The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes, and administrative rules or section 1012.795(1)(a),1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Richardson holds Florida Educator's Certificate 696450, covering the areas of Elementary Education and English for Speakers of Other Languages (ESOL), which is valid through June 30, 2019. At all pertinent times, Mr. Richardson was employed as a fourth and fifth-grade reading teacher at WHE. As Ms. Kristen Rodriguez later testified, during the 2012-2013 school year, she encountered several students who asked her to let them remain with her in the media center at WHE rather than return to their scheduled class with Mr. Richardson. Based upon their accounts of Mr. Richardson's behavior in the classroom, she took the students to the school office and asked them to talk to the principal. The Broward County School District (District) subsequently conducted an investigation. Student A.C. credibly testified at hearing that during the 2012-2013 school year, when she was a fourth-grade student in his class, Mr. Richardson would sometimes scream at students who were not behaving, but did not scream at the well-behaved students. She testified that on a loudness scale of 1 to 10, he was a "7," while she rated other teachers at "5." Student A.C.'s testimony was supplemented and explained by the written statements of other students in that class: Student G.R. wrote that Mr. Richardson screamed at him close to his face; Student H.T. wrote that Mr. Richardson would scream if he was mad; Student J.G. wrote that when Mr. Richardson yelled at some students, he put his face within inches of the students' faces; Student T.W. wrote that he would yell in students' faces; and Student M.D. wrote that Mr. Richardson would yell in students' faces from inches away. The evidence was clear and convincing that when students were misbehaving, Mr. Richardson would sometimes yell or scream at them, placing his face close to theirs. Student J.G. credibly testified that if a student "wouldn't do like the work or behaved bad, he [Mr. Richardson] would grab them by their shoulders and yell at them and shake them." Student J.G. went on to clarify, "I mean not that bad, but like to get ahold." Student J.G.'s testimony was supplemented and explained by the written statements of other students: Student G.R. reported that Mr. Richardson "grabbed this kid and shook him"; and Student A.C. wrote that Mr. Richardson would shake students who were being bad, writing that "[w]hen he shaked [sic] kids he would shake them by the shoulders, on a scale from 0 to 5 he would shake kids like about a 2." The Department of Education (DOE) was notified of the allegations against Mr. Richardson. On or about April 5, 2013, Mr. Richardson received notice from Chief Marian Lambeth that the Office of Professional Practices of DOE had opened a case for purposes of investigating Mr. Richardson's alleged inappropriate conduct; and, if founded, the allegations could lead to disciplinary action against Mr. Richardson's Florida Educator's Certificate. On April 18, 2013, Mr. Richardson's attorney sent written notice to Chief Lambeth informing the DOE of her representation of Mr. Richardson in their investigation and requesting a copy of their investigative report upon its completion. Mr. Richardson was copied on the correspondence. As documented by letter later sent to Mr. Richardson, the Professional Standards Committee of the Broward County Public Schools met on May 8, 2013, and determined that there was no probable cause to support a charge of battery. However, the letter stated, "[l]et this correspondence serve as reprimand that any future violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession will result in a recommendation for further disciplinary action up to and including termination."2/ Mr. Richardson successfully filed a grievance regarding the letter of reprimand imposed by the District. By letter dated March 26, 2014, Mr. Lerenzo Calhoun, employee and labor relations specialist of the District, advised the Broward Teachers Union, "[I]t has been determined that the written reprimand issued to the grievant be rescinded." On April 16, 2014, Mr. Richardson completed a "GC-10R Renewal Application Form rev 06/10 Legal Disclosure 1 - District Version" to initiate renewal of his Florida Educator Certificate, which was due to expire on June 30, 2014. Instructions on the bottom of the form direct the applicant to provide additional detailed information on a Legal Disclosure Supplement if any of the preceding 21 questions on the page are answered affirmatively. Mr. Richardson, having correctly answered "no" to 20 of these questions that deal with sealed records, criminal records, and license sanctions, but "yes" to the single question that asks if there is a "current investigative action" pending, turned to the supplementary page, "GC10R Application Form rev 06/10 Legal Disclosure 2 - District Version." Other than the applicant's name, however, the supplementary form solicited information about only three topics, each in its own section: "Sealed or Expunged Records"; "Criminal Offense Records"; and "Professional License or Certificate Sanctions." Mr. Richardson had no sealed or expunged records and so could not provide any supplementary information in response to the questions in that section. He had no criminal offense records and thus similarly could not provide responses to the questions in that section. He had no professional license or certificate sanctions and so could not answer those questions either. There were no questions pertaining to ongoing investigations. He logically left the supplementary page blank, and submitted the renewal application to the District's office, which was authorized to reissue the certificate. On the application, he made full disclosure of the pending investigation, complete with a handwritten notation indicating that there was no decision as of yet and including the investigation case number for easy reference (he volunteered this, for remarkably there is no question or blank space to include this information anywhere on the forms). The renewal application was reviewed on behalf of the District by Ms. Sheila Gipson, a certification specialist for the District. Ms. Gipson, dutifully implementing the policy reflected in the form's directions to complete the supplemental disclosure, refused to process the renewal application, deeming it incomplete. On April 23, 2014, Ms. Gipson sent an e-mail to Mr. Richardson illogically repeating the instruction on the form that if any question on page 4 was answered in the affirmative, that page 5 (the supplement) must be completed, and directed him to do so. If Mr. Richardson—eager to have his license renewed—was baffled by Ms. Gipson's e-mail and nonplussed at the impossible guidance it contained, his bewilderment might be excused. As previously noted, he had already provided complete details about the ongoing investigation to the District and could provide absolutely no information responsive to any of the supplemental questions. In any event, it is clear that strict enforcement of this "catch-22"3/ has the practical effect of preventing anyone under investigation but awaiting determination from completing an application at all. It is not clear if this structure results from accident or disingenuous design. Mr. Richardson testified that he telephoned Ms. Gipson and explained his dilemma. According to Mr. Richardson, Ms. Gipson concluded that he should not have said "yes" to the investigation question if no sanctions had been imposed, again explaining to him that any "yes" response meant that the application could not be processed without sanctions information. He testified that she directed him to change his answer on page 4 and resubmit the application so it could be considered complete. Mr. Richardson's testimony as to what Ms. Gipson told him was unrefuted. Ms. Gipson's instruction to Mr. Richardson did not make sense, any more than the form itself did. Mr. Richardson did as Ms. Gipson had instructed and filled out a second application form, which he dated April 26, 2014, indicating no "current investigative action pending" as he was told to do. He executed the Affidavit, which in bold print states: "Giving false information in order to obtain or renew a Florida Educator's Certificate is a criminal offense under Florida law. Anyone giving false information on this affidavit is subject to criminal prosecution, as well as disciplinary action by the Education Practices Commission."4/ On or about April 23, 2014, notice had been sent to both Mr. Richardson and his attorney that the DOE's preliminary investigation was completed and available for review. An Informal Conference was scheduled for May 22, 2014. Both Mr. Richardson and his attorney acknowledged receipt of the notice on April 28, 2014. After some delays, reflected in e-mail communications, Mr. Richardson hand-delivered the second application to Ms. Gipson, who received it on May 2, 2014. The Commissioner has failed to show that Mr. Richardson gave false information with the intent to deceive or defraud the District or DOE. Mr. Richardson's alternative explanation of his intent is plausible given the irrational structure of the application form and the fact that he had already fully disclosed the existence of the investigation to the District in the earlier application dated April 16, 2014. His insistence that his only intent was to break the bureaucratic logjam and allow his application to be considered complete, as the District's certification specialist, Ms. Gipson, advised him to do, is plausible. Mr. Richardson's testimony that Ms. Gipson advised him to fill out the second application as he did was not a new assertion: he had said so nearly two years prior to the hearing in his deposition. The Commissioner did not list Ms. Gipson as a witness, and she did not testify. Mr. Richardson's testimony regarding the April 26, 2014, application was unrefuted. The Commissioner failed to prove fraudulent intent. There was no competent evidence presented at hearing that Mr. Richardson ever used profanity in the classroom. Although there was considerable testimony at hearing about a clinic pass associated with an injury to Student N.M. on an occasion when Mr. Richardson's class was engaged in "indoor P.E.," it was not shown that Mr. Richardson in any way caused that injury, and he was not charged with doing so in the Administrative Complaint. There was no competent evidence that Mr. Richardson or any other person ever threw a book at Student N.M., as was charged. Mr. Richardson has been employed by the District for almost 21 years. He has never before had any discipline imposed against his license. He has taught successfully at Challenger Elementary School for almost five years after the 2012-2013 school year, without incident. Ms. Kalima Carson testified that she co-taught with Mr. Richardson. As she testified, he was a good classroom manager. Ms. Carson also credibly testified that he was a good teacher and that his students showed tremendous academic gains. As Ms. Diane Velasco-Ortiz credibly testified, Mr. Richardson was good at motivating his students, and he did well with students who faced challenges at home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Elijah Mark Richardson in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e); issuing him a letter of reprimand; and placing him on probation for a period of one employment year. DONE AND ENTERED this 16th day of April, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2018.
The Issue Whether the Respondents willfully violated Subsections 106.071(1), 106.143(4)(b), and 106.19(1)(c), Florida Statutes, (2003)1 as charged in Counts 5 through 12 of the Florida Elections Commission's Order of Probable Cause.
