The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of September, 2002.
The Issue Whether the award of a contract for Request for Proposal 031-MDW-1121 Fiber WAN Lakeland E-rate by Respondent, the School Board of Polk County, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The School Board operates the public school system established for the School District of Polk County, Florida. See § 1001.30, Fla. Stat. The School Board is an authorized governmental entity allowed to contract for commodities or services using a competitive solicitation process. See §§ 1001.41(4), 1001.32(2), and 1010.04(2), Fla. Stat., and Fla. Admin. Code R. 6A-1.012(1)(e). The solicitation at the center of this protest is 031-MDW-1121, Fiber WAN Lakeland E-rate (the "RFP"). The Department published the RFP on December 2, 2020.4 The School Board initiated this competitive procurement seeking a contract for leased fiber to deliver wide area network ("WAN") communication services throughout the School District (the "WAN Services Contract"). The winning vendor's network design will directly connect the School District's main office building to approximately 65 school locations in and around Lakeland, Florida. Background Information: A WAN network provides dedicated broadband connectivity for computer networks that are geographically dispersed. For the RFP, the School Board contemplates a WAN network that delivers network resources, connectivity, and services to the various School Board facilities. WAN networks are designed using "highways" of crystal fiber optic cable. The fiber optic cables, which consist of strands smaller than a human 3 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). 4 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. hair, are fitted within a sheath. Sheaths are encapsulated by buffer tubes. Typically, 12 strands of fiber cable run through a buffer tube. The RFP: RFP Section 3.1 informed vendors that the School Board was seeking one of three options for its network infrastructure. These options included: 1) leased "lit" fiber, 2) leased "dark" fiber, or 3) leased "dark" fiber (IRU).5 Although the School Board intended to select only one "solution" for the WAN Services Contract, the RFP invited interested vendors to "propose one, two, or all three options" for the School Board's consideration. The School Board purposefully provided vendors the flexibility to design and engineer a product the vendors believed was the best fit for the School District. As stated in RFP Section 3.1, "[t]he District is not advocating or mandating any preconceived network design or construction route and leaves this decision up to the proposer to present their best solution while recognizing the cited termination locations." The School Board presented Denise Whitaker to discuss the RFP, as well as the process and procedures the School Board followed to evaluate the proposals. Ms. Whitaker served as the School Board's Purchasing Agent responsible for the RFP. In her role, Ms. Whitaker, together with a team, developed, drafted, and prepared the RFP documents and forms. Commenting on RFP Section 3.1, Ms. Whitaker relayed that the School Board was open to any of three scenarios for the WAN services. Ms. Whitaker (and later Rob Oyler) explained that: "Lit" fiber, as referenced in RFP Section 4.1, is a fiber network that is ready-made to transmit computer signals. To send data, an optical transceiver module is attached to an end point of the fiber cable, which shoots a laser through one or more of the crystal fiber strands. When activated, this 5 IRU is an acronym for Indefeasible Right of Use, which means an exclusive lease to use a telecommunications network. laser "lights" the fiber, and the fiber strand is immediately ready to send data and information. "Dark" fiber, as referenced in RFP Section 4.2, like "lit" fiber, is a WAN network that is ready to transmit data. However, once the network is constructed, the fiber is left dormant. In other words, the vendor will not activate the laser at the end point of the fiber cable. Instead, the customer (the School Board) will light the fiber using its own transceiver module. Leased Dark fiber (IRU), as referenced in RFP Section 4.3, is essentially a communications network built, owned, and operated by the vendor. To lease a dark fiber IRU, the customer (the School Board) would purchase the right to use a certain amount of network capacity for a specified number of years. Ms. Whitaker testified that the leased "lit" fiber option (the proposal the School Board eventually selected) required vendors to propose a price quote for an initial 60-month contract period, as well as five additional 60- month renewal terms, for a total of 360 months (30 years). As stated in RFP Section 4.1: Price quotes are requested for services provided on a month-to-month basis, as well as 60 month term of service with up to five additional 60 month renewal options. Ms. Whitaker explained that during the initial 60-month contract, the winning vendor was expected to construct, install, and then maintain a "lit" fiber network for the School Board's exclusive use. The School Board would then lease the "lit" fiber network from the vendor for the length of the contract. Thereafter, per RFP Sections 4.1 and 8.2, the School Board and the winning vendor could agree to renew the WAN Services Contract for up to five additional 60-month periods. Ms. Whitaker further stated that each vendor had to agree not to increase its pricing during the 360-month (30-year) total contract length. In other words, the Monthly Recurring Costs that each vendor quoted for the initial contract term would remain the same through each and every contract renewal period.6 Ms. Whitaker further stated that the School Board intended to apply for federal funding through the Federal Communication Commission's ("FCC") E-rate program to cover up to 90 percent of the cost of the fiber network.7 See RFP Sections 1.1 and 3.1 and Appendices G and H. RFP Section 4 specifically stated that "[t]he District will follow the purchasing policies of the School Board of Polk County, Florida and requirements and procedures of the FCC's E-rate program as administered by the Universal Service Administrative Company to be eligible for all available funding." Therefore, the School Board intended to use information contained within the winning proposal to apply for E-rate funding and obtain an E-rate funding commitment through the Universal Service Administrative Company ("USAC"). Obtaining E-rate funds would mean that the School Board would not have to bear the full price of the WAN Services Contract. Five vendors timely responded to the RFP. Zayo presented a proposal for the leased "lit" fiber option. WANRack submitted proposals for both leased "lit" fiber and leased "dark" fiber. The School Board also received proposals from Southern Light (leased "dark" fiber and dark fiber (IRU)); 6 Ms. Whitaker testified that the School Board landed on a 30-year procurement term for all three options as a way to establish an equal standard by which to compare and score the three different network designs ("lit," "dark," or dark IRU). This 30-year "apples-to-apples" comparison created a fairer analysis of the best network solution among the proposals. For the leased "lit" fiber option, as stated above, vendors were to submit a Financial Proposal Worksheet listing prices for a 360-month length of service. For the leased "dark" fiber option, vendors were to offer a price for an initial 120-month/10-year term of service with up to ten additional 24-month renewal options. For the leased dark fiber (IRU) option, vendors were to quote a 20-year indefeasible right of use price with up to five additional 24-month renewal options. 7 The FCC E-rate program provides funding through federal subsidies to schools for computer networks, internet access, and telecommunications systems. As explained by Mr. Oyler, the FCC created the E-rate program to provide financial support for public services. Mr. Oyler detailed that the E-rate program is funded by a universal tax on telecommunication devices. Summit (leased "lit" fiber (three options), leased "dark" fiber (three options), and hybrid "dark" fiber (three options)); and Frontier Communications (leased "lit" fiber). To score the proposals, the School Board selected three individuals to serve on an evaluation committee. The evaluation committee consisted of School Board employees Joseph "Sid" Lee, Curtis Hodnett, and Michael Chiavuzzi (collectively referred to as the "Evaluators"). Once the Evaluators were selected, Ms. Whitaker became their "facilitator." Ms. Whitaker explained that she was responsible for guiding the Evaluators through the scoring process. She was also charged with ensuring that the Evaluators followed all applicable procurement policies and procedures. Prior to scoring the proposals, Ms. Whitaker provided each Evaluator with the School Board's Request For Proposal (RFP) Evaluator's Guide (the "Evaluator's Guide"). The Evaluator's Guide explained that, "the evaluation committee members are responsible for reading and evaluating all responses for their completeness and quality of content. … Committee members meet together to discuss the proposals and determine if they missed anything during their initial review." The Evaluator's Guide further instructed each Evaluator to "exercise [their] independent judgment" and to not be "dependent on anyone else's judgment, wishes, or demands." Each Evaluator was to be free from "any influences from within the committee." Each Evaluator also signed a Conflict of Interest and Non-Disclosure Statement in which they certified that "no other relationship with or bias towards any offeror exists which will prevent me from evaluating any proposal solely on its merits." After Ms. Whitaker received the vendors' proposals, she read through them to ensure that the proposals were complete and adequately responded to the RFP. She then distributed them to the Evaluators for their individual review and scoring. RFP Section 6.2 established the RFP's evaluation criteria. The Evaluators were to score and rank vendors' proposals on a scale of 100 points. The specific award criteria and corresponding point values were set out as follows: Evaluation Criteria Maximum Possible Points Experience, Qualifications, and References ("Experience") 15 Methodology 20 E-rate eligible recurring and one-time Cost of Services ("E-rate Eligible Cost")8 25 E-rate ineligible recurring and one- time Cost of Services9 15 Demonstrated scalability of technology through pricing for higher tiered bandwidths ("Scalability") 10 Overall ability to meet the district needs ("Overall Ability") 15 Total Points 100 Under RFP Section 6.3, the Evaluators awarded points by placing a vendor's response to a specific criterion into a certain category. Based on the category assigned, a multiplier was applied to calculate the score. The categories which an Evaluator could assign were: Excellent (with a score multiplier of 1.0); Very Good (with a score multiplier of 0.8); Good (with a score multiplier of 0.6); Fair (with a score multiplier of 0.4); 8 RFP Section 6.2 emphasized that the E-rate Eligible Cost was the highest weighted factor. 9 No points were awarded to any vendor for the E-rate ineligible cost of services category because no vendor identified an E-rate ineligible cost in its proposal. Poor (with a score multiplier of 0.2); Unacceptable (with a score multiplier of 0.0). For example, if an Evaluator deemed a vendor's Methodology to be "Excellent," the Evaluator applied a score multiplier of 1.0 to the total points available for that subsection (20 points) to calculate the total points the vendor would receive for that evaluation criterion, i.e., 1.0 x 20 equals 20 total points. If an Evaluator determined that a vendor's Methodology was "Very Good," then the Evaluator applied a score multiplier of 0.8 to the total points available to reach the score awarded, i.e., 0.8 x 20 equals 16 total points. After the Evaluators completed their reviews, each Evaluator's score was added together to produce a final score for each proposal. The proposal receiving the highest point total would be designated the highest ranked proposal. After the Evaluators received the proposals, they met for two public meetings during which they reviewed, discussed, and scored all proposals. The first meeting took place on January 13, 2021. Initially, Ms. Whitaker instructed the Evaluators on the RFP's evaluation criteria and process. She also handed each Evaluator an Evaluation Criteria Sheet, which they were instructed to reference and use when scoring the proposals. Over the course of the first meeting, the Evaluators and Ms. Whitaker reviewed each proposal to determine whether the vendors properly responded to the RFP's requirements. They also discussed the merits of the different proposals. After several hours of discourse, however, the Evaluators realized that they could not complete their scoring in a single session. Therefore, the Evaluators agreed to schedule another meeting. The Evaluators reconvened for the second public meeting on January 20, 2021. During this meeting, the Evaluators determined that Zayo, WANRack, and Summit all submitted responsive proposals. The proposals from Southern Light and Frontier Communications, on the other hand, were nonresponsive. The Evaluators found that Southern Light failed to list a third customer reference per RFP Section 5.3, and Frontier Communications only provided a proposal for the first five years of service. Thereafter, the Evaluators finished their reviews, awarded their points (electronically), and turned their completed Evaluation Criteria Sheets into Ms. Whitaker. The Evaluators scored the proposals of Zayo and WANRack as follows: Mr. Lee: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Lee: Zayo: 76 points WANRack: 81 points Mr. Chiavuzzi: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Chiavuzzi: Zayo: 76 points WANRack: 81 points Mr. Hodnett: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Hodnett: Zayo: 76 points WANRack: 81 points At the final hearing, each Evaluator testified how they approached the review process and awarded points, as follows: Joseph "Sid" Lee: Mr. Lee works for the School Board as a Senior Manager in charge of electronic equipment repair and support. In his job, Mr. Lee manages all computer repairs and telecommunication support for the School Board. Mr. Lee commented that, in addition to serving as an Evaluator on the RFP, he also participated on the team that helped develop the RFP's specifications with Ms. Whitaker. Mr. Lee represented that the three Evaluation team members were School Board