The Issue The issue posed for decision herein is whether or not the Petitioner, Johnny Eddines, should be transferred from the Ft. Lauderdale Try Center. At the hearing, the Petitioner appeared on behalf of himself and also called Bernard Rubrecht, a rehabilitation counselor, and Estella Reid, Petitioner's mother. Petitioner was afforded the opportunity to cross-examine other witnesses who appeared and testified on behalf of Respondent. Respondent presented the testimony of Herbert Burrows, a program specialist employed by Respondent for approximately 17 years, presently with the Children's youth and Family Division; Michelle Parrish, a group treatment leader at the Try Center; Veda Hamilton, a community control employee of Respondent since approximately 1975; Willie Hamilton, a district intake supervisor employed with Respondent approximately nine years; and Gregory Johnson, a supervisory employee of the Ft. Lauderdale Try Center and an employee of Respondent for approximately 12 years.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. As stated above, Petitioner was placed in the Ft. Lauderdale Try Center on March 19, 1982. At the time of his assignment to the Try Center (Center herein) Petitioner was advised of the requirement that he abide by the rules and regulations of the Center (testimony of Parrish, Burrows, Veda and Willie Hamilton, and Gregory Johnson). Petitioner was given an orientation of the Center at the time of his commitment and was thoroughly apprised of the Center's rules and regulations. In this regard, Petitioner signed an agreement expressing his obligation to abide by the Center's rules and regulations. Petitioner was given an entrance test when he was enrolled in the Center and he tested out on the "top level." Immediately upon his enrollment at the Center, Petitioner was counseled respecting his attitude ad behavior and the necessity of his being able to get along with other enrollees at the Center. On April 4, 1982, it was necessary for Petitioner to again have a conference with Ms. Parrish about his "obnoxious behavior." Approximately two months after Petitioner was enrolled at the Center, he was made a house manager by Ms. Parrish in an effort to foster better relations and such that he would be regarded as a role model by other enrollees. During a beach trip during early April of 1982, Ms. Parrish requested that Petitioner perform certain chores, as other enrollees were requested to do, whereupon Petitioner engaged in a lengthy emotional outburst involving the use of profanity and displaying of offensive behavior directed toward Ms. Parrish. Following that incident, Ms. Parrish recommended that Petitioner be demoted from house manager as he was not a proper role model for other enrollees. On April 7, 1982, Ms. Parrish called in Veda Hamilton to discuss Petitioner's behavior and his failure to abide by the Center's rules and regulations. Also, on April 15, 1982, Petitioner left the Center and returned, according to Ms. Parrish, under what appeared to be an influence of drugs. On April 28, 1982, Petitioner was arrested for uttering at Taylor's Liquor Store. Throughout this period of time, Ms. Parrish had numerous consultations with Petitioner wherein he (Petitioner) used profanity and other abusive language. Following these incidents, Ms. Parrish recommended that Petitioner be transferred from the Try Center program. During late May, 1982, when Petitioner was arrested at Taylor's Liquor Store for uttering, Ms. Hamilton observed Petitioner at a bar drinking a beer. At that time, Ms. Hamilton discussed with Petitioner the recommendation that his assignment at the Try Center would likely be revoked and the further recommendation that he be sent to the Eckerd Youth Development Center at Okeechobee, Florida. On June 21, 1982, a hearing was held with Petitioner and representatives of Respondent wherein the recommended transfer of Petitioner to the Eckerd Youth Center was considered. Petitioner was afforded the opportunity to present witnesses and to cross-examine other witnesses who appeared on behalf of Respondent. Following that hearing, on June 21, 1982, an Order of Transfer was issued by Respondent transferring him (Petitioner) from the Try Center's program based on, inter alia, Petitioner's continued acts of delinquency and his failure to abide by the rules and regulations of the Try Center's program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent enter a Final Order transferring Petitioner from the Ft. Lauderdale Try Center to a higher-restrictiveness category treatment program more consistent with his needs. RECOMMENDED this 17th day of January, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1983. COPIES FURNISHED: Johnny Eddines 222 North West 22nd Ave. Ft. Lauderdale, Florida 33311 Lawrence Francis Kranert, Jr., Esquire 1000 South Federal Highway (Suite 103) Ft. Lauderdale, Florida 33316 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing her to work in a position of special trust at the Hobe Sound Child Care Facility or a like facility.