Findings Of Fact Respondents are Douglas Guetzloe (Guetzloe), an Orlando-based political consultant, and Guetzloe Communications Group Inc., d/b/a, Advantage Consultants, a Florida Corporation (GCG). Guetzloe is president and principal of the firm. Douglas M. Guetzloe has been a political consultant since 1984. GCG has, also, been in existence since 1984. Approximately ten to 20 percent of GCG's business is political consulting. Guetzloe and his wife own 100 percent of the stock in the company. Guetzloe works with all of the clients, and Guetzloe makes 100 percent of the decisions for the business. On or about May 28, 2004, the Commission entered an Order of Probable Cause, in two cases, charging Respondents with four counts of violating Subsection 106.071(1), Florida Statutes, for failing to include a proper disclaimer on an independent expenditure; three counts of violating Subsection 106.071(1), Florida Statutes, for failing to file independent expenditure reports; four violations of Subsection 106.143(4)(b), Florida Statutes, for failure to include a proper disclaimer on a political advertisement; and one count of violating Subsection 106.19(1)(c), Florida Statutes, for deliberately failing to report or falsely reporting information required by Chapter 106, Florida Statutes. Respondents denied the allegations and requested a formal hearing. Respondents were denied a formal hearing, but were granted an informal hearing. On December 3, 2004, after an informal hearing, the Commission entered a Final Order finding that Respondents committed the violations alleged in the twelve counts listed in the Order of Probable Cause and imposed a civil penalty of $12,000. Guetzloe appealed the Final Order to the Fifth District Court of Appeals. In its opinion in Guetzloe et. al. v. Florida Elections Commission, 927 So. 2d 942, (Fla. 5th DCA 2006) rev. den. Florida Elections Commission v. Guetzloe, 939 So. 2d 1058 (Fla. 2006), the Fifth District Court of Appeal found the following facts: In 2003, Guetzloe and GCG paid for political advertisements directed against Darlene Yordan ("Yordan"), a candidate for city commissioner in Daytona Beach. Each of the advertisements contained the words, "Paid political advertisement," and one contained the words, "Pd. Pol. Adv. Paid for personally by Doug Guetzloe, Chairman of Ax the Tax. Ax the Tax is an issues-only political committee and does not make political endorsements." Guetzloe, also, bought air time for two radio advertisements, which urged people to vote against Yordon. Both advertisements provided that they were paid for by "Douglas Guetzloe, Chairman of Ax the Tax," and one stated that Guetzloe had approved the advertisement. Guetzloe failed to provide a written statement informing the radio stations that advertisements had not been approved by any candidate. He also mailed a flyer that supported a number of candidates for public office, including the City Commission, which contained the words "Paid political advertisement, paid for by Doug Guetzloe, independent of any candidate or campaign." Guetzloe did not file an expenditure report with the Daytona Beach City Clerk, but did file a memorandum with the Clerk that listed expenditures of $4,476.80 for radio advertisements, printing, postage, and telephone calls. However, the actual expenditures totaled $9,790.84. Yordan filed multiple complaints claiming that Guetzloe and GCG violated numerous campaign finance laws. Following an investigation, the Commission found probable cause to conclude that Guetzloe and GCG violated section 106.071(1), Florida Statutes (2003) by failing to include disclaimer/disclosure language in the advertisements. Guetzloe requested a formal hearing, but the Commission denied the request after finding that he had failed to identify the facts in dispute. Instead, the Commission set an informal hearing and subsequently entered a final order finding that Guetzloe and GCG violated: Section 106.071(1) by failing to include the proper disclaimer on political advertisements paid for by independent expenditures; Section 106.071(1) by failing to timely file periodic reports of independent expenditures of $100 or more, on three separate occasions; Section 106.143(4)(b) by making independent expenditures for political advertisements submitted to radio stations for distribution and by failing to provide the station with a written statement that no candidate approved of the advertisements; and Section 106.19(1)(c) by writing a memorandum to the clerk reporting expenditures totaling $4,476.80 and by failing to file any report of the actual expenditures of $9,790.84. Id. at 943-944. In its opinion in Guetzloe, supra, the Fifth District Court of Appeal reversed the holding of Petitioner in its Final Order as to the disclaimer language required in Subsection 106.071(1), Florida Statutes. It held that the holdings of the Florida Supreme Court in Doe v. Mortham, 708 So. 2d 929 (Fla. 1998) and the U.S. Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) applied to this case. Doe struck the language in the prior version of Subsection 106.071(1), Florida Statutes, that required advertisements to display the name and address of the person who paid for the advertisements, save for the words "Paid political advertisement." It held that any provision, which required further identification of the person placing the advertisement was an unconstitutional infringement on free speech. Guetzloe, supra, at 944-45. The Fifth District declined to extend the holding in Doe to include the provisions of Subsection 106.143(4)(b), Florida Statutes. Guetzloe, supra at 945. This resulted in the dismissal of Counts 1 through 4 of the Orders of Probable Cause, which related to the required disclaimer language contained in the last sentence of paragraph one of the statute. When this matter was referred to DOAH, it proceeded on Counts 5 through 12 of the Orders of Probable Cause, specifically on the issue of "willfulness." Guetzloe is a very experienced political consultant. He has run for public office three times. In 1986, Guetzloe was a candidate for the Florida House of Representatives. In 1990, Guetzloe was a candidate for the Florida Senate from District 14. When Guetzloe qualified as a candidate for the Florida Senate in 1986 and 1990, he received a copy of Chapter 106, Florida Statutes. Guetzloe is also chairman and treasurer of Ax the Tax, a Florida-registered political committee. Ax the Tax first registered as a local political committee in 1982. It registered again in 1986 and it has been, more or less, active ever since. Guetzloe is the only officer of Ax the Tax, and Guetzloe makes 100 percent of the decisions for Ax the Tax. Guetzloe did not recall what was required to become a political committee at the time he re-registered Ax the Tax as a political committee in 1986. Guetzloe testified he probably checked with the Orange County Supervisor of Elections (SOE), where he filed his paperwork. Guetzloe re-registered Ax the Tax in 2002 with the Orange County SOE. He did not recall receiving any resource materials at that time. He does not recall whether he received a copy of Chapter 106, Florida Statutes, or whether he received a copy of the Handbook for Committees, although he may have last received the Candidate Handbook in 2002. Guetzloe received the Department of State Handbook for Committees (Handbook) through the years in connection with Ax the Tax. The Handbook contained information concerning independent expenditures. Guetzloe testified that when he received updates to the handbooks, from time to time, he possibly reviewed them. Guetzloe has never read through the statutes to familiarize himself with the requirements imposed upon candidates for public office or on committees. Guetzloe is aware that the election laws have changed dramatically through the years. Guetzloe has generally kept up with changes in the law relating to political disclaimers through notices sent by the Division of Elections. However, unless there was a notice specifically outlining changes, Guetzloe generally assumed that the law that had been in effect is still in effect. Guetzloe relies on receiving notice in the mail from the Division of Elections to determine if there were any changes to the election laws. Unless he receives such a notice, Guetzloe presumes that there are no changes. Guetzloe does not take affirmative steps on his own to determine if and how Florida's election laws may change from year to year. Over the years, Guetzloe did not contact any of the County SOE's, or local filing officers, to ask if there had been changes in the law, nor did he review the statutes for changes. However, if a question arose that he wanted answered, the Supervisor or the local filing officers would be Guetzloe's point of reference. He availed himself of those resources many times over the years. Guetzloe was involved in the 2003 City of Daytona Beach City Commission race. He made independent expenditures in excess of $100 in a Daytona Beach City Commission race in which Darlene Yordan was a candidate for re-election. Expenditures were paid for by withdrawing funds from GCG's bank account. Other than the City Clerk's Office, Guetzloe did not consult with anyone about these expenditures prior to making them. The decision of where and when to make expenditures was his alone. Guetzloe and GCG did not file an independent expenditure report with the Daytona Beach City Clerk, but did file a memorandum with the Clerk on October 24, 2003, that listed expenditures of $4,476.80. The actual expenditures totaled $9,780.84. Respondents were required to file independent expenditure reports, on forms available from the Division of Elections, with the Daytona Beach City Clerk on October 17, 31, 2003, and a final report was due on February 2, 2004. No report was filed. Guetzloe did not recall how he learned about independent expenditures in Florida. He does not recall whether he knew what an independent expenditure was before he became involved in the 2003 City of Daytona Beach, City Commission election. Guetzloe could not recall, specifically, what was allowed under the statute, only that he had to file a report, if more that $100 was spent for an independent expenditure. He believes he learned this information from the City Clerk's Office. Respondent sent a Fax Memo, on GCG letterhead, to the City Clerk of Daytona Beach, dated October 24, 2003, which stated in pertinent part: To: City Clerk of Daytona Beach From: Doug Guetzloe President Date: October 24, 2003 Subject: Independent expenditures for Daytona Beach Mayor and City Commission Please be advised that in accordance with Section 106.071 Florida Statutes that The Guetzloe Communications Group, Inc., d/b/a Advantage Consultants, 3101 Maguire Blvd., Suite 161, Orlando, Florida 32803 has made an independent expenditure on behalf of various candidates for Daytona Beach Mayor and City commission. These expenditures were made independent of the candidates and without their knowledge, consultation or approval of any candidate or candidate committee. All expenditures were made on or after October 3, 2003 and therefore will be disclosed on the next reporting period with your office. The Guetzloe Communication Group, Inc d/b/a Advantage Consultants has produced two (2) mailings that included printing and postage. In addition, radio advertising has been purchased to support and oppose candidates for Mayor and City Commission. * * * Please advise me if you need any additional information or require any additional forms to be completed. When questioned specifically about the language he used in the memo, Guetzloe opined that the language in the first paragraph of the Fax Memo was provided to him by the City Clerk's Office prior to his sending the Fax Memo to the Daytona Beach City Clerk's Office. Guetzloe did not recall why he used a specific statute number or what he relied upon to determine that he was not required to use some type of form for the statement. Guetzloe never reviewed or looked at the specific language of Section 106.071, Florida Statutes. He relied on the instructions that he stated were provided by the City Clerk's Office. As stated in his October 24, 2003, Fax Memo filed with the City Clerk, Guetzloe knew he made additional independent expenditures, which had not yet been reported. Respondent could not satisfactorily explain why he did not file additional report(s) disclosing expenditures made after submitting his October 24, 2003, Fax Memo other than the fact that he was waiting on the City Clerk's Office to tell him that he was required to do so. Jennifer L. Thomas is the City Clerk of Daytona Beach. Her responsibilities include running the City of Daytona Beach elections. More specifically, she qualifies persons running for office and is the person with whom a candidate would interact when running for public office. Thomas is also the person in the Clerk's Office that registers committees, answers questions about committees, and fields any question regarding independent expenditures from the public. Prior to January 11, 2007, Thomas had never met Guetzloe. Thomas denies having a conversation with Guetzloe during the 2003 election cycle. No one else in the clerk's Office could or would have answered an election-related question from Guetzloe during that time. Independent expenditure report forms were available through the City Clerk's Office and are also available through the Florida Division of Elections website. But for the Fax Memo, Thomas did not receive any type of expenditure or contribution report from Guetzloe during the 2003 election cycle. On or about October 2, 2003, Respondents made political expenditures for political advertisements submitted to several radio stations (four counts) for distribution and broadcast. Respondents failed to provide to radio stations or any of them, a written statement that no candidate approved of the advertisements, although the advertisements did identify Guetzloe personally as the person paying for the ad. Guetzloe claimed that he did not willfully fail to provide documents to radio stations stating that no candidate approved his radio spot advertisements. He did claim to have sent a fax memo to the stations, which contained the required language. However, this claim is not credible. Guetzloe made no efforts to read or study the Florida Election Code, specifically related to independent expenditures, campaign financing reporting or disclosure statements, at any time during the 2003 election cycle. It is a candidate's or committee's responsibility to educate themselves about the requirements of the law. Reminder cards or personal contacts from the SOE and/or the City Clerk's Office, regarding reports being due, are done as a service of the office. It is not a statutory or other legal requirement. It is Guetzloe's responsibility to prepare and submit the proper paper work as it is related to his independent expenditures. Guetzloe, also, failed to disclose information about independent expenditures he made through his company, GCG. Guetzloe failed to make any reasonable effort to comply with the election laws by submitting a proper report disclosing the expenditures or a follow up report, as required by law. The evidence is clear and convincing that Guetzloe's actions in this matter, in regard to his obligation to file independent expenditure reports properly, timely, and accurately, were "willful" as that term is defined by Section 106.37, Florida Statutes. Guetzloe showed reckless disregard in failing to comply with requirements of the law. Although, Respondent could give no credible explanation as to why he failed to provide the radio stations with a proper disclaimer statement, it is not clear and convincing that Guetzloe's failure to provide the radio statements with a written disclaimer was "willful." It appears to have been negligent. In determining the appropriate amount of civil penalty the Commission may impose, the following is considered: In case number FEC 93-66, the Commission imposed a civil penalty against Guetzloe in the amount of $3,000 for violations of Subsections 106.07(5), 106.19(1)(b), and 106.19(1)(c), Florida Statutes. On appeal, the First District Court of Appeal affirmed the Commission's Final Order. The Commission sought to enforce its Final Order in case number FEC 93-66 in Leon County Circuit Court. On September 3, 1996, the Leon County Circuit Court entered a Final Judgment against Mr. Guetzloe in the amount of $4,478.50. The Final Judgment has not been satisfied. Respondent has indicated that he does not intend to satisfy the judgment. Guetzloe estimates his 2004 salary from Guetzloe Communications, Inc., d/b/a, Advantage Consulting to be between $100,000 and $150,000. Guetzloe estimates his 2005 and 2006 annual salary to be in the $150,000 range. Guetzloe estimates the value of his home to be $575,000, and he has approximately $175,000 equity in the property. He has a small retirement fund. Guetzloe Communications pays Guetzloe's wife a $50,000 annual salary. Therefore, Respondent is capable of paying a civil penalty. Respondents provided no mitigating circumstance for their actions. Guetzloe's failure to file complete and accurate independent expenditure reports is severe. Florida's public policy, as reflected through its elections statutory scheme, is for complete financial disclosure of all finances in Florida elections. However, Guetzloe could not provide a credible explanation why he failed to include complete information regarding expenditures listed on his Fax Memo, or why he failed to file complete, accurate, and timely reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that: The Florida Elections Commission enter a final order finding as follows: Finding Respondents violated Subsection 106.071(1), Florida Statutes, on three occasions, for failing to file a timely periodic report of the independent expenditures of $100 or more (Counts 5, 6, and 7) and imposing a fine of $1,000 for each of the counts for a total of $3,000; Finding Respondents did not violate Subsection 106.143(4)(b), Florida Statutes, on four occasions, and dismissing Counts 8, 9, 10, and 11. 3 Finding Respondents violated Subsection 106.19(1)(c), Florida Statutes, for failing to file any report of their actual expenditures of $9,790.84 and imposing a $1,000 fine for this count. DONE AND ENTERED this 11th day of June, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2007.