employees with computer networking responsibilities and were the most experienced employees in the RFP's subject matter. Mr. Lee testified that after he was selected as an Evaluator, Ms. Whitaker gave him a copy of the Evaluator's Guide, which he "skimmed" through. He also recalled that Ms. Whitaker provided him approximately seven proposals, which he read. In formulating his scores, Mr. Lee described the evaluation as the combination of a joint and individual effort amongst the Evaluators. First, the three Evaluators walked through each proposal and discussed the merits and deficiencies of the various sections. They then, individually, awarded points as appropriate. When awarding points, Mr. Lee testified that he applied the point values and procedures laid out in RFP Sections 6.2 and 6.3. Mr. Lee asserted that he used the same analysis and evaluation process for each proposal. He further stated that all his rankings and scores were based solely on his evaluations of the various proposals during the two January meetings. He asserted that he had no discussions outside of the two public meetings with any person regarding his review. Regarding his score for E-Rate Eligible Cost, Mr. Lee explained that the School Board's Purchasing Department (Ms. Whitaker) actually calculated the E-rate Eligible Cost score, not the Evaluation Team. Mr. Lee understood that Ms. Whitaker determined that Zayo's proposal should receive the top description of "Excellent" for the maximum 25 points. Mr. Lee relayed that Ms. Whitaker found that WANRack's proposal should be assigned the score of "Very Good," which equaled 21 points. Mr. Lee testified that Ms. Whitaker provided him the scores (25/21 points), which he then inserted into his score sheet. Mr. Lee further conveyed that he is familiar with and has worked on School Board E-rate projects. Mr. Lee was aware that E-rate funds are granted by the FCC to help schools pay for computer services, including the fiber network the School Board seeks through this RFP. Mr. Lee testified that the School Board hopes that the E-rate program will cover 90 percent of the WAN Services Contract cost. Mr. Lee also recalled a discussion during the January 20, 2021, meeting when the Evaluators debated the possibility that the E-rate program might have an issue awarding funds for Zayo's proposed network. Mr. Lee understood that Zayo's network design might contain "redundancies," the cost of which would not be covered by E-rate. (Mr. Lee testified that WANRack's proposed methodology did not raise this concern.) Consequently, Zayo's proposed network configuration might not qualify for E-rate funding. For the Methodology criterion, Mr. Lee awarded WANRack with an "Excellent" (the maximum 20 points) based on its proposed network design. He gave Zayo's network a "Very Good" for 16 points. Mr. Lee explained that he had no concerns with the efficacy of WANRack's proposed "point-to-point" or "hub and spoke" network. Based on his discussion with the other Evaluators during their January meetings, he believed that WANRack's solution would mesh well with the School Board's existing network and equipment. The School Board would not be required to change or modify anything to accommodate WANRack's network design. On the other hand, Mr. Lee described what he believed to be a flaw in Zayo's "Ring Topology" design. Mr. Lee believed that Zayo's network was susceptible to multiple points of failure. Mr. Lee explained that a "ring" network is devised to connect sites in an aggregated ring before funneling into the School District central office. Therefore, a single failure along a fiber cable line could affect multiple locations. WANRack, on the other hand, proposed a central hub to be installed at the School District's office building. WANRack would then build a point-to-point connection directly from the hub to each of the 65 separate school sites. Mr. Lee stated that the advantage of WANRack's network solution is that a point-to-point design only exposes the network to a single point failure along the fiber cable between two points. In other words, one failure within the network would only affect one school destination as opposed to multiple sites. In addition, Mr. Lee believed that Zayo's "ring" topology would lead to additional costs for the School Board. Mr. Lee noted his concern on his Evaluation Criteria Sheet where he wrote, "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Mr. Lee explained that he wrote this comment during the January 20, 2021, meeting after a discussion with the other Evaluators regarding the possibility that the School Board might have to purchase extra equipment to accommodate Zayo's design. Mr. Lee understood that this supplemental equipment could include additional rack space or power sources. Mr. Lee testified that the possibility that Zayo's proposal would cause the School Board additional costs led to his decision to categorize Zayo's Methodology as "Very Good," instead of "Excellent." For Scalability, Mr. Lee awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" for 8 points. Mr. Lee explained that RFP Section 4.1 required each leased "lit" fiber proposal to be scalable to 100Gbps (gigabits per second), without limitation, at the same cost as 1GB/sec. The Scalability category contemplated the School Board's need to increase bandwidth and internet speed in the future. Mr. Lee testified that he based his score for Scalability on his overall discussion with other Evaluators. He understood that WANRack's proposed network design provided fiber dedicated to the School Board's use with no additional cost to the School Board. For Overall Ability, Mr. Lee awarded WANRack with an "Excellent" (the maximum 15 points), and Zayo with a "Very Good" for 12 points. Mr. Lee testified that in scoring this criterion, he contemplated that WANRack's proposed network would not require the School Board to make any infrastructure changes. As a final point, during his testimony, Zayo sharply examined Mr. Lee regarding one specific comment WANRack included in its proposal. The RFP Section 5.3 required each vendor to "provide three (3) references from current or recent customers (preferably Florida K-20) with projects equivalent to the size of The District or larger." WANRack, in its response, identified four referral projects. One of these projects was a current contract with "Polk County-FL." For the point of contact for this project, WANRack identified Mr. Lee, followed by his phone number and email address (sid.lee@polk- fl.net). Upon questioning, Mr. Lee disclosed that he is familiar with WANRack based on his past working relationship with the company on the "Polk County-FL" WAN contract. Mr. Lee explained that in 2020, he served as an evaluator for the School Board's RFP 032-MDW-0220, entitled Ethernet Service Bartow Sites E-rate (the "Bartow Contract"). WANRack won that RFP and currently provides the requested services to the School Board. Mr. Lee testified that, from September 2020 through May 2021, he regularly received biweekly status updates from WANRack's contract manager regarding WANRack's progress on the Bartow Contract. Despite this regular interaction, however, Mr. Lee urged that none of his communications with WANRack representatives involved the WAN Services Contract. He further testified that he never spoke to WANRack during the RFP scoring process. Neither did WANRack ever attempt to exert any influence or pressure on him regarding his evaluation of its proposal for the WAN Services Contact. Finally, Mr. Lee declared that WANRack never consulted him about using his name as the point of contact for the Bartow Contract. He had no knowledge of WANRack's decision to reference him in its proposal for the WAN Services Contract, nor did he approve it. Michael Chiavuzzi: Mr. Chiavuzzi currently works for the School Board as a Senior Manager of Network Operations. In this role, he oversees all network operations between the School District and the different school locations including connectivity, data storage, and security issues. Similar to Mr. Lee, Mr. Chiavuzzi served on the team that helped develop the RFP with Ms. Whitaker. After Mr. Chiavuzzi was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as access to electronic versions of all proposals. Prior to scoring, Mr. Chiavuzzi read through the Evaluator's Guide and all of the proposals. As with Mr. Lee, Mr. Chiavuzzi recounted meeting with the other Evaluators and Ms. Whitaker for two public meetings. During the first meeting on January 13, 2021, Mr. Chiavuzzi testified that the Evaluation Team reviewed all the proposals to ensure that they contained the required forms and information. During the second meeting on January 20, 2021, the Evaluators awarded their scores. Echoing Mr. Lee, Mr. Chiavuzzi expressed that during the meetings, the Evaluators walked through each proposal and jointly examined how the different vendors met the evaluation criteria. They also discussed any concerns they had with any of the proposals. Mr. Chiavuzzi recalled that the Evaluators specifically addressed whether a proposal imposed additional costs upon the School Board for equipment that might be needed to support a particular network design. Mr. Chiavuzzi further relayed that the Evaluators explicitly compared and contrasted the benefits of WANRack's point-to-point network as opposed to Zayo's "ring" topology. The Evaluation Team also weighed the advantages and disadvantages of WANRack's aerial network design versus Zayo's intent to construct an entirely underground network. When scoring the proposals, Mr. Chiavuzzi testified that he applied the scoring matrix and procedures laid out in RFP Sections 6.2 and 6.3. He further voiced that he looked at the information in each proposal, as well as that vendor's references and prior projects. Regarding WANRack and Zayo, Mr. Chiavuzzi commented that both vendors were very experienced, and presented good references and qualifications. As to the Methodology category, Mr. Chiavuzzi awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). To reach this score, Mr. Chiavuzzi explained that he looked at the proposed network solution each vendor offered the School Board. Mr. Chiavuzzi testified that he believed that WANRack's point-to-point network was superior to Zayo's "ring" network. He concluded that WANRack's design, which would run through aerial cables, was easier to maintain, modify, and repair, as well as presented fewer points of failure. Conversely, Mr. Chiavuzzi determined that Zayo's methodology contained more potential points of failure. Mr. Chiavuzzi repeated Mr. Lee's comment that the Purchasing Department (Ms. Whitaker) scored the E-rate Eligible Cost criterion. Mr. Chiavuzzi was under the impression that Ms. Whitaker calculated the scores based on a formula included in the RFP. However, he was not aware of the actual computations. For Scalability, Mr. Chiavuzzi awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" (8 points). Mr. Chiavuzzi based his score on the fact that WANRack proposed extra fiber cables and optic modules for the School Board's future use. On the other hand, Mr. Chiavuzzi determined that Zayo's network might not accommodate future build-out. This limitation would force the School Board to expend additional costs to support Zayo's efforts to increase the bandwidth of its system. For Overall Ability, Mr. Chiavuzzi awarded WANRack with "Excellent" (the maximum 15 points), and Zayo with "Very Good" (12 points). Mr. Chiavuzzi's score was a cumulation of the various factors he previously identified including his conclusion that WANRack's point-to-point network design offered a more attainable and reasonable solution to the WAN Services Contract with less potential points of failure, as well as the fact that WANRack's design included multiple strands of fiber and extra modules for the School Board's future needs. Zayo's proposed network, in contrast, did not dedicate as much fiber for the School Board's use and contained multiple points of failure. Finally, Mr. Chiavuzzi asserted that his rankings and scores were based solely on his personal evaluation and independent judgment. Mr. Chiavuzzi expressed that he considered all relevant criteria and factors described in the RFP, and was not influenced by any vendor. Finally, Mr. Chiavuzzi stated that, when scoring, he looked for the best vendor for the School Board, and he formulated his scores in good faith. Curtis Hodnett: Mr. Hodnett currently works for the School Board as a Senior Wide Area Network Engineer. In this job, Mr. Hodnett manages the network connections between the School District's main offices and the different school sites. As with Mr. Lee and Mr. Chiavuzzi, Mr. Hodnett served on the team that helped develop the RFP with Ms. Whitaker. Mr. Chiavuzzi is his supervisor. After Mr. Hodnett was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as an electronic version of all the proposals (which he downloaded). Mr. Hodnett testified that he read through the Evaluator's Guide and all of the proposals prior to scoring. Mr. Hodnett also confirmed that the Evaluators met for two public meetings during which they reviewed and scored the proposals. Mr. Hodnett recalled that when the first meeting on January 13, 2021, ran late, the Evaluators decided to schedule a second meeting to complete their review. When scoring the proposals, Mr. Hodnett testified that he applied the scoring procedures established in RFP Sections 6.2 and 6.3. For Methodology, Mr. Hodnett awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). Explaining his specific scores, Mr. Hodnett testified that he believed that WANRack's "super simple" network configuration would enable data traffic to be more easily routed across the network. He also found that WANRack's proposal provided all essential support equipment, including an additional power source, if necessary. Conversely, Mr. Hodnett believed that the School Board would need to provide additional equipment and power to support Zayo's network design, which would result in added costs to the School District over the life of the contract. Mr. Hodnett also found WANRack's point-to-point/hub-and-spoke design superior to Zayo's "ring" topology. Mr. Hodnett explained that, as electronic data is transmitted through the different sites located along a "ring" network, the system's bandwidth can be diluted. A point-to-point network, however, avoids this problem. Mr. Hodnett also appreciated the fact that WANRack's design not only provided two "lit" fiber strands for the School Board's immediate use, but also included 10 additional strands of fiber for future "build-out" purposes (12 total fiber strands). Zayo, however, only offered