Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the upholstery or reupholstery (upholstery) course/program offered by the college. In the 1986 school year, the upholstery program was given a formal evaluation as it had experienced a decline in student enrollment. Goals were established to encourage student participation in the program and additional development of the program. The evaluation or program review described in paragraph 6 was performed under the guidelines addressed in Appendix K, and resulted in the program being placed on probation for one year with the following condition: that the enrollment goal of an average of 16 full-time or full-time equivalent students per term be established. The probation term ran from April 1, 1986 through, presumably, March 30, 1987. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. On March 27, 1986, the president of the college issued a letter to Respondent advising him of the probation status of the upholstery program. The letter further provided that should the program be terminated, that the instructional position held by Respondent would be terminated. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease amount. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts for the planning for the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the reviews of their programs were completed by the directors under Dean Tesinsky, she reported findings to Dr. Samuels. Such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Concurrent with the planning incidental to the budget cuts options, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but which were in great demand by large numbers of students. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify and be reassigned. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Reupholstery program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Reupholstery program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 23, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the upholstery program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 7, 12, 14 through 22 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 23, 1991; otherwise rejected as a conclusion of law. It is concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. That portion of paragraph 8 which suggests that Director Satterlee's analysis was the first time the reupholstery program was identified as weak is rejected as contrary to the weight of the evidence. This program had a history of being "unproductive" and had, in fact, been on probation in the not-too- distant past. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 41. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $62,552. Paragraph 10 is rejected to the extent that it suggests the reupholstery program had been on probation in any year other than 1986. With the following clarifications, paragraph 11 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 13 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
Findings Of Fact Respondent was employed by the Bradford County School Board as a cosmetology instructor on a continuing teaching contract at the Bradford-Union Area Vocational-Technical Center (Va-Tech Center) in Starke, Florida, for the school year 1983-1984. Respondent's class was designed to prepare students to become licensed cosmetologists. On one occasion prior to Christmas, 1983, Mary Lee Wolf and Rose Smith, students of Respondent, brought an unopened bottle of wine onto the Vo-Tech Center grounds and presented it to Respondent during a class. There is no evidence that Respondent solicited the gift. Subsequently, on another date and after class hours, students Mary Lee Wolf, Tina Moyer, Bonnie Banks and Respondent's teaching aide, Helen Van Wart, opened the bottle and drank wine from cups in Respondent's presence. Respondent was served a cup, but there is no direct, credible testimony that Respondent personally consumed any wine. There is no evidence that any of those who consumed the wine were minors. In February 1984 the Ace Beauty Company, in conjunction with the Florida Cosmetology School Association, put on the Florida Sunshine Trade Show in Tampa, Florida. Attendance by students in Respondent's class at this particular trade show was encouraged by Respondent and pre-authorized by the Vo- Tech Center Director, David B. Smith, Jr. Mr. Smith made no provisions for a teacher's aide to fill in for Respondent on Monday, February 13 and Tuesday, February 14 because Respondent informed him that all but one or two of her students would be attending the trade show from February 11 through February 14, 1984. In fact, seven students did not attend and those who attended returned late February 13. On Friday, February 10, 1984, Mr. Smith approved use of the Vo-Tech Center van for Respondent's field trip, provided only Respondent drive the van. The same day, Respondent gave Mr. Smith a signed Application for Leave, requesting leave from February 11, 1984 through February 14, 1984. Past experience