The Issue The issue presented is whether Petitioner should be awarded credit for his response to question numbered 30 of Part III of the October, 1989, certified general contractor examination.
Findings Of Fact Petitioner sat for the certified general contractor examination which was administered on October 21, 1989. After taking that examination, Petitioner had achieved passing scores on two of three parts of the certified general contractor examination. Petitioner was awarded a score of 69 on Part III of the examination, which is one point short of a passing score. Petitioner timely and properly challenged one question, question numbered 30, from Part III of the examination. If awarded credit for his answer to question numbered 30, Petitioner would achieve a passing score and be granted a certificate of licensure. Question numbered 30 is an objective (multiple choice) question pertaining to accounting, which asks the examinee to identify indirect costs from among four possible choices. The examination questions, including question numbered 30 on Part III, were developed by ACSI/NAI, a private organization under contract with the Department of Professional Regulation to develop the examination. ACSI/NAI originally keyed the grading of question numbered 30 so that answer "A" was the only correct response. After the examination was administered, ACSI/NAI determined that two additional answers, "B" and "C," were also correct and advised Respondent to award credit to candidates who chose answers "A," "B," or "C." ACSI/NAI advised that no credit should be awarded for answer "D" as this answer was incorrect. While taking Part III, which is an open book examination, Petitioner realized that choices "A," "B," and "C" were correct answers pursuant to page 94 of the approved reference book. Petitioner believed that only one answer could be correct for each question. Since he knew that three of the four answers were correct as the question was written, Petitioner decided that the question was incorrectly written, mentally deleted the word "not" which appeared in the question thereby making answer "D" the only correct response, and marked answer "D" on his answer sheet. Petitioner was awarded no credit as answer "D" to question numbered 30 as written is not correct. No candidates were awarded credit for choosing answer "D" on question numbered 30. Question numbered 30 is not ambiguous. It is clear in the response it is seeking. Although questions are not drafted to have more than one correct response, question numbered 30 did. Therefore, all examinees choosing one of the correct answers was given credit. Question numbered 30 is adequate for testing a candidate's knowledge in the subject area being tested. Examinees are graded solely according to the answers given on their answer sheets. No partial credit is awarded, and no credit is awarded for examinees' comments written either on official comment forms or in the examinee's test booklet. The Directions on the examination booklet instructed the examinees to mark only one answer per question. The Directions further advised the examinees in boldfaced type: "You will be graded only on the answers recorded on the answer sheet."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's challenge to question numbered 30 on the October, 1989, certified general contractor examination. DONE and ENTERED this 25th day of July, 1990, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990 APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1214 Petitioner's proposed findings of fact numbered 1, 2, 4- 7, 9-11, 14-16, 29-31, 37, 40, 41, 44, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 3, 8, 17, 26, 27, 34, 35, 45, 46, and 54 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 12, 13, 18-25, 28, 32, 33, 36, 38, 39, 42, 43, 47, 49, 50, and 52 have been rejected as being unnecessary for determination herein. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 3-14 have been adopted either verbatim or in substance in this Recommended Order. Copies furnished: Michael J. Kurzman, Esquire LEIBY AND ELDER Penthouse 2 290 Northwest 165 Street Miami, Florida 33169 Robert G. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The primary issue is whether the process used by the Department of Education (Department) for evaluating and ranking the proposals submitted in response to Request For Proposal (RFP) 99-03 for the Florida Comprehensive Assessment Test (FCAT) administration contract was contrary to the provisions of the RFP in a way that was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The RFP for the FCAT describes a five stage process for evaluating proposals. In Stage I, the Department’s Purchasing Office determined whether a proposal contained certain mandatory documents and statements and was sufficiently responsive to the requirements of the RFP to permit a complete evaluation. Stage II involved the Department’s evaluation of a bidder’s corporate qualifications to determine whether the bidder has the experience and capability to do the type of work that will be required in administering the FCAT. Stage III was the Department’s evaluation of a bidder’s management plan and production proposal. In Stage IV, the Department evaluated a bidder’s cost proposal. Stage V involved the ranking of proposals based on points awarded in Stages II-IV. If a proposal did not meet the requirements at any one stage of the evaluation process, it was not to be evaluated in the following stage. Instead, it was to be disqualified from further consideration. Stages II and III of the evaluation process were conducted by an evaluation team comprised of six Department employees: Dr. Debby Houston, Ms. Lynn Joszefczyk, Dr. Peggy Stillwell, Dr. Cornelia Orr, Dr. Laura Melvin, and Ms. Karen Bennett. Dr. Thomas Fisher, head of the Department’s Assessment and Evaluation Services Section, and Dr. Mark Heidorn, Administrator for K-12 Assessment Programs within the Department’s Assessment and Evaluation Services Section, served as non-voting co-chairs of the evaluation team. The focus of this proceeding is Stage II of the evaluation process addressing a bidder’s corporate qualifications. RFP Provisions Regarding Corporate Qualification The FCAT administration contractor will be required to administer tests to approximately one and a half million students each year in a variety of subject areas at numerous grade levels. The FCAT program involves a complex set of interrelated work activities requiring specialized human resources, technological systems and procedures. The FCAT must be implemented annually within limited time periods. The FCAT administration contractor must meet critical deadlines for the delivery of test materials to school districts and the delivery of student scores prior to the end of the school year. In developing the RFP, the Department deliberately established a set of minimum requirements for corporate qualifications that a bidder was to demonstrate in order for its proposal to be eligible for further evaluation. The purpose of the RFP’s minimum corporate qualifications requirements was to limit bidding to qualified vendors who have demonstrated prior experience in successfully administering large-scale assessment projects like the FCAT, thereby providing the Department with some degree of assurance that the winning bidder could successfully administer the FCAT. The instructions to bidders regarding the minimum requirements for corporate qualifications are contained in RFP Section 10, which gives directions on proposal preparation. Section 10.1, which lists certain mandatory documents and statements to be included in the bidder’s proposal, requires that a transmittal letter contain "[a] statement certifying that the bidder has met the minimum corporate qualifications as specified in the RFP." These "minimum corporate qualifications" are set forth in RFP Appendix J. RFP Section 10.2 identifies what a bidder is required to include in its proposal with respect to corporate qualifications. The first paragraph of Section 10.2 directs a bidder generally to describe its qualifications and experience performing tasks similar to those that it would perform in administering the FCAT, in order to demonstrate that the bidder is qualified where it states: Part II of a bidder’s proposal shall be entitled Corporate Qualifications. It shall provide a description of the bidder’s qualifications and prior experience in performing tasks similar to those required in this RFP. The discussion shall include a description of the bidder’s background and relevant experience that qualifies it to provide the products and services required by the RFP. RFP Section 10.2, however, is not limited to a directive that qualifications and past experience be described generally. Instead, Section 10.2, also communicates, in plain and unambiguous terms, that there are specific minimum corporate qualifications a bidder must demonstrate: The minimum expectations for corporate qualifications and experience are shown in Appendix J. There are two separate sets of factors, one set of eight for the developmental contractor and another set of nine for the administration contractor. Bidders must demonstrate their Corporate Qualifications in terms of the factors that are applicable to the activities for which a bid is being submitted -- development or administration. For each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects. (Emphasis added.) Moreover, Section 10.2 singles out for emphasis, in relation to the administration component of the RFP, the importance placed on a bidder’s ability to demonstrate experience processing a large volume of tests: The [bidder’s prior completed] projects must have included work tasks similar to those described herein, particularly in test development or processing a comparable number of tests. The bidder will provide a description of the contracted services; the contract period; and the name, address, and telephone number of a contact person for each of the contracting agencies. This description shall (1) document how long the organization has been providing similar services; (2) provide details of the bidder’s experience relevant to the services required by this RFP; and (3) describe the bidder’s other testing projects, products, and services that are similar to those required by this RFP. (Emphasis added.) The Department thus made clear its concern that bidders demonstrate experience with large-scale projects. RFP Appendix J sets forth nine different criteria (C1 through C9) for the administration contractor. As stated in RFP Section 10.2, "[f]or each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects . . . ." (emphasis added). Appendix J contains a chart which lists for each criterion: (1) a summary of the related FCAT work task, (2) the detailed criteria for the bidder’s experience related to that work task, and (3) the necessary documentation a bidder must provide. Criterion C4 and Criterion C6 include work tasks that involve the use of image-based scoring technology. C4 and C6 are the only corporate qualifications criteria at