for a magazine she wanted. During the period up to April, 1992, he gave her money for making the honor roll and other sums, up to $20.00 at a time, for spending money. These payments would be made every other week or so. In addition to giving O.B. money and gifts, shortly before the spring break he also gave her his home phone number and told her that if she needed anything she should call him and they would go shopping together. On April 22, 1992 O.B. had occasion to work, alone, in Respondent's office. At the time, she was reading newspaper articles into a tape recorder for him to use to help his students in their reading lessons. While she was there, Respondent came to the office several times to check on her, and on this day, she was wearing one of the outfits Respondent had bought for her. On one of these visits, Respondent sat down across from O.B. and placed his hands on her upper thighs. As he did this, he asked her if he could do something personal with her. O.B. asked Respondent what that was, to which question Respondent told her not to ask questions but just say either yes or no. O.B, did not respond but remained silent. At this point, Respondent lifted O.B.'s skirt. He then told her to stand up while he remained seated. When she stood, Respondent reached over and pulled out on the top of O.B.'s panties. Petitioner asserts that by doing so he was able to see her vagina but this is unlikely. Because he did not pull her panties down and she was standing up, it would be difficult, if not impossible, for him to see her vagina from that angle. Regardless, he told O.B. she was beautiful, pulled her close to him, held her and kissed her between the breasts. In his affidavit, Respondent contends it was impossible for him to do this as well because of the differences in their height and the fact that he was seated at the time, but it is found that he did. At this point, Respondent stood up and told O.B. to open her mouth. When she complied, Respondent tried to kiss her, but she pulled away. With that, Respondent remarked that she "was not ready for that yet" and then left the office. O.B. then went quickly to the girls' bathroom and locked herself in. While there, she heard Respondent, or someone, walk by outside the bathroom several times. When she felt ready, O.B. left the bathroom and went to one of the classrooms down the hall where her friend, H.H. was in class. Still upset and crying from her encounter with the Respondent, O.B. got H.H. out of class and told her what had happened. While the girls were talking in the hallway, T.B. came by and noticing that O.B. was crying and upset, asked what was wrong. O.B. didn't want to say, but T.B. insisted, threatening to tell their mother if O.B. did not tell her story. After this, O.B., T.B. and H.H. went back to Respondent's office so that O.B. could get her coat and books. While they were in Respondent's office O.B. told T.B. what had happened. While this was going on, Respondent came into the office several times. On one visit he noticed the girls were looking at a magazine and he asked them if they saw anything they liked. When they pointed out several bathing suits, he circled those they had shown him and left, taking the magazine with him. While he was in the office with the two girls, Respondent asked T.B. if O.B. was OK. He later saw them again and asked them both if everything was OK. He also admonished them not to say anything to anyone about O.B.'s claim. Before they left school for home that day, Respondent again told T.B. to take care of O.B., stating that O.B. had something for her. The girls then left the area but returned shortly thereafter to find out what Respondent had meant by his last comment. At that point, Respondent indicated he had forgotten, and gave O.B. a $10.00 bill. Before leaving school that day, Respondent also told O.B. that he had behaved badly with her, claiming he had behaved like a "jackass". He said he had not meant to do it and that it would not happen again. He promised that if O.B. would not tell anyone about what he had done, he would give her money, clothes or whatever she wanted. O.B. went home with H.H. right after school, not getting to her own home until about 7:30 PM. When she got there she told her mother what had happened between Respondent and her that day. Mrs. B. immediately called the Polk County Sheriff's Department and advised them of the incident. The Sheriff's Department notified the Lake Alfred Police Department. At approximately 8:15 PM on April 22, 1992, Detective Bradley of the Lake Alfred Police Department came to O.B.'s home in response to the notification and spoke with O.B. Later that same evening, he advised Respondent of the charges against him. O.B. did not go to school on April 23, 1992 because she was too upset and almost didn't go on April 24, 1992. However, Detective Bradley asked that O.B., T.B. and H.H. come to his office to make statements concerning the incident, which they did. Thereafter, he notified the Polk County School Board of the allegations and charges against Respondent as well as the State Attorney's office from whom he sought and received permission to set up a monitored phone conversation between T.B. and the Respondent. On April 24, 1992, T.B. telephoned Respondent at school from the Lake Alfred Police Department and talked with him about the incident. In the telephone conversation, which was monitored and tape recorded by Detective Bradley, T.B. advised Respondent that H.H. was very upset over what O.B. had told her regarding the incident between him and O.B. and wondered if he would be willing to give her something to keep quiet about it. Respondent wanted to talk with H.H. about it and solicited from T.B. a telephone number at which he could call H.H. and talk with her. After taking statements from the three girls and after taping the telephone conversation T.B. had with Respondent, Bradley went to Lake Alfred Career Development Center where he talked with Mr. Williams, the principal, who called Respondent to the office. Upon being introduced to Respondent, Bradley immediately read and advised him of his rights against self incrimination. Respondent elected to remain silent at that time and seek counsel prior to being interviewed. Bradley asked no further questions and advised Respondent of the allegations and charges against him. At that time, in the presence of Detective Bradley, Respondent informed Principal Williams that he wanted to keep the matter private and would resign immediately. Respondent was suspended with pay effective April 24, 1995, and on May 5, 1992, submitted his formal letter of resignation and retirement from employment with the Polk County School System, to be effective June 11, 1992. Several days after Respondent submitted his letter, on May 13, 1992, he was informed that his suspension would be continued without pay pending the outcome of the criminal investigation. However, when Respondent's employment contract came up for renewal after the expiration of the 1991-1992 school year, it was not renewed. By letter dated June 12, 1992, the Superintendent of Schools for Polk County advised Respondent he would be permitted to resign and retire and would be paid for any accrued leave. On or about July 30, 1992, Respondent was arrested on a charge of Lewd and Lascivious Acts on a Child Under 16 Years of Age and of Tampering with a Victim or Witness relating to the allegations herein. Thereafter, on June 24, 1993, Respondent pled nolo contendere to the charge of Lewd and Lascivious Acts in Circuit Court. Adjudication of guilt was withheld and Respondent was placed on 4 years probation with conditions of probation attached. Included within these conditions was that Respondent not have unsupervised contact with any child under the age of 18. The charge of Tampering with a Victim or a Witness was dismissed. It is improper conduct for a teacher to give money or gifts to a student of that teacher within the Polk County School District. It is also inappropriate activity and misconduct for a teacher to touch a student in the manner in which Respondent touched O.B.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Edward McDonald's, teaching certificate in Florida be permanently revoked. RECOMMENDED this 27th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of December, 1995. COPIES FURNISHED: Edward McDonald 7203 North 40th Street Tampa, Florida 33604-4501 Ronald G. Stowers, Esquire Office of the General Counsel Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Karen Barr Wilde Executive Director Education Practices Commission 301 W. Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards Administrator Professional Practices Services 152 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