indicated trade shows may exceed the printed agenda. Saturday morning, February 11, 1984, Respondent and the eleven students travelling to the cosmetology show in Tampa, met in the Vo-Tech Center parking lot to board the van. While passing luggage to the Respondent for loading into the van, Bonnie Banks saw liquor bottles protruding from paper bags and remarked to Respondent that it looked like a party was planned. Respondent did not answer her Various students drank mixed alcoholic beverages from paper cups while standing near the van. Those involved took some care to shield their activities from Respondent and there is no direct credible evidence in the record to indicate Respondent was present or observed this alcoholic consumption on the school parking lot. Before climbing aboard the van, several of the students heard Respondent comment to the effect that the students were all adults and she expected them to behave that way. Some interpreted this to mean they were being given tacit permission to drink alcoholic beverages; others interpreted it as a warning either not to drink alcoholic beverages on the trip or not to let Respondent observe them drinking, if they did. Some of the students drank mixed alcoholic drinks from paper or plastic cups in the van while Respondent drove the van to Tampa. Mary Lee Wolf "tasted" some Kahlua liquor from a bottle in a brown paper bag. At one point, another liquor bottle in a brown paper bag rolled forward on the floor near Respondent in the driver's seat and Respondent passed it back to students behind her with an admonition to the effect of "keep it down back there." While it is unclear whether this comment was directed to Ms. Wolf or to someone in control of the rolling bottle, of those students who observed the bottle incident, all understood Respondent's comment to mean "don't let the liquor be seen" as opposed to "stop drinking and don't be so loud." While en route to Tampa, Respondent stopped in Gainesville, Florida, to refuel. At this stop, students Paula Tanner, Bonnie Banks, and Kay Kane left the van, purchased a six pack of beer at an adjoining convenience store and brought it back in a brown bag to the van. Respondent was in an adjoining bakery and did not see the beer loaded. Thereafter, various students drank beer from paper and plastic cups while Respondent drove the van. There is no evidence that any of these students was a minor and there is no direct, credible evidence Respondent consumed any alcoholic beverages in the van. Also at the Gainesville stop, Respondent drove from the gas pumps to another parking location without closing one of the van doors. The open door contacted the bumper of a parked car. There was little or no visual damage to the van but the students had difficulty closing the door again. Respondent had the necessary minor repair work done to the van in the Vo-Tech mechanical shop upon her return but did not report the accident to Director Smith. When Respondent unloaded the van in Tampa, several beer cans littered the van floor and a liquor bottle was dropped and broken in proximity to Respondent. Upon arrival in Tampa, Respondent registered in the Hyatt Regency Hotel, where the trade show was located. For financial reasons, several students had pre-registered in the less expensive Econo-Lodge some distance from the trade show. Respondent permitted Rose Smith to transport these students to and from the Econo-Lodge accommodations to the cosmetology show at the Hyatt Regency throughout the group's stay in Tampa. She jestingly told Rose Smith to say she was Respondent. On Sunday evening, after all educational activities ceased, Rose Smith also drove several of the students to the Confetti Lounge where they consumed alcoholic beverages. Rose Smith and some other students consumed alcoholic beverages in the van on this occasion. Respondent did not accompany the group to the Confetti Lounge. The Florida Sunshine Trade Show ended at 4:00 p.m., Monday, February 13, 1984. Respondent drove the van back to Starke that evening. During the return trip, some students complained of what they considered excessive speed. Respondent's reply to Paula Tanner's complaint was that if she did not like the ride she could get out and walk. The group arrived at the Vo-Tech campus at approximately 10:30 p.m. People were present on the grounds, in the classrooms, and in the administration offices when the cosmetology students arrived and for some time thereafter Respondent waited at the Vo-Tech Center for most of the students to be picked up. At student Lisa Morgan's request, she eventually took the remaining students home, but Ms. Morgan refused Respondent's offer to wait with her and insisted on waiting for her own ride which did not arrive until after 1:30 a.m. Tuesday morning, February 14, 1984. Respondent retained the Vo-Tech van at her home on Tuesday, February 14, 1984. On February 15, 1984, she reported for work. This is the day the van was repaired. In separate conversations with Barbara