issue in this proceeding. RFP Provisions Involving Corporate Qualifications for Image-Based Scoring "Handscoring" is the test administration activity in which open-ended or performance-based student responses are assessed. This practice involves a person reading something the student has written as part of the test, as distinguished from machine scoring multiple choice responses (i.e., the filled-in "bubbles" on an answer sheet). There are two types of handscoring: (1) paper-based handscoring, and (2) image-based handscoring. Paper-based handscoring requires that a student response paper be sent to a reader, who then reviews the student’s response as written on the paper and enters a score on a separate score sheet. Image-based handscoring involves a scanned image of the student’s response being transmitted to a reader electronically. The student’s response is then projected on a computer screen, where the reader reviews it and assigns a score using the computer. The RFP requires that the reading and math portions of the FCAT be handscored on-line using imaging technology beginning with the February 2000 FCAT administration. The RFP provides that the writing portion of the FCAT may be handscored using either the paper-based method or on-line imaging technology during the February 2000 and 2001 FCAT administrations. However, on-line image-based scoring of the writing portion of the FCAT is required for all FCAT administrations after February 2001. An image-based scoring system involves complex computer technology. William Bramlett, an expert in designing and implementing large-scale imaging computer systems and networks, presented unrefuted testimony that an image-based scoring system will be faced with special challenges when processing large volumes of tests. These challenges involve the need to automate image quality control, to manage the local and wide area network load, to assure adequate server performance and storage requirements, and to manage the work flow in a distributed environment. In particular, having an image-based scoring system process an increasing volume of tests is not simply a matter of adding more components. Rather, the system’s basic software architecture must be able to understand and manage the added elements and volume involved in a larger operation. According to Bramlett, there are two ways that the Department could assess the ability of a bidder to perform a large- scale, image-based scoring project such as the FCAT from a technological perspective: (1) have the bidder provide enough technological information about its system to be able to model or simulate the system and predict its performance for the volumes involved, or (2) require demonstrated ability through completion of prior similar projects. Dr. Mark Heidorn, Administrator for Florida’s K-12 Statewide Assessment Programs, was the primary author of RFP Sections 1-8, which describe the work tasks for the FCAT -- the goods and services vendors are to provide and respond to in their technical proposals. Dr. Heidorn testified that in the Department’s testing procurements involving complex technology, the Department has never required specific descriptions of the technology to be used. Instead, the Department has relied on the bidder’s experience in performing similar projects. Thus, the RFP does not specifically require that bidders describe in detail the particular strategies and approaches they intend to employ when designing and implementing an image-based scoring system for FCAT. Instead, the Department relied on the RFP requirements calling for demonstrated experience as a basis to understand that the bidder could implement such an image-based scoring system. Approximately 717,000 to 828,000 student tests will be scored annually by the FCAT administration contractor using imaging technology. The RFP, however, does not require that bidders demonstrate image-based scoring experience at that magnitude. Instead, the RFP requires bidders to demonstrate only a far less demanding minimum level of experience using image-based scoring technology. Criterion C4 and Criterion C6 in Appendix J of the RFP each require that a bidder demonstrate prior experience administering "a minimum of two" assessment programs using imaged- based scoring that involved "at least 200,000 students annually." The requirements for documenting a "minimum of two" programs or projects for C4 and C6 involving "at least 200,000 students annually" are material because they are intended to provide the Department with assurance that the FCAT administration contractor can perform the large-scale, image-based scoring requirements of the contract from a technological perspective. Such experience would indicate that the bidder would have been required to address the sort of system issues described by Bramlett. Dr. Heidorn testified that the number 200,000 was used in C4 and C6 "to indicate the level of magnitude of experience which represented for us a comfortable level to show that a contractor had enough experience to ultimately do the project that we were interested in completing." Dr. Fisher, who authored Appendix J, testified that the 200,000 figure was included in C4 and C6 because it was a number judged sufficiently characteristic of large-scale programs to be relevant for C4 and C6. Dr. Fisher further testified that the Department was interested in having information that a bidder’s experience included projects of a sufficient magnitude so that the bidder would have experienced the kinds of processing issues and concerns that arise in a large-scale testing program. The Department emphasized this specific quantitative minimum requirement in response to a question raised at the Bidder’s Conference held on November 13, 1998: Q9: In Appendix J, the criteria for evaluating corporate quality for the administration operations C4, indicates that the bidder must have experience imaging as indicated. Does this mean that the bid [sic] must bid for using [sic] imaging technology for reading and mathematics tests? A: Yes. The writing assessment may be handscored for two years, and then it will be scored using imaging technology. To be responsive, a bid must be for imaging. The corporate experience required (200,000 students annually for which reports were produced in three months) could be the combined experience of the primary contractor and the subcontractors. (Emphasis added.) Criterion C4 addresses the RFP work tasks relating to handscoring, including both the image-based handscoring of the reading and math portions of the FCAT for all administrations and the writing portions of the FCAT for later administrations. The "Work Task" column for C4 in Appendix J of the RFP states: Design and implement efficient and effective procedures for handscoring student responses to performance tasks within the limited time constraints of the assessment schedule. Handscoring involves image-based scoring of reading and mathematics tasks for all administrations and writing tasks for later administrations at secure scoring sites. Retrieve and score student responses from early district sample schools and deliver required data to the test development contractor within critical time periods for calibration and scaling. The "Necessary Documentation" column for C4 in Appendix J states: Bidder must document successful completion of a minimum of two performance item scoring projects for statewide assessment programs during the last four years for which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The "Criteria" column for C4 in Appendix J, like the related work tasks in the RFP, addresses both image-based handscoring of reading and math, as well as paper-based or image- based handscoring of writing. In connection with all handscoring work tasks, "[t]he bidder must demonstrate completion of test administration projects for a statewide program for which performance items were scored using scoring rubrics and associated scoring protocols." With respect to the work tasks for handscoring the reading and math portions of the FCAT, "[t]he bidder must demonstrate completion of statewide assessment programs involving scoring multiple-choice and performance items for at least 200,000 students annually for which reports were produced in three months." In addition, for the reading and math work tasks, "[e]xperience must been shown in the use of imaging technology and hand-scoring student written responses with completion of scoring within limited time restrictions." This provision dealing with "imaging technology" experience self-evidently addresses the reading and math components, because separate language addresses imaging experience in connection with the writing component. The relevant handscoring experience for the reading and math aspects of the program is experience using image-based technology. By contrast, with respect to the work tasks for scoring the writing portions of the FCAT, "the bidder must also demonstrate completion of statewide assessment programs involving paper-based or imaged scoring student responses to writing assessment prompts for at least 200,000 students annually for which reports were produced in three months." (Emphasis added.) Criterion C6 addresses work tasks relating to designing and implementing systems for processing, scanning, imaging and scoring student responses to mixed-format tests within limited time constraints. The "Work Task" column for C6 in RFP Appendix J states: Design and implement systems for the processing, scanning, imaging, and scoring of student responses to test forms incorporating both multiple-choice and constructed response items (mixed-format) within the limited time constraints of the assessment schedule. Scoring of student responses involves implementation of IRT scoring tables and software provided by the development contractor within critical time periods. The "Necessary Documentation" column for C6 in Appendix J states: Bidder must document successful completion of a minimum of two test administration projects for statewide assessment programs during the last four years in which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The Criteria column for C6 in Appendix J states: The bidder must demonstrate completion of test administration projects for statewide assessment programs or other large-scale assessment programs that required the bidder to design and implement systems for processing, scanning, imaging, and scoring responses to mixed-format tests for at least 200,000 students annually for which reports were produced in three months. Experience must be shown in use of imaging student responses for online presentation to readers during handscoring. (Emphasis added.) RFP Provisions Per Corporate Qualifications The procedure for evaluating a bidder’s corporate qualifications is described in RFP Section 11.3: The Department will evaluate how well the resources and experience described in each bidder’s proposal qualify the bidder to provide the services required by the provisions of this RFP. Consideration will be given to the length of time and the extent to which the bidder