two fiber strands as part of its proposal. Regarding the School Board's desire to use E-rate funding, Mr. Hodnett was aware that the School Board intended to fund up to 90 percent of the WAN Services Contract with E-rate funds. Mr. Hodnett further relayed that, to be eligible for E-rate funds, he understood that the project's construction must be completed within one year from the request for E-rate support. For Scalability, in awarding WANRack's proposal an "Excellent" (10 points), and Zayo's proposal a "Very Good" (8 points), Mr. Hodnett explained that the ability of Zayo's proposed solution to scale up to higher bandwidths was limited by the shared network design, which included only two strands of fiber cable. WANRack's design, on the other hand, would enable more data and information traffic to be routed through District offices. Mr. Hodnett again referred to the fact that WANRack's design included two "lit" fiber strands, as well as ten additional strands for future use. For Overall Ability, Mr. Hodnett awarded WANRack an "Excellent" (15 points), and Zayo a "Very Good" (12 points). Mr. Hodnett explained that the Methodology and Scalability of WANRack's proposal offered a "better fit" for the School Board. Mr. Hodnett also believed that WANRack's proposed network would allow the School Board to more easily control the WAN network. Conversely, Mr. Hodnett reduced Zayo's "overall" score due to lingering questions regarding the amount of data that Zayo's network could route to the District sites through the "ring" design. In addition, Mr. Hodnett wondered whether the redundancies in Zayo's design would negatively impact the School Board's request for E-rate funding. Finally, Mr. Hodnett was concerned that the School Board would have to provide additional costs, manpower, and resources to ensure that Zayo's network got up and running. With their proposals, per RFP Section 5, each vendor submitted a "Financial Proposal Worksheet." (A blank Financial Proposal Worksheet was included with the RFP at Attachment 2.) The Financial Proposal Worksheet required the vendors to complete a cost spreadsheet for the initial 60-month contract term, together with a separate cost spreadsheet for each of the five 60-month options. To score the E-rate Eligible Cost criterion, Ms. Whitaker prepared a Cost Summary of the E-rate Eligible Cost for each proposal. Ms. Whitaker used the price evaluation procedure set forth in RFP Section 6.3, Calculation of the cost, which stated: Points for the cost shall be determined by summing the total cost at 100GB for all sites in the proposal for all options. Distribution of points for evaluation of cost will be calculated using the following formula: lowest proposed cost/proposer's cost x total point value = proposer's points. Using this formula, the vendor with the lowest total cost would receive 100 percent of the possible points. Ms. Whitaker's Cost Summary revealed that Zayo's proposed price for leased "lit" fiber ($10,239,494.99) was the lowest price submitted of all bidders.10 Therefore, based on the price formula, Zayo's proposal received the maximum 25 points. WANRack's price ($12,467,196.36) was the second lowest price for leased "lit" fiber. Accordingly, WANRack's proposal received the second highest score (21 points). After all Evaluators completed their scoring, Ms. Whitaker tabulated the total scores for each proposal to determine the vendors' final scores. WANRack's proposal for its leased "lit" fiber option received the highest ranking with a score of 81. Zayo's leased "lit" fiber proposal received the second highest ranking with a score of 76. On January 27, 2021, Ms. Whitaker posted a Notice of Recommended Award (the "Notice of Award"). The Notice of Award reported that, at a School Board meeting to be held on February 23, 2021, a recommended bid award would be made to "WANRack Holdings, LLC," for WANRack's Leased Lit Fiber Services Option. On February 23, 2021, the School Board unanimously voted to approve the recommendation to award the WAN Services Contract to WANRack. 10 Zayo, in its proposal, quoted a total price of $10,239,494.99. It appears that throughout this matter, the parties rounded this figure up to $10,239,495.00. Both numbers were used interchangeably at the final hearing, as well as in this Recommended Order. On March 10, 2021, Ms. Whitaker wrote a letter to WANRack stating: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. The contract between the parties consists of RFP 031-MDW-1121 and all requirements, attachments, worksheets, appendices, addenda and WANRack's proposal signed December 29, 2020 and submitted. This constitutes the complete agreement between the proposer and the District. An additional agreement is not required. The initial contract period will begin on or about July 1, 2021. On March 11, 2021, the School Board initiated its request for E-rate funding for the WAN Services Contract. The School Board prepared and submitted two FCC Form 471 applications to USAC regarding its contract with WANRack. Zayo's Protest: In its protest, Zayo contends that the manner in which the Evaluators reviewed, then scored, the proposals was arbitrary or capricious, clearly erroneous, or contrary to the RFP specifications. Zayo further argues that the evaluation committee members awarded WANRack's proposal points to which it was not entitled. In addition, Zayo maintains that WANRack's proposal violates E-rate requirements and is therefore nonresponsive. As a result, WANRack improperly received the highest point total and was undeservedly awarded the WAN Services Contract. To support its allegations, Zayo presented the testimony of Matt Mulcahy. Mr. Mulcahy is the Solutions Engineering Director for Zayo. In this role, Mr. Mulcahy supervises Zayo's sales engineers, who support Zayo's sales teams. He also designs Zayo's WAN networks, including Zayo's proposed "ring" topology design for this RFP. Regarding the Methodology behind Zayo's proposal, Mr. Mulcahy explained that the network that Zayo designed for the School Board would consist of 100 percent underground cable. Mr. Mulcahy stated that, conversely, WANRack intends to route 75 percent its network fiber through aerial installation. Mr. Mulcahy asserted that, in Florida, Zayo's design provides a far better protected and reliable WAN infrastructure because buried cables are substantially more resistant to hurricanes and tropical storms. Mr. Mulcahy conceded, however, that aerial installations are less expensive to maintain and repair because of the ease of access. Mr. Mulcahy also commented that Zayo's network solution offers superior "fault tolerance." Mr. Mulcahy explained that WANRack's proposal includes many more miles of fiber than Zayo's design. Mr. Mulcahy declared that the larger amount of fiber cable increases the risk of failure along the network. And, any point of failure would cause a loss of service to a network's end point. Mr. Mulcahy surmised that the Evaluators may not have understood the significance of fault points. As to the points awarded to Zayo for Scalability, Mr. Mulcahy confirmed that Zayo's network design only dedicated two fiber strands to transmit data throughout the School District. However, Mr. Mulcahy advanced that the RFP did not require vendors to offer a certain number of fibers for the School Board's use. Instead, the RFP charged vendors to present a solution that offered an initial bandwidth of 10Gbps that could be "scaled" up to 100Gbps. Mr. Mulcahy explained that, in essence, the RFP sought network designs that included the capability of increased bandwidth, which would accommodate the School Board's "future business ventures." Based on this directive, Mr. Mulcahy asserted that Zayo's proposal roundly meets the RFP's Scalability criterion because it is fully scalable to a bandwidth of 100Gbps using only two fibers. Therefore, he firmly disagreed with any Evaluator's comments or scores critical of the number of fiber strands Zayo built into its proposed network infrastructure. Further, Mr. Mulcahy testified that, in practice, Zayo's network designs routinely pull 12 strands into a building as is the industry practice. Regarding the Evaluators' concerns with additional costs necessary to support Zayo's proposal, Mr. Mulcahy conceded that Zayo's network design would require the School Board to purchase supporting equipment. Mr. Mulcahy contemplated that Zayo's proposed network would cost the School Board approximately $6,000 to $12,000 to install laser optics/pluggable modules at the 65 school sites within the District. On the other hand, Mr. Mulcahy rejected the supposition that the School Board would need to purchase a supplemental power source to augment Zayo's design. Plus, the RFP represented that the School Board would provide any necessary power to support the WAN network. See RFP Addendum 2, Question 6. Mr. Mulcahy added that he believed that WANRack's network will also require the School Board to purchase pluggable modules and switches. He surmised that the School Board would spend $5,000 to $10,000 to purchase equipment to accommodate WANRack's point-to-point design, as well as install a pluggable port and a more sophisticated switch at the District's hub site. WANRack introduced Rob Oyler to discuss the details of its proposal for the WAN Services Contract. Mr. Oyler founded WANRack and currently serves as the company's Chief Executive Officer. In this role, Mr. Oyler oversees all aspects of WANRack's business operations. Mr. Oyler stated that he started WANRack with a focus on school systems similar to the School Board. He relayed that all schools need internet access and technological services. WANRack provides this support through the construction of private fiber networks. Mr. Oyler testified that WANRack proposed a point-to-point network solution for the School Board. Mr. Oyler explained that this type of design contemplates an exclusive, "private highway" of fiber cable and equipment. WANRack would establish a central hub site at the District's headquarters. Network cables would then run directly from the hub to the separate District buildings. Mr. Oyler asserted that WANRack offered the School Board a "turnkey" solution. In other words, WANRack would "light" the fiber cable so that the network would be ready for the immediate flow of data as soon as the School Board accessed it. Mr. Oyler added that WANRack would be prepared to modify or supplement its design should the School Board elect to increase the available bandwidth or add more technology. However, WANRack will not charge the School Board any additional cost for this future work. Mr. Oyler confirmed that WANRack intends to route the majority of the School Board's network via aerial installation. Mr. Oyler anticipated that WANRack would construct approximately 111 miles of fiber cable to connect the 65 school locations. Mr. Oyler acknowledged that this aerial network will be more exposed to points of failure due to tropical storms and hurricanes than underground cables. However, Mr. Oyler countered that in the event of a failure or outage, aerial cable is much more accessible for repairs or replacement. With the above background information and testimony, Zayo presented a number of arguments asserting that the School Board's recommended award to WANRack must be rejected. Each specific challenge, along with the School Board's response, is analyzed as follows. The Evaluation Committee Failed to Follow the Mandatory Requirements of the RFP and School Board Policy in Scoring the Proposals: Zayo asserts that the Evaluators' comments on their Evaluation Criteria Sheets, as well as the consensus nature of the scoring, show that the Evaluators failed to follow the RFP requirements. Specifically, Zayo argues that the Evaluators incorrectly determined that Zayo's bid would result in a large overall increased cost to the School Board. Zayo argues that the Evaluators misunderstood both the proposal specifications, as well as how to appropriately apply the evaluation criteria to the proposals. As a result, the Evaluators improperly deducted points from Zayo's proposal. Consequently, the evaluation, scoring, and ranking were based on factual inaccuracies and were conducted unreasonably. To support its claim, Zayo points to the comment Mr. Lee wrote on his Evaluation Criteria Sheet that "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Zayo asserts that Mr. Mulcahy established that this statement is demonstrably not true. Instead, the information in Zayo's proposal made it clear that all equipment and infrastructure necessary to support its network solution would not require the School Board to purchase any additional equipment. Neither would it result in additional costs above Zayo's quoted price. As a result, Zayo argues that no rational basis exists for the Evaluators to have deducted Zayo's scores for the categories of Experience, Methodology, Scalability, and Overall Ability based on the assumption that the School Board would incur additional costs if it selected Zayo's proposed network. Consequently, the Evaluators' scores were arbitrarily or capriciously derived, which provided WANRack's proposal an unfair competitive advantage. School Board Position: The School Board asserts that the testimony shows that the Evaluators carefully and completely considered all the criteria enumerated in RFP Section 6.2 when formulating their scores. Thereafter, in the Evaluators' neutral and objective judgment, WANRack's proposed network design was superior to Zayo's design. Accordingly, the Evaluators concluded WANRack's proposal best served the interests of the School Board. Finding: The evidence supports the School Board's argument that the Evaluators' concerns regarding the possibility that Zayo's proposal would result in additional costs to the School Board was not arbitrarily or irrationally derived or gave WANRack an unfair advantage. At the final hearing, all three Evaluators credibly testified that they fairly and reasonably reviewed and considered each proposal. The Evaluators voiced logical and rational explanations as to how they analyzed, and then scored, each proposal. They further provided good faith and factually based reasons why they believed that WANRack offered the most cost-effective service and presented the most advantageous network solution for the School Board. (Furthermore, Mr. Mulcahy openly confirmed that Zayo's network design would cost the School Board an additional $6,000 to $12,000 in supporting equipment.) Finally, the Evaluators persuasively testified that they measured each vendor's proposal against the same criteria and held every proposal to the same scoring standard. Accordingly, Zayo's argument on this