The Issue Whether Respondent's performance as Principal at Lake Vista Elementary School was less than satisfactory so as to warrant his transfer to Kathleen Junior High School as Assistant Principal.
Findings Of Fact At all times relevant hereto, Ferris A. French (French or Respondent), was employed by the Polk County School Board as a Principal under a multi-year contract. He has been certified as a Principal. Multi-year contracts for administrative personnel first came into being in 1985. At that time, French was employed as Principal of Lake Alfred Elementary School through the school year 1984-85. For the school year 1985-86, Respondent was transferred to Principal of Lena Vista Elementary School, and he was given a multi-year (three years) contract for the school years 1985-86, 1986-87 and 1987-88. (Exhibit 2) During his last year at Lake Alfred Elementary, one of the teachers at the school complained to the Superintendent that Respondent had made unwanted sexual advances. Respondent was directed to report to the Superintendent's office to face the complaining teacher. Respondent adamantly denied the accusations, and requested an investigation by the Professional Practices Council. No further action was taken in this matter. Shortly thereafter, an opening appeared for Principal at Lena Vista Elementary School, and Respondent requested a transfer to Lena Vista because it was a larger school. In accordance with this request, Respondent was transferred to Lena Vista. Upon completion of the three-year, multi-year contract for the school year 1987-88, Respondent was recommended for a three year renewal of his multi- year contract to commence the school year 1988-89 (Exhibit 3). Due to administrative oversight this contract was not issued until October 31, 1989 (Exhibit 15). During the 1986-87 school year, Susan Kelly was hired as a part-time teacher's aide and part-time secretary at Lena Vista by Respondent. During the school year 1987-88, Lena Vista was authorized another full time secretary, and Susan Kelly was employed in this position. It became apparent that Respondent and Kelly were often gone from the school about the same time during the lunch period, and rumors of a romantic liaison between French and Kelly became rife. The superintendent's office received one or more anonymous telephone call alleging improper conduct on the part of Respondent and Kelly. Around the same time Respondent was having marital difficulties and separated from his wife. He then filed for divorce. Kelly also dissolved her marriage through divorce. At the direction of the superintendent, William Boykin, Deputy Superintendent, met with the Respondent to discuss the allegations of impropriety made in the anonymous calls, and Respondent denied the truth of the allegations. On another occasion, Bill Moore, an Area Superintendent in charge of the area which included Lena Vista, discussed the rumors with Respondent, who again denied any improprieties. Following their respective divorces, French and Kelly started dating. Because of the rumors, Kelly began looking for another job, and during the school year 1988-89 she left her position at Lena Vista and became employed in the private sector. This occurred shortly after Moore had discussed the problem with Respondent. Following Kelly's departure from Lena Vista, the rumors abated. Respondent and Kelly were subsequently married. None of the six witnesses testifying in these proceedings, who were at Lena Vista school while the rumors regarding Respondent and Kelly were rife, were ever questioned by personnel from the superintendent's office until shortly before this hearing. This would indicate little credence was given to the anonymous calls. During the school years 1986-87, 1987-88 and 1988-89, French received no evaluation less than meeting performance expectations, and on several sections in the evaluation he was rated as meeting above performance expectations. In June 1989, nearly a year after Kelly became employed elsewhere, Respondent was advised by Moore that he was being involuntarily transferred to another school with no change in his pay status during his multi-year contract. Respondent's letter dated June 8, 1989 (Exhibit 11) to the Superintendent requested he be advised to which position he was being transferred, where was the school located, what infractions by him warranted disciplinary action and when would he be given a hearing to challenge this decision. This letter was responded to by the School Board Attorney who advised Respondent that his private activities had invaded the workplace "to such an extent that you were perceived to have lost credibility and effectiveness as a leader of your assigned school"; that he was being appointed as Assistant Principal of Administration at Kathleen Junior High School commencing with the opening of the 1989-90 school year; that this was not intended to be a charge of misconduct nor a disciplinary action; and that, since there was no change in his salary, he was not entitled to a due process hearing to challenge this transfer. French subsequently requested a formal hearing which was denied by Petitioner. It was from this Final Order that French appealed to the Second District Court of Appeal, who ordered that French be granted a formal hearing to consider, intra alia, the length of French's Principal contract, his rate of pay for the duration of that contract, whether his demotion to Assistant Principal is merit based as required by School Board rules, and whether the transfer is consistent with the terms of French's multi-year contract as Principal. Donald Cox, Assistant Superintendent for Personnel, testified that Section 6Gx53-3.012 D of the School Board's Policy Manual had consistently been interpreted by the School Board to require for demotional transfers that the employee be subject to a change in job title and a reduction in pay. This section provides: D. Demotional Transfer: The reassignment of an employee to a position on a lower level of supervisory or administrative authority or rank, or from a position of supervisor or administrative rank to a position which has no supervisory or administrative authority. As a result of such demotion, the employee will ordinarily be subject to a change in job title or a reduc- tion in the rate of remuneration (or both). The School Board may demote an employee represented by the Association if the competency or adequacy of the work per- formance of the employee has, after evaluation, been rated as less than satisfactory by the Superintendent or any designee who has been properly certified and authorized to make such evaluations and ratings. The District Performance Management Program shall be used for the proper procedure in dealing with this section. To achieve the interpretation of the above-cited rule testified to by Cox, it is necessary to change the disjunctive "or" to the conjunctive "and" in Section D.1. and delete the parenthetical "or both". Respondent presented evidence, Exhibits 16 and 17, showing the additional cost to him resulting from the transfer from Lena Vista to Kathleen. Respondent also requested he be awarded attorney's fees for costs involving the filings of motions to compel discovery.
Recommendation It is recommended that a Final Order be entered finding no legal basis exists for Ferris French's demotion to Assistant Principal has been proved; and that Ferris French be reinstated as Principal of a Polk County School and issued a new multi-year contract beginning with the 1991-92 school year. ENTERED this 27th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX Treatment Accorded Petitioner's Proposed Findings: Petitioner's proposed findings of fact are generally accepted. 2. Last sentence rejected insofar as giving French specific instructions is concerned. (first) 4(a). Rejected that they were often gone to lunch for 2 hours, 3 times per week. (second) 4. Second sentence rejected as unsupported by credible evidence. (second) 4(e). First sentence rejected. (4). Rejected. 5. Second sentence rejected as supported by no evidence. Ultimate sentence accepted only insofar as anonymous telephone calls were received. Accepted, but no written evaluations as required by School Board policy were prepared. First sentence rejected as incomplete. Balance accepted insofar as not inconsistent with H.O. #21 and 22. Rejected insofar as this implies the duties of principal and assistant principal are similar. 13. Rejected as fact. Accepted as testimony of Cox. French's multi-year contract as principal would not be renewed upon its expiration absent this hearing. Respondent's proposed findings are generally accepted. COPIES FURNISHED: Donald H. Wilson, Esquire Post Office Box 1758 Bartow, FL 33838-1758 John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 C. A. Boswell, Jr., Esquire Polk County School Board Post Office Box 391 Bartow, FL 33830 Dr. John A. Stewart Superintendent Polk County School Board Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue Whether Respondent committed the acts alleged in the Amended Notice of Specific Charges and, if so, the discipline, that should be imposed against Respondent's employment.
Findings Of Fact The Parties / Introduction Petitioner is the entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent began her employment with the Miami-Dade County School District ("School District") on or about October 14, 1986. Starting in 2004 and at all times relevant to this proceeding, Respondent served as the School Board's Instructional Supervisor of Exceptional Student Education for Region II. The duties associated with Respondent's position are enumerated in a written job description, and include: (1) recommending policies for the development and improvement of educational and support services for students with specific learning disabilities; (2) analyzing and monitoring programs for compliance with local, state, and federal requirements; and (3) monitoring ESE programs in a variety of areas, such as gifted, physically impaired, and specific learning disabilities. The written job description also contains examples of Respondent's duties, and reads, in relevant part: EXAMPLE[S] OF DUTIES Responsible for the development, implementation and monitoring of the ESE program for students with disabilities. Provides technical assistance to the Regional Center and school sites regarding programs for students with disabilities. Compiles and analyzes [full-time equivalent] data to assist with this task and with the distribution of program sites for students with disabilities. Supervises, develops, and implements procedures for ensuring that information relevant to policy and compliance of local, federal, and state legislation/mandates on the education of students with disabilities is disseminated to school site district personnel. Develops and facilitates evaluations and audits of programs for students with disabilities. Attends individual education plan (IEP) team meetings, as needed, at region and district levels. Ensures compliance with the Individuals with Disabilities Education ACT (IDEA) and monitors compliance of programs for students with disabilities. Coordinates training for school personnel of the Student Progression Plain and Special Programs and Procedures for Exceptional Students with regards to grading, retention, promotion, graduation and programmatic needs of student in programs for students with disabilities. * * * Assists in monitoring activities, budgets, project expenditures and personnel for federal and state projects relating to students with disabilities. Collects student performance data for students with disabilities and assists personnel with the selection of supplementary research-based curriculum targeting student achievement. Although Petitioner concedes that Respondent has performed her assigned duties adequately, it contends that Respondent misused her position in order to obtain (or attempt to obtain) McKay Scholarship funds for her two children, S.N. and J.N. For the sake of clarity, the undersigned will begin with a description of the McKay Scholarship process, followed by separate discussions of the facts surrounding S.N. and J.N. The McKay Scholarship Program The John M. McKay Scholarships for Students with Disabilities Program, codified in section 1002.39, Florida Statutes, provides eligible disabled students——i.e., students for whom an individual education plan ("IEP") or accommodation plan has been written——with scholarships to attend a private school of choice, or, at the preference of the parent, a public school other than the one to which the student is assigned. In order for a disabled student to qualify for a McKay Scholarship for an upcoming school year, section 1002.39 requires, in pertinent part, that the student have spent "the prior school year in attendance at a Florida public school." § 1002.39(2)(a)2., Fla. Stat. Relevant to the instant proceeding, a student is considered to have attended a public school during the "prior school year" if the student was enrolled and reported by a school district "for funding during the preceding October and February Florida Education Program surveys" (the October and February "FTE survey weeks"). Id. To initiate participation in the McKay program, a parent must file an "intent to participate" with the Florida Department of Education (which is generally accomplished online at www.floridaschoolchoice.org) at least 60 days prior to the date of the first scholarship payment and while the disabled child is still attending public school. § 1002.39(9)(b), Fla. Stat. A parent who files an intent to participate online is required to input the student's name, date of birth, and other background information. Upon receipt of an intent to participate, the school district will verify that the student has an IEP in place and that the attendance requirements were satisfied——i.e., the student was enrolled in public school during the October and February survey weeks. In addition, within 30 days of receiving notification of the parent's intent, the school district must transmit the student's matrix level (a numerical score ranging from 251 to 255 that indicates the level of services necessitated by the student's disability) to the Department of Education. The Department of Education, within ten days of receipt of the student's matrix level, must inform the applicable private school of the amount of the scholarship. § 1002.39(5)(b)1.c., Fla. Stat. The amount of the scholarship is determined primarily by the matrix level (and to a lesser extent by the grade and geographic geographic location of the student), with a higher matrix score entitling the student to greater funding. Should a McKay scholarship student ultimately enroll in a private school, the Department of Education will provide documentation to the State's Chief Financial Officer, who will disburse the scholarship funds in four equal installments during the months of September, November, February, and April. § 1012.39(10)(e), Fla. Stat. The warrants, which are made payable to the parent, are sent directly to the private school. Thereafter, the parent is required to restrictively endorse the warrants to the private school for deposit by the school. Id. Events Concerning S.N. Private Schooling and Testing for ESE On or about July 23, 2004, Respondent and her husband enrolled their daughter, S.N.