and any proposed subcontractors have been providing services similar or identical to those requested in this RFP. The bidder’s personnel resources as well as the bidder’s computer, financial, and other technological resources will be considered in evaluating a bidder’s qualifications to meet the requirements of this RFP. Client references will be contacted and such reference checks will be used in judging a bidder’s qualifications. The criteria to be used to rate a bidder’s corporate qualifications to meet the requirements of this RFP are shown in Appendix J and will be applied as follows: * * * Administrative Activities. Each of the nine administration activities criteria in Appendix J will be individually rated by members of the evaluation team. The team members will use the rating scale shown in Figure 1 below. Individual team members will review the bidder’s corporate qualifications and rate the response with a rating of one to five. The ratings across all evaluators for each factor will be averaged, rounded to the nearest tenth, and summed across all criteria. If each evaluator assigns the maximum number of points for each criterion, the total number of points will be 45. To meet the requirements of Stage II, the proposal must achieve a minimum rating of 27 points and have no individual criterion for which the number of points averaged across evaluators and then rounded is less than 3.0. Each proposal that receives a qualifying score based on the evaluation of the bidder’s qualifications will be further evaluated in Stage III. Figure 1 Evaluation Scale for Corporate Qualifications 5 Excellent 4 3 Satisfactory 2 1 Unsatisfactory The bidder has demonstrated exceptional experience and capability to perform the required tasks. The bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks. The bidder either has not established its corporate qualifications or does not have adequate qualifications. RFP Section 11.3 provides that each of the nine corporate qualifications criteria for administration operations in Appendix J (C1 through C9) will be individually rated by the six members of the evaluation team using a scale of one to five. A rating of three is designated as "satisfactory" which means that "[t]he bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks." In order to be further evaluated, Section 11.3 provides that there must be no individual corporate qualifications criterion for which the bidder’s proposal receives a score less than 3.0 (average points across evaluators). Dr. Fisher, the primary author of Section 11.3 of the RFP, referred to the 3.0 rating as the "cut score." (Emphasis added.) The RFP’s clear and unambiguous terms thus establish the "minimum threshold" of experience that a bidder "must demonstrate" in its proposal for Criterion C1 through Criterion C9. The "minimum threshold" of experience that a bidder must demonstrate for each criterion is described in Appendix J of the RFP. If a proposal failed to demonstrate that the bidder meets the minimum threshold of experience for a particular criterion in Appendix J, the bidder obviously would not have demonstrated "that it meets an acceptable level of experience and capability to perform the required tasks." Thus, in that setting, an evaluator was to have assigned the proposal a rating of less than "satisfactory," or less than three, for that criterion. (Emphasis added.) The fact that a score less than "3" was expected for -- and would eliminate -- proposals that did not demonstrate the "minimum threshold" of experience does not render meaningless the potential scores of "1" and "2." Those scores may reflect the degree to which a bidder’s demonstrated experience was judged to fall below the threshold. Although some corporate capability minimums were stated quantitatively (i.e., "minimum of two," or "at least 200,000"), others were open to a more qualitative assessment (i.e., "large-scale," "systems," or "reports"). Moreover, a proposal that included demonstrated experience in some manner responsive to each aspect of Appendix J might nevertheless be assigned a score of less than "3," based on how an evaluator assessed the quality of the experience described in the proposal. By the terms of the RFP, however, an average score across evaluators of less than 3 represented essentially a decision that the minimum threshold of experience was not demonstrated. Had the Department truly intended Appendix J to reflect only general targets or guidelines, there were many alternative ways to communicate such an intent without giving mandatory direction about what bidders "must demonstrate" or without establishing quantitative minimums (i.e. "a minimum of two," or "at least 200,000"). RFP Appendix K, for instance, sets forth the evaluation criteria for technical proposals in broad terms that do not require the bidder to provide anything in particular. Even within Appendix J, other than in Criterion C4 and Criterion C6, bidders were to show experience with "large-scale" projects rather than experience at a quantified level. Pursuant to the RFP’s plain language, in order to meet the "minimum threshold" of experience for Criterion C4 and Criterion C6, a bidder "must demonstrate," among other things, successful completion of a "minimum of two" projects, each involving the use of image-based scoring technology in administering tests to "at least 200,000 students annually." Department’s Evaluation of Corporate Qualifications In evaluating Harcourt’s proposal, the Department failed to give effect to the plain RFP language stating that a bidder "must document" successful completion of a "minimum of two" testing projects involving "at least 200,000 students annually" in order to meet the "minimum threshold" of experience for C4 and C6. Dr. Fisher was the primary author of Sections 10, 11 and Appendix J of the RFP. He testified that during the Stage II evaluation of corporate qualifications, the evaluation team applied a "holistic" approach, like that used in grading open-ended written responses in student test assessments. Under the holistic approach that Dr. Fisher described, each member of the evaluation team was to study the proposals, compare the information in the proposals to everything contained in Appendix J, and then assign a rating for each criterion in Appendix J based on "how well" the evaluator felt the proposal meets the needs of the agency. Notwithstanding Dr. Fisher’s present position, the RFP’s terms and their context demonstrate that the minimum requirements for corporate qualifications are in RFP Appendix J. During the hearing, Dr. Fisher was twice asked to identify language in the RFP indicating that the Department would apply a "holistic" approach when evaluating corporate qualifications. Both times, Dr. Fisher was unable to point to any explicit RFP language putting bidders on notice that the Department would be using a "holistic" approach to evaluating proposals and treating the Appendix J thresholds merely as targets. In addition, Dr. Fisher testified that the Department did not engage in any discussion at the bidders’ conference about the evaluation method that was going to be used other than drawing the bidders’ attention to the language in the RFP. As written, the RFP establishes minimum thresholds of experience to be demonstrated. Where, as in the RFP, certain of those minimum thresholds are spelled out in quantitative terms that are not open to interpretation or judgment, it is neither reasonable nor logical to rate a proposal as having demonstrated "an acceptable level of experience" when it has not demonstrated the specified minimum levels, even if other requirements with which it was grouped were satisfied. The plain RFP language unambiguously indicates that an analytic method, not a "holistic" method, will be applied in evaluating corporate qualifications. Dr. Fisher acknowledged that, in an assessment using an analytic method, there is considerable effort placed up front in deciding the specific factors that will be analyzed and those factors are listed and explained. Dr. Fisher admitted that the Department went into considerable detail in Appendix J of the RFP to explain to the bidders the minimums they had to demonstrate and the documentation that was required. In addition, Dr. Orr, who served as a member of the evaluation team and who herself develops student assessment tests, stated that in assessments using the "holistic" method there is a scoring rubric applied, but that rubric does not contain minimum criteria like those found in the RFP for FCAT. The holistic method applied by the Department ignores very specific RFP language which spells out minimum requirements for corporate qualifications. Harcourt’s Corporate Qualifications for C4 and C6 Harcourt’s proposal lists the same three projects administered by Harcourt for both Criterion C4 and Criterion C6: the Connecticut Mastery Test ("CMT"), the Connecticut Academic Performance Test ("CAPT") and the Delaware Student Testing Program ("DSTP"). Harcourt’s proposal also lists for Criterion C4 projects administered by its proposed scoring subcontractors, Measurement Incorporated ("MI") and Data Recognition Corporation ("DRC"). However, none of the projects listed for MI or DRC involve image- based scoring. Thus, the MI and DRC projects do not demonstrate any volume of image-based scoring as required by C6 and by the portion of C4 which relates to the work task for the imaged-based scoring of the math and reading portions of the FCAT. Harcourt’s proposal states that "[a]pproximately 35,000 students per year in grade 10 are tested with the CAPT." Harcourt’s proposal states that "[a]pproximately 120,000 students per year in grades 4, 6 and 8 are tested with the CMT." Harcourt’s proposal states that "[a]pproximately 40,000 students in grades 3, 5, 8, and 10" are tested with the DSTP. Although the descriptions of the CMT and the CAPT in Harcourt’s proposal discuss image-based scoring, there is nothing in the description of the DSTP that addresses image-based scoring. There is no evidence that the evaluators were ever made aware that the DSTP involved image-based scoring. Moreover, although the Department called the Delaware Department of Education ("DDOE") as a reference for Harcourt’s development proposal, the Department did not discuss Harcourt’s administration of the DSTP (including whether the DSTP involves image-based scoring) with the DDOE. Harcourt overstated the number of students tested in the projects it referenced to demonstrate experience with image-based scoring. Harcourt admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 120,000 students with the CMT. In fact, the total number of students tested by Harcourt on an annual basis under the CMT has ranged from 110,273 in the 1996- 97 school year to 116,679 in the 1998-99 school year. Harcourt also admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 35,000 students in grade 10 with the CAPT. Instead, the total number of grade 10 students tested by Harcourt on an annual basis with the CAPT ranged from 30,243 in 1997 to 31,390 in 1998. In addition, Harcourt admitted