point is rejected. The Evaluators Erred Because WANRack's Proposal is not Demonstratively Better than Zayo's Proposal: Zayo asserted that WANRack's proposed network was not demonstrably better than its own proposal. Presented through the testimony of Mr. Mulcahy, Zayo contended that the Evaluators' scores for Zayo's proposal were "misguided." Mr. Mulcahy commented that the Evaluators did not appear sufficiently knowledgeable in WAN network designs to adequately grade and rank the different network designs. He did not believe that the Evaluators gave Zayo's proposal proper consideration. While Mr. Mulcahy conceded that he was not aware of any evidence that the Evaluators acted dishonestly, illegally, or unethically, he maintained that the scores they awarded to Zayo's proposal were simply "wrong." Zayo presented examples of error based on Mr. Mulcahy's testimony: Methodology: Zayo asserts that the evidence does not support the Evaluator's collective characterization of WANRack's Methodology as Excellent, while labelling Zayo's proposal Very Good. Zayo claims that its Methodology is superior to WANRack's network design because, in Mr. Mulcahy's opinion, buried fiber cables are substantially more resilient to storms. In addition, the fact that Zayo presented the lowest bid "maximizes the cost-effectiveness" of its proposal. Consequently, the Evaluators' scores to the contrary are flawed. Scalability: Similar to Methodology, Zayo asserts that the fact that each Evaluator awarded WANRack an Excellent for Scalability while awarding Zayo a score of Very Good was unjustified. Zayo asserts that both its proposal and WANRack's proposal provided for maximum scalability without any additional costs to the School Board. Therefore, no justification existed to score Zayo's proposal lower than WANRack's proposal for an identical response to this criterion. School Board Position: The School Board highlighted that the RFP expressed no preference for a specific type of methodology. To the contrary, RFP Section 3.1 stated that the School Board would consider "traditional network designs (such as hub and spoke) or alternative proposals." Therefore, the fact that Zayo's underground cables might provide more protection from environmental hazards than aerial cables does not automatically mean that Zayo's proposal was "demonstrably" superior to WANRack's design. How the vendors proposed to construct their network cable "highway" was only one factor in the Evaluators' analysis of which proposal presented the best solution for the School Board. The School Board further contends that the evidence presented at the final hearing does not show that the Evaluators' conclusions regarding additional cost to the School Board were erroneous. Mr. Mulcahy plainly testified that the School Board would need to purchase additional equipment to support Zayo's network design. Finally, the School Board again asserts that the evidence establishes that the Evaluators neutrally and objectively determined that WANRack's proposed network design was superior to Zayo's design. The Evaluators' testimony at the final hearing shows that they considered all the criteria set forth in RFP Section 6.2 when formulating their scores. Thereafter, they individually concluded that WANRack's proposal best served the interests of the School Board. Finding: The School Board's position has merit. The evidence at the final hearing demonstrates that the Evaluators awarded points based on an honest exercise of their discretion. The Evaluators credibly testified that they fairly and in good faith considered the information presented in each proposal. During the final hearing, each Evaluator evinced a broad and comprehensive knowledge of the details of both Zayo and WANRack's proposed network designs, as well as the subject matter of the RFP. The Evaluators further provided logical and rational reasons why they believed that WANRack's proposal was superior to the other proposals, particularly Zayo's proposal. The evidence did not prove that the Evaluators' scores were based on unfair or irrational prejudice. Accordingly, Zayo's argument on this point is rejected. The Evaluators Failed to Exercise their Independent Judgment When Scoring the Proposals: Zayo charges that the Evaluators, when scoring the proposals, acted "in a concerted way" to reach a consensus score in favor of one particular proposal (WANRack's), instead of applying their independent judgment as required by the Evaluator's Guide. Consequently, the Evaluators acted arbitrarily or capriciously in awarding a winning score to WANRack. To support this allegation, Zayo points to the fact that the Evaluators' scores for the Zayo and WANRack proposals were identical in every evaluation criteria. Zayo was further troubled as to why Mr. Chiavuzzi's scoresheet was devoid of any written commentary or notes that would explain how or why he scored as he did. School Board Position: The School Board maintains that the Evaluators' testimony clearly established that they independently formulated their scores based on their individual assessment of the proposals. Further, while the Evaluator's Guide advised that the Evaluators "should record brief comments that lend insight as to why they awarded or failed to award points based on the established RFP evaluation criteria for a particular item," neither the Evaluator's Guide nor any other provision of the RFP mandated that the Evaluators must document their exact thoughts or analysis on their Evaluation Criteria Sheets. Finally, regarding "concerted" collaboration between the Evaluators, the Evaluator's Guide specifically advised: It's normal and acceptable for there to be debate, even passionate debate, within the evaluation committee about how well a proposal meets the established evaluation criteria. As an independent evaluator you may be swayed by the debate in making you judgment about how many points you wish to award, and that is okay. Therefore, the RFP scoring process explicitly contemplated a collaborative process amongst the Evaluators in formulating the points to award to each proposal, as long as the ultimate score was based on each Evaluators' independent assessment. Finding: The evidence and testimony at the final hearing supports the School Board's position. While the Evaluator's Guide stressed that the Evaluators should exercise their "independent judgment," the Evaluator's Guide also clearly indicated that the Evaluators could collectively develop their scores. The Evaluator's Guide prompted the Evaluators to ask questions to understand pertinent information, as well as engage in "passionate debate" regarding the merits of each proposal. Such was the case in this RFP. During their two public meetings, the Evaluators freely and openly discussed the details of the vendors' proposals. However, each Evaluator credibly testified that when the time came to score the proposals, they applied their honest and independent opinions to the information presented by each vendor, and awarded scores as appropriate. Accordingly, Zayo's argument on this point is rejected. WANRack's Proposal Creates the Appearance of Impropriety with One of the Evaluators: Zayo alleges that a relationship between one of the Evaluators and WANRack creates an appearance of impropriety in violation of the Evaluator's Guide. The Evaluator's Guide specifically directed that Evaluators: will not have contact with any of the proposers during the evaluation process except during interviews; and, conversely, [Evaluators] are not to be contracted by any of the proposers during or following the evaluation process prior to contract award. … It is always best to err on the side of avoiding even the appearance of impropriety in the evaluation process. Zayo points to WANRack's listing of Mr. Lee's name as a point of contact for one of its references in its proposal. School Board Position: The School Board argues that no evidence indicates that WANRack ever contacted or spoke to Mr. Lee regarding the WAN Services Contract. On the contrary, Mr. Lee provided credible testimony that he and WANRack never discussed the terms, conditions, or scoring of the proposals for this RFP. For her part, Ms. Whitaker was not alarmed at finding Mr. Lee's name listed as a project contact in WANRack's proposal. Ms. Whitaker did not believe that this single reference in WANRack's proposal caused a potential impropriety. She commented that nothing in WANRack's proposal indicated that Mr. Lee was anything more than a reference regarding another contract between WANRack and the School Board. Ms. Whitaker expressed that WANRack's proposal did not contain any information that Mr. Lee was involved in WANRack's current contract with the School Board in any direct or material capacity. On the contrary, the fact that WANRack disclosed its specific point of contact on the Bartow Contract showed that WANRack openly revealed its existing working relationship with the School Board. For his part, Mr. Lee steadfastly asserted that he never spoke to WANRack during the RFP process, and WANRack never attempted to exert any influence over him regarding his evaluation of the WAN Services Contact. Mr. Lee further maintained that he was unaware that WANRack listed his name as a reference, nor did he approve the same. Mr. Lee testified that he fairly and objectively evaluated every proposal, and he formulated his scores consistent with his understanding of the RFP specifications and based on the best interests of the School Board. Finding: The School Board (and Mr. Lee) presents the most effective argument on this point. At first blush, the fact that WANRack inserted Mr. Lee as its point of contact on a prior School Board project does raise questions as to the working relationship between Mr. Lee and WANRack. And, the School Board certainly desired to prevent any inappropriate communication or influence between the vendors and the Evaluators. However, the questions were all answered. There was no evidence of any inappropriate communication or influence. No evidence or testimony establishes that WANRack received any competitive advantage or favoritism based on Mr. Lee's previous dealings with WANRack on the Bartow Contract. Neither does any evidence demonstrate that WANRack was awarded the WAN Services Contract based on its prior relationship with Mr. Lee. Mr. Lee persuasively testified that the scores he gave to WANRack and Zayo were based solely on the information contained within the proposals, and not from any other source or from his prior interactions with WANRack. Accordingly, Zayo did not prove that the fact that WANRack listed Mr. Lee as a point of contact on another contract with the School Board actually gave WANRack's proposal an unfair competitive advantage or led to the School Board's selection of WANRack for the WAN Services Contract. Therefore, an insufficient basis in fact exists to overturn the School Board's intended award to WANRack on this issue. WANRack's Proposal is Nonresponsive in that it Violates the FCC's E-rate Program Rules: Zayo contends that WANRack's proposal is ineligible for award under the RFP because it included terms that violated E-rate funding rules. Therefore, awarding the WAN Services Contract to WANRack will jeopardize the School Board's ability to use federal funds to pay for the network services. Specifically, Zayo represents that, to be eligible for E-rate funding, the E-rate program requires all special construction charges for a network to be completed and the fiber "lit" (i.e., ready to provide service) within the same 12-month fiscal year as the funding request. Zayo contends that WANRack's proposal, however, includes a timeline that stretches beyond the required, 12-month E-rate funding year. To support this argument, Zayo points to an illustration within WANRack's proposal that portrays a construction timeline that starts on July 1, 2021, and ends on October 13, 2022. (Pet. Ex. 25, pg. 61) This graphic representation indicates that WANRack will need 15 months to completely construct its network before it is able to provide WAN services to the School Board. Zayo argues that because WANRack's proposal contemplates an upfront construction time of greater than one funding year, it violates the requirements of the E-rate program. Consequently, the School Board must reject WANRack's proposal as nonresponsive because WANRack's solution is ineligible for E-Rate support and cannot meet the RFP service requirements. School Board Position: Ms. Whitaker agreed with Zayo's point that the scoring of the vendors' Methodology included evaluating how the vendors' network solutions comply with the E-rate guidance. However, in responding to this specific assertion, the School Board and WANRack argue that the illustration included in WANRack's proposal is only an "example of a construction timeline." Mr. Oyler (as supported by the School Board) testified that WANRack fully intends to construct its network within E-rate time requirements and that its network design for the WAN Services Contract will qualify for E-rate funding. At the final hearing, Mr. Oyler insisted that the October 13, 2022, date on the sample timeline is merely a conservative point of reference. He urged that, at the time WANRack submitted its proposal, the exact date that E-rate would approve funding for the WAN Services Contract was unknown. Consequently, the dates WANRack included on its illustration are simply projections for planning purposes. Further, the School Board and WANRack witnesses represented that E-rate special construction rules allow construction of the fiber network to begin up to six months prior to the start of the funding year (July 1). In light of this provision, Mr. Oyler conveyed that WANRack fully intends to begin construction of its network several months prior to the start of the pertinent E-rate funding year. Finding: Based on the testimony adduced at the final hearing, the School Board (and WANRack) persuasively counter Zayo's argument that the School Board should have deemed WANRack's proposal nonresponsive based on the inclusion of a construction completion date of October 13, 2022. WANRack credibly explained how its proposed network design can be constructed to sufficiently qualify for E-rate funding. Accordingly, Zayo did not present sufficient evidence to prove that WANRack's proposal must be disqualified as noncompliant with E-rate rules or the RFP specifications. WANRack's Score for Methodology Must be Reduced Due to the Fact that WANRack Failed to Provide a NID Switch: Zayo asserts that WANRack's Methodology did not deserve the top award of Excellent (20 points) because WANRack's proposed network failed to incorporate a Network Interface