Casey, secretary to Director Smith, and with Martha Smith, (Mrs. David Smith) media specialist, Respondent gave the impression she had returned to Starke late Tuesday night. Respondent also submitted a newspaper release to that effect. On or about Friday, February 17, 1984, Respondent submitted to Director Smith a per-diem voucher requesting compensation from 9:30 a.m., February 11, 1984 to 11:00 p.m., February 14, 1984 when she had in fact returned at 10:30 p.m., February 13, 1984. At Mr. Smith's request for a supporting agenda she submitted a typed agenda for the trade show indicating activities through part of Tuesday, February 14, 1984. Four other per diem requests submitted by Respondent during the previous four years for field trips had exceeded the time periods established in their respectively attached agendas. In each instance, Mr. Michael Reddish, finance officer, reduced the time requested and made a reduced per diem reimbursement payment to coincide with the agenda submitted. Each time he did this he informed Director Smith of these actions; neither Smith nor Reddish informed Respondent of these actions, but it may be inferred that she was aware her per diem reimbursement payments were being reduced from the hours she had requested so as to coincide with the agendas she had submitted simultaneously with her per diem reimbursement requests. The per diem reimbursement request submitted on February 17, 1984 with supporting agenda amounted to a request for fifty dollars ($50.00) more than the actual time spent by Respondent on the trade show trip. Respondent's class procedures involved several sources of funds: individual student contributions to a profanity jar, proceeds of a class hot dog sale, fees charged to patrons for student beauty services, charges to students for supplies used by them in class, charges to students for sale of materials such as shampoos and permanents which they took home, and charges to students for special purchase items such as mannequins. Mannequins are false "heads" with rooted hair for hair services' practice. The profanity jar was apparently Respondent's idea to teach decorous language for purposes of future employment. Students who "cussed" were required to deposit various amounts of small change into the jar for each infraction. The amount in this jar at any point in time was never established by any credible evidence, nor has it been established what became of it or that Respondent emptied it. Proceeds from the class hot dog sale were originally intended to be used for groceries for use only for those students attending the trade show field trip. Instead, Respondent responded to non-attenders' complaints and purchased hairspray for the whole class. Although the highest "guesstimate" for hot dog monies was $25, the exact amount of proceeds from the hot dog sale has never been established by any direct credible testimony. At the beginning of the 1983-1984 school year, Director Smith and Respondent agreed that because Vo-Tech and the students each derived some benefit from student use of supplies, the school would charge students half price for supplies they wished to use at home. These types of supplies were initially purchased by the school from internal student money generated from student work on patrons and from sale of the supplies to students. They were internal funds and not county monies in Director Smith's eyes. Director Smith required that funds received from students and patrons be accounted for daily but no one in his office checked up on this. It was left to a teacher or a student to report these amounts on "Report of Monies" logs from each class daily. There is confusion in the testimony of Director Smith, Ms. Edwards, secretary-bookkeeper, and Ms. Norman, school clerk, as to what constituted retail sales and what constituted internal funds, and as to whether wigs and mannequins on hand constitute "supplies" (always retail sales) or are always classified in the category of special pre-paid purchase items. Students could purchase mannequins through the school office but mannequins were normally purchased by the school with county money and Mr. Smith's understanding was that in the 1983-1984 school year there had been only one purchase of mannequins made with county monies and therefore they were not for resale. Ms. Edwards and Ms. Norman thought sale of supplies to students could not generate internal funds and was not permitted, contrary to Mr. Smith's understanding, and both ladies were vague as to whether there had been another set of mannequins for students to purchase. All three administrators agreed resale of items purchased with county funds was improper. Ms. Edwards and Ms. Norman are the persons who determined no amounts of monies in any category had been turned in from Respondent's class in the 1983-1984 school year. On one occasion, student Elizabeth Kelly paid for a mannequin in advance with a check from her grandfather to her, which she endorsed over to Helen Van Wart. She eventually