at hearing that, prior to submitting its proposal, it had conducted only one "live" administration of the DSTP (as distinguished from field testing). That administration of the DSTP involved only 33,051, not 40,000, students in grades 3, 5, 8 and 10. Harcourt itself recognized that "field tests" of the DSTP are not responsive to C4 and C6, as evidenced by Harcourt’s own decision not to include in its proposal the number of students field tested under the DSTP. Even assuming that the numbers in Harcourt’s proposal are accurate, and that the description of the DSTP in Harcourt’s proposal reflected image-based scoring, Harcourt’s proposal on its face does not document any single project administered by Harcourt for C4 or C6 involving image-based testing of more than 120,000 students annually. When the projects are aggregated, the total number of students claimed as tested annually still does not reach the level of "at least 200,000;" it comes to only 195,000, and it reaches that level only once due to the single administration of the DSTP. Moreover, even if that 195,000 were considered "close enough" to the 200,000 level required, it was achieved only one time, while Appendix J plainly directs that there be a minimum of two times that testing at that level has been performed. The situation worsens for Harcourt when using the true numbers of students tested under the CMT, CAPT, and DSTP, because Harcourt cannot document any single image-based scoring project it has administered involving testing more than 116,679 students annually. Moreover, when the true numbers of students tested are aggregated, the total rises only to 181,120 students tested annually on one occasion, and no more than 141,663 tested annually on any other occasion. Despite this shortfall from the minimum threshold of experience, under the Department’s holistic approach the evaluators assigned Harcourt’s proposal four ratings of 3.0 and two ratings of 4.0 for C4, for an average of 3.3 on C4; and five ratings of 3.0 and one rating of 4.0 for C6, for an average of 3.2 on C6. Applying the plain language of the RFP in Sections 10 and 11 and Appendix J, Harcourt did not demonstrate that it meets an acceptable level of experience and capability for C4 or C6, because Harcourt did not satisfy the minimum threshold for each criterion by demonstrating a minimum of two prior completed projects involving image-based scoring requiring testing of at least 200,000 students annually. Harcourt’s proposal should not have received any rating of 3.0 or higher on C4 or C6 and should have been disqualified from further evaluation due to failure to demonstrate the minimum experience that the Department required in order to be assured that Harcourt can successfully administer the FCAT program. NCS’s Compliance With RFP Requirements Even though the NCS proposal did not meet all of the mandatory requirements, and despite the requirement of Section 11.2 that the proposal be automatically disqualified under such circumstances, the Department waived NCS’s noncompliance as a minor irregularity. The factors in C4 and C6 were set, minimal requirements with which NCS did not comply. For example, one of the two programs NCS submitted in response to Criteria C4 and C6 was the National Assessment of Educational Progress program ("NAEP"). NAEP, however, is not a "statewide assessment program" within the meaning of that term as used in Criteria C4 and C6. Indeed, NCS admitted that NAEP is not a statewide assessment program and that, without consideration of that program, NCS’s proposal is not responsive to Criteria C4 and C6 because NCS has not have submitted the required proof of having administered two statewide assessment programs. This error cannot be cured by relying on the additional experience of NCS’s subcontractor because that experience does not show that its subcontractor produced reports within three months, and so such experience does not demonstrate compliance with Criteria C4. The Department deliberately limited the competition for the FCAT contract to firms with specified minimum levels of experience. As opined at final hearing, if the Department in the RFP had announced to potential bidders that the type of experience it asked vendors to describe were only targets, goals and guidelines, and that a failure to demonstrate target levels of experience would not be disqualifying, then the competitive environment for this procurement would have differed since only 2.06 evaluation points (out of a possible 150) separated the NCS and Harcourt scores. Dr. Heidorn conceded that multiple companies with experience in different aspects of the FCAT program -- a computer/imaging company and a firm experienced in educational testing -- might combine to perform a contract like the FCAT. Yet, that combination of firms would be discouraged from bidding because they could not demonstrate the minimum experience spelled out in the RFP. Language in the RFP, indicating the "holistic" evaluation that was to be applied, could have resulted in a different field of potential and actual bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Education, enter a Final Order rejecting the bids submitted by Harcourt and NCS for the administration component of the RFP. The Department should then seek new proposals. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1999. COPIES FURNISHED: Karen D. Walker, Esquire Holland and Knight, LLP Post Office Drawer 810 Tallahassee, Florida 32302 Mark D. Colley, Esquire Holland and Knight, LLP Suite 400 2100 Pennsylvania Avenue, Northwest Washington, D.C. 20037 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Paul R. Ezatoff, Jr., Esquire Christopher B. Lunny, Esquire Katz, Kutter, Haigler, Alderman, Bryant and Yon, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32302-7741 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue This is a licensure examination proceeding in which the Petitioner asserts entitlement to a higher grade on the examination.
Findings Of Fact On October 20, 1995, the Department of Business and Professional Regulation notified Petitioner Ramon L. Arosemena that in response to challenges filed during the review of the Petitioner’s April 1995 Professional Engineering Examination, the National Council of Examiners for Engineering and Surveying (NCEES) had awarded the candidate an overall examination score of 68.10. The minimum passing examination score is 70.00. With regard to the Petitioner’s answers to problem 125, in a document titled “Rescoring Results” the NCEES offered the following explanation as to why it concluded that the appropriate grade for those answers was 4 points, rather than the 6 points sought by the Petitioner: SCORER’S COMMENTS: The examinee in the request for a regrade overlooked the error made in calculating the pavement volume. The examinee’s volume was 25% of the correct value which carried over to erroneous results in the constituent weights. This was an error which is referred to in the approved scoring plan as calling for a two point grade reduction. As the examinee has conceded the entrained air was ignored in his/her solution. The approved scoring plan specifically recognizes this error as calling for a four point grade reduction. Considering both errors a grade of four is appropriate. SCORER’S RECOMMENDATION: Recommended score = 4. The candidate information booklet includes the following information regarding the manner in which certain problems on the examination would be scored: Written solutions to the essay type problems are scored according to an Item Specific Scoring Plan (ISSP) which is prepared for each examination problem prior to its use within an examination. The ISSP is usually written by the author of the problem, who also is responsible for determining the kind of answer which would constitute “minimal” level of performance. The ISSP defines the kind of response (i.e., answer to the problem) that would receive a score of zero, a score of two, a score of four, a score of six, a score of eight, and a score of ten. Both the problem statement and the scoring plan are reviewed by persons familiar with each discipline prior to using a problem on an examination form. Each essay type examination problem is scored by referring to the scoring plan for that particular problem. Scoring is done by a professional engineer, who is familiar with engineering practice and with the knowledge and skills that are required for an applicable engineering task. The number of points obtained by each candidate on each of the eight problems submitted are totalled to determine an overall raw score, with a maximum raw score of eighty (80). The raw score is then converted to a scale on which the scores range between zero and one hundred. Please note that this converted score scale does not represent the percentage of problems answered correctly. In order to pass the Principles and Practice examination, candidates must achieve a raw score of 48, which represents a score of 70 on the scale of one hundred points. The examination problem at issue in this case, problem number 125, described a construction project for a concrete highway. Following the description of the project, the examinee was asked to provide a three part response. Part (a) required the examinee to calculate the quantities of several specified ingredients necessary to complete the project described in the problem. Part (b) required the examinee to compute the yield, in cubic feet per sack of cement, of the concrete mix described in the problem. Part (c) required the examinee to explain why concrete with a specified slump would or would not be suitable for slip-form paving. The Scoring Plan for problem number 125 reads as follows: SCORING PLAN 10 EXCEPTIONAL COMPETENCE: The analysis is correct in all aspects. The numerical results are within plus or minus 2 [percent] of the approved solution. The answer to part c is correct. 8 MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE: One of the following will result in a two point score reduction. part c explanation is incorrect or inadequate as a result of one computational error the numerical results of part a do not fall within the required tolerance (see 10 point score). the amount of required water was correctly calculated in cubic feet but not translated to gallons as required in the problem statement and/or the weights were not given in tons. the total volume was calculated incorrectly. 6 MINIMUM COMPETENCE: Two of the defaults described in the 8 point scoring were made, or, one of the following individual errors were made; the 5 [percent] waste factor was not incorporated into the solution, or used incorrectly. analysis of part b is incorrect. the given entrained air was ignored. 4 MORE THAN RUDIMENTARY KNOWLEDGE BUT INSUFFICIENT TO DEMONSTRATE COMPETENCE: The examinee was unable to correctly define all of the weight-volume relationships required to solve part a, (an error was made in the analysis or use of mix ratio, specific gravity, air volume or comparable relationship), or three of the defaults described in the 8 point scoring were made. 2 RUDIMENTARY KNOWLEDGE. Multiple errors were made in the weight-volume relationships required to solve part a, and part c is incorrect or inadequate. 