Findings Of Fact Sometime during 2001, the Petitioner applied for employment with the Hobe Sound Child Care Facility. The position she applied for would have brought the Petitioner into direct contact with children. The Petitioner's desire to work at the Hobe Sound Child Care Facility is in part because at least one of her own children attends that facility, and she would have an opportunity to interact with her own children while working with other children. By letter dated December 6, 2001, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption. Following the Petitioner's request, a committee designated by the Department conducted an informal hearing. The Petitioner participated in the informal hearing. Following the informal hearing, the committee voted to deny the requested exemption. The committee's decision to deny was based primarily on the committee members' impression that the Petitioner failed to show rehabilitation by failing to accept responsibility for the crime for which she was convicted. The committee felt that the Petitioner's continuing insistence that she was innocent of the crime and had been wrongfully convicted of crimes committed by others constituted a failure to accept responsibility for what she had done. By letter dated January 23, 2002, the Petitioner was advised that her request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner timely filed a request for a hearing to challenge the denial of her request for exemption. The disqualification of the Petitioner is based solely on her being found guilty of the crime of third degree grand theft. When the Petitioner was charged with third degree grand theft, she entered a plea of "not guilty" and went to trial on the criminal charges. At the conclusion of the criminal trial the jury found the Petitioner to be guilty as charged, and on July 18, 1994, the Circuit Court of Martin County entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation. The events which underlie the Petitioner's criminal trial took place at the Payless Shoes store in Stuart, Florida, during the several months immediately preceding December of 1993. During that time period, the Petitioner and several other people worked at the Payless Shoes store and had access to the merchandise and to the cash register. Some, but not all, of the employees were stealing cash and merchandise from the shoe store. An audit was conducted at the subject store, and on December 3, 1993, a Loss Prevention Investigator employed by Payless Shoes interviewed the Petitioner regarding her knowledge of thefts in the store where she worked. The Petitioner cooperated with the investigator and explained to him how the employees had been stealing cash and merchandise from the store. During the interview, the investigator prepared a written statement in his own handwriting. At the end of the interview the investigator told the Petitioner that he had prepared a written statement of everything she had told him and asked her to sign the statement. The Petitioner signed the statement without reading it. Later the same date the Petitioner was arrested. At the time of her arrest she told the arresting officer that she was innocent. During the arrest process the Petitioner became aware that the statement she had signed without reading implicated herself as one of the participants in the thefts she had described to the investigator. The Petitioner contended then, and continued to contend at the hearing in this case, that the investigator who took her statement either misunderstood what she said or incorrectly wrote what she said. The Petitioner admits that she had guilty knowledge of the fact that other employees where stealing merchandise and money from the store, and she now realizes that she should have told her employer about the thefts by others. However, the Petitioner has always contended that she never participated in any thefts from the store. Without at this late date trying to determine whether the jury's finding of guilty was correct, it is sufficient to note that, her assertions of innocence of the crime charged, notwithstanding, the Petitioner presently appears to be sincerely remorseful regarding her failure to timely report to here employer the criminal actions of other employees. Further, the Petitioner now appears to understand the importance of being honest in all matters concerning one's employment. In the many years that have passed since 1993, the Petitioner seems to have made sincere efforts towards rehabilitation. She is now active in her church and is involved in raising her own children, as well as trying to be of assistance to other children in her community. She is highly motivated to work in child care. To that end she has taken numerous courses to learn how to provide good child care. She enjoys working with children and can be expected to do a good job in such a position. Following her sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of her probation. She had occasional difficulties making the financial payments required by her sentence due to difficulties in obtaining steady employment. In sum, the Petitioner is a decent and honorable person who enjoys working with children, appears to be good at working with children, and should not be disqualified from employment positions working with children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification in a position of special trust. DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. 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 19th day of July, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Alecia Fugate-Smith 914 East Eighth Street Stuart, Florida 34994 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent’s award of a contract in response to a Request For Proposal (RFP) was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent, on or about February 28, 1997, advertised and released RFP K6PO9B in order to procure a halfway house program for delinquent juvenile males. The RFP was written by Eric Stark, a human services program specialist employed by Respondent. An Addendum to the RFP was issued March 17, 1997, which required offerors with prior funding from Respondent to submit copies of their Quality Assurance Report for the past two years with their proposal. As stated in the RFP, the program would "be responsible for the custody and treatment of delinquent youth." The program would be located in Respondent’s facilities in Miami, Florida. Responses to the RFP were timely submitted by eight offerors, including Petitioner, the incumbent