——who was about to begin sixth grade——at the American Heritage Academy ("American Heritage"), a private school located in Plantation, Florida. Thereafter, S.N. remained continuously enrolled at American Heritage until September 2009. On the initial enrollment contract, as well as each of the re-enrollment contracts executed in 2005, 2006, 2007, 2008, and 2009, S.N.'s current address was listed as "1854 Northwest 107 Terrace, Plantation, Florida." Although S.N. neither required nor received ESE services from the 2004-2005 through the 2007-2008 school years, Respondent began to take steps——starting in the spring of 2008——to have S.N.'s eligibility for such services evaluated through the Miami-Dade County School District. Specifically, in or around April 2008, Respondent requested that Dr. Garnett Reynolds, a speech and language expert employed with the School District and supervised by Respondent, perform a speech and language evaluation of S.N. Dr. Reynolds agreed and conducted the evaluation (which must be performed before a student can tested for ESE eligibility) the same month, which resulted in normal findings. Subsequently, during August 2008, Respondent approached Dr. Yolanda Sklar, a school psychologist assigned to Region II, where Respondent's office is located, and asked her to perform a psychological evaluation of S.N. Significantly, Respondent led Dr. Sklar to believe that: S.N. would be continuing her enrollment in private school; and that the evaluation would not be used for public school purposes——a falsehood, as revealed shortly. Dr. Sklar, who was surprised by the request, reluctantly agreed because she thought it possible that a lack of cooperation could adversely affect4/ her future performance evaluations.5/ The psychological evaluation of S.N., which Dr. Sklar performed at the North Regional Center at Respondent's direction, was completed on August 22, 2008. Due to Respondent's representation that the evaluation was not for public school purposes, Dr. Sklar employed a more "clinical model" than she otherwise would have. After examining the results of S.N.'s tests, Dr. Sklar determined that although no serious behavioral issues existed, S.N. suffered from a specific learning disability in processing speed. S.N.'s Enrollment at Krop On October 15, 2008, while S.N. was still enrolled at American Heritage, Respondent registered S.N. at Dr. Michael M. Krop High School ("Krop"), a school located in Region II (the region to which Respondent was assigned) of the Miami-Dade School District and where Respondent's husband previously served as principal. On that date, which was during the FTE survey period, Respondent appeared at the office of Krop's registrar, Grace Lopez, and announced that she wished to enroll S.N. immediately. Respondent further informed Ms. Lopez that Krop's principal at that time, Matthew Welker, approved of S.N.'s registration. During the registration process, Respondent represented, and Ms. Lopez accepted, "3530 Mystic Pointe Drive, Unit 3009, Miami, Florida," as S.N.'s current address——a location zoned for Krop,6/ in contrast to the Northwest 107 Terrace address in Plantation, which had been provided to American Heritage as S.N.'s residence from 2004 through 2008. Although Ms. Lopez ordinarily conducts address verifications for new students, Ms. Lopez did not do so in connection with S.N.'s address because she confirmed that the principal had authorized the registration. Had Ms. Lopez performed such a verification, she would have discovered no connection between S.N. or her parents with the Mystic Pointe Drive address. Indeed, the evidence adduced during the final hearing in this matter demonstrates that at no time has S.N. ever resided at 3530 Mystic Pointe Drive, Unit 3009, or any other unit at 3530 Mystic Pointe Drive. Further, there is no credible evidence that Respondent expected to relocate to Mystic Pointe Drive at some time in the future. Creation of IEP and Related Records On October 15, 2008, the first day of S.N.'s enrollment at Krop, a staffing was held to determine her eligibility for special education services under the Individuals with Disabilities Education Act ("IDEA"). At that time, approximately 49 other students in the school district's Region II——one of whom attended Krop——were waiting to be staffed. As a result of the staffing, which was conducted by Lisa Parker, an ESE placement specialist employed with the school district and a close personal friend of Respondent's, a determination was made that S.N. was eligible to receive ESE services under the IDEA. On the same day, October 15, 2008, Ms. Parker held an individual education plan ("IEP") meeting, during which an IEP (a written document that memorializes the student's educational programs, goals, and necessary services) and a "matrix of services" (a document utilized by the State of Florida for funding purposes that contains the student's matrix score) were drafted for S.N. Although Ms. Parker was not called as a witness during the final hearing, testimony was elicited from two of the IEP participants: Dr. Richard Rosen, a school psychologist; and Lawrence Davidson, a music and drama teacher at Krop. Mr. Davidson, who had never observed S.N. in a general education setting, provided no input whatsoever during the development of the October 15, 2008, IEP. Instead, and notwithstanding his status as the "regular education teacher" involved in the process, Mr. Davidson merely read the document at the request of Ms. Elissa Rubinowitz, the ESE specialist assigned to Krop, and signed it based upon his belief that the accommodations enumerated in the IEP could be implemented in a general education setting. The other IEP participant who testified during the final hearing, Dr. Richard Rosen, first learned of S.N.'s IEP on October 15, 2008, while picking up files at the Region II office. At that time, Respondent asked Dr. Rosen——who was assigned to several schools in Region II other than Krop——to come into her office and read the psychological report prepared by Dr. Sklar. Dr. Rosen agreed, and proceeded to review, in a cursory fashion, certain portions of Dr. Sklar's report (the test results in particular) in the presence of Respondent and Ms. Parker, the only other persons in the room. Ultimately, Dr. Rosen signed the IEP and concluded, based upon his incomplete review of Dr. Sklar's report, that S.N. possessed academic and information processing deficits. Dr. Rosen's overall participation in the IEP's creation lasted approximately five to fifteen minutes. As demonstrated during the final hearing, the creation of S.N.'s IEP was accompanied by a number of procedural deficiencies of which Respondent, in light of her expertise in the field of exceptional student education, must have been aware. First, interventions should have been attempted in S.N.'s general education classes prior to a decision being made regarding S.N.'s eligibility for ESE services and the formulation of an IEP. Further, even assuming that it was not premature to make an eligibility determination (and create an IEP) for S.N. in October 2008, the normal procedure contemplated that the staffing and IEP meeting be held on a date when the school psychologist assigned to Krop, Dr. Mark Finkelstein, was present on campus. In addition, Dr. Sklar, the school district psychologist who conducted the testing of S.N., was not invited to participate in the process and was therefore unaware of the October 15, 2008, staffing and IEP meeting. Finally, the undersigned accepts the final hearing testimony of Dr. Sue Buslinger-Clifford, a school district instructional supervisor for psychological services with considerable experience, who recounted that she has never witnessed——for any student——the successful development of an IEP in as short a period as S.N.'s was created. As with the process that led to its creation, the substance of the IEP suffered from a variety of deficiencies. First, Dr. Buslinger-Clifford, who was accepted as an expert in the field of ESE referral and assessment, credibly testified that pursuant to state standards, Dr. Sklar's psychological report did not establish S.N.'s need for ESE services. In particular, Dr. Sklar's test results did not reveal the required disparity of at least 1.5 standard deviations between S.N.'s ability and achievement.7/ As an additional deficiency, Dr. Edna Waxman, a school district instructional supervisor for special education compliance whom the undersigned accepted as an expert in her field, credibly testified that "daily" specialized instruction in English and math was unwarranted. Finally, the IEP failed to specify the duration in which the supplementary aids and related services——i.e., collaboration, consultations, and therapy——would be provided to S.N. The matrix of services for S.N., which Ms. Lisa Parker prepared on the same day as the IEP, also failed to comply with state standards. In particular, "Domain A" of the matrix, which describes the level of modifications to the curriculum and learning environment needed by the student, was scored for S.N. as "level four"——the second highest level, which contemplates "different curriculum and/or extensive modification to [the] learning environment"——based upon Ms. Parker's determination that S.N. required assistance for the "majority of learning activities." Such a scorning was flawed, as the "Matrix of Services Handbook" and Dr. Waxman's credible testimony demonstrate that for a student's Domain A to be scored at level four based upon the need for assistance for the "majority of learning activities," evidence must be present that the student requires a special class setting or assistance within a general education class for more than 50 percent of the school day. No such evidence was documented in S.N.'s IEP.8/ Withdrawal from Krop, Subsequent Reenrollment, and Modifications to ESE Documents As detailed above, S.N.'s matrix of services and IEP were completed on October 15, 2008, S.N.'s first day of enrollment at Krop. A mere eight days later, on October 23, 2008, Respondent withdrew S.N. from Krop. During her brief period of enrollment, S.N. was present at Krop on four days: October 16, 17, 21, and 23; and absent on two occasions: October 20 and 22. Although S.N. remained on Krop's campus on the days she was present for school, she rarely attended classes and instead chose, by her own admission, to frequent the cafeteria during all three lunch periods. Indeed, Mr. Davidson, the drama instructor who signed S.N.'s IEP as the "regular education teacher," does not recall S.N. being present for his class on any occasion during October 2008. On or about October 24, 2008, S.N. resumed classes at American Heritage, where she remained continuously enrolled during her brief stint at Krop. The registrar of American Heritage, Cecelia Dehlin, testified credibly that she was unaware of S.N.'s period of enrollment at Krop during October 2008, and that such dual registration is not knowingly permitted by her institution——i.e., American Heritage would have required S.N. to withdraw upon her enrollment at Krop. Subsequently, on February 5, 2009, while S.N. was still enrolled at American Heritage and just four days before the start of the FTE survey week, Respondent once again registered S.N at Krop.9/ On the very next school day, February 9, 2009, Ms. Parker revised S.N.'s IEP. Mr. Davidson, the only person involved in the process who testified during the final hearing, signed S.N.'s new IEP at the request of Krop's ESE specialist, Ms. Rubinowitz. In addition to the revised IEP, Ms. Parker created a new matrix of services for S.N. As with the previous matrix drafted in October 2008, the new matrix improperly scored S.N. at "level four" with respect to Domain A (curriculum and learning environment). In addition, Domain B, which measures the level of services necessary to address a student's social and/or emotional behavior, was scored at level four——one level greater than S.N.'s October 2008 matrix. This was improper, as Dr. Sklar testified credibly that the information contained in S.N.'s IEP did not indicate a need for "daily counseling or specific instruction on social or emotional behavior," the purported basis for Ms. Parker's level four scoring. Based upon the increase in S.N.'s Domain B from level three to level four, the overall matrix score increased from 252 to 253. Significantly, such an increase would entitle a McKay scholarship participant to a greater level of funding. During S.N.'s enrollment at Krop during February 2009, S.N. was present on February 9, 10, 11, 12, and 13——the five school days that constituted the FTE survey week——and absent on February 17, 18, and 19, three days in which S.N. was marked present at American Heritage. Events of February 20, 2009 As discussed previously, it is necessary for a parent, as part of the McKay scholarship process, to file an intent to participate in the program prior to the student's withdrawal from public school. On the morning of February 20, 2009, Ms. Rubinowitz, Krop's ESE specialist, appeared in the office of Krop's registrar and asked that S.N. be withdrawn. The registrar, Ms. Lopez, advised Ms. Rubinowitz that in the absence of a personal request from one of S.N.'s parents, no change in the child's registration status would be made. Later that morning, Ms. Rubinowitz again requested that Ms. Lopez withdraw S.N. from Krop. On this occasion, however, Ms. Rubinowitz stated that she was attempting to expedite the withdrawal of S.N. on Respondent's behalf and that Respondent was on her way to the school. Ms. Lopez acceded to the request and made the necessary changes in the school district computer system to withdraw S.N. from Krop. A short time later, Respondent arrived at Krop and insisted that S.N. be reenrolled immediately. As school registrars within the district are prohibited from making more than one enrollment change during a single day for a particular student, it was necessary for Ms. Lopez to telephone the district's attendance services office to complete S.N.'s re- registration. Roughly one hour later, Respondent once again appeared at Ms. Lopez' office and directed, in a sudden and unusual twist, that S.N. be withdrawn. Ms. Lopez thereafter contacted the district's attendance office and carried out Respondent's request. At approximately 12:30 p.m. on February 20, 2009, the same date S.N. was withdrawn from Krop, re-enrolled, and withdrawn for a final time, Respondent went online to flordashoolchoice.org and filed an intent for S.N. to participate in the McKay scholarship program.10/ Petitioner contends, and the undersigned agrees, that the only logical explanation for the unusual events of February 20, 2009, is that Ms. Rubinowitz withdrew S.N. prior to Respondent's submission of the online intent, which necessitated S.N.'s brief re-enrollment so that Respondent could file the intent in accordance with the McKay guidelines——i.e., before S.N.'s withdrawal from public school. These events, along with the fact that S.N. was not withdrawn from American Heritage until September 2009, confirm that S.N.'s enrollment at Krop was precipitated entirely by Respondent's desire to obtain a McKay Scholarship for her child, and not, as S.N.'s testimony suggests, by supposed misbehavior on S.N.'s part at American Heritage. Other Events / Investigation In or around April 2009, Ms. Karen Stearns, an employee of American Heritage whose duties include the oversight of McKay scholarships for eligible students, learned of Respondent's intent for S.N. to receive McKay Scholarship funds for the upcoming 2009-2010 school year. This confused Ms. Stearns, as she could not understand how S.N.