0 ZERO: Nothing presented to indicate knowledge of the solution to the problem. Implicit in the definitions of the ten-point response, the eight-point response and the six-point response is the notion that the candidate did not make any errors in addition to the errors described in the definitions of those responses. The Scoring Plan was accompanied by a solution sheet which contained the details of all of the calculations necessary to arrive at the correct answers to parts (a) and (b), and also included a description of the correct answer to part (c). Problem number 125 is a reasonable and logical problem to include in an engineering licensure examination. The Item Specific Scoring Plan for problem number 125 is a reasonable and logical method for scoring responses to problem number 125. Problem number 125 is a problem that a minimally competent candidate for licensure should be able to answer correctly. The Petitioner’s response to part (c) was correct. The Petitioner’s response to part (b) was incorrect. It was incorrect because it failed to take into account the volume of the given entrained air. The Petitioner’s answer to part (a) was incorrect. It was incorrect because the Petitioner made at least two computational errors.1 One computational error was the failure to take into account the number of highway lanes, which caused the Petitioner’s answer to be one-fourth of what it would have been had that error not been made. The other computational error was the failure to take into account the volume of the entrained air. The Petitioner is entitled to have a grade assigned to his response to problem number 125 that is consistent with the scoring plan for problem number 125.2 Application of the scoring plan to the Petitioner’s response to problem number 125 is contained in the paragraphs which follow. The Petitioner is not entitled to ten points for his response to problem number 125 because his analysis is not correct in all respects and because none of his numerical results are within plus or minus two percent of the approved solution. The Petitioner is not entitled to eight points because he made at least two of the errors described in the definition of an eight-point response. First, as a result of computational error the Petitioner’s numerical results for part (a) of problem number 125 do not fall within the required tolerance of plus or minus two percent. Second, in the Petitioner’s response to part (a) the total volume was calculated incorrectly. Therefore the Petitioner’s response does not meet the definition of the eight- point response because the definition allows only one such error. The Petitioner is not entitled to six points because he made at least two of the errors described in the definition of the eight-point response and he ignored the given entrained air, and his analysis of part (b) is incorrect. The six-point definition applies to a candidate who makes two of the errors described in the eight-point scoring definition, but it does not apply to a candidate who makes those two errors and in addition makes one or more of the errors described in subsections (i), (ii), and (iii) of the definition of the six-point response. Therefore, the Petitioner is not entitled to six points for his response to problem number 125.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner has failed to demonstrate entitlement to the relief he seeks and dismissing the Petition. DONE AND ENTERED this 18th day of February, 1997, in Tallahassee, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997.
The Issue Whether the Petitioner's challenge to the licensure examination should be sustained.
Findings Of Fact The Petitioner is a candidate for optometry licensure. He took the examination for licensure in August 1999. The Respondent is the state agency charged with the responsibility of administering license examinations. In September 1999, the results of the August 1999 examination were provided to Petitioner. The examination grade report advised Petitioner that he had failed two portions of the licensure examination. A candidate must pass all portions of the exam to become licensed. As to the clinical portion of the examination, the Petitioner challenged the results due to what he maintained were "discrepancies" in the grading system. As to each question challenged in the clinical portion, the Petitioner cited the differing grades from the two examiners as the basis for his dispute. When the Petitioner received credit for the question from one examiner, he believed he should have received credit from the second as well. The clinical portion of the exam was scored by two examiners who independently reviewed the candidate's work. Typically, the candidate for licensure indicates when the examiner is to evaluate the work by stating "grade me now." As to each task, the candidate receives two scores. The scores are added together and divided by two to reach the overall clinical score. Based upon when the candidate directs the examiner to grade, it is possible to receive conflicting results in the scoring process. It is the overall score that determines whether a candidate receives a passing grade on the clinical portion. According to Dr. Liebetreu, a marginal candidate may well be able to correctly perform the task for one examiner yet do so incorrectly for the second reviewer. The method of scoring therefore gives the marginal candidate some credit. As to the questions challenged in the pharmacological portion of the exam, the Petitioner argued that the questions were misleading or had multiple correct answers. Each question challenged offered one most correct answer that the Petitioner should have selected in order to receive full credit. The Petitioner has failed to established that the answers he provided were "more correct" than the ones used by the Respondent to grant credit. The photographs used in the examination were of sufficient quality to provide the candidate with appropriate views to answer questions. The questions challenged were not ambiguous or misleading. The candidates were provided adequate time to complete all portions of the examination. Persons scoring the Petitioner's work during the clinical portion of the exam were not permitted to confer. Their scores were to be based solely on the work they observed. The overall scores issued by persons scoring the Petitioner's work were within acceptable statistical standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Optometry, enter a final order denying the Petitioner's challenge to the August 1999 examination. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Navin Singh, O.D., pro se 103 Knights Court Royal Palm Beach, Florida 33411 Amy M. Jones, Esquire Office of the General Counsel Department of Health 2020 Capital Circle Southeast, Bin A02 Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Respondent is the state agency charged with the duty of regulating general contractors in the State of Florida. An applicant for certification as a general contractor must pass the examination administered by Respondent as a prerequisite to, certification. Section 489.113(1), Florida Statutes. Petitioner sat for the certified general contractor's examination on October 14-15, 1988. Petitioner passed one part of the examination, but he did not pass the other two parts of the examination. Petitioner timely and properly challenged the grading of two examination questions for which he received no credit, to wit: Question Number PM 10 and Question CA 10. Petitioner abandoned any challenge he may have had to other questions. Question PM 10, a multiple choice question, required Petitioner to apply one of the sections of the Standard Building Code to a factual problem. The question required both a correct construction of the provision and a correct application of the provision. Petitioner misconstrued the provision and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question PM 10 because Petitioner gave the wrong answer to the question. Question CA 10, also a multiple choice question, required Petitioner to correctly construe the question presented and to respond accordingly. This question involved a change order and the payment therefor. In computing the amount that he would charge the owner, Petitioner included charges for the removal of certain materials that the contractor would have to remove in order to perform his contract. Those costs should be allocated to the contractor, not to the owner. Petitioner misconstrued the question and therefore missed the problem. Respondent gave Petitioner no credit for his answer to Question CA 10 because Petitioner gave the wrong answer to the question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Respondent, State of Florida, Department of Professional Regulation, enter a final order which finds that Petitioner abandoned his challenges to all questions except Question PM 10 and Question CA 10 and which denies Petitioner's challenges to Question PM 10 and to Question CA 10. It is further recommended that the two questions filed as exhibits in this proceeding be sealed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of August, 1989. CLAUDE B. ARRINGTON 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1859 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: The proposed findings found in the first full paragraph of Petitioner's proposed recommended order are addressed in paragraphs 1, 2, 3, and 4. The proposed findings found in the second and third full paragraphs of Petitioner's proposed recommended order are addressed, in part, in paragraph 5. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 5. The proposed findings found in the fourth full paragraph of Petitioner's proposed recommended order are addressed, in part, in paragraph 7. The proposed findings are rejected, in part, as being subordinate to the findings made in paragraph 7. The proposed findings found in the fifth full paragraph of Petitioner's proposed recommended order are rejected as being recitation of testimony. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 2 - 3. Addressed in paragraph 4. Addressed in part in paragraph 4. Rejected in part as being unnecessary to the conclusion reached. 4 - 10. Rejected as being recitation of testimony and as being subordinate to the findings made. 11. Rejected as being unnecessary to the conclusion reached. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Neustein, Esquire 801 41st Street - 5th Floor Miami Beach, Florida 33140 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues for determination in this case are: 1) whether the Respondent’s decision to award a contract to operate a juvenile work release halfway house program to the Henry and Rilla White Foundation was clearly erroneous, contrary to competition, arbitrary, or capricious; and 2) whether the award of the contract is void as a matter of law because of procedural violations by the selection committee and the Respondent.