received the mannequin from Helen Van Wart. On another occasion, Bonnie Banks delivered a blank check for $24.00 to Respondent. It was cashed with the name "Betty J. Hutson" filled in and also endorsed on the back. That name is Respondent's name and Bonnie Banks thought that was Respondent's signature but no predicate/foundation/reason exists in the record for that assumption. Bonnie Banks also received her mannequin. In the 1983-1984 school year, money for all supplies regardless of how categorized were collected by Respondent's teacher's aide, Mrs. Van Wart, but the keys to the supply cabinet were freely given out to students. Permanents were left sitting on an open shelf. Mrs. Van Wart did not routinely give out receipts and none of the money students recall paying for supplies was turned in to the Director's office. In the previous years, student monies and retail sales for patrons services and sales to students had been turned in to the office from Respondent's class. In 1983-1984, no theft of monies or supplies was reported to the Director by anyone. Only one student, Elizabeth Kelly, recalls Respondent mentioning some money was stolen but how much or from what source this money was derived was never established by any direct credible testimony. No credible testimony established any supplies were actually missing from the supply cabinet and an outside year end audit revealed no problems in Respondent's class. Petitioner established that over a period of approximately three years, Respondent fell asleep several times while under the hairdryer during class while her students practiced on her. On one other occasion, she was absent from the classroom for a short period of time on a personal errand off- campus. The maximum period of time she was gone was less than an hour and a half and during this period she was entitled to take her lunch. During this absence, a patron was permanented by a student and injured. It is contrary to Vo-Tech policy for students to use chemicals without on-site instructor supervision and Respondent did not advise Director Smith of the patron's injury. She further requested her students to say she was in the school cafeteria when it happened. Cosmetology students attending a normal day of classes on campus would be legitimately credited with seven (7) hours toward their state board requirement. Feeling trade shows were worthwhile learning experiences, Mr. Smith authorized granting students eight (8) hours for the planned activities of a field trip day. At the beginning of the 1983-1984 school year, Respondent told her entire class that no-one-would be required to attend class the day following any multi-day trade show or seminar. On Friday, February 10, 1984, Respondent told her class that they would be returning from the trade show on Monday evening, February 13; that there would be no class on Tuesday, February 14; and that everyone would still get credit for class on Tuesday. Respondent advised her class that students not attending the trade show would receive attendance credit whether or not they attended school on Monday or Tuesday. Seven students were not in school or any school approved instructional program on Monday, February These were the students not attending the trade show that day. Eighteen students were not in school or any school approved instructional program on Tuesday, February 14, 1984. This included the eleven students who had returned from the Tampa trade show with Respondent the night before. Respondent gave all the students credit for seven (7) hours on Monday and seven (7) hours on Tuesday instead of eight (8) hours for Sunday and eight (8) hours on Monday for the students attending the trade show and zero (0) hours credit for the "stay at homes" on Monday and zero (o) hours credit for all students for Tuesday. Director Smith testified he would have no problem if she had given eight (8) hours per day for the trade show activities but the attendance records did not reflect that specifically. Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had. Before and during the trade show trip, and at various times thereafter Respondent instructed the students who had been on the field trip, that if asked, they were to say they returned to the Vo-Tech Center grounds on February 14, 1984, instead of a day earlier. Respondent's immediate supervisor, David Smith, instituted an investigation of Respondent' a activities approximately February 17, 1984. Be did not immediately advise her of the serious allegations concerning allegedly missing supplies and leave requests/per diem claims. Respondent was not aided by him in correcting the latter concern. Particularly, she was prevented from correcting the leave requests/per diem claims. On March 17, 1984, Respondent submitted a letter stating she was at home on February 14, suffering from exhaustion and wished to amend her leave and per diem requests. On March 19, 1984, Respondent submitted an amended sick leave request. Director Smith refused to approve these as over thirty days from date of the sick leave and because he considered the initial requests to be fraudulent.