Device ("NID") switch. To support this argument, Zayo points to several provisions in the RFP that indicate that the vendors' network designs must include a NID switch. These sections include RFP Addendum 2, Question 1, which describes the School Board's expectation that vendors will use an "endpoint NID (i.e. switch, router)" that is "scalable up to 100Gbps which will connect to the district/site routers." Mr. Mulcahy also highlighted the RFP's requirement that vendors must "provide prioritization of voice traffic dependent upon the District's Voice- over-IP ["VOIP"] specifications," which, according to him, would implicitly require a switch or router. See RFP Section 4.4. Mr. Mulcahy testified that without the proper switch, the lasers that transmit data over the network will not "light" the fiber optic cable. Zayo asserts that WANRack, however, indicated that it will use a GBIC/SFP (Gigabit Interface Converter/Small Form-factor Pluggable) module in its design, rather than a NID switch. (A GBIC/SFP device is a small fiber optic transceiver, about the size of a pack of gum, that interfaces with the network to convert optical and electrical signals.) Mr. Mulcahy asserted that WANRack's decision to use a GBIC/SFP module instead of a NID switch gives WANRack's proposal a competitive advantage because the NID switch component is an expense that either the vendor or the School Board will have to bear. School Board Position: Mr. Chiavuzzi, during his testimony, directly rejected Zayo's argument that the RFP mandated all proposed networks include a NID switch. On the contrary, Mr. Chiavuzzi declared that the School Board intentionally did not require the vendors to meet a specific routing configuration in their proposals. Instead, the School Board gave vendors the flexibility to offer a broad range of network solutions to meet the School Board's needs, whether those designs included a NID switch or not. See RFP Section 3.1. Similarly, Mr. Hodnett saw no reason to reduce his score for WANRack's Methodology due to the fact that it did not provide a NID switch. Mr. Hodnett further represented that he could perform any necessary VOIP prioritization himself without the assistance of the network provider. WANRack (through Mr. Oyler) confirmed that WANRack's proposed network design does not include a NID switch. However, Mr. Oyler asserted that the corresponding equipment WANRack intends to use (GBIC/SFP devices) is scalable up to 100Gbps, and, therefore, will adequately support the network services the RFP specifies, as well as any VOIP requirements. Finding: The evidence and testimony adduced at the final hearing does not support Zayo's argument that WANRack was required to present a network solution that included a NID switch. Therefore, Zayo did not meet its burden of proving that the Evaluators acted arbitrarily or irrationally by awarding WANRack's proposal an Excellent score for Methodology, or that WANRack received an unfair competitive advantage or benefit. The Notice of Recommended Bid Award is Void and Cannot Be Enforced: Zayo asserts that the Notice of Award is void and cannot serve as the basis for an award to WANRack. Specifically, Zayo argues that the Notice of Award recommended that the WAN Services Contract be awarded to the wrong corporate entity. To support this argument, Zayo denotes that "WANRack, LLC" submitted the proposal in response to the RFP. The Notice of Award, however, recommended the School Board award the bid to "WANRack Holdings, LLC." Zayo charges that the discrepancy in the name of the intended contract winner on the Notice of Award invalidates the award to WANRack, LLC. School Board Position: Initially, the School Board asserts that Ms. Whitaker's reference to "WANRack Holdings, LLC" instead of "WANRack, LLC" was a simple scrivener's error that did not affect the integrity or propriety of the procurement process. During her testimony, Ms. Whitaker explained that she fully intended to write WANRack's appropriate corporate name on the Notice of Award. She represented that insertion of the word "Holdings" after WANRack's name was her mistake. She offered that she was not aware of the legal significance between the two companies. Ms. Whitaker urged that none of the Evaluators or School Board staff was confused over which entity was being recommended for the WAN Services Contract – WANRack was clearly the top ranked vendor. The School Board also introduced a Memorandum from the School Board Superintendent, Jacqueline Byrd, dated February 8, 2021, which recorded that the contract "for procurement of Fiber WAN Services to 65 sites in the Lakeland area" was awarded to "WANRack, LLC." In addition, the School Board argues that, at most, Ms. Whitaker's inclusion of the extraneous word "Holdings" was a harmless error that should not affect the outcome of the award. To support this argument, the School Board points to RFP Section 7.21, which states that, "The District reserves the right to waive irregularities in the proposals." The School Board insists that Ms. Whitaker's mistake should be treated as a waivable irregularity. The School Board further asserts that the terms of the WAN Services Contract will be governed by the RFP together with all requirements, attachments, worksheets, addenda, as well as WANRack's proposal. The School Board contends that these documents clearly establish that the vendor selected for this project is "WANRack, LLC."11 The School Board maintains that no vendor (including Zayo) was prejudicially affected by the incorrect reference to "WANRack Holdings, LLC" on the Notice of Award. For his part, Mr. Oyler offered that WANRack Holdings, Inc., is the holding company for WANRack, LLC. Mr. Oyler, who serves as Chief Executive Officer of both corporations, explained that WANRack, LLC, submitted the proposal in response to the RFP, and WANRack, LLC, will be the company that enters the WAN Services Contract to provide the leased "lit" fiber services to the School Board. Finding: The School Board persuasively rebuts Zayo's argument that the School Board's incorrect recommendation to award the WAN Services Contract to "WANRack Holdings, LLC" should invalidate the results of this procurement. Ms. Whitaker's mistake on the Notice of Award was not material to the award of the WAN Services Contract to WANRack. Neither did the error provide WANRack a competitive advantage or benefit under the terms of the RFP. To summarize the findings in this matter, based on the evidence in the record, Zayo did not demonstrate, by a preponderance of the evidence, that the School Board's intended award of the WAN Services Contract to WANRack was clearly erroneous, contrary to competition, arbitrary, or capricious, or that it was contrary to the School Board's governing statutes, policies, rules, or the solicitation specifications. Each Evaluator credibly 11 For example, Ms. Whitaker's letter to WANRack, dated March 10, 2021, states: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. In addition, Ms. Whitaker's "memo to file" letter, also dated March 10, 2021, states: The School Board of Polk County, Florida (PCSB) and WANRack, LLC agree the contract between the parties consists of the RFP (including addenda), and the successful proposal. testified that they fairly and objectively evaluated the information contained in WANRack's and Zayo's proposals. Further, the evidence demonstrates that WANRack's proposal complied with the RFP specifications, and WANRack is fully capable of providing the "lit" fiber services the School Board seeks through the WAN Services Contract. Finally, the evidence does not show, by a preponderance of the evidence, that Zayo was placed at a competitive disadvantage in this solicitation. Neither is there evidence that the School Board conducted this procurement in a manner that was contrary to its governing statutes, rules, or policies, or the provisions of the RFP. Accordingly, Zayo failed to meet its burden of proving that the School Board's intent to award this procurement to WANRack must be rejected.
Conclusions For Petitioner: Robert A. Shimberg, Esquire Trae S. Weingardt, Esquire Hill, Ward and Henderson, P.A., 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33601 1 Unless otherwise stated, all citations to the Florida Statutes are to the 2021 version. For Respondent: Jonathan Stidham, Esquire Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Warren Andrew Crawford, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830 For Intervenors: Stephen R. Senn, Esquire Matthew J. Vaughn, Esquire Peterson & Myers, P.A. 225 East Lemon Street, Suite 300 Lakeland, Florida 33802
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 dismissing the protest of Zayo. It is further recommended that the School Board of Polk County award Request for Proposal 031-MDW-1121, Fiber WAN Lakeland E-rate to WANRack as set forth in the Notice of Award. DONE AND ENTERED this 17th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2021. Charles Wesley Bridges, General Counsel The School Board of Polk County, Florida Post Office Box 391 Bartow, Florida 33831 Trae S. Weingardt, Esquire Hill Ward Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Robert A. Shimberg, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Tampa, Florida 33602 Warren Andrew Crawford, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33830 Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Stephen R. Senn, Esquire Peterson & Myers, P.A. Suite 300 225 East Lemon Street Lakeland, Florida 33802 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jillian T. Spangler, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 Frederick Heid, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831
The Issue Whether Petitioner had a contractual obligation, which it breached, to employ Respondent during the 2009-2010 school year, and, if so, what damages should be awarded.
Findings Of Fact The following is a verbatim recital of the Joint Stipulation of Facts filed by the parties on June 8, 2012: Lurana Hillard (Respondent) was employed by the St. Lucie County School District (Petitioner) as a Program Specialist for School Psychology and School Psychologists beginning in the 2005/2006 school year. Respondent was a participant in the Florida Retirement System ("FRS") and its Deferred Retirement Option Program (hereinafter "DROP"). Respondent's initial 60-month period of DROP was from July 1, 2002 through June 30, 2007. In January 2007, Respondent signed a document requesting to extend her participation in DROP beyond the initial 60- month period. A true and correct copy of the Form is attached as Exhibit B.[1/] Barbara Casteen is the Director of Student Services and Respondent's supervisor. On January 12, 2007, Barbara Casteen sent Steve Valencia, Director of FTE/Position Control, an email with a copy to Respondent regarding DROP extension. A true and correct copy of that email is attached as Exhibit A.[2/] On January 16, 2007, DROP Extension forms [sic] prescribed by the Florida Retirement System were executed by Respondent and Steve Valencia. A true and correct copy of the Form is attached as Exhibit B. Mr. Valencia had the authority, as the Superintendent's designee, to execute the form advising that that the School Board stipulates that the Respondent was eligible to participate in DROP beyond the initial 60- months. On January 23, 2007, at a regularly scheduled School Board meeting, the Board approved the Personnel Agenda which included DROP extension for Respondent.[3/] Attached is a true and correct copy of the Personnel Agenda for the January 23, 2007 meeting and minutes from the same.[4/] The Board has taken no subsequent formal action regarding Respondent's DROP status. On May 26, 2009, Barbara Casteen sent Respondent a letter advising that she would not recommend her for reappointment for the 2009-2010 school year. A true and correct copy of this letter is attached as Exhibit C. On June 30, 2009, Respondent signed a Notification of Separation from Employment Form. A true and correct copy of that Form is attached as Exhibit D. On July 29, 2009, the School Board approved Respondent's retirement. A true and correct copy of a letter from Shelby Baker, Personnel Records Specialist and Employer Notification of Employment Termination are attached as Exhibit E. Respondent initially submitted a letter of resignation pursuant to the DROP statute dated June 30, 2007. Based on request to extend DROP, Respondent submitted another letter of resignation dated June 30, 2010 pursuant to the DROP statute. Respondent received from FRS a Revised Notification of DROP Extension Benefits which is attached as Exhibit F. Attached is a true and correct copy of the FRS DROP Termination Notification as Exhibit G. Apart from the documents referred to herein, Respondent was issued no documents by the St. Lucie County School Board reflecting her employment status during the period of her DROP extension. The body of the January 12, 2007, email from Ms. Casteen to Mr. Valencia attached to the parties' Joint Stipulation of Facts as Exhibit A (1/12/07 Email) read as follows: I am approving the DROP extension for Lurana Hillard for 3 years from 7/1/07 to 6/30/10. If you need any further information, please feel free to contact me. The "Form" attached to the parties' Joint Stipulation of Facts as Exhibit B is a completed Department of Management Services, Division of Retirement (Division) form--Form DP-EXT (05/05) (DROP Extension Form)--signed in January 2007, by Ms. Hillard and by Mr. Valencia, as the Superintendent's "designee".5/ On this completed and signed DROP Extension Form (Executed Extension Form or Form), Ms. Hillard indicated that her "DROP begin date" was July 1, 2002; that her "DROP termination and resignation date" was June 30, 2007; and that she was "requesting to extend [her] DROP participation through 6/30/10 with the approval of [her] employer." The "Employer Certification" section of the Form contained the following statement made to the Division by Mr. Valencia, as the Superintendent's designee: This is to certify that the St. Lucie County School Board (agency name) has rescinded the resignation of the above named member whose position meets the definition of an instructional position. The agency has approved a new termination date of 6/30/10. This agency stipulates that this member is eligible to participate in the DROP beyond 60 months and the member will continue working in a regularly established position as a School Psychologist.[6/]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Lucie County issue a Final Order declining to award Ms. Hillard the relief requested in her Petition. S DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2012.