Findings Of Fact Petitioner, JUVENILE SERVICES PROGRAM, INC. (JSP), is a Florida-based private not-for-profit corporation which was founded to serve troubled youths and their families. Respondent, FLORIDA DEPARTMENT OF JUVENILE JUSTICE (DJJ), is the agency of the State of Florida with the statutory authorization for planning, coordinating, and managing programs for the delivery of services within the juvenile justice consortium. Section 20.316, Florida Statutes. RFP #16P05 On September 27, 1996, Respondent DJJ advertised and released a Request For Proposal (RFP) #16P05 to provide a Work Release Halfway House for Delinquent Males in District IX, serving Palm Beach County, Florida. In response to the RFP, four bids were submitted to DJJ by the following parties: the Henry and Rilla White Foundation, Total Recovery, Inc., Psychotherapeutic Services Inc., and Petitioner JSP. The DJJ bid selection committee of evaluators for the RFP were Jack Ahern, Steve Brown, Jaque Layne, Patricia Thomas, and from the Office of Budget Finance, Fred Michael Mauterer. The contract manager for the RFP was Diane Rosenfelder. On October 28, 1996, each DJJ evaluator was sent a package consisting of a copy of the RFP, which included the evaluation sheet, a copy of each proposal submitted to DJJ, a conflict of interest questionnaire, a certificate of compliance, a description of the proposal selection process, and instructions. Each package sent to the evaluators had a different colored cover sheet which identified the specific evaluator. After completing the evaluations, each evaluator returned the signed conflict of interest forms, and certificates of compliance to Diane Rosenfelder. The evaluations were identified by the color of the cover sheets, as well as the signed conflict of interest forms and certificates of compliance. DJJ initially intended to provide each evaluator with an Award Preference Form which were to be used in the event the final evaluation scores were very close. The Award Preference Forms, however, were inadvertently omitted from the packages sent to the evaluators. The evaluation process resulted in the Henry and Rilla White Foundation receiving the highest average score of 391.50 points. Petitioner JSP received the second highest average score of 360.50 points. The award of points was determined by each evaluator which is indicated by the evaluator checking the box on Section 5 of the evaluation sheet, or by filling in the appropriate point score. The contract manager, Diane Rosenfelder, corrected addition errors on the scoring sheets. The budget part of the evaluation was completed by Fred Michael Mauterer, Senior Management Analyst Supervisor. In accordance with the evaluation scores, DJJ determined that the best response was submitted by the Henry and Rilla White Foundation which was awarded the contract. On November 8, 1996, Petitioner JSP filed a timely Notice of Protest of the award, which was supplemented on December 9, 1996 with the required posting of a $5000 bond. Alleged Errors and Discrepancies in the Evaluation Process Petitioner JSP alleges that several errors in the evaluation process require that the contract award to the Henry and Rilla White Foundation be set aside and that the RFP be reissued and rebid. Petitioner first alleges that the bid selection committee failed to follow the certain instructions during the evaluation process. The instructions were prepared by the contract manager Diane Rosenfelder. The instructions were not required by rule or policy of DJJ. The contract manager considered the instructions advisory in nature. The instructions stated that the members of the bid selection committee should not contact each other with respect to the proposals under evaluation. The evaluators, however, were permitted to contact the contract manager who would record all questions and answers. There were instances in which the contract manager did not record questions from the evaluators to the contract manager. There is no evidence that the evaluators contacted each other regarding the proposals during the evaluation process. The instructions asked the evaluators to explain high or low scores given to the proposals under consideration. None of the evaluators made specific explanations of high or low scores. The contract manager who prepared the instructions considered this instruction discretionary, and there is no evidence that any score given by an individual evaluator was without basis. The evaluators were instructed to provide page numbers from the proposals used to score each item. None of the evaluators complied with this instruction. As indicated above, however, there is no evidence that the actual scores give by the evaluators were without basis. As set forth above, none of the evaluators received the Award Preference Form. This form was to be used in the case of very close scoring of the proposals. The actual scores from the bid selection committee reflected a clear preference for the proposal submitted by the Henry and Rilla White Foundation. Accordingly, there was no demonstrated need for DJJ to rely upon the Award Preference Forms in making its decision to award the contract. The letter of introduction sent to the bid selection committee members from the contract manager stated that the proposal score sheets and the evaluators award preference and the best interest of the district would be considered in determining the award. The contract manager considered this statement advisory in nature. DJJ has not promulgated specific standards relating to the best interest of District IX; however, the proposal evaluation forms sent to the bid selection committee inherently include criteria setting out standards for the determination of the best proposal for the district. The evidence reflects that one of the evaluators, Patricia Thomas, erroneously checked the box on each proposal which gave each of the proposals fifty points as certified minority enterprises, and erroneously wrote “50” as a point count on one evaluation score sheet. None of the proposals included a copy of the certification for minority enterprise as required by Section 287.0945, Florida Statutes, and the contract manager recognized that the evaluator had made a mistake in this regard. In response to this error, the contract manager consulted her supervisors. Because each proposal was awarded the same points, DJJ did not consider the evaluator’s error as prejudicial to any proposal or to the bid selection process, and did reject the evaluator’s scoring of the proposals. There is no showing that Petitioner JPS was prejudiced by DJJ’s decision in this regard. The contract manager added signature lines to the last page of the evaluation sheets. Some of the sheets were returned unsigned from the evaluators. There is no DJJ requirement that the evaluation sheets specifically contain the signatures of the evaluators. The contract manager did not consider the signature page mandatory, and the evaluation proposal score sheets were clearly identified by both color coding and the certificates of conflict signed by the evaluators. There is no evidence that the procedural discrepancies affected the substance of the evaluator’s scoring of the proposals, nor did the procedural discrepancies prejudice the evaluators’ consideration of Petitioner’s proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order upholding the proposed agency action to award the contract to the Henry and Rilla White Foundation, and dismissing the Petition filed in this case. DONE and ORDERED this 23rd day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Dominic E. Amadio, Esquire Republic Bank Building, Suite 305 100 34th Street North St. Petersburg, Florida 33713 Scott C. Wright, Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Florida Real Estate Commission (hereinafter referred to as the "Commission") should refuse, on the grounds set forth in its August 17, 1994, order, to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about June 20, 1994, Petitioner filed with the DRE an application for licensure as a real estate salesperson. Petitioner took the real estate salesperson's licensure examination that was administered on July 25, 1994, in Miami, Florida (hereinafter referred to as the "Examination"). The Examination, which consisted of 100 multiple choice questions, began sometime between 8:35 and 8:45 a.m. on the morning of July 25, 1994, after the candidates had been read approximately five pages of written Examination instructions. Petitioner entered the Examination room late, at approximately 9:45 a.m., at which time he was given an Examination booklet and answer sheet and escorted to his seat. He was asked if he wanted to be read the written Examination instructions that had been read to the candidates prior to his arrival, but he declined the offer inasmuch as he was anxious to begin the Examination. Petitioner was seated at a table next to Candidate #362078. Although there were two different "forms" of the Examination, an "odd form" and an "even form," both Petitioner and Candidate #362078 had the same form. On various occasions during the Examination, Petitioner looked at Candidate #362078's answer sheet to see Candidate #362078's answers. 1/ At least four proctors witnessed such conduct. In accordance with DRE policy, Petitioner was allowed to finish the examination. Petitioner answered 85 of the 100 questions on the Examination correctly, one less than Candidate #362078 answered correctly. Petitioner and Candidate #362078 answered 75 of the same questions correctly. There were five questions that both Petitioner and Candidate #362078 answered incorrectly. They chose the identical incorrect response on four of these five questions (Questions 24, 46, 59 and 99). On Question 24, Petitioner and Candidate #362078 both gave "A" as the answer to the question. Only 10.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 24. On Question 59, Petitioner and Candidate #362078 again both gave "A" as the answer to the question. Only 12.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 59.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order refusing to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida, without prejudice to Petitioner reapplying for licensure at such time as he is able to show that, because of the lapse of time since the Examination and his subsequent good conduct and reputation, or other reason deemed sufficient, he is qualified to practice as a real estate salesperson and therefore the interest of the public and investors will not likely be endangered by the granting of such licensure. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1995.
The Issue Petitioner has alleged the invalidity of Respondent's rule, "JE/Student Attendance". The issues are whether Petitioner has standing to challenge the rule, and if so, whether the rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, Darnell Rhea, resides in Alachua County, Florida, and is employed as a high school mathematics teacher in the Alachua County school district. As a classroom teacher, Mr. Rhea is required to record attendance of his students. He does not, however, make a determination as to whether absences of those students are "excused" or "unexcused". That determination is made by an attendance office in the school. The determination is then provided to the teacher. Attendance records are maintained by the teacher and in the school's attendance office. Respondent, School Board of Alachua County, has adopted a written policy, "JE/Student Attendance", to implement the provisions of Section 232.2462, F.S. regarding attendance requirements for receipt of high school credit and a definition of credit. That policy, adopted originally in 1982, has been revised in 1984, twice in 1985, in 1987, and twice in 1989. The policy describes what constitutes an excused absence and sets out the minimum number of hours of attendance required for course credit. For several years Darnell Rhea has contended that the policy violates Section 232.2462, F.S., and other statutes referenced in that section. His petition regarding the alleged invalidity of the current policy addresses what he believes are a too strict requirement of the policy which denies credit in some instances even when absences are legitimately excused, and a too liberal requirement with regard to the types of absences which are excused. Sometime prior to May 1991, Petitioner filed an action for declaratory judgement in circuit court, Eighth Judicial Circuit in and for Alachua County. On May 20, 1991, Circuit Judge Frederick D. Smith entered his order finding that Petitioner had alleged sufficient facts to support his standing to bring the action, but failed to allege sufficient facts to show that he had exhausted his administrative remedies. The action was dismissed with leave to amend the petition. On or about May 30, 1991, Petitioner filed a petition for rulemaking requesting that the Respondent school board amend its attendance policy. On July 2, 1991, the board issued an order deferring action on the request until it could receive an opinion from the Florida Department of Education regarding the legal issues raised in the petition. On or about July 2, 1991, Petitioner filed his notice of appeal to the First District Court of Appeal from the administrative order of the school board deferring rulemaking, and from a separate declaratory statement issued by the board on June 5, 1991, which statement Petitioner alleges is inadequate.
The Issue Whether Respondent, Latunya Gibbs ("Respondent" or "Gibbs"), committed the violations as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner, BCSB, is located at 600 Southeast Third Avenue, Fort Lauderdale, Florida. BCSB is in charge of the Broward County School District ("the District"). Robert W. Runcie is the Superintendent of BCSB. The Superintendent is statutorily obligated to recommend the placement of school personnel and to require observance with all laws, rules, and regulations. He is authorized to report and enforce any violation thereof, together with recommending the appropriate disciplinary action against instructional personnel employed by the Board. Gibbs is employed by BCSB as a teacher pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. She was first hired by BCSB on August 24, 1993. Gibbs holds a Florida Educator's Certificate in Elementary Education. The Superintendent recommended that Gibbs be terminated from her employment with BCSB. On October 2, 2018, the Board adopted the Superintendent's recommendation. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements through the Board's adoption of the Superintendent's recommendation for termination. Gibbs was assigned as a teacher at MLE for school years 2015-16, 2016-17, and 2017-18. In 2015-16, Gibbs was assigned to teach second grade. On September 2, 2015, she was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. During the 2016-17 school year, Gibbs was assigned to teach third grade at MLE. Gibbs had 18 students in her class. On May 24, 2017, Gibbs received notice of an investigation into an allegation that she falsified records pertaining to student evaluations and achievements for promotion to the fourth grade. These records included student assessments for the Benchmark Assessment System and third grade Portfolios. On June 19, 2017, Gibbs received notice that the investigation was expanded to include an allegation that she submitted falsified documents to utilize FMLA leave and that she falsified a training certificate. Fabricated BAS Assessments The District uses the Fountas & Pinnell Benchmark Assessment Systems ("BAS"). It is used to determine a student's independent, instructional, and frustration reading levels. BAS assessments are conducted one-on-one by the teacher. In part 1 of the assessment, the student reads aloud and talks about the system's leveled fiction and nonfiction books, while the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the text. BAS assessments are done for all students in grade levels Kindergarten through 3, and for those students in grades 4 and 5 who score a one or two on the Florida Standards Assessment ("FSA"). For BAS, there are three assessment periods each school year. The District deadline for the third assessment period was May 26, 2017. MLE set an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met. On May 11, 2017, Gibbs was provided with a substitute so she could have the opportunity to complete BAS assessments. After school on Friday, May 12, 2017, there was a Response to Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz"), MLE's Principal, that she had completed the BAS assessments for two of her 18 students. Gibbs stated that she was confident that she would be able to complete all student assessments by the May 19 deadline, and that she did not need a substitute for an additional day. Gibbs was at school on Monday, May 15, 2017, but then was absent for an extended period. She was absent on May 16 through 19, and 22 through 24. Principal Velez asked Ms. Shamequia Wright ("Wright"), a third grade teacher and union steward, and Ms. Hend Hafez ("Hafez"), an MLE Literacy Coach, to help assess Gibbs' students. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin ("Hennequin"), third grade team lead, entered Gibbs' classroom to look for the students' BAS folders. They could not find the BAS folders, and only found blank scoring sheets. They held up a BAS folder and asked the students where they could find the folders. The students informed Hennequin and Wright that they had never seen the folders. Hennequin and Wright left Gibbs' classroom to get their own materials so they could start assessing students. Wright proceeded to assess Gibbs' students on May 19 and May 22., 2017 On May 23, 2017, Hafez was asked to gather the BAS assessments that Wright had completed. Wright told Hafez that the assessments were on the round table in Gibbs' classroom. Hafez collected the BAS materials from the round table in Gibbs' classroom and provided them to the office. Upon trying to enter the BAS scores into the BASIS system, it was discovered that Gibbs had entered all of the students' scores on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for 16 students on that day. Principal Veliz knew this was an impossible task and, therefore, questioned the validity of the scores. Principal Veliz asked the District for a review. By May 26, 2017, the office had received all of the protocols--the student BAS folders containing the data for all three of the assessment periods--from all of the third grade teachers with the exception of Gibbs. The Assistant Principal, Joan Rosa ("Rosa"), made an announcement over the P.A. reminding all of the teachers who had not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought any of the protocols for any of the three assessment periods to the office. On May 26, 2017, Mildred Grimaldo ("Grimaldo"), Director of Literacy from the District, went to MLE to conduct a review and reassess Gibbs' students. The team conducted a reassessment of five students. Hafez reassessed the remaining students. It was found that the scores entered in BASIS on May 15, 2017, by Gibbs did not align with the reassessments completed by Grimaldo's team or Hafez. Of the 18 students in Gibbs' class, only six scored a three or above on the FSA. Six students scored a two and five students scored a one. One student was absent. Gibbs was scheduled for mandatory BAS training on January 13, 2017, but she did not attend. Gibbs received a verbal reprimand for missing the training. Gibbs received training as part of a calibration conversation that took place on April 4, 2017. The Literacy Coach also had previously shared (November 2016) a link to a Brainshark presentation, which included suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs did not review the Brainshark presentation. Incomplete Portfolios and Falsified Promotion Testing Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1 indicate that any student in third grade who does not meet the reading promotion criteria, which is a two or higher on the FSA, can be promoted to fourth grade based on good cause promotion criteria. The good cause promotion criteria consists of the completion and passing of a third grade Portfolio as an alternative to a passing FSA score. All third grade teachers are required to have their students complete the third grade Portfolio. Student Portfolios are based on work completed by the students in connection with what they are being taught by the teacher. The teachers are to teach the State standards. The Portfolios gauge students' mastery of the reading information standards, reading literature standards, and language standards. There are eight cycles that were put together by the District to help teachers teach the reading information standards, reading literature standards, and language standards. Each cycle has certain tasks that students must complete. The tasks are to be graded by the teachers and kept as part of the Portfolios. The grade is based on a four point system, with one being the worst and four being the best. If a student does not score a three out of four on a particular standard, the student is then given an additional passage and multiple choice test. The student must receive at least a 70% on the multiple choice test to show proficiency in the standard. Scores for the Portfolio tasks as well as the multiple choice test, if necessary, are recorded on a form entitled Third Grade Assessment Portfolio: Cumulative Student Record Form ("Portfolio Record Form"). MLE had an in-house deadline of May 1, 2017, to submit all Portfolios along with the summary sheets. The District's deadline was May 5, 2017. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing the last tasks for the Portfolios. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form indicated a perfect score, four out of four, for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple choice test for every standard for every student. Had a student actually received a perfect score on the tasks, the multiple choice test would have been unnecessary. This raised a red flag for Veliz. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs' box of Portfolios. The box was sealed, almost completely, with duct tape. As a team, Veliz, Hafez, and Rosa opened Gibbs' Portfolio box. They spot checked a few of the students' work and noticed significant discrepancies in what Gibbs recorded and the student product. Hafez and Rosa were asked to review all of Gibbs' students' Portfolios. It took a week to review all of the Portfolios. The team found errors that included, but were not limited to: incorrect grading; the sample answer was provided (i.e., the teacher answer key); missing tasks; missing test items; task given multiple times despite mastery of the task; blank or incomplete tasks; discrepancy in time frame of dates; items done as homework as opposed to class work; missing multiple choice sheets; and the inclusion of non-summative task items. Veliz reached out to Ms. Nicole Mancini, Director of Elementary Learning, to have someone from the District rescore the Portfolios. Dr. Teri Acquavita and Ms. Shellie Gory ("Gory"), supervisors for the District, conducted a District review. There were discrepancies between the District review and Gibbs' grading. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data along with the alternative portfolio multiple-choice assessments. Gibbs submitted the monthly data. Gibbs did not submit the multiple-choice alternative data, and has never submitted the multiple-choice data. However, on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple-choice tests. Gibbs told all of the parents that their students would be promoted. Unfortunately, five of Gibbs' students scored a one on the FSA. The Portfolios should have been used as good cause promotion criteria for those students, but they were too deficient. The students were promoted and placed into intervention programs the following year. Falsified Test Administrator Certificate School year 2016-17 was the first year that the FSA was to be given to students via computer. All MLE teachers were directed by Veliz to complete a Test Administrators' ("TA") Certification Course from American Institutes for Research ("AIR"). The FSA was given on April 27 and 28, 2017. On February 7, 2017, the school was scheduled to take an infrastructure practice test to make sure the school's system had the capacity to handle the testing by computers. On February 6, 2017, Gibbs received assistance from School Counselor, Ms. Gigi McIntire ("McIntire"), and the Micro-Tech, Mr. Osvaldo Hernandez ("Hernandez"), to create her password and receive a link for the infrastructure practice test. Gibbs' class did not take the infrastructure test. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her class had not completed the infrastructure test and the importance of practicing with her students prior to the FSA. During the meeting, Gibbs claimed that she had not been given the link and she had not received the password until the very end because Hernandez had helped all other teachers and left her for last. This was not true, however, because Gibbs received her password and the link on February 6, 2017. Gibbs submitted a TA Certificate on March 13, 2017, which had her name handwritten on it and which did not state a date of completion of the course. The certificate looked as though it was a screen shot from the computer. The certificates that were submitted by all other teachers looked different. They had their names typed on the certificate and the date that the course was completed. Gibbs was supposed to have her students practice taking the test on a computer. The expectation was that students would have done this multiple times before having to take the FSA. On April 24, 2017, Veliz approached some third grade students and asked them how their computer practice test was going. Several students from Gibbs' class stated that they had not practiced yet because their teacher did not know how to log in. Students from other classes stated that they had practiced several times. This alarmed Veliz. Veliz asked McIntire to provide copies of all the TA Certificates. Veliz saw that the only certificate with a name handwritten in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony Nembhard ("Nembhard") confirmed that Gibbs had only used her password to log in on February 6, 2017, and had not logged in at any other time. Nembhard provided Veliz with Case No. 545991, and showed Veliz how to print a report indicating that Gibbs had not completed the course. It was uncovered that a teacher could scroll through the course without actually taking it and get to a "Congratulations!" page that looked like what Gibbs had submitted as her certificate. A screen shot of this page could be printed out. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to assist students in practicing prior to the test. None of the students had any idea how to log in, did not know which browser to use, and every single one of them indicated that it was their first time accessing this practice test. The students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When Gibbs was asked if she had her students do the practice test, Gibbs indicated she had done everything she needed to do. Gibbs' defense, that her printer was not functioning properly to print a complete TA Certificate, is not credible. Gibbs apparently printed a TA Certificate in which everything printed perfectly, except her name, which she handwrote. She offered no explanation for failing to provide instruction to her students on how to utilize the computer so they would be ready to take the FSA. Falsified FMLA Certification of Healthcare Provider Gibbs sought and was granted Family Medical Leave Act ("FMLA") intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave every year thereafter from 2013 to 2015, and was approved by Ms. Marjorie Fletcher ("Fletcher") of the BCSB Leaves Department on each instance. Gibbs submitted a FMLA certificate of healthcare provider form from ARNP Princy Bhat-Bhardwaj ("ARNP Princy"), certifying Gibbs' need for another FMLA leave for the period of November 15, 2015, to November 15, 2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care provider. The frequency and duration section of the form on paragraph 11 were left blank. In order to process Gibbs' leave request, Fletcher faxed this form back to Metcare to request that it fill in the frequency and duration section of the form. The form was faxed back to Fletcher with the frequency and duration section of the form filled in. However, Fletcher noticed that the beginning and ending dates of the certification on paragraph nine, as well as the date of the signature on the bottom of the form, were whited out and written over. Fletcher called Metcare to verify their fax number which was fax-stamped at the top of the form. A person at Metcare could not verify the phone number listed on the top of the form. ARNP Princy confirmed to Fletcher that the handwritten portion of the date of the signature was not her handwriting. ARNP Princy also confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified that if she signs a form, it is her practice to date the form at the same time. According to ARNP Princy, Metcare's procedure for filling out and executing FMLA certifications is directed by the patient. In some instances, they fill out and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is handed back to the patient to submit to their employer. Gibbs submitted another FMLA certificate of healthcare provider from ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29, 2016, to June 10, 2016. On May 23, 2017, legal counsel for Metcare, confirmed to the Leaves Department that it had not completed a FMLA certificate for Gibbs since January 2015. It is evident that one or more FMLA forms submitted on behalf of Gibbs were falsified. However, no evidence was presented that the documents were altered by Gibbs or that they were ever in her possession prior to their submission by someone to the Leaves Department. Although no one other than Gibbs would seemingly have a motive to modify these forms, Gibbs denied falsifying them. While Fletcher certainly had a legitimate basis to question the validity of these forms, there was insufficient evidence to demonstrate that Gibbs knowingly submitted false information to secure ongoing intermittent leave. Prior Discipline Gibbs has prior disciplinary actions consisting of two verbal reprimands and several corrective actions (i.e., summary memoranda). She received a verbal reprimand on January 27, 2017, for failing to attend the scheduled Professional Learning Community on BAS at McNab Elementary on January 13, 2017. She received another verbal reprimand on December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement. Gibbs received received summary memos concerning: the need to attend all scheduled afternoon meetings; the need to promote positive interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period; the need to closely monitor and track student progress; the need to adhere to timelines and complete school-wide assessments in a timely manner; the need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for intentionally exposing students to embarrassment with references to boyfriends and girlfriends; the need the adhere to timelines and complete school-wide assessments in a timely manner; and the need to use guided reading during the reading block. On September 2, 2015, Gibbs was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. The personnel investigation involved two issues. One issue was about conduct that occurred during the 2014-15 school year when she was assigned to Walker Elementary as a VPK teacher. The alleged conduct was that she charged parents a fee if their child was picked up late from VPK and that she planned on charging a fee for the end of school graduation ceremony. The other issue was for conduct that occurred during the 2015-16 school year. It was alleged that on August 26, 2015, she pushed a student out of the classroom and pinched his back. Based on these two incidents, the Education Practices Commission issued a letter of reprimand to Gibbs, which is part of her BCSB personnel file. Ultimate Findings of Fact The evidentiary record overwhelmingly reveals a pattern by Gibbs of misconduct, gross insubordination, incompetence, willful neglect of duty, and violation of school board policies. The evidentiary record amply supports suspension without pay and termination of her employment for just cause.
Conclusions For Petitioner: Denise Marie Heekin, Esquire Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 6th day of March, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, 10th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