——who, to the best of her knowledge, had not attended public school at any point during 2008 and 2009——could meet the McKay program's attendance requirements. Ms. Stearns raised these concerns with Respondent, who stated untruthfully that S.N. qualified for a McKay scholarship due to possible litigation against the school district for failing to provide S.N. with proper accommodations. Unsatisfied with Respondent's explanation, Ms. Stearns contacted an employee with the Florida Department of Education's office of individual education and parental choice and inquired about S.N.'s eligibility. In turn, the Department of Education contacted Ms. Judith Fain, who is employed in the division of special education with the Miami-Dade County School District. Using her computer, Ms. Fain looked up S.N. in the school district's Integrated Student Information System ("ISIS"). From the entries in ISIS, Ms. Fain confirmed that the prerequisites for McKay eligibility appeared to be satisfied: an IEP for S.N. had been completed and S.N. had been enrolled in public school during the October 2008 and February 2009 FTE survey weeks. Based upon the information provided by Ms. Fain in May 2009, the Department of Education notified American Heritage that S.N. was eligible to receive a McKay scholarship. Subsequently, on June 5, 2009, the school district received an anonymous complaint from an individual using the alias "Lincoln Brower." The complaint, which was sent by e- mail, alleged that S.N. did not meet the eligibility requirements for the McKay program and that Respondent had misused her position to commit fraud. On or around the date the anonymous complaint was submitted (but prior to Respondent learning of the allegations), Respondent contacted Ms. Dehlin at American Heritage and requested that S.N.'s outstanding tuition balance for the upcoming school year be reduced pursuant to the McKay scholarship. Ms. Dehlin complied, and modified Respondent's payment plan to reduce the tuition by $11,307, the McKay funding amount that American Heritage anticipated it would receive from the State of Florida during the 2009-2010 school year. Almost immediately thereafter, Respondent engaged in a pattern of behavior that is entirely consistent with——and has been interpreted as——an attempt to conceal wrongdoing on her part. First, on June 10, 2009, Respondent came to the American Heritage campus and directed Ms. Stearns to terminate S.N.'s participation in the McKay program, destroy the school's copy of S.N.'s IEP, and dispose of the McKay Scholarship Program affidavit that had been executed less than a week earlier. Although Ms. Stearns removed S.N. from the McKay program on the date of Respondent's request, Ms. Stearns retained possession of S.N.'s IEP and the McKay affidavit. Subsequently, on June 16, 2009, Respondent contacted Ms. Stearns to confirm that S.N. had been withdrawn from the McKay program. Ms. Sterns advised that S.N. had been withdrawn as Respondent requested. A few days later, Respondent called Ms. Stearns yet again and asked if S.N.'s McKay documents had been destroyed. Ms. Sterns admitted that the documents had not been destroyed pursuant to the instructions of Mr. Laurie (one of the school's administrators), at which point the call ended. Several minutes later, however, Respondent appeared at American Heritage and asked to speak with Mr. Laurie concerning the records. During the approximate period of time that Respondent withdrew S.N. from participation in the McKay program, Dr. Daniel Tosado (an assistant superintendent with the school district) and Mr. Freddie Woodson (the district's deputy superintendent for school operations) determined that an investigation should be initiated regarding the allegations raised in the anonymous complaint. To that end, Mr. Woodson forwarded the complaint to the school district's Office of the Inspector General ("OIG") and decided, after a discussion with Mr. Tosado, that S.N.'s cumulative file should be retrieved.11/ Contents of S.N.'s Cumulative File During the final hearing in this matter, a copy of S.N.'s cumulative file was received in evidence, the contents of which included: a Krop student enrollment form; Dr. Sklar's evaluation; the October 15, 2008, IEP and matrix of services; the February 9, 2009, IEP and matrix of services; a "notification of meeting," dated October 15, 2008, which listed Dr. Sklar as an invitee; a "notification of meeting" to review S.N.'s accommodations, dated February 9, 2009; a document titled, "Secondary CST Request for Evaluation (Documentation of Screening and Prereferral Activities," dated October 9, 2008; a speech and language evaluation report, dated October 15, 2008, which listed Dr. Garnett Reynolds as the examiner; and an observation form regarding S.N., dated October 2008, purportedly drafted by a math instructor named "Levine." As demonstrated through the credible testimony of various witnesses, at least four of the documents included in S.N.'s cumulative file are fraudulent in one or more respects. First, Dr. Sklar testified that she had no involvement with the October 9, 2008, "Secondary CST Request for Evaluation," and that her signature was forged on the document. Dr. Sklar further testified that contrary to the face of the October 15, 2008, "notification of meeting," she was not invited (and had no knowledge of) S.N.'s October IEP meeting. In addition, the undersigned accepts Dr. Reynolds' testimony that she did not draft or have any involvement with the October 15, 2008, speech and language evaluation report that bears her name as the "preparer." As detailed previously, Dr. Reynolds prepared a speech and language report for S.N. in April 2008, a copy of which is not contained in S.N.'s cumulative file. Finally, Ms. Samantha Levine, S.N.'s math teacher at American Heritage during 2008-2009, testified credibly that although she filled out an observation form for S.N. during 2008, the document contained in S.N.'s cumulative file that bears her name and "signature" as the observer is not genuine and overstates the severity of S.N.'s academic difficulties. In particular, the inauthentic observation form contained in S.N.'s cumulative folder indicates falsely that S.N. was "excessively" (the most severe rating of the five options pre-printed on the form, which range from "never" to "excessively") distractible, prone to daydreaming, reluctant to speak in group situations, and self-conscious. Further, and most significant, "Section X" of the fraudulent observation form contains a notation that a "significant disparity" exists between S.N.'s ability and achievement, which was neither observed by Ms. Levine nor marked on the observation form she actually completed. In its Proposed Recommended Order, Petitioner asserts, as it has throughout this proceeding, that the fraudulent items described above were created by Respondent or by another individual at Respondent's behest. Respondent, on the other hand, contends that that one or more unknown persons placed the inauthentic documents in the cumulative file in an attempt to "frame" her and bring her family into disgrace. Although there is no direct proof of Respondent's involvement, there is sufficient circumstantial evidence to demonstrate, by a preponderance of the evidence, that the documents were created at Respondent's direction or by Respondent herself. First, there is no doubt that Respondent was highly motivated——at least until June 2009, after the anonymous complaint was filed——to secure the approval of a McKay scholarship for S.N. Respondent was so motivated, in fact, that she was willing to lie to fellow school district employees to facilitate the process: Respondent provided a phony address to Krop's registrar to secure the registration of S.N. (which led to the creation of an IEP, a McKay program prerequisite, in record-setting time and with 49 other children waiting to be staffed) and falsely stated to Dr. Sklar that any evaluation of S.N. would be used only by American Heritage. Months later, when questioned about S.N.'s eligibility for the McKay scholarship by American Heritage's registrar, Respondent untruthfully stated that S.N. satisfied the attendance criteria as a result of litigation against the school district. Respondent is further incriminated by her repeated requests, after the submission of the anonymous complaint, to American Heritage's registrar to destroy the IEP and McKay affidavit, as well as her subsequent (and sudden) appearance at American Heritage upon learning that the items were still in the school's possession. Finally, the undersigned finds it significant that the fraudulent observation form bears the surname of one of S.N.'s teachers at American Heritage——a detail not likely at the ready disposal of individuals within the Miami-Dade County School District who may wish to harm Respondent.12/ Even assuming, arguendo, the evidence detailed above is insufficient by itself to establish Respondent's involvement in the creation of the fraudulent documents, Respondent's refusal during this proceeding to testify (or answer discovery requests) permits the undersigned to draw an adverse inference13/ against her. The circumstantial evidence, enhanced by the adverse inference, is more than sufficient to demonstrate Respondent's culpability in the creation of the inauthentic records. Events Concerning J.N. J.N.'s Disability / School Enrollment It is undisputed that Respondent's son, J.N., suffers from a birth defect that impairs the use of his right wrist. Consequently, J.N., who is right handed, finds it more difficult than most other students to write neatly during long assignments and "bubble in" Scantron forms. Beginning in the fall of 2002 through the completion of fifth grade in the summer of 2008, J.N. continuously attended Central Park Elementary School in the Broward County School District. From kindergarten through fourth grade, J.N. received neither ESE nor gifted services. During the summer of 2007, several months before J.N. was to begin fifth grade, Respondent contacted Dr. Kim Rubin, the principal of Virginia A. Boone Highland Oaks Elementary ("Highland Oaks") in the Miami-Dade County School District. During the conversation, Respondent advised Dr. Rubin that although J.N. would continue to attend school at Central Park Elementary in Broward County, she wished to temporarily enroll J.N. at Highland Oaks so he could be tested for gifted services——which, according to Respondent, could be accomplished more quickly in Miami-Dade County. Respondent also stated that J.N. needed an identification number in order for him to be evaluated for gifted eligibility by a Miami-Dade School District employee. Although Dr. Rubin was aware that the registration of J.N. would run afoul of school district protocol, she decided to permit the registration in order to preserve a "collegial relationship" with Respondent. Significantly, at no time did Respondent mention to Dr. Rubin that she also intended for J.N. to be tested for ESE services. Indeed, Dr. Rubin testified credibly that had she known Respondent planned to have an IEP created for J.N. related to a disability, she would have never authorized the creation of a student identification number. This is because, as Dr. Rubin explained, a student with a disability entitles the school where the child attends to a greater FTE funds disbursement, which carries significant financial implications for the school district. On or about June 21, 2007, J.N. was enrolled at Highland Oaks pursuant to Dr. Rubin's authorization. During the registration, Respondent provided the registrar with "3530 Mystic Pointe Drive Apartment 3009, Miami," as J.N.'s address. As noted previously, however, no connection existed between that address and Respondent's family. Indeed, J.N. admitted during his final hearing testimony that he has never resided at any location in Miami. Creation of IEP / McKay Scholarship Participation / Cumulative File Discrepancies On June 25, 2007, an IEP for J.N. was prepared by one or more Miami-Dade County school district employees, which reads, in relevant part, that he had been determined eligible for the "Other Health Impaired, Specific Learning Disabled, [and] Gifted" programs. On August 7, 2007, J.D. was withdrawn from Highland Oaks——where he never actually attended——and, shortly thereafter, began fifth grade at Central Park in Broward County. During J.N.'s fifth grade year, Central Park was provided with a copy of the Dade County IEP dated June 25, 2007. Ultimately, one or more employees of Central Park adopted the IEP and transposed the information contained therein onto Broward County forms. In early 2008, Respondent applied for, and was granted, a McKay Scholarship for J.N. in the amount of $7791. Those funds——a byproduct of the IEP developed in Miami-Dade—— were subsequently applied toward J.N.'s tuition at American Heritage Academy, where he attended school during the 2008-2009 academic year. As discussed previously, an investigation of Respondent ensued during June 2009 following the Miami-Dade County School District's receipt of the anonymous complaint. Pursuant to the investigation, Mr. David Ferrer, a school district employee who serves as a liaison to the court system, picked up J.N.'s cumulative file at Highland Oaks on September 1, 2009. Mr. Ferrer provided J.N.'s file to Ms. Maria Hernandez, an administrator who serves as the custodian of records at the district level. Ms. Hernandez testified credibly that she promptly locked J.N.'s cumulative folder in a location to which only she had access and that the file has remained undisturbed since that time. During the final hearing in this matter, the contents of J.N.'s cumulative file in Ms. Hernandez's custody were received in evidence. As with S.N.'s folder, several documents contained in J.N.'s file are fraudulent: an "observation of student behaviors" form, dated May 30, 2007, which bears the name "Webb" as the observer; and the June 25, 2007, IEP. With respect to the "observation of student behaviors" document, Ms. Nancy Webb, J.N.'s fourth grade teacher at Central Park during the 2006-2007 school year and the only faculty member with the surname "Webb", credibly testified that the form is not genuine and that she never filled out an observation document in connection with J.N. Further, the undersigned accepts Ms. Webb's testimony that J.N.'s true level of academic performance in mathematics is understated in the document——i.e., the inauthentic observation form reflects that J.N. was on grade level, when in fact he was above grade level. Turning to the June 25, 2007, IEP, only one Miami-Dade school district employee whose name appears on the document was called as a witness in this matter: Ms. Michelle Weiner, a curriculum supervisor. Ms. Weiner credibly testified that during the summer of 2007, she signed a document——possibly J.N.'s IEP——at Respondent's request, but did not look at what she was signing based on her faith in Respondent's professionalism. However, as Ms. Weiner was out of town on June 25, 2007, she further testified that her "signature" on the document might have been forged. Either way, Ms. Weiner was not present for the IEP meeting and had no input whatsoever during the process; as such, her name should not appear on the document as a participant. Although there is insufficient proof that Ms. Weiner's signature was forged on J.N.'s IEP, sufficient circumstantial evidence exists——e.g., Respondent's lie to Dr. Rubin about the purpose of J.N.'s registration at her school and Respondent's provision of a false address to the registrar——that the bogus observation form (bearing the name of a Broward County teacher of J.N.'s, a detail Miami-Dade employees would have no reason to know) was either drafted by Respondent or by another individual at her behest.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 16th day of May, 2012.