The Issue Whether the Superintendent of Hamilton County Schools recommended that the Respondent enter into a professional services contract with the Petitioner, Gene Starr?
Findings Of Fact Gene A. Starr has been continuously employed by the School Board of Hamilton County as an agriculture teacher since the 1985-1986 school year. On March 18, 1988, the principal of Hamilton County High School recommended to the Superintendent of the Respondent that the Respondent enter into a professional service contract with Mr. Starr. At a meeting of the Respondent held on April 12, 1988, the Superintendent made recommendations to the Respondent concerning reappointment of a number of employees. The Superintendent specifically recommended that Mr. Starr receive a professional service contract. A motion was made and seconded by members of the Respondent to accept the recommendations of the Superintendent. The following events took place, as reported in the minutes of the Respondent's April 12, 1988, meeting: At the Board's request, Mr. Lauer [the Superintendent] appeared to discuss the recommendation of Gene Starr. The consensus of the Board was that the agriculture program has not progressed as per expectations, and that Mr. Starr's coaching duties conflict with his duties as an agriculture teacher. It was the opinion of some members that there should be more emphasis on crop production and harvesting and on supervision of home projects. Following the discussion of the Superintendent's recommendation concerning Mr. Starr, the Superintendent "asked for and was granted permission to withdraw his recommendation on & Mr. Starr and to resubmit another recommendation on him at a subsequent meeting." The Superintendent then "amended his recommendation to omit Mr. Starr" and the motion to accept the Superintendent's recommendations was amended to reflect this change. The Respondent then approved the Superintendent's recommendations, as amended. The Respondent did not consider whether there was "good cause" to reject the Superintendent's recommendation concerning Mr. Starr. At a May 10, 1988, meeting of the Respondent the Superintendent recommended that Mr. Starr be reappointed to an instructional position for the 1988-1989 school year and that Mr. Starr serve in the instructional position for a fourth year on annual contract instead of being granted a professional services contract. The recommendation was withdrawn on advice of counsel for the Respondent. At a May 23, 1988, meeting of the Respondent Mr. Starr and the Respondent agreed that Mr. Starr would agree to a fourth year on annual contract, "subject to and without prejudice to a formal hearing on his right to a professional services contract." Mr. Starr was informed of this action in a letter dated May 31, 1988. Mr. Starr filed a Petition for a Formal Hearing challenging the Respondent's action with regard to the Superintendent's recommendation to the Respondent that Mr. Starr receive a professional services contract. In the Petition, Mr. Starr specifically requested the following relief: That the matter be assigned to the State of Florida Division of Administrative hearings [sic] for the assignment of a hearing officer. That a formal hearing be held on this particular petition pursuant to Sec. 120.57(1), Fla. Stat. as to Petitioner's entitlement to employment under a professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the recommendation of the Superintendent of Hamilton County Schools be accepted by the School Board of Hamilton County unless the School Board of Hamilton County concludes that there is good cause for rejecting the recommendation. DONE and ENTERED this 18th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4116 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-9. 3 10. 4-8 Statement of events which occurred at the formal hearing and some of the arguments advanced by the parties at the formal hearing. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 Donald K. Rudser, Esquire Post Office Drawer 151 Jasper, Florida 32052 Owen Hinton, Superintendent Hamilton County School Board Post Office Box 1059 Jasper, Florida 32052 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner is entitled to the relief requested in his Step Three salary grievance with Florida A&M University (FAMU).
Findings Of Fact In school year 2008-2009, Petitioner was a tenured professor at Stetson University College of Law (Stetson) in St. Petersburg. The FAMU College of Law, located in Orlando, was recruiting new faculty to improve its stature and academic standing. Besides Petitioner's academic stature as a tax and business law professor, the College of Law was then only provisionally accredited by the American Bar Association, and it sought an individual, such as Petitioner, who could help the College of Law achieve and retain full accreditation. Like other state universities, College of Law faculty members are either on a nine-month (academic calendar), ten- month, or 12-month (annual calendar) contract. A 12-month contract is justified when a faculty member has regular year- round teaching, research, and/or administrative duties. In late 2008, Petitioner was first contacted by the Dean of the College of Law, LeRoy Pernell, regarding a teaching position for the upcoming school year 2009-2010. By letter dated February 26, 2009, Dean Pernell informed Petitioner that he would recommend his appointment as a tenured, full professor under a nine-month contract at a salary of $177,000.00. See Pet'r Ex. 1. Had he returned to Stetson for the 2009-2010 academic year, Petitioner's base salary would have been $154,230.00, plus "benefit costs," including a summer teaching supplement and a tuition-matching program for his family, which totaled more than Dean Pernell's initial offer. See Pet'r Ex. 3. Accordingly, Petitioner rejected the offer and asked for a compensation package of around $200,000.00. Although Dean Pernell had no authority to establish a salary level, he agreed to recommend that Petitioner receive a salary of $180,000.00 for a nine-month faculty contract, rather than $177,000.00, and to "commit to providing a funded summer research grant to equal no less than $15,000 for summers 2010- 2012, assuming continuing availability of funding." See Pet'r Ex. 2. These proposed changes were handwritten on the initial offer letter previously tendered by Dean Pernell. Dean Pernell's offer letter required that Petitioner work 12 months -- nine months as a professor and three months in a research role. The new offer was memorialized by the Dean in a third version of the initial offer letter dated February 26, 2009. As the testimony at hearing confirmed, the final version of the letter simply incorporated Dean Pernell's handwritten changes found on the second version and reads in pertinent part as follows: This is to advise you that by a vote of the faculty and my full support, I am recommending that you be appointed to the faculty of the Florida A&M University College of Law as a professor. The formal letter of offer from the Senior Vice President and Provost of Florida A&M University is forthcoming. This recommendation is as a tenured Professor [of] Law. The recommendation is that this appointment be effective commencing with the 2009-2010 academic year and commencing with a salary of $180,000.00 for a 9 month contract. In addition, I will recommend that the College of Law commit to providing you a funded summer research grant equal to no less than $15,000.00 for the summers 2010-2012, assuming continued availability of funds. See also Jt. Ex. 9, p. 3. The authority to make formal employment and salary offers to faculty members lies with the Provost and Vice President for Academic Affairs, who at that time was Dr. Cynthia Hughes-Harris. See FAMU Reg. 1.021; Jt. Ex. 2. She was not required to accept the recommendation of Dean Pernell and could make an offer that fit within FAMU's administrative and budget considerations. Dean Pernell made this clear during his negotiations with Petitioner. On April 20, 2009, Provost Hughes-Harris informed Petitioner by letter that FAMU was offering him a full-time position with the College of Law. The letter stated in part as follows: I am pleased to offer you a 12 month, full- time position as a full Professor and also, Associate Dean for Research & Faculty Development in the College of Law. Your position as professor is with tenure, subject to the approval of the Board of Trustees. The Board of Trustees will meet regarding this matter no later than June 2009. The annual salary of $180,000 with a $20,000 stipend for administrative responsibilities will be paid on a bi-weekly rate of $7,662.83. The appointment period is for the fiscal year, which will begin on July 1, 2009 and end on June 30, 2010. Jt. Ex. 1. While Provost Hughes-Harris' offer essentially matched the compensation recommended by Dean Pernell, the terms of the offer deviated in two material respects. First, rather than a nine-month faculty contract, Petitioner was offered a 12-month faculty contract. Second, rather than a "summer research grant" to supplement his salary, he was offered a 12-month position as Associate Dean for Research & Faculty Development, which required that he perform administrative duties on a year-round basis. Because of administrative duties, his teaching responsibilities were limited to a "maximum of two courses per academic year while Associate Dean." Id. The bottom line here is that Petitioner was offered the same compensation recommended by Dean Pernell, but he now had year-round administrative duties. Petitioner voluntarily accepted the offer on April 28, 2009. See Jt. Ex. 1, p. 2. At hearing, Provost Hughes-Harris denied ever receiving a copy of any offer letter by Dean Pernell, except the initial offer letter of $177,000.00. However, Provost Hughes- Harris did not make employment and salary offers without conferring with the recommending dean, and she acknowledged that there "was certainly conversation" with Dean Pernell before the offer letter was tendered. While she could not recall any details regarding that conversation, she recalled that her offer letter was for a 12-month faculty contract, and there was no way to "blend" a nine-month teaching contract with a 12-month administrator contract. This is because a nine-month position and a 12-month position require separate contracts and cannot be combined. Each employment contract signed by Petitioner included the following conditions: This Employment Contract between Florida A&M University Board of Trustees (FAMU) and the Employee is subject to the Constitution and laws of the State of Florida as constitutionally permissible, and the regulations, policies and procedures of [the] U.S. and the Florida Board of Governors and FAMU as now existing or hereafter promulgated. * * * This Employment Contract supersedes any and all prior agreements, contracts, understandings, and communications between the Employee and FAMU, whether written or oral, expressed or implied, relating to the subject matter of this Employment Contract and is intended as a complete and final expression of the terms of the Employment Contract between FAMU and the Employee and shall not be changed or subject to change orally. Jt. Ex. 1, 4, 5, 6, and 7. Petitioner commenced employment with the College of Law in July 2009 and continued working as Associate Dean and a full Professor until the summer of 2015. During that period of time, he taught at least one class in the fall and spring semesters and performed administrative duties as Associate Dean on a year-round basis. By then, regular pay adjustments had increased his base salary for fiscal year July 1, 2015, through June 30, 2016, to $189,304.30, plus a supplement of $20,000.00 as Associate Dean. See Jt. Ex. 6. When Dean Pernell stepped down as Dean in the summer of 2015, by letter dated June 15, 2015, the new Provost and Vice President for Academic Affairs, Marcella David, appointed Petitioner Interim Dean while a search for a new Dean was undertaken. Besides the base salary and supplement he already received as Associate Dean, Petitioner was given an additional supplement of $10,000.00 for serving as Interim Dean, for a total supplement of $30,000.00. See Jt. Ex. 8. On June 26, 2015, Petitioner voluntarily signed the offer letter confirming his acceptance. Id. Provost David's letter informed Petitioner that "upon cessation of [his] appointment as Interim Dean of the College of Law and return to the position of Associate Dean," his salary would "be adjusted consistent with applicable FAMU Board of Trustee Regulations and Policies." Id. This obviously meant that once a new Dean was hired, and he reassumed the position of Associate Dean, he would no longer receive the extra $10,000.00 supplement. For the first time, the letter specifically advised Petitioner to be aware of Regulation 10.102 and Policy 2005-15. Id. Prior to that time, no reference to specific regulations or policies was made. However, each employment contract placed him on notice that all FAMU policies and regulations applied to employment contracts.1/ Regulation 10.102 and Policy 2005-15 govern pay actions when faculty members serving in an administrative position return to a faculty only position. This meant that if Petitioner resumed full-time teaching with no administrative duties, he would be subject to the terms of those provisions. Before signing the June 15, 2015, offer letter, Petitioner did not ask how the Regulation and Policy would affect his base salary if he returned to a full-time faculty position since more than likely he assumed he would again serve as Associate Dean and a tenured professor. Subsections (11) and (12) of Regulation 10.102 read as follows: When the assignment of Faculty serving in an administrative position such as Vice President, Dean, Director, or Department Chair is