Recommendation Upon assessment of the facts found, and in the conclusions of law reached and in consideration of the argument of counsel, it is recommended 1. That the Bradford County School Board enter a Final Order ratifying Respondent's suspension of employment with the Bradford County School Board without pay and continuing that suspension without pay to and including the end of the 1984-1985 school year, a total of 2 school years. DONE and ORDERED this 1st day of February, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 1st day of February, 1985.
The Issue Whether grounds exist to deny the application of Respondent, Academy of Education School (6979), to participate in the Florida state scholarship programs under chapter 1002, Florida Statutes.
Findings Of Fact The Commissioner is the chief educational officer for the State of Florida. The Commissioner is responsible for assisting the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. See § 1001.10(1), Fla. Stat. The Academy is a private school formed in Orlando, Florida. The Academy registered as a private school with the Florida Department of Education (the “Department”) in March 2020. On March 25, 2020, the Academy submitted a request to participate in the state educational scholarship programs established under chapter 1002. These programs include the John M. McKay Scholarship for Students with Disabilities Program, the Florida Tax Credits Scholarship Program, the Gardiner Scholarship Program, the Hope Scholarship Program, the Reading 3 The Academy’s motion for extension was filed after the expiration of the ten-day deadline it sought to extend, which is contrary to Florida Administrative Code Rule 28-106.204(4). However, the Commissioner did not oppose the undersigned’s consideration of Academy’s Proposed Recommended Order. Scholarship Program, and the Family Empowerment Scholarship Program (collectively referred to as the “Scholarship Programs”).4 The Scholarship Programs distribute state funds to pay tuition for students who come from low-income families or have disabilities. The scholarships help children attend their (private) school of choice. For a school to be eligible to receive money from one or more of the Scholarship Programs, it must comply with the requirements set forth in section 1002.421. The Commissioner's is the state government entity charged with administering and overseeing the Scholarship Programs. Pertinent to this matter, section 1002.421(3) authorizes the Commissioner to deny a private school’s eligibility to participate in the Scholarship Programs if it is determined that the owner or operator of the school has exhibited a previous pattern of failure to comply with section 1002.421. After reviewing the Academy’s application, on May 21, 2020, the Commissioner issued a letter denying the Academy’s request. The Commissioner explained that its decision was based on the (alleged) inappropriate relationship between the Academy and another private school named Agape Christian Academy (“Agape”). Agape was the subject of prior discipline from the Commissioner regarding its improper activity involving the Scholarship Programs. As background information, Agape was founded as a private school in 2002, and remained operational until 2018. Agape was housed in a building located at 2425 N. Hiawassee Road, Orlando, Florida. From 2015 through 2018, Ingrid Bishop served as president of Agape’s corporate entity. Also during this time, Cassandra Cook was an employee of Agape, and served on Agape’s board of directors. After its formation, Agape requested, and was granted, eligibility to participate in the Scholarship Programs. 4 See §§ 1002.385, 1002.39, 1002.394, 1002.395, 1002.40, and 1002.411, Fla. Stat. In March 2016, however, the Commissioner initiated an action to revoke Agape’s eligibility. The revocation was based on the Commissioner’s findings that Agape was operating from an unapproved location and had filed a fraudulent annual fire inspection report with the Department. Thereafter, in August 2016, Agape and the Commissioner entered into a Settlement Agreement wherein the Commissioner allowed Agape to remain eligible for the Scholarship Programs on a probationary status, if Agape agreed to reimburse the Commissioner for past scholarship funds received while not in compliance with state law. Soon thereafter, however, Agape breached the terms of the Settlement Agreement. Consequently, on May 11, 2018, the Department issued a Final Order terminating Agape’s authority to participate in the Scholarship Programs. The Commissioner further ordered that: Agape’s … officers, directors, principal, or controlling persons [are] ineligible to participate in the Gardiner, McKay or Florida Tax Credit Scholarship Programs for a period of ten years from the date of the Final Order. Regarding the action against the Academy, as articulated in its May 21, 2020, letter, the