The Issue Should Petitioner's Application for Consumer's Certificate Of Exemption be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is an organization incorporated under the laws of the State of Florida. Petitioner applied for a Consumer's Certificate of Exemption with the Department of Revenue pursuant to Section 212.08(7), Florida statutes. The Department of Revenue is the agency charged with the responsibility of granting or denying a Consumer's Certificate of Exemption pursuant to Chapter 212.08(7), Florida Statutes. Petitioner has not been qualified as non-profit pursuant to Section 501(c)(3), Internal Revenue Code of 1986, as amended. Petitioner failed to establish facts to show that it is a "religious institution" as that term is defined in Section 212.08(7)(o)2.a., Florida Statutes. Petitioner failed to establish facts to show that it is a "charitable institution" as that term is defined in Section 212.08(7)(o)2.b., Florida Statutes. Petitioner failed to establish facts to show that it is a "educational institution" as that term is defined in Section 212.08(7)(o)2.d., Florida Statutes. All of the exhibits and testimony presented by Petitioner relate to JBS Incorporated, "Jackson Merit National and International Scholarship Fund Corporation, et. al. (A private Foundation and Corporation)," Elijah Jackson individually, or one of the other referenced entities none of which is the applicant or the Petitioner in this case. To the extent that the exhibits relate to Petitioner they indicate that Petitioner is "a/k/a Educational Festival of Polk County."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Revenue enter a final order denying Petitioner's application for a Consumer's Certificate of Exemption. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999. COPIES FURNISHED: Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Elijah Jackson, Jr. Qualified Representative Educational Incentive Program, Incorporated Post Office Box 29895 Lakeland, Florida 33804-2895 William B. Nickell, Esquire. Department of Revenue 501 South Calhoun Street, Suite 204 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Larry Zeigler, started working for the Quincy Telephone Company as a lineman in the cable maintenance section in 1976 or 1977. His duties include the installing of telephone cable, both buried and aerial. He worked on the job with Claude Butler, Cleveland Zeigler, and Melton W. (Toby) Bruce. These four men, with several others, made up the entire cable and construction section. Among the men in that section, Butler had the most seniority and as a result did most of the paperwork. The job assignments were banded out to the crews by the supervisor of the section and it was company practice that the senior individual was the one in charge and normally responsible for accomplishing the paperwork. Telephone installation at this Company is primarily divided into two major sections. Cable and construction (C&C) is responsible for the outside installation of cable and telephone lines up to a building. Installation and repair (I&R) is a separate department which deals with inside wiring and the actual connection of the telephone instruments. C&C is and was at the time in question supervised by Bruce Gaston. I&R was not. In early May, 1983, Petitioner was transferred for a period of time to I&R to help out though he was still assigned to C&C. Right after lunch on May 27, 1983, he was directed to go to see Bruce Gaston, his supervisor, who advised him that the company was being forced to lay off a number of employees and that he, petitioner, had been selected as one of those. Petitioner contends that neither Gaston nor any other company official ever gave him a reason for discharge other than the force reduction, but this is not so. He claims, however, Gaston did advise at that time that he was aware of petitioner's previous discrimination complaint and that petitioner should not file one this time. Petitioner was confused over these developments. When he was sent over to I&R to help out, he was told that he was the only one in C&C with the skills needed at I&R. If that were the case, he reasoned, why should he be laid off without warning. In addition, at one point during 1982, Petitioner had asked Gaston for a transfer to I&R but was refused at that time because, according to petitioner, Gaston said he was needed in C&C. Petitioner was one of three individuals from the C&C section who were laid off. The others were Horace Jenkins, who is black, and Toby Bruce, who is white. Several individuals from I&R were also laid off and in the interim since the layoff, at least one new employee has been hired. Petitioner is convinced that he could do the job either in C&C or in I&R which was filled by outside recruitment since he was laid off. When a new parent company took over the operation of the Quincy Telephone Company in early 1983, there was a meeting held for all company employees at which a senior management official advised the employees that no layoffs were anticipated. Petitioner denies having any serious trouble with his employment while working for the company. To be sure, there were some rough spots, however. He had some trouble working with Melvin Locke, a more senior employee. According to Petitioner, Locke was lazy and did not want to work, pushing his work off on the Petitioner. They had words and Petitioner brought the matter up with Mr. Gaston. The following day, Mr. Forshay talked with Petitioner about it and advised him to do whatever Locke directed. Though Petitioner did not consider this to be particularly fair, nonetheless, he did as he was told. According to Gaston, however, Petitioner was assigned to work with Locke for on-the-job training in maintenance. It appeared he was selective as to what orders he would follow, refusing to learn how to do maintenance in those areas that did not interest him. On another occasion, according to Petitioner, when he drove a company vehicle into the work lot, Forshay told him he was driving too fast. In doing so, he says, Forshay cursed him in front of outsiders. On still another occasion, he disagreed with the way Forshay handled one of his absences. In summary of Petitioner's position, he feels that he was discriminated against when discharged because: he was there longer than others who were not discharged; less experienced people were retained instead of him; he had several disputes with Mr. Forshay; and, he filed a prior discrimination complaint which he won and had to be rehired. In May, 1983, Gaston was advised by Mrs. Corbin, the general manager of the company, that there was going to be a reduction in force. He was instructed how to identify those to be retained and those to be discharged. The emphasis was to be placed on selecting the best people for retention - not the worst people for discharge. In other words, supervisors were to examine their people closely with a positive attitude to identify those with the best records and the best potential rather than looking for reasons to discharge those with lesser records or potential. He was advised that of the 9 technicians working for him he would be allowed to retain only 6. Using the criteria given him he selected the 6 he would be able to keep which resulted in Petitioner, Mr. H. Jenkins, and Toby Bruce being identified as those not to be retained. Gaston then discussed his selections with Mr. Forshay who in turn forwarded them to Mrs. Corbin with his concurrence. Mrs. Corbin made the ultimate selection and decision. In going over the personnel records of the people in his section, Gaston made a memo on each one which he subsequently placed in each employee's file. There were several significant factors on the memo about Mr. Zeigler which contributed to his being one of the lowest three rated individuals in the section. These were: He frequently missed work for reasons other than illness. Review of Petitioner's time records kept by Mr. Gaston showed that in 1980. Petitioner was late 6 times and absent 11 times. All absences referred to here are unexcused absences wherein the employee did not call in advance to let anyone know he would not be in. This required a readjustment of the work schedule made up in advance on the expectation of the employee's presence. In 1981, he was late 5 times and absent 4 days. Gaston considered this to be an abuse of time off and Petitioner's absentee and tardy rates were much higher than those of the other employees in the section. Other disciplinary problems: On October 5, 1981, Petitioner requested that his time sheet be falsified (that time taken off as personal time be reported as sick leave). Petitioner did not deny this which, according to the company personnel handbook is grounds for dismissal. Though Gaston recommended this, dismissal action was not taken because it appeared to be an isolated incident. Petitioner broke his arm and took time off to see the doctor with the understanding he would call to report when he would be back to work. He failed to call and could not be reached by phone because his service had been disconnected for nonpayment of the bill even though, as a company employee, he got local service free and a discount on toll service. At this point in time, the company required employees to have a phone so that they could be reached in an emergency. Petitioner knew this. Again, here, Gaston recommended disciplinary action and again none was taken even though this was the second time this had happened. Employee conflict with Mr. Locke referenced above. Petitioner's training scores in courses which, though not required, would be beneficial to him in the performance of his duties, were below standard. He was given the opportunity to take the same material on two separate occasions: once at a company school in Winter Park where his scores were unsatisfactory, and again, from a black instructor in Quincy where, again, his score was unsatisfactory. No other student failed to achieve a satisfactory score. Error rate. The reports for January through May, 1983 and after the force reduction, kept by Gaston on the basis of checks made at random with full knowledge of the employees, reveal that the three employees who were laid off from this section were weak with Petitioner having a very high error rate. After the lay off the remaining people doing the same amount of work as before, made fewer errors than while these three were still employed. Paperwork. From time to time, Petitioner was in charge of details which required the completion of paperwork. His paperwork was unsatisfactory. He would let other people on the job do the paperwork. In making the decision as to who was to be retained and who was to be released, seniority was not the key element. Performance and capability were more important and seniority was important only if it carried with it the experience and competence needed. On the basis of the above factors, Gaston felt, and it is clear that his judgment was accurate, that Petitioner's record, not considering his seniority, reflected limited potential and competence. Mr. Gaston did not want to lay off any employees, black or white, because he felt there was ample work to do to keep the entire work force occupied. The work has not let up since the lay off but has increased. Notwithstanding Petitioner's comments that he was not given a reason for his lay off, Mr. Gaston fully explained to each terminated employee why he was being laid off. Mr. Bruce indicates that Gaston told him that if he had his choice, Bruce would still be working. This is true. A similar comment was made to each of the three men being discharged and it had no racial connotation at all. Gaston did want to keep each employee if he could. Race has never been an issue in the department and he always felt race relations were good. Mr. Gaston discharged Petitioner because he was the weakest employee in the section. He was the employee with the least potential for being able to accomplish all the tasks anticipated after the cutback. There are some minor inconsistencies in the official records as reflected by the employee performance appraisal forms rendered on the Petitioner and the personal work records kept by Gaston in his department. They are such things as tardiness and absences and some of the factors relied upon by Gaston in his analysis of the employee which he testified to at the hearing do not specifically appear on the appraisal forms. Gaston justified not putting them there by contending that he felt that at the time the deficiencies were noted, the appropriate corrective action was taken and the matter would not have been raised again had it not been for the cutback. Use of these factors was appropriate in weighing Petitioner's future use to the company in a comparison against other employees. Mr. Gaston's evaluation of Petitioner appears to have been accurate as other employees with whom he worked, such as Evant Jenkins, indicating that when Petitioner was assigned to him for training for several weeks, Petitioner did well in those areas in which he had an interest, but completely failed to learn anything that did not interest him. Mr. Butler also worked with Petitioner frequently and felt that though Petitioner could do the work, there were times he was difficult to work with and insisted on doing things his own way. Petitioner's uncle, Cleveland Zeigler, knows Petitioner's work and rates him as an acceptable worker. He states, however, that the people hired since the lay off in 1983 are high quality people and the work standards and performance have improved since that time. Toby Bruce feels that both Petitioner and Jenkins were highly qualified, perhaps even more so than he. He also feels that the layoffs were not appropriately done in some case with the wrong people being let go. He feels that he was not treated fairly because he had a house mortgage on which to pay, two cars on which to pay, and a family to support and with that, he was let go without notice with only two weeks severance pay. His obvious bias makes his credibility questionable. Mrs. Corbin made her ultimate decision on who would be retained and who would not on the basis of the entire personnel record of each employee which she reviewed over the several weeks prior to the cutback. She contends she had no choice in implementing the layoffs - that though she fought against them, she was directed by higher headquarters to put them into effect. She is convinced that Petitioner is a good construction man but his performance reports showed that he needs training in maintenance and it is her confirmed opinion that he could not compete with those identified for retention. It was on this basis and not on race that the decision was made to let him go. Race has not been an issue with the company and in fact there is a very active and strong equal opportunity program in effect. Of the 11 people cut from the total work force, 6 were white and 5 were black. Even after the cutback, blacks still accounted for 32 percent of the staff of 65.