changed, the pay and appointment period shall be adjusted to reflect the new responsibilities. Pay adjustments shall be completed in accordance with the Board of Trustees Policy 2005-15 (Separation and Return of Senior Administrative and Academic Officers to Faculty), as now or hereafter amended. An employee's base salary shall be adjusted 81.8 percent when changing from a twelve-month appointment to a nine-month appointment. An employee's base salary shall be adjusted by 122.2 percent when changing from a nine-month appointment to a twelve-month appointment. Jt. Ex. 10, p. 2. Section IV., Policy 2005-15, "Salary upon Change in Assignment to a Faculty Position," describes three ways in which to calculate an employee's salary after being reassigned from an administrative to faculty position. It reads as follows: New Hire as Administrator If the employee was hired upon initial appointment as an administrator, his or her new salary will be the median salary of the employees within the same professorial rank and discipline. Tenured Faculty Prior to Becoming an Administrator. If the employee was previously a tenured faculty member prior to becoming an administrator, his or her new salary will be the salary held by the employee immediately prior to the time of the administrative appointment and any increases received by the faculty during the time of service as an administrator. These separate compensations will be noted in the appointment letter. Other Consideration Notwithstanding the provisions of IV.A. and IV.B., any agreed upon salary arrangement negotiated by the President or President's designee upon appointment as an administrator shall also be considered. Jt. Ex. 3, p. 2. On January 4, 2016, A. Felecia Epps was selected as the new Dean of the College of Law, with a start date of January 4, 2016. After assuming the position, Dean Epps restructured the College of Law leadership and its personnel. A determination was made that Petitioner would not continue in his role as Associate Dean and he would return to a full-time position as instructional faculty. Because Petitioner no longer had the position and responsibilities as Associate Dean, and would work only nine months each year as a professor, he was tendered a new contract on March 3, 2016, which adjusted his base salary downward from $189,304.00 to $148,306.00. See Jt. Ex. 5. This calculation was consistent with Regulation 10.102(12). The term of employment was from August 1, 2016, through May 5, 2017, with no special supplements or conditions. The new salary represented compensation based on a nine-month contract as a professor rather than a 12-month contract with dual duties. According to Provost David, who tendered the offer, this salary adjustment was in accord with section IV.A., Policy 2005-15, which governs salary changes for employees who are reassigned from an administrative position to a faculty position and were hired upon initial appointment as an administrator. She explained that Petitioner was initially hired by the College of Law as Associate Dean, and upon cessation of that appointment, section IV.A. provides that the employee's new salary "be the median salary of the employees within the same professorial rank and discipline." She further explained that the provision assumes the person being appointed as a new administrator is a faculty member, as it would not otherwise refer to the employee as having a professorial rank. This interpretation of the Policy is a reasonable one and not clearly erroneous. On March 7, 2016, Petitioner filed a grievance arguing that he was entitled to the same compensation ($180,000.00) agreed upon when he was initially hired as a professor in 2009, plus annual accruals. On March 18, 2016, Petitioner signed the contract under protest and subject to his grievance. See Jt. Ex. 5. The current median salary of faculty members in the College of Law is $148,306.00, which is the same as the adjusted salary first offered Petitioner in March 2016. Petitioner points out, however, that at least three current College of Law faculty members of similar experience and expertise, hired just before or after he was hired in 2009, were given nine-month employment contracts with a base salary of around $180,000.00. Ten days before the final hearing, Provost David tendered Petitioner another employment contract that increased his annual base salary from $148,306.00 to $154,850.92. See Jt. Ex. 4. The rationale for this increase was first outlined in Provost David's memorandum dated May 13, 2016, which denied Petitioner's Step Two grievance. See Jt. Ex. 9, p. 6. As further explained by Provost David at hearing, by "generously" interpreting section IV.C., Petitioner's appointment as Interim Dean could be treated "as a new appointment as an administrator with a base salary identified there on a 12-month basis of $189,000 and change, which allowed me to add approximately $6,000 to the median salary that was calculated under Paragraph A." Faculty members with a 12-month contract accrue both vacation and sick leave. A nine-month faculty member does not. Petitioner is aware of this distinction. After this dispute arose, Petitioner requested a pay-out of his unused accrued vacation leave and was given $31,912.32.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A&M University enter a final order denying Petitioner's Step Three grievance. DONE AND ENTERED this 3rd day of November, 2016, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2016.
The Issue Whether the Respondent, Lissa Nappier, committed the violations alleged in the Notice of Specific Charges and, if so, whether such allegations are just cause for termination of her employment with the School Board.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Lissa Nappier, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. The Respondent’s employment relationship with the Petitioner began in 1984 when she was retained as a temporary instructor. In 1988 she was hired as a permanent teacher and was assigned to Homestead Senior High School where she has continued service until the instant issues emerged. From 2004 until the time of her recommended termination, the Respondent was employed as the Student Activities Director at the school. Prior to the instant matter, the Respondent has had no disciplinary issues or actions. As a condition of her employment with the Petitioner, the Respondent is subject to the terms and conditions of a contract between the School Board and the United Teachers of Dade (UTD contract). Article XXIV of the UTD contract provides for credential payment to encourage employees of the School Board to pursue further studies and expertise in their respective fields. Such pursuit enhances the quality of education for students in the school district. At all times material to this case, the credential payment increase for a teacher with a doctorate degree was $7000. The effective date for the implementation of the credential payment is computed “after completion of eligibility requirements, as indicated on the transcript by the issuing university.” The UTD contract further provides that: Completion of eligibility requirements shall be defined as: (a)filing an official M- DCPS/UTD application for credential payment with the Office of Human Resources (receipt acknowledged and dated by M-DCPS); and (b) completion of course work/degree requirements prior to the date of the quarter for which payment is requested, as indicated by the date on the transcript, or other appropriate evidence provided by the university. M-DCPS shall notify all new employees of the availability of the credential payment programs and the procedures for making application. Under the heading “Eligibility,” the UTD contract also states: To qualify as graduate level, credit must have been earned after the applicant was granted the Bachelor’s degree and must be clearly identified as such. Pursuant to the UTD contract, Applicants whose applications are disapproved shall be notified that they may appeal the decision to the committee by resubmitting and supplying such additional and germane information and/or documentation as will be helpful in reaching a decision regarding the appeal. The decision of the committee is final and not grievable or arbitrable. On or about April 8, 2004, the Respondent submitted a note to the Petitioner’s Office of Compensation Administration that stated: Enclosed please find my official transcript for my Doctorate Program. Along with the transcript is a verification form. My employee number is 152174. Thank you for your attention in this matter, and with the necessary adjustments with payroll. Attached to the note described above, was a document purportedly from Rochville University. The Rochville document contained the words “Official Transcript” and purported to indicate that the Respondent had completed the noted courses. The document represented the Respondent had obtained a “Doctor of Arts (Major: Education).” Also attached to the note described in paragraph 11 was a form purportedly executed by the Rochville University Registrar and President that stated: This is to verify that Lissa A. Nappier has successfully completed the Doctor’s Program from Rochville University in the year 2004. In order to obtain the “Doctor of Arts” from Rochville University, the Petitioner submitted her transcripts from Brenau College, Nova Southeastern University, the requisite fees required by the school, and a summary of her 18 years of teaching experience to Rochville. Rochville University is an “on line” institution. The Respondent did not complete additional course work, did not write a thesis, and did not attempt to verify that Rochville University was an acceptable, accredited school prior to paying her fees for the degree and submitting the documents to the Petitioner for credential payment. It is unlikely that Rochville is an accredited university. Its academic claims are related to its status as an accredited “on line” institution. For approximately $600.00 the Respondent received a doctorate degree. After reviewing the Respondent’s documentation, the Petitioner denied the credential payment increase. The Respondent did not challenge or seek additional review of that denial. The matter was referred to the Petitioner’s Office of the Inspector General because the Respondent had “submitted a transcript to obtain credential payment for an advanced degree using a transcript from an unaccredited university.” None of the courses depicted on the Rochville University transcript that was appended to the Respondent’s note were actually for course work completed by the Respondent while attending (even online) Rochville classes. None of the hours for the courses depicted on the Rochville University transcript were earned while attending (even online) Rochville classes. The Respondent knew or should have known that a credible doctor of arts degree requires more than the submission of prior coursework, life experience, and the payment of fees. Moreover, the Respondent did not present evidence of any “life experience” that would entitle her to a doctor of arts degree from any accredited university. That Rochville University accepted the Respondent’s experience and prior academic work as sufficient to award a doctorate degree dishonors the hours of work that are, in reality, required of post-graduate students who obtain doctorate degrees from reputable institutions. Although technically truthful in Respondent's representation to the Petitioner, the Respondent’s request for credential payment was clearly not supported by credible academic achievement. The Respondent attempted to obtain credential payment using a non-creditable source. This was a tremendous lapse of good judgment. The Respondent, did not, however represent that Rochville University is an accredited university. She only represented that she had obtained a doctorate degree from that entity. Her lapse of judgment was in attempting to parlay her worthless degree into a credential payment increase. Her effort failed due to the attentive review of her request. At the time the Respondent was going through a divorce and needed additional income. The online approach to obtaining the doctorate degree appeared to be an easy, affordable alternative. The Respondent did not verify that Rochville University was accredited by any national accreditation source or that the university was acceptable to the School Board for purposes of obtaining a post-graduate degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the Respondent’s suspension without pay for the amount of time it deems appropriate, but returning the Respondent to full employment thereafter. S DONE AND ENTERED this 29th day of September, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Findings Of Fact 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 This case addresses the issues of whether the school board had good cause for rejecting the nominations of persons to fill administrative employment positions in the school system. Petitioner as superintendent had recommended the appointments. In particular, the superintendent asked the school board to employ the nominees for a period of three years. The school board rejected that recommendation in favor of a one year appointment because it did not wish to obligate itself to a three year contract period believing that such an arrangement would be imprudent given what it believed to be a troubled economic climate for the school system. It also did not wish to obligate a future superintendent to work with the nominees for three years being convinced that the present superintendent who made the nominations would not seek reelection. Additionally, this case concerns itself with the appropriate outcome beyond this point should good cause be shown for rejecting the nominations. See Section 230.23(5)(a), Florida Statutes.
Findings Of Fact On May 12, 1992, Petitioner, superintendent for the Union County Public School System nominated twelve employees for consideration for reemployment by the Respondent, School Board of Union County. Those nominees were and would be administrative employees. They were nominated for positions falling into two broad categories. The first category was that of professional administrative assistant to the superintendent in the positions of Deputy Superintendent, Assistant Superintendent for Finance, Assistant Superintendent for Instruction, Assistant Superintendent for Operations, Director of Student Services, Supervisor of Instruction and Director of Maintenance and Construction. The second category was that of Principals and Assistant Principals including the nomination of three principals and two assistant principals. Unlike the circumstance in previous years the superintendent recommended that the administrative employees be given a three year contract which would be subject to annual review and renewal as addressed in Section 231.36(1)(b), Florida Statutes. The contrast is that the superintendent has traditionally nominated administrative employees for annual contracts. The sole exception to his practice during the 24 years of service as superintendent in the previous 28 years was provision of a three year contract for Billy Foister in 1975 as a principal. In the history of the school system described at the final hearing there was only one other occasion in which three year contracts were provided to administrative personnel. This was in 1978 under the administration of Superintendent McGill when Mr. Foister and a Ms. Riherd received three year contracts. The recommendation for a three year contract for the administrative employees was unexpected. After discussion at its regular meeting of May 12, 1992 the school board tabled the nominations and requested its legal counsel to research the definition of "good cause" for rejecting the nominations found within Section 230.23(5)(a), Florida Statutes, before deciding its response to the nominations made by the superintendent. On May 21, 1992, a special meeting was held by the school board at which time it rejected the nominations for appointment made by the superintendent. The reasons for rejecting the nominations concern the unanimous belief by the school board members that the decision to obligate school funds for an expanded period related to the administrative employees was an inappropriate choice in difficult economic times. Moreover, the school board was of the unanimous opinion that it would be an unwise decision in a circumstance in which the school board believed that the superintendent would not seek reelection in 1992 and the three year contract would unduly hinder the next school superintendent in choosing administrative employees to serve his or her administration. In making its decision to reject the nominations the school board took no issue with the moral and professional standing of the nominees. Each nominee was offered as a candidate for the same duty functions as those nominees had previously performed in the school year 1991-92. In essence those functions would not change in the school years 1992-93, 1993-94 and 1994-95 under the nominations made by the superintendent. The school board was prepared to offer contracts to the nominees for the up coming school year 1992-93. As David Thomas Dose, the Director of Finance for the school system described, the school board has been able to meet the salary schedule for its employees in the school year 1991-92. Likewise, he believes that the school board will be able to meet the salary schedule for the school year 1992-93. That salary schedule for 1992-93 has been passed by the board. Dose does not believe that the budget which he has prepared for the school year 1992-93 is in any jeopardy concerning the ability to honor the obligations set out in that budget. However, the budget for the school year 1992-93 does not contain salary increases based upon a decision made by the school board on May 12, 1992. That decision was recommended by the superintendent on information provided by the Director of Finance. It is not to be unexpected that the Director of Finance had not met with the school board concerning the upcoming 1992-93 budget before it voted on the nominations. The budget was not due until mid-July, 1992. The Director of Finance would have made information available to the school board about the budget for 1992-93 had the school board requested such information in aid of its determination on the three year contract proposal by the superintendent for the administrative personnel described here. The school board did not seek the assistance of the director of finance in any manner in determining that it would be inappropriate to offer three year contracts for the administrative personnel given the uncertain economic environment. Nonetheless, the school board had reason to be concerned about the fiscal propriety of three year contracts for the administrative personnel. As the school board's chief negotiator on their collective bargaining team describes it, financial circumstances for the school board were "tight" coming into the school year 1992-93 and the financial situation for the school year 1993-94 was described as "not good", referring to the economic climate for the school system in Union County. Even the superintendent acknowledges that there is a "tightening up process". In particular the school year 1991-92 saw three state cutbacks in revenues resulting in a reduction of the budget for the Union County School System and the superintendent was and is aware of that fact. In view of the economic problems some employees who worked for the school system in 1991-92 were not reappointed for the school year 1992-93. The school board had in February, 1992 of the school year 1991-92 voted an annualized raise of 5% for non-instructional personnel. That raise was not retroactive such that the non-instructional personnel would have received the benefit of a 5% raise for the full school year 1991-92; however, the raise carries forward at a 5% rate for the upcoming school year 1992-93. The school board also appointed 15 teachers to professional service contracts in May, 1992, which is tantamount to a tenured or lifetime contractual arrangement. The school board had a $400,000 working surplus at the time the Director of Finance completed the draft budget for the upcoming school year 1992-93. Some adjustment to the benefit of the school board concerning fiscal policy occurred as a result of a mistake in the FTE count in the school year 1991-92 which will make more money available for the same number of students for the school year 1992-93. The Financial Director also made mention of the 6% increase in projected revenues for the state by the Estimating Conference in its most recent projection. The financial situation in the school years 1993-94 and 1994-95 is less clear than for the school year 1992-93. The revenue estimate for the school year 1993-94 will not be made until January, 1993, ergo the revenue estimate for the school year 1994-95 will not be made until January, 1994. The school board members and the Director of Finance are aware that other school systems throughout Florida have been less fortunate than Union County concerning fiscal matters and this influenced the school board in its thinking when rejecting the three year contract proposals by the superintendent. On balance there is sufficient certainty in the school year 1992-93 to support a contract with the 12 administrative employees in question. That certainty is lacking in the school years 1993-94 and 1994-95 concerning the fiscal position for the school system. Concerning the latter two years, although the school board has the right to transfer the administrative employees in the second and third year of the recommended contract period, the contract is subject to annual review and renewal based upon satisfactory performance by those employees, there is a commitment to reduce the budget without dismissing employees and there is the ability to abolish positions should the need arise, it is not unreasonable for the school board to avoid those complications by contracting on an annual basis with the administrative employees. This avoids the awkwardness in operating the school system in an potentially less favorable economic climate in the school years 1993-94 and 1994-95 where it might become necessary to affect employee transfers associated with administrative personnel in to other positions to honor the contracts with those administrative employee, other budget adjustments or the abolition of employment positions that were filled. This is as contrasted with the flexibility to make decisions going into the school years 1993-94 and 1994-95 concerning the appointment of administrative personnel. Such an arrangement for annual contract with administrative employees is in keeping with the traditions by the school system to contract with administrative employees on an annual basis, a system which the present superintendent has found acceptable until this occasion. The twelve administrative personnel are the close advisors to the superintendent in directing his or her administration. Consequently, there must be a comfortable working relationship with these persons. The present superintendent had recognized this necessity when he took office from former Superintendent McGill and requested the resignations of similar administrative personnel to allow him to put in place his own management team. Nonetheless the present superintendent is attempting to bind a possible successor to the present superintendent's choice in administrative personnel. This is done in a setting in which as many as seven candidates have sought the superintendent's position in the upcoming election for the year 1992. In that election the new superintendent comes into office in November, 1992. The present superintendent, concerning his own intentions to seek reelection has been at least elusive if not evasive in a setting in which his position on reelection is crucial to resolving the issue of the propriety of his three year recommendation for the contract term. He has led the board to believe that he is not seeking reelection. On occasion he has even told one board member that he would not seek reelection. In discussion at the May 12, 1992 school board meeting the present superintendent referred to the possibility of a new superintendent but did not discuss his candidacy. At that time he should have made clear that he intended to run for reelection if he expected to have his recommendation for a three year contract for administrative employees to have legitimacy. When asked the question at hearing whether he had made the decision to run or not the present superintendent responded: "You'll know on July 17." While it is true that a majority of board members are leaving their positions this year, they have the right to be concerned about the preservation of needed flexibility on the part of an incoming superintendent to choose his or her close administrative personnel, those positions at issue here. The present superintendent's equivocation concerning his intentions to run for reelection does not serve the legitimate interests of the school system on this subject. Nor does this unwillingness to confirm his position to seek reelection or decline that opportunity offer rationale support for his decision to break with his long standing policy to recommend annual contracts for administrative personnel. The present superintendent was no more compelling in his attempt to describe why the annual contract for administrative personnel had seemed advisable in the past but an unwise arrangement for the future. The present superintendent speaks of the need to treat the administrative personnel as professionals and to afford them job security and to remove them from the whims of political process. When questioned on the meaning of those reasons or explanations his responses were vague. He was unable to explain the inconsistency in having believed that the superintendent needed to have immediate control concerning the administrative personnel and use of an annual contract to maintain that power in carrying out his duties with the close assistance of the administrative personnel and the sudden commitment to a three year contract at a point in time when he might not be the superintendent by choice. When asked why he had not made this decision last year, why it was not important last year to have three year contracts for the administrative personnel he responded "maybe I should have, you know". Moreover, when asked the question had it only become more of a problem now that he might not be the superintendent, he stated "I don't have no idea". When asked why on the May 21, 1992, when the decision was being made about the three year contracts proposed that he did not advise the school board of a decision to remain as superintendent, the present superintendent acknowledged that he did not say anything on that occasion to allow the school board to know his position concerning his future involvement with the school system beyond the 1992 election. The present superintendent alluded to his perceived motivation of the school board in rejecting his contract period for the administrative personnel. He called the motivation political, having nothing to do with the budget or fiscal concerns. On the other hand, the superintendent explained that he was interested in rectifying his approaches in the past by giving multi-year contracts to administrative personnel as he should have done years ago and that he finds it important to have continuity in the system through the administrative personnel in a setting in which the superintendent may change and as many as four board members may change in the upcoming election. When questioned about the influence of such an arrangement on an incoming superintendent, that is a three year contract for administrative personnel, the present superintendent responded that the new superintendent should have appointment powers for those administrative personnel and that all the new superintendent would have to do was wait two years and get all the appointment powers that the new superintendent might need. This points out that the present superintendent would set aside a workable and flexible approach to the appointment of administrative personnel to annual contracts which he had fostered to his benefit as the serving superintendent in favor of restrictions on the control exercised by an incoming superintendent, an unreasonable legacy of patronage beyond the present superintendent's tenure. It is the present superintendent who seeks to restrict and hinder the orderly process in managing close subordinates to the superintendent, not the outgoing school board which by vying for a one year contract for administrative personnel protects an incoming superintendent from being hamstrung by administrative appointments that will exist for much of his or her term, without tangible benefit to the present board beyond the time which it will serve. Where the present superintendent testified about this belief that in the past administrative personnel were political pawns, he would now make them his political pawns by seeking to control the administrative appointments of an incoming superintendent for years following the election of that new superintendent. The present superintendent makes mention that the three year contract proposal benefits the present administrative personnel. It would. It might help recruitment. It might redress complaints by administrative personnel that the board does not appreciate them when it denies the three year recommendation. Those concerns are overshadowed by the need of an incoming superintendent to be able to choose administrative personnel that he or she would be comfortable with and not be bound by the decision of the present superintendent to deviate from his prior course of annual contract recommendations. Finally, the present superintendent says that if he does not have the authority and the power over his administrative employees to appoint them, then he can not control them. Nothing that he has said in his testimony nor revealed in this record leads to the conclusion that his control is any less effective in asking for a one year contract as opposed to a three year contract in a setting in which it is not clear whether he will seek reelection or be successful in that endeavor should he choose to stand for another term. If he runs and is successful he may on the next occasion of proposing a contract set out his preference for a three year contract beginning with the school year 1993-94. If he does not run or is unsuccessful in his candidacy it is no longer his responsibility nor right to decide the direction the school system shall follow. In the event that he is reelected the control which he may exert in the school year 1992-93 on an annual contract is no less effective than a three year contract for administrative personnel. Under the circumstances the board had good cause for rejecting a three year contract for administrative personnel as it might interfere with the authority and control exerted by an incoming superintendent in the school years 1993-94 and 1994-95.
Recommendation Upon consideration, it is, RECOMMENDED: That a Final Order be entered which rejects the superintendent's recommendation for a three year contract period for the twelve administrative employees while upholding their nomination and that the final order grant reasonable attorneys fees to the superintendent's counsel. DONE and ENTERED this 22nd day of July, 1992, 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed fact-finding of the parties. Petitioner's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 is rejected in any suggestion that the budget circumstance favors three year contract for the nominees, similarly Paragraph 11 is rejected. Paragraphs 12 and 13 are subordinate to facts found with the exception of the latter sentence of Paragraph 13 which is rejected. Paragraph 14 is subordinate to facts found. Paragraphs 15 and 16 are rejected. Paragraph 17 to the extent that it suggests unacceptable process in the decision to reject the three year contract period is rejected. Paragraph 18 is accepted as discussed in the Conclusions of Law. Respondent's Facts Paragraphs 1 through 18 are subordinate to facts found. Paragraph 19 is not necessary to the resolution of the dispute. Paragraph 20 for purposes of this case is not accepted as the basis for rejecting the three year contract period. Paragraphs 21 through 29 are subordinate to facts found. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive Tallahassee, FL 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2522 Blair Stone Pines Drive Post Office Box 1547 Tallahassee, FL 32302 Bobby Lex Kirby, Esquire Route 2 Box 219 Lake Butler, FL 32054 Regina Parrish, Chairperson Union County School Board 55 SW 6th Street Lake Butler, FL 32054