Commissioner bases its decision to deny the Academy’s application on the following reasons: The Academy’s relationship with Cassandra Cook: Ms. Cook was employed as an officer, director, principal, or controlling person of Agape. Pursuant to the Agape Final Order, Ms. Cook is ineligible to participate in the Scholarship Programs for ten years. The Commissioner asserts that the circumstances surrounding the creation of the Academy indicate that the Academy is “operating as a proxy or surrogate for Agape and/or Cassandra Cook.” Consequently, the Academy’s association with Ms. Cook renders the Academy ineligible to participate in the Scholarship Programs. The Academy’s relationship with Ingrid Bishop: Ingrid Bishop was employed as an officer, director, principal, or controlling person of Agape. Pursuant to the Agape Final Order, Ingrid Bishop is ineligible to participate in the Scholarship Programs for ten years. The Commisioner asserts that the circumstances surrounding the creation of the Academy indicate that the Academy is “operating as a proxy or surrogate for Agape and/or … Ingrid Bishop.” Consequently, the Academy’s association with Ingrid Bishop renders the Academy ineligible to participate in the Scholarship Programs. The relationship between Academy officers or employees and Ingrid Bishop: The Academy intends to employ Blaire Bishop, Braelyn Bishop, and Brooke Bishop in some capacity. All three women are related to Ingrid Bishop (her daughters). The Commissioner's position is that the relationship between these Academy personnel and Ingrid Bishop renders the Academy ineligible to participate in the Scholarship Programs. The Academy’s relationship with Northwestern Learning Center, Inc. (“Northwestern”): In addition to Agape, the Commissioner previously denied Northwestern’s eligibility to participate in the state scholarship programs. Northwestern’s denial was based on its relationship with Ms. Cook. The Academy intends to set up its school on property owned by Northwestern. The business relationship between the Academy and Northwestern (and Ms. Cook) renders the Academy ineligible to participate in the Scholarship Programs. In short, the Commissioner believes that the same parties who owned and operated Agape (Ingrid Bishop and Ms. Cook) are behind the formation of the Academy. This time, however, Ingrid Bishop’s children (Blaire, Braelyn, and Brooke Bishop) are the named officers, directors, principals, or controlling persons. The Commissioner alleges that Blaire Bishop is not the legitimate owner/operator of the Academy, and the Academy’s “true” founders (Ingrid Bishop and Ms. Cook) are fraudulently conducting a shell game in “an effort to circumvent the Department’s Final Order.” To support its position, the Commissioner first called Phylea Daugherty to testify regarding the Commissioner’s investigation into the connection between Agape and the Academy. As a “site visit specialist” for the Department’s Office of Independent Education and Parental Choice (“IEPC”), Ms. Daugherty is tasked with visiting private schools that apply to participate in the Scholarship Programs. She explained that a school must pass her inspection prior to becoming eligible to receive scholarship funds for its students. Ms. Daugherty expressed that the Academy’s application raised concerns when her office noticed that the Academy’s facilities were located close by a school (Agape) whose eligibility to receive scholarship funds had been revoked. Her office also noted that the last name of the person who signed the Academy’s application (“Bishop”) matched the name of an individual who the Commissioner had deemed ineligible to participate in the Scholarship Programs. That being said, Ms. Daugherty divulged that, aside from the possible issues regarding the relationship between the Academy and Agape (the schools’ locations and biologically related officers or employees), the Academy’s application was complete. Therefore, nothing else on the face of the application explicitly indicated that the Commissioner should deny it. Whitney Blake, a Compliance Specialist for IEPC, also testified regarding the Commissioner’s decision to deny the Academy’s application. As part of her responsibilities, Ms. Blake reviews applications from Florida private schools that request to take part in the Scholarship Programs. Echoing Ms. Daugherty’s testimony, Ms. Blake expressed that the Academy’s application raised two concerns: 1) the Academy’s intended location suggested a close association with a sanctioned entity (Agape), and 2) the fact that the Academy’s officers and employees might be related to the officers or employees of another school (Agape) whose authority to participate in the Scholarship Programs was revoked. Ms. Blake explained that the Commissioner’s Final Order from May 11, 2018, banned Ingrid Bishop and Ms. Cook from participating in the Scholarship Programs for a period of ten years. Consequently, neither Ingrid Bishop nor Ms. Cook may personally serve as