provider. Respondent’s employees Robert Rojas, Morris Copeland, and Jean Murat were selected by Respondent to evaluate the responses to the RFP K6PO9B. The evaluation criteria and proposal rating sheet begin on page 29 of RFP K6PO9B. Plainly stated on that page of the RFP is the statement that evaluation of proposals would be based on the specified criteria contained in the following pages of that section of the RFP. In the evaluation process, Respondent’s three employees reviewed the proposals and assigned a value for past performance and experience to each provider. For proposals where the offeror had no past performance or experience with Respondent, a formula permitted evaluators to arrive at an approximation of the value to be allocated to a proposal. In some instances under the formula utilized in the evaluation, it was possible for a proposal displaying no past performance or experience to rate higher than some other proposals possessing this qualification. In the instant proceeding, however, the evaluation points assigned to past performance are such that if past performance were removed from the RFP, it would have no bearing on the ranking of the top five proposals. Evaluators were not given the proposals all at one time. Instead, the proposals were parceled out to them two, three, or five at a time. The proof fails to establish that the evaluators had available to them at one time all proposals so as to permit them to make a simultaneous comparison of all proposals. One of the evaluators, Robert Rojas, had recently evaluated responses to a similar, but not identical, RFP for Respondent. In the previous evaluation, Rojas was familiar with the entire RFP and had read it. With regard to RFP K6PO9B, however, he had not read the entire RFP and, instead, relied upon his prior experience and the wording of evaluation criteria and proposal scoring sheets, starting on page 29 of the RFP, as he evaluated the proposals. Respondent had used the standard halfway house program model for RFP K6P09B, except the model was made more specific to meet needs of the particular program being sought in this instance. As a result of the evaluation by Respondent employees, I-CARE Baypoint Schools (I-CARE), received the highest number of points (1073). Petitioner ranked in sixth place with 900 points. Petitioner offered no evidence at hearing regarding the effect it had on its score as a result of Rojas’ evaluation. Following the evaluation and a subsequent ultimate decision of Joseph Ingraham, a senior juvenile justice manager employed by Respondent, a notice of contract award to I-CARE was made on April 11, 1997. Petitioner timely filed its notice of intent to protest, followed by its Formal Protest Petition and Request for Hearing on or about April 24, 1997. The parties have stipulated to Petitioner’s standing to bring this challenge to Respondent’s proposed contract award. Petitioner views its formal protest as a challenge to the RFP process used by Petitioner "based on the failure of [Respondent] to adopt or promulgate rules and its reliance on incipient agency policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered affirming the award to I-CARE. DONE AND ENTERED this 15th day of July, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1997. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Scott Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32301 Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Jimmie Alvin ("Alvin") was a School Security Monitor in the Miami-Dade County School District ("District").1 From 1989 until September 2003, when Petitioner Miami-Dade County School Board ("Board") suspended him without pay, Alvin worked at Miami Beach Senior High School. During the 2001-02 school year, Alvin failed to show up for work without authorization at least twice, and he was tardy some 28 times. Alvin was disciplined for this poor performance at a conference-for-the-record held on April 25, 2002. Alvin's attendance improved thereafter, and during the 2002-03 school year, he was late for work just six times. Other problems arose, however. In September 2002, a female student accused Alvin of having touched her arm inappropriately while, allegedly, simultaneously calling her a "whore" in front of others. Following the student's complaint, the District charged Alvin with violating the School Board Rule against improper employee- student relationships. School detectives investigated the charge and found it "substantiated" on conflicting evidence. At the final hearing in this case, however, Alvin credibly denied the allegations. For its part, the Board offered no persuasive, competent, nonhearsay evidence to prove that Alvin actually committed the acts of which the female student had accused him. Thus, it is determined as a matter of ultimate fact that the evidence fails to establish Alvin's guilt with regard to the charge of engaging in an improper employee- student relationship. On March 3, 2003, Alvin was arrested and charged with possession of cocaine and marijuana with intent to sell. On April 24, 2003, Alvin pleaded "no contest" to the criminal charge and was sentenced to one year's probation. At a conference-for-the-record on May 6, 2003, Alvin was notified that the District would review information concerning his past attendance problems, the alleged improper relationship with a student, and his recent criminal conviction, to determine an appropriate disciplinary response. At its regularly scheduled meeting on September 10, 2003, the Board suspended Alvin without pay pending the termination of his employment for just cause. At all times material, Alvin was a member of United Teachers of Dade ("UTD"), a teachers' union. The conditions of Alvin's employment were governed by a collective bargaining agreement referred to in the record as the "UTD Contract."2 Ultimate Factual Determinations The undersigned is unable to determine whether, as a matter of ultimate fact, Alvin should be fired for reasons stated in the collective bargaining agreement, because the UTD contract is not in the evidentiary record.3 Therefore, it is determined that the Board has failed to carry its burden of proving the alleged grounds for dismissal by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Alvin of all charges brought against him in this proceeding; (b) providing that Alvin be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Alvin back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 19th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 19th day of March, 2004.
The Issue The central issue in this case is whether or not Respondent should be suspended retroactively without pay from his non-instructional position and terminated from his employment as a custodian.
Findings Of Fact At all times material to the allegations of this case, Respondent was employed as a custodian at VBHS. At the beginning of the 1992-93 school year, Anthony Dissis, a deputy employed by the Indian River County Sheriff's Department, was assigned to be an undercover officer at VBHS. Deputy Dissis enrolled at the school, attended classes with other students, and in all respects attempted to give the appearance of being a student at the school. To that end, he met and talked with other students. During the course of his school experience, Deputy Dissis met Respondent who was known on the campus and who was frequently in student areas. In late October, 1992, Deputy Dissis approached Respondent and sought to purchase marijuana. Despite some initial delays, Deputy Dissis and Respondent came to an understanding whereby the officer gave $50.00 to the Respondent for marijuana. Later, Respondent told Deputy Dissis to meet him at a parking lot on campus and the delivery would take place. At the appointed time, Deputy Dissis went to the parking lot and Respondent handed him an envelope in which the contents were later tested and confirmed to be marijuana. Such testing was performed by Bob Parsons, an analyst with the regional crime laboratory. Marijuana is a controlled substance as defined by Florida law. Subsequently, the Respondent was suspended from his employment. When tried on the criminal charges which arose from the same incident complained of herein, Respondent was found not guilty by a jury.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Indian River County School Board enter a final order confirming the suspension without pay of the Respondent, and terminating his employment as a school custodian. DONE AND RECOMMENDED this 30th day of July, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0327 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraph 1 is accepted; however Respondent's age and place of birth are irrelevant to these proceedings. Paragraph 2 is rejected as irrelevant to the allegations of this case. With the deletion of the third sentence which is rejected as irrelevant, paragraph 3 is accepted. With regard to paragraph 4, it is accepted that Dissis paid Respondent $50.00 for marijuana on school grounds and near the gym class; it is not established that other students viewed the transaction as suggested by the paragraph and such finding is rejected as not supported by the evidence presented. With regard to paragraph 5, it is accepted that Dissis and Respondent worked out the details of the marijuana delivery while Respondent was working, on school property, and near the gym. It is further accepted that the delivery was to take place later in the day at a location on campus; otherwise, the paragraph is rejected as not supported by the evidence presented or irrelevant. See comment to paragraph 4 above. Paragraphs 6 through 11 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: Paragraph 6 (Respondent's paragraphs 1 through 5 were preliminary, not proposed findings of fact) is accepted. Paragraphs 7 and 8 are accepted. Paragraph 9 is rejected as argument, or not supported by the weight of credible evidence. COPIES FURNISHED: G. Russell Petersen G. RUSSELL PETERSEN, P.A. 3426 Ocean Drive Vero Beach, Florida 32963 Thomas E. Shafovaloff 411 North Park Avenue Suites 12-14 Winter Park, Florida 32789
The Issue The issue is whether the proposed award of the contract for Request for Proposals (RFP) No. P2029 to Henry and Rilla White Youth Foundation, Inc. (White Foundation) is contrary to the specifications of the RFP.
Findings Of Fact DJJ issued RFP No. P2029 on April 17, 2007. The RFP solicited proposals for a “240-available slot Community-based Intervention Services program for boys and girls for Volusia, Flagler and Putnam counties ” The contract resulting from the RFP will be for a three-year term -- July 1, 2007 through June 30, 2010 -- with a renewal option for up to an additional three years at DJJ’s sole discretion. The RFP states that the maximum annual contract amount is $1,504,968, and prospective providers were required to propose a price at or below that amount. EYA and White Foundation submitted timely, responsive proposals in response to the RFP. White Foundation’s proposal offered a slightly lower price than EYA’s proposal.1 On June 18, 2007, DJJ posted notice of its intent to award the contract to White Foundation. Thereafter, EYA timely filed a notice of intent to protest and a formal written protest challenging the proposed award of the contract to White Foundation. The RFP provided that the proposals were to be evaluated and scored in three categories: technical proposal, financial proposal, and past performance. The past performance category focuses on the prospective provider’s knowledge and experience in operating non-residential juvenile justice programs. The criteria related to the past performance category are contained in Attachment C to the RFP. Attachment C consists of three parts: Part I - Past Performance of Non-Residential Programs; Part II - Evaluation for Past Performance in the United States Outside of Florida; and Part III - Evaluation for Professional Accreditation in the United States. The focus of the dispute in this case is on Part III. A proposal could receive a total of 1,000 points if, as is the case with both EYA and White Foundation, the prospective provider operated DJJ-contracted non-residential programs in Florida. The proposal could receive up to 240 points for Attachment C, with a maximum of 40 points for Part III. The RFP states that the proposal that receives the highest overall score will be awarded the contract. White Foundation’s proposal received a total of 785.98 points, which was the highest overall score. White Foundation’s score included 40 points for Part III of Attachment C. EYA’s proposal received a total of 752.03 points, which was the second-highest overall score. EYA received zero points for Part III of Attachment C. EYA contends that White Foundation should not have received any points for Part III, which would have resulted in White Foundation’s overall score being 745.98 and would have given EYA the highest overall score. Part III of Attachment C asks whether the prospective provider currently operates non-residential juvenile justice programs that are accredited and in good standing with certain accrediting agencies, including the Rehabilitation Accreditation Commission (CARF). If so, the RFP requires the prospective provider to include supporting documentation. The prospective provider receives 10 points for each accredited program listed in Part III of Attachment C. The RFP states multiple times that the supporting documentation “must include the start and end dates [of the programs], be current dated and valid at least through the start date of the Contract that results from this RFP,” and that it must state that “the program cited is a non-residential juvenile program and that is run by the prospective Provider.” The RFP also states multiple times that a prospective provider’s failure to provide the required supporting documentation “shall” result in zero points being awarded for Part III of Attachment C, and that DJJ “is not responsible for research to clarify the prospective Provider's documentation.” EYA did not list any programs in its response to Part III of Attachment C. Its wilderness programs are accredited by the Council on Accreditation (COA), but its non-residential juvenile justice programs are not accredited by COA , CARF, or any other organization. White Foundation listed four programs in its response to Part III of Attachment C: a conditional release program in Nassau County; a conditional release program in Duval County; a conditional release program in Clay County; and an Intensive Delinquency Diversion Services program in Circuit 2. The documentation provided by White Foundation to show that the listed programs are accredited was an undated certificate from CARF and a one-page “Survey Accreditation Detail” dated June 28, 2006. The CARF certificate states that “a three-year accreditation is awarded to the [White Foundation] for the following identified services: case management/services coordination: family services (children and adolescents)" and for “out-of-home treatment: family services (children and adolescents).” The seal on the certificate includes an expiration date of August 2007. The CARF certificate does not mention any of the programs listed by White Foundation in response to Part III of Attachment C. It only certifies that that White Foundation is accredited as an organization for certain services. The Survey Accreditation Detail document makes reference to survey number 32190; company number 200190; an accreditation decision of “three-year accreditation”; an accreditation expiration date of August 31, 2007; and Correction Services of Florida, LLC as the “company submitting intent.” The document lists six “companies with programs,” including the four programs listed by White Foundation in its response to Part III of Attachment C. The bottom of the Survey Accreditation Document includes the notation “page 1 of 2.” The second page of the document is not included in the portion of White Foundation’s response to the RFP that was received into evidence, nor is it included in the exhibit attached to the deposition of Paul Hatcher, the DJJ employee who evaluated the responses to the RFP with respect to Attachment C. Mr. Hatcher testified that he interpreted the Survey Accreditation Detail document to be “a summary of the prospective provider’s programs that received accreditation based on the CARF award letter.” That interpretation, while not implausible, is not adequately supported by the evidence of record. First, there is nothing on the Survey Accreditation Detail document to demonstrate that it was prepared by CARF, and Mr. Hatcher acknowledged that he did not know who prepared the document. Second, it cannot be determined from the Survey Accreditation Detail document whether the “three-year accreditation” referred to in the document relates to all of the “companies with programs” listed on the document, or just to Correction Services of Florida, LLC, which is identified as the “company submitting intent.” Indeed, each of the listed “companies with programs” has a different six-digit number in parenthesis following its name and only the number following Correction Services of Florida, LLC, matches the “company number” referenced at the top of the Survey Accreditation Detail document. Third, the record does not reflect the relationship, if any, between White Foundation and Correction Services of Florida, LLC. Indeed, Mr. Hatcher testified that he did not know anything about Correction Services of Florida, LLC, except that it appeared to have the same address as White Foundation. The CARF certificate and the Survey Accreditation Detail document do not on their face reflect whether the listed programs are non-residential programs (as compared to residential programs) or whether they are juvenile justice programs (as compared to juvenile programs that do not involve the juvenile justice system). However, Mr. Hatcher testified that all of the services identified on the CARF certificate correspond to non-residential facilities and that he was familiar with the listed programs and knew that they were juvenile justice programs. It cannot be determined from the CARF certificate and Survey Accreditation Detail document whether the four programs listed by White Foundation in its response to Part III of Attachment C are accredited. Indeed, Mr. Hatcher candidly acknowledged as much in his testimony.2 If DJJ had scored White Foundation’s proposal in accordance with the specifications of the RFP, the proposal would have received zero points for Part III of Attachment C, which would have resulted in EYA’s proposal receiving the highest overall score.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DJJ issue a final order rescinding the proposed award of RFP No. P2029 to White Foundation. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2007.
Findings Of Fact At all times pertinent to this proceeding, the Center was a child care facility owned and operated by Pasquale (Rick) and Barbara Diana at 648 Ortiz Avenue, Fort Myers, Florida, Lee County, Florida. The Department is the authority which issues and renews child care facility licenses in the county where the Center was located. At the time the application for license renewal was made by the Center, the facility was an ongoing business, and was authorized to care for a maximum of forty-one children. As part of the regulatory process, the Department inspects all of the child care facilities within the Lee County area. During the first five inspections during 1988, the Center was cited for the following violations: delinquent submissions of background screening requirements, insufficient staff ratios, inadequate direct supervision of children, and excess use of the facility beyond the licensed capacity of forty-one children. In an attempt to reduce these, and other citations for violations of the minimum standards for child care facilities at the Center, the owners agreed to weekly inspections by the Department beginning in September 1988. The purpose of these inspections was to promote change within the Center, and to assure the Department that the facility was able to function within the required minimum standards. The first weekly inspection of September 19, 1988, revealed that the Center was exceeding its licensed capacity. Forty-four children were being cared for in the Center. Soap was needed in one bathroom, and indoor equipment needed cleaning. On September 27,1988, bedding and crib requirements were not being met by the Center. Two cribs were broken, and in need of repair. One crib mattress and some nap mats needed to be replaced. Soap was unavailable in both bathrooms. On October 6, 1988, nap mats needed to be replaced and electrical outlet caps needed to be placed upon exposed outlets. On October 20, 1988, there was an insufficient staff ratio for the thirty-three children present at the Center. Nap mats and electrical outlet caps were still needed. An unlocked, outdoor shed contained fire ant killer insecticide, and was accessible through the playground area. The lunch served to the children was not the lunch posted upon the menu. As a result of the violations discovered during the October 20, 1988 inspection, a citation letter was issued by the Department to the Center on October 27, 1988. The letter cited the Center for the insufficient staff ratio violation, and reminded the owners that previous citations had been issued for this violation on February 15, 1988, June 16, 1988, and August 31, 1988. The unlocked outdoor shed near the outdoor play area was the subject of previous citations on June 23, 1988, and August 31, 1988. The failure to serve the lunch posted on the menu had also occurred previously on August 31, 1988. The Center was told to comply with all of the minimum standards set forth in Chapter 10M- 12, Florida Administrative Code. The Corrective Action Plan set forth in the letter directed the owners to accept only the number of children allowed under the license, to plug all exposed electrical outlets, to provide soap, toilet paper and towels in each bathroom, and to replace the torn nap mats currently in use. On October 28, 1988, the inspector observed two children who were not directly supervised within the Center. Three of the four staff members were new employees whose background screenings had not been submitted to the Department. Child abuse/staff training requirements were incomplete, and soap was needed in one bathroom. On November 3, 1988, a broken crib previously cited on September 27, 1988, was being used in its broken state. The playground area contained an unanchored swing set and there were exposed nails in the fence surrounding the area On November 10, 1988, all of the background screenings were not complete on current staff. On November 15, 1988, the owners submitted an application for license renewal to the Department. The current license was scheduled to expire on December 31, 1988. On November 18, 1988, background screenings were still incomplete. Torn nap mats were still in use, and proper enrollment information on new children had not been completed. On December 11, 1988, a background screening was still incomplete on one employee. There was an insufficient ratio of personnel to children under the required minimum standards for personnel. Towels were needed in the back bathroom, and the posted menu was not dated to assure that it was current and reflected the day's meal plan. On December 13, 1988, the Center was evaluated for license renewal purposes. The constant turnover in staff who were not promptly screened, the ongoing insufficient staff ratios and direct supervision violations, coupled with the physical facility violations such as improper bedding and mats, and the failure to maintain a safe playground area, resulted in a decision to deny the application for license renewal.
Recommendation It is therefore, RECOMMENDED: 1. That the application for license renewal as a child care facility submitted by the Center for January 1, 1989, through December 31, 1989, be denied. DONE and ENTERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of May, 1989. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire Department of Health and Rehabilitative Services District 8 Legal Office Post Office Box 06085 Fort Myers, Florida 33902 Pasquale & Barbara Diana 7407 Coon Road North Fort Myers, Florida 33917 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Department of Juvenile Justice (DJJ or Department) acted illegally, arbitrarily, dishonestly or fraudulently in the rejection of all proposals for the Better Outlook Center request for proposals.
Findings Of Fact The Department has responsibility for the custody and treatment of delinquent youth in the State of Florida. As part of that responsibility, the Department sought proposals for a halfway house program to be located in Dade County, Florida (District 11). This program, also known as the Better Outlook Center (BOC), will provide residential beds for twenty-eight male juveniles who are considered a moderate risk to public safety and require a structured residential community. The Department advertised a request for proposal (RFP) for the BOC project, RFP #K6P07, on January 24, 1997. Subsequent to the general mailing of the RFP packet, the Department received twelve proposals for the BOC project. Among those proposals, the Petitioner, Haynes Services Corporation, was awarded the highest score. In a telephone conference call conducted in February, 1997, the Petitioner’s CEO was advised of his apparent highest ranking but was asked to lower the per diem rate. Petitioner agreed to the amendment. Subsequently, upon further review of the matter, the Department determined it had not included criteria which would consider quality assurance performance on similar programs, third party reviews, or past performance. The Department determined that these criteria should be included in all RFP evaluations and set about to draft language incorporating these provisions into new RFP instructions. These new criteria would be applicable throughout the state and would be applied to review all applicants for programs awarded through the DJJ. Concern over the new criteria arose because the Department was advised that Petitioner had failed quality assurance requirements at another project. Thus, while the Department had considered Petitioner’s proposal for the subject project well articulated, it became concerned regarding Petitioner’s ability to perform as represented. In order to place all applicants on an even playing field for consideration of this project as well as others where this issue might arise, the Department determined that all applicants should submit records of past performance. The results of past performance and quality assurance ratings would then be a factor to consider before awarding future projects. Accordingly, all proposals which had been submitted for the BOC RFP at issue were rejected. On or about March 7, 1997, all applicants who had submitted proposals for the BOC project were notified that the Department intended to re-advertise the RFP with new criteria. The Petitioner was not awarded a contract for the subject RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the challenge to the rejection of all bids for RFP #K6P07. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. J. D. 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 8th day of May, 1997. COPIES FURNISHED: 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 Kaydell Wright-Douglas, Esquire The Wright Building 110 North Armenia Avenue, Suite A Tampa, Florida 33609 Scott C. Wright, Esquire Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 18th day of May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