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that the petitioner, Larry Zeigler's Petition for Relief be denied. RECOMMENDED in Tallahassee, Florida, this 29th day of March, 1985. ARNOLD H. POLLOCK 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 29th day of March, 1985. COPIES FURNISHED: Paul D. Srygley, Esquire 1030 East Lafayette Street Tallahassee, Florida 32301 Blutcher B. Lines, Esquire P.O. Box 5500 Quincy, Florida 32351 Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issues are whether Respondent violated Sections 489.129(1)(i), (l), (m) and (o); 489.119(2); 489.1195(1)(a); and 489.1425(1), Florida Statutes, for the reasons stated in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: Petitioner is the state agency responsible for regulating the practice of contracting in the State of Florida. At all times material hereto, Respondent was licensed as a certified general contractor in the state, pursuant to license number CG C008922. Respondent's license is currently inactive. Respondent has been a contractor for nearly 30 years, and has never been subject to disciplinary action against his license until this proceeding. Respondent was licensed as the licensed qualifying agent for ECE from January 1998 through February 2001, for a fee of $400.00 per month. As the qualifying agent, Respondent was responsible for all of ECE's contracting activities, in accordance with Section 489.1195(1)(a), Florida Statutes, which states: "All primary qualifying agents for a business organization are jointly and equally responsible for supervision of all operations of the business organization; for all field work at all sites; and for financial matters, both for the organization in general and for each specific job." Respondent did not obtain a certificate of authority for ECE. On November 16, 1998, ECE entered into a contract in the amount of $15,577.00 with Carl and Darlene Weinzierl to install aluminum siding at their residence in Terra Ceia, Florida. The contract specified that ECE would use Reynolds brand siding in the construction. ECE actually used an inferior grade of aluminum siding. The contract did not contain a notice explaining to the Weinzierls their rights under the Construction Industry Recovery Fund. Such notice is required by Section 489.1425, Florida Statutes. ECE represented to the Weinzierls that they would receive a mortgage to pay for the aluminum siding and to consolidate their other debts at an interest rate of 6.5 percent. The actual interest rate on the mortgage was 18 percent. On December 14, 1998, ECE commenced work on the Weinzierls' house. ECE never completed the work. On January 22, 1999, ECE filed a lien against the Weinzierls' property in the amount of $15,577.00. Respondent had no knowledge of the project on the Weinzierls' house, of the mortgage arrangement made by ECE, or of the lien filed by ECE against the Weinzierls' property. On November 5, 1998, ECE entered into a contract in the amount of $3,624.00 with Barbara Lewis to install soffit and fascia at her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lewis her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Lewis that she would receive financing to pay for the soffit and fascia at an interest rate of 11 percent. The actual interest rate of the financing was 18 percent. ECE performed the work on Ms. Lewis' house in one day. Respondent had no knowledge of the project at Ms. Lewis' house or of the financing arrangement made by ECE. On August 16, 1998, ECE entered into a contract in the amount of $13,250.00 with John Maxwell to install aluminum siding at his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Maxwell his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Mr. Maxwell's house on August 18, 1998, and completed the project on August 27, 1998. On August 31, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on Mr. Maxwell's property in the amount of $13,427.55 for the installation of aluminum siding. Mr. Maxwell had signed no documents to place a mortgage on his property, and received a satisfaction of mortgage on May 19, 1999. Respondent had no knowledge of the project to be completed at Mr. Maxwell's house or of the mortgage recorded by ECE. On October 10, 1998, ECE entered into a contract in the amount of $3,663.00 with Richard Lanois and Beverly Carroll to install soffit and fascia on their residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Lanois and Ms. Carroll their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the house on October 13, 1998, and completed the project on October 15, 1998. ECE recorded a financing statement to obtain a lien on the property of Mr. Lanois and Ms. Carroll with the Manatee County Circuit Court on October 22, 1998. Neither Mr. Lanois nor Ms. Carroll had signed the financing statement that ECE filed at the court. Respondent had no knowledge of the project at the residence of Mr. Lanois and Ms. Carroll, or of the financing statement filed by ECE to obtain a lien on their property. On December 2, 1998, ECE entered into a contract in the amount of $5,739.00 with Paul and Linda Porter to install Reynolds brand thermal double pane windows at their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Porters their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Porters' house on December 5, 1998, and completed the project on December 17, 1998. ECE installed BetterBilt brand windows rather than Reynolds windows, without the Porters' approval. On December 17, 1998, ECE recorded at the Manatee County Circuit Court a mortgage on the Porters residence in the amount of $5,775.80. The Porters had signed no documents to allow this mortgage to be placed on their property. Respondent had no knowledge of the project at the Porters' residence or of the mortgage recorded by ECE on the Porters' residence. On November 2, 1998, ECE entered into a contract in the amount of $6,426.00 with William C. Roach to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Roach his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at the Roach residence on November 2, 1998, and completed the project on November 3, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Roach's permission. ECE represented that Mr. Roach would receive financing to consolidate the cost of the windows, his mortgage, and his credit card debt. In fact, Mr. Roach received financing only for the cost of the windows. Respondent had no knowledge of the project at Mr. Roach's residence or of the financing arrangement that ECE entered into with Mr. Roach. On November 28, 1998, ECE entered into a contract in the amount of $3,635.90 with Carol Lipp to install Reynolds brand soffit and fascia on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Lipp her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Lipp's residence on November 30, 1998, and completed the project on December 7, 1998. ECE recorded a financing statement with the Manatee County Circuit Court in order to obtain a lien against Ms. Lipp's property. Ms. Lipp had not signed the financing statement. Respondent had no knowledge of the project at Ms. Lipp's residence or of the financing statement filed by ECE on Ms. Lipp's residence. On January 22, 1999, ECE entered into a contract in the amount of $13,504.00 with Shirley G. Bradley to install 11 Reynolds thermal double pane windows and to enclose the lanai and front entry of her residence in Englewood, Florida. The contract did not contain a notice explaining to Ms. Bradley her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work at Ms. Bradley's residence on January 25, 1999, and completed the project on February 9, 1999. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Bradley's permission. ECE represented to Ms. Bradley that she would receive financing for the project at an interest rate of 16 percent. In fact, ECE obtained a loan for Ms. Bradley at an interest rate of 21 percent. Respondent had no knowledge of the project to be completed at Ms. Bradley's residence or of the financing arrangement between ECE and Ms. Bradley. On October 13, 1998, ECE entered into a contract in the amount of $6,511.10 with George Haight to install Reynolds thermal double pane windows on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Haight his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE installed BetterBilt brand windows instead of Reynolds windows, without Mr. Haight's permission. Respondent had no knowledge of the project to be completed at Mr. Haight's residence. On December 7, 1998, ECE entered into a contract in the amount of $15,216.00 with Shirley Behen to install Reynolds thermal double pane windows on her residence in Bradenton, Florida. The contract did not contain a notice explaining to Ms. Behen her rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to Ms. Behen that she would receive financing for the windows that would also consolidate her roof payments and credit card debt. ECE provided none of the promised financing. ECE installed BetterBilt brand windows instead of Reynolds windows, without Ms. Behen's permission. On December 15, 1998, ECE recorded a mortgage on Ms. Behen's residence with the Manatee County Circuit Court in the amount of $10,713.95. Ms. Behen had not signed any document to secure a second mortgage on her property. Respondent had no knowledge of the project to be completed at Ms. Behen's residence or of the mortgage filed on her property by ECE. On November 17, 1998, ECE entered into a contract in the amount of $7,845.00 with Debby and Wally Keefe to install Reynolds thermal double pane windows on their residence in Bradenton, Florida. The contract did not contain a notice explaining to the Keefes their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE represented to the Keefes that they would receive a mortgage to pay for the windows and consolidate their credit card debt at a rate of 6.5 percent. In fact, ECE provided a mortgage with an actual interest rate of 18 percent. Respondent had no knowledge of the project to be completed at the Keefes' residence or of the mortgage arrangement between the Keefes and ECE. On September 29, 1998, ECE entered into a contract in the amount of $8,531.00 with Joe and Laura Poulin to install vinyl siding on their three duplexes in Bradenton, Florida. The contract did not contain a notice explaining to the Poulins their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE recorded a financing statement with the Manatee County Circuit Court, obtaining a lien against the Poulins' property. The Poulins did not sign the financing statement. Respondent had no knowledge of the project to be completed at the Poulins' residence or of the financing statement filed by ECE. In August 1998, ECE entered into a contract in the amount of $8,307.00 with Darwin and Joyce Wilson to install 17 Reynolds thermal double pane windows on their residence in Sarasota, Florida. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced the project on September 5, 1998, and completed the project on September 7, 1998. ECE installed BetterBilt brand windows instead of Reynolds windows, without the Wilsons' permission. Respondent had no knowledge of the project to be completed at the Wilsons' residence. Also in August 1998, ECE entered into another contract with the Wilsons, in the amount of $14,000.00, to install Reynolds vinyl siding on their residence. The contract did not contain a notice explaining to the Wilsons their rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE began installing the vinyl siding on October 15, 1998, and completed the project on November 15, 1998. ECE represented to the Wilsons that they would receive a new first mortgage that would include the price of the windows, the siding, their house payment, and their credit card debt. In fact, ECE provided no such mortgage. Respondent had no knowledge of the second project to be completed at the Wilsons' residence. On October 7, 1998, ECE entered into a contract in the amount of $5,171.00 with Derek Campagna to install vinyl siding and fascia on his residence in Bradenton, Florida. The contract did not contain a notice explaining to Mr. Campagna his rights under the Construction Industry Recovery Fund, as required by Section 489.1425, Florida Statutes. ECE commenced work on October 8, 1998, and completed the project on October 10, 1998. On or about January 5, 1999, ECE filed a lien against Mr. Campagna's property in the amount of $5,171.40. Respondent had no knowledge of the project to be completed on Mr. Campagna's residence or of the lien filed by ECE. The misrepresentation of the actual interest rate to be charged for financing the above projects was the commission of fraud or deceit in contracting by ECE and its representatives. The installation of BetterBilt windows in those houses the owners of which had contracted for Reynolds windows constituted the commission of fraud or deceit in contracting by ECE and its representatives. Respondent was unaware of ECE's fraudulent activities in the Bradenton/Sarasota area at the time they were occurring. Respondent believed that ECE did business exclusively in Indian River, St. Lucie, and Martin counties on the east coast of Florida. Respondent submitted the proper forms for the relevant permits and actively supervised ECE's construction work on the east coast of Florida. There was no evidence that ECE used Respondent's license to obtain permits for the projects it undertook in the Bradenton/Sarasota area. The evidence established that ECE pulled no permits at all for those projects. From all the evidence presented at the hearing, the inference may fairly be drawn that ECE purposely kept Respondent in the dark concerning its activities in the Bradenton/Sarasota area. Respondent first learned of ECE's activities in Bradenton/Sarasota through a telephone conversation with a friend, Peter Green. Mr. Green was a mortgage broker, and told Respondent that he was trying to secure financing for some of the ECE clients named above. Mr. Green told Respondent that some of these clients were very upset with ECE, and asked Respondent if he was aware of the problems. Respondent told Mr. Green that he was unaware ECE was doing any work on the west coast of Florida. Mr. Green gave Respondent the phone number of Darlene Weinzierl, one of the disgruntled ECE customers. Following her own bad experience with ECE, Ms. Weinzierl had undertaken an investigation of the company. She searched courthouse records for liens filed by ECE and contacted all the individuals whose names she found. Ms. Weinzierl heard "horror stories." A woman who could barely speak English told her that ECE had slapped siding over rotting woodwork, sent her a bill for $20,000, then filed a lien on her house. Another woman told Ms. Weinzierl that when she attempted to cancel her contract, the ECE salesman showed up at her door accompanied by a man ostentatiously wearing a gun in a shoulder holster. Other customers told Ms. Weinzierl that ECE had forged mortgages on their property. Ms. Weinzierl's hearsay testimony is unsupported by other competent substantial evidence and therefore cannot be relied on for the truth of the statements contained therein. However, it is undisputed that Ms. Weinzierl later conveyed this information to Respondent. Respondent telephoned Ms. Weinzierl on January 23, 1999. Ms. Weinzierl conveyed to Respondent everything she had learned about ECE. The next day, Respondent spoke with James Pizzo, Jr., one of the principals of ECE. Mr. Pizzo told Respondent that he had a very aggressive salesman who "had made a lot of promises to people," but that he was in the process of responding to the complaints and correcting the situation. Respondent asked Mr. Pizzo why ECE was doing business on the west coast of Florida. Mr. Pizzo replied that ECE's telemarketing effort had saturated the east coast, and he believed there was a fresh market on the west coast. Because he had worked with Mr. Pizzo for over a year and had a good working relationship with ECE, Respondent took at face value Mr. Pizzo's promise to correct the problems. Respondent took no action on his own, and continued to act as the qualifying agent for ECE. Respondent did not visit any of the west coast job sites or make any independent effort to contact ECE's victims. FDLE commenced a RICO investigation of ECE in the spring of 1999. Special Agent Charles Leonard, the FDLE investigator, first interviewed Respondent on May 10, 1999. Respondent was never a target of the investigation, and cooperated fully. Respondent did not sever his relationship with ECE until February 2001. By this time, 14 complaints had been filed against ECE by customers in the Bradenton/Sarasota area, and ECE had taken no action to address the situation beyond ceasing to do business in the area. In mitigation of his failure to take any action for two years after he became aware of ECE's fraudulent practices, Respondent pointed to the precarious state of his health. In January 2000, Respondent's car was stopped on I-95 when it was rear-ended by a truck traveling at 50 to 60 miles per hour. Respondent received a concussion and suffered excruciating headaches. His neurologist ordered an MRI and found a brain tumor. The tumor could not be removed entirely. Respondent is also a diabetic. Respondent continues to have headaches so severe that he requires trigger point injections of pain medication and epidural injections in his neck and upper spine every few months. He regularly takes Tylenol III with codeine. He requires an MRI every six months to monitor his brain tumor. Prior to his brain surgery, Respondent managed his diabetes through oral medication; however, since the surgery he has needed three injections of insulin daily. At the same time he severed his relationship with ECE, Respondent notified Petitioner that he was transferring his license to inactive status. Respondent no longer actively practices contracting. However, his current position as a construction project manager for the Broward County School Board requires that he hold at least an inactive general contractor's license. Respondent credibly testified that if he were to lose his current job, and the health insurance that goes with it, he could not pay his medical bills.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(l) and (m), Florida Statutes, suspending Respondent's license for three years from the date that Respondent re-activates his license, imposing an administrative fine in the amount of $3,000.00, and requiring Respondent to pay costs of Petitioner’s investigation. DONE AND ENTERED this 12th day of March, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 12th day of March, 2002. COPIES FURNISHED: Michael Martinez, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 E. Cole Fitzgerald, III, Esquire Fitzgerald, Hawkins, Mayans & Cook Post Office Box 3795 West Palm Beach, Florida 33401 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Petitioner's response to Respondent's RFP 90 PY is responsive so as to be eligible for an award of "Wagner-Peyser 10% funds."
Findings Of Fact Section 7(b)(2) of the Wagner-Peyser Act, 29 U.S.C. s. 49f. is a federal grant source which permits ten percent of the sums allotted by Congress to each state to be used to provide certain services and functions within the discretion of the governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida to have special needs as set forth in Subsection 7(b)(2) of the Wagner- Peyser Act. Petitioner Goal Employment is a private-for-profit Florida corporation engaged in the business of finding gainful employment for offenders, i.e., those persons who have been convicted of a crime but who are now out of prison seeking employment. On January 26, 1990, the Respondent, Division of Labor, Employment and Training (LET) of the Florida Department of Labor and Employment Security (LES), published a request for proposals (RFP) soliciting competitive sealed proposals for job placement programs in accordance with Section 287.057(3) F.S. and the federal grant source, commonly referred to as "Wagner-Peyser 10% funds." The response date and time for this 1990 RFP, a/k/a RFP 90 PY, was 3:00 p.m., March 23, 1990. Petitioner, Goal Employment, filed a timely proposal with Respondent, but the agency found Goal Employment's proposal to be nonresponsive and notified Petitioner of this determination in a letter dated April 4, 1990. That letter set out the grounds of the Respondent agency's determination as follows: This nonresponsiveness is due to failure to have proposed program activities that are legal and allowable, i.e., private for profit entities are not eligible to apply for Wagner-Peyser 7(b) funds. Petitioner had 72 hours from that notification in which to protest. It has been stipulated that Goal Employment's proposal would have been found responsive but for the exclusion of private-for-profit organizations from eligibility. By letter dated April 9, 1990, Petitioner gave written notice of receipt of notification of nonresponsiveness on Saturday, April 7, 1990 "around 10:00 a.m." and of its intent to file formal written protest. Date and time of Respondent's receipt of this letter of intent are not clear, but Respondent has not asserted lack of timeliness. Interim negotiations failed, and on April 17, 1990 Petitioner timely filed a formal written protest, which was "fast-tracked" at the Division of Administrative Hearings, pursuant to Section 120.53(5) F.S. In the immediate past, the Respondent agency had, indeed, permitted contracting with private-for-profit organizations, and Petitioner corporation had been a successful bidder in Respondent's 1988 and 1989 letting of similar contracts. Therefore, Petitioner's principal and president, Ernest S. Urassa, was thoroughly familiar with how these types of contracts had been bid in the past. Mr. Urassa's familiarity with the earlier agency bid policy and procedure was also the result of his prior employment by the agency. The RFP for 1989 did not prohibit private-for- profit organizations from participating. Goal Employment's contract pursuant to that prior RFP had not been completed as of the date of formal hearing, and at all times material to the 1990 RFP which is at issue in this proceeding, Mr. Urassa and Goal Employment coordinated the 1989 contract's compliance through an agency contract manager, Dan Faughn. On November 8, 1989, before the final draft of the 1990 RFP was finalized, Mr. Faughn informed Mr. Urassa by telephone that for the next program year, that is for the 1990 RFP, the agency would no longer permit private-for-profit company participation in Wagner-Peyser contracting. In response to January 11, 1990 oral inquiries from Mr. Urassa, the Chief of Respondent's Bureau of Job Training, Shelton Kemp, sent Mr. Urassa a January 16, 1990 letter as follows: The program year 1990 Request for Proposals prohibits private-for-profit companies from participating in Wagner-Peyser 7(b) contracting. The Wagner-Peyser Act, Section 7(b)(2), allows the governor of each state to provide, "...services for groups with special needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council, and chief elected official or officials or other public agencies or private nonprofit organizations,..." [Emphasis supplied] Those involved in the agency RFP process had reached the foregoing position after receiving advice from their General Counsel who, in turn, had relied on legal advice from the Governor's legal staff. Roy Chilcote, Labor Employment and Training Specialist Supervisor in Respondent's Contract Section, participated in the draft of the 1990 Project Year Request for Proposal (RFP 90 PY) which is at issue in these proceedings. Prior to drafting the 1990 RFP, Mr. Chilcote was unable to locate any written issue papers or legal opinions interpreting the following language contained in the Wagner-Peyser legislation: ...the Governor of each such State to provide-- (2) services for groups with specific needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council and chief elected officials or other public agencies or private nonprofit organizations; [Emphasis supplied] Up until that time, the issue of whether private-for-profit organizations could compete had not resulted in any specific opinion from legal personnel, however it is fair to say that lay personnel of the agency, including Mr. Urassa, who had previously been employed there, had based agency policy and earlier RFP requirements on lay interpretations either of the foregoing statutory language or of the Job Training Partnership Act's (JTPA) pre-amendment language, and that the lay interpretations had always permitted private-for- profit organizations to bid for Wagner-Peyser 10% funds just as they had competed for JTPA funds. Upon his own review of the statutory language, Mr. Chilcote, also a layman, did not share his predecessor's opinion, and he requested legal advice from the agency's General Counsel, and, in turn, received the legal interpretation that private-for-profit organizations were ineligible. Mr. Chilcote received this legal advice in the fall of 1989, and he accordingly drafted the 1990 RFP to preclude private-for-profit entities as bidders for Wagner-Peyser funds. The actual language contained in the 1990 RFP published January 26, 1990, as found on page 2 thereof, is as follows: All governmental agencies and nongovernmental organizations (both for profit and not for profit entities) may apply for funds under the JTPA Title I Program. All governmental agencies and not for profit nongovernmental organizations (private for profit entities are not eligible) may apply for funds under the Wagner-Peyser 7(b) program. Documen- tation supporting the legal structure of the proposer must be on file with the Bureau of Job Training before any contract resulting from a response to the RFP can be executed. [Original emphasis] Under the next major heading of the 1990 RFP (page 5 thereof), all potential bidders, including Petitioner, were advised: The Bureau of Job Training conducts a two step proposal review process. The first step is a technical review to determine if a proposal is responsive to the requirements of the RFP and the second step is a programmatic review of the relative merit of that proposal. The following is a description of the specific criteria that the Bureau will use to determine the responsiveness of a proposal. Each of the criteria listed must be satisfactorily addressed for a proposal to be determined responsive. A proposal determined nonresponsive will be given no further consideration. The proposer will be notified in writing of the nonresponsive determination and the reason(s) for the determination. No exception will be made to these requirements. Although the "specific criteria" listed thereafter do not make reference to the ineligibility of for-profit organizations, that contract specification was clearly noted and emphasized under the preceding heading. See, Finding of Fact 14, supra. Before publication of the 1990 RFP, Mr. Chilcote circulated the draft within the agency for comments. It was at this point, November 8, 1989, approximately 10 weeks before the 1990 RFP was published, that Mr. Faughn orally notified Mr. Urassa of its contents, that Mr. Faughn and Mr. Urassa began inquiries concerning the reinterpretation, and that Mr. Faughn and Mr. Urassa commented unfavorably on the new draft RFP because it precluded private-for- profit bidders. See, Finding of Fact 9, supra. The agency's position allowing Wagner-Peyser 7(b) funding for private- for-profit organizations prior to Program Year 1990 was based in part upon its earlier layman's understanding of the Congressional intent underlying the language of Section 7(b)(2). See, Findings of Fact 12-13, supra. In 1990, the agency altered its position so as to begin excluding for-profit organizations from eligibility for Wagner-Peyser money solely due to its reinterpretation of the statute by legal counsel. This reinterpretation was applied to prohibit the agency from contracting for the delivery of services with all private-for-profit organizations and has not been formally adopted as a rule pursuant to Section 120.54 F.S. Petitioner has been aware of this reinterpretation since November 8, 1989 (actual oral notice), was notified of it in writing on January 16, 1990 (Shelton Kemp's letter), and was again notified of it in writing on January 26, 1990 (1990 RFP publication). Petitioner did not file a formal rule challenge directly with the Division of Administrative Hearings. Prior to the March 3, 1990 bid/proposal deadline, the agency held three RFP workshops: February 20, 22, and 23, 1990. At no time during this process was Petitioner led to believe that private-for-profit entities were to compete for the 1990 RFP. Nonetheless, Petitioner, a private-for-profit entity, submitted its proposal timely before the March 23, 1990 bid closing and was rejected as nonresponsive. It thereafter proceeded solely with a bid protest. See, Findings of Fact 3, 4, and 5, supra.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Labor and Employment Security enter a final order ratifying its previous decision that the Respondent's 1990 bid/proposal is nonresponsive. DONE and ENTERED this 29th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2667BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-2, 15 Accepted. Accepted except for what is unnecessary. Accepted except for what is subordinate or cumulative. 5-6 Subordinate and cumulative. 7-10, 19 Accepted. 11-14, 16, 18 Rejected as mere legal argument. 17 Rejected as subordinate. Respondent's PFOF: 1-5 Rejected as mere legal argument. Accepted. COPIES FURNISHED: Thomas W. Brooks, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