officers, directors, principals, or controlling parties at any other private school that is authorized to accept scholarship funds. In June 2018, however, Ms. Cook5 became involved in a new school that registered with the Department called Orlando Christian Academy (“Orlando Christian”). Soon thereafter, Orlando Christian applied to participate in the Scholarship Programs. In November 2019, after discovering its association with Ms. Cook, the Commissioner denied Orlando Christian’s application. Moreover, Ms. Blake testified that Orlando Christian’s listed address, 2425B N. Hiawassee Drive, Orlando, Florida, is situated very near the Academy’s intended address of 2332 N. Hiawassee Drive, Orlando, Florida. This address is also close to Agape’s former location at 2425 N. Hiawassee Road, Orlando, Florida. In addition, based on Orange County, Florida, property records, the current owner of 2332 N. Hiawassee Drive is Northwestern. Ms. Cook served on Northwestern’s board of directors from 2017 through 2019. (Ms. Cook is not listed as an officer or director on Northwestern’s annual corporate report for 2020.) Northwestern acquired the property in 2012 from Agape via a quitclaim deed executed by Ingrid Bishop. Ms. Blake expressed that the facts and circumstances surrounding the Academy’s formation insinuate a similar attempt by Ms. Cook to start another private school to unlawfully take advantage of the state scholarship funds. Ms. Blake testified that based on all the circumstantial evidence connecting the Academy to Agape, Northwestern, Ms. Cook, and Ingrid 5 Ms. Cook has used several names over the past twenty years including Cassandra Cook Wood, C. D. Wood, and Sandra Wood. When Orlando Christian applied for scholarship eligibility in 2019, Ms. Cook identified herself as "Sandra Wood." Bishop, the Commissioner had serious cause for concern that Ms. Cook and/or Ingrid Bishop were also involved in the administration, management, and operation of the Academy. According to Ms. Blake, such “undue participation” by prohibited persons in the Academy’s attempt to obtain scholarship funds is grounds to deny the Academy’s application. Despite these facts, Ms. Blake acknowledged that no former officer, director, principal, or controlling party from Agape is included or referenced in any corporate document related to the Academy’s formation or application. In particular, neither Ingrid Bishop nor Ms. Cook are listed on any Academy corporate records. Further, Ms. Blake repeated Ms. Daugherty’s statement that, other than the Academy’s proposed location and the fact that Ingrid Bishop is related to the Academy’s officers and employees, the Academy’s application does not contain information that would cause the Commissioner to automatically deny it. At the final hearing, the Academy argued that the Commissioner’s decision to deny its application is based on false and unsupported assumptions regarding the relationship between the Academy’s founders and officers (Blaire, Braelyn, and Brooke Bishop) and Agape’s founders and officers (Ingrid Bishop and Ms. Cook). The Academy charges that the Commissioner unfairly ties Ms. Bishop to the sins of her mother, with no proof that Ingrid Bishop is connected to the Academy in any way. Blaire Bishop testified on behalf of the Academy. Ms. Bishop founded the Academy and serves as president of its board of directors. She also intends to fill the role of the Academy’s first principal. Ms. Bishop described herself as a product of her community. She attended Agape from kindergarten through high school. Upon graduation from college at Florida A&M University (“FAMU”) in 2018, she returned to Orlando and is pursuing a master’s degree in educational leadership from the University of Central Florida. Ms. Bishop expressed that she now finds herself in a position to give back to the community in which she grew up. She has dreamed of opening a school for some time. Ms. Bishop voiced that she created the Academy as a way to provide educational opportunities for underprivileged children who live in northwest Orlando. Ms. Bishop explained that, currently, the Academy is still in the development and planning stage. She envisions opening her school with about 100 students. She would like to offer classes from kindergarten through high school. At this time, however, she has not hired any employees. Neither has she enrolled any students. She anticipates, however, that her two sisters, Braelyn and Brooke Bishop, who have agreed to serve as officers of the Academy’s corporate entity, will also have a role with the school. Ms. Bishop conveyed that, from an administrative standpoint, she is ready to open the Academy. However, to effectively operate as a private institution, her school will be dependent upon money from the Scholarship Programs. The vast majority of the low-income children she hopes to attract cannot afford private school tuition. Consequently, scholarship money is essential to help fund their enrollment. Ms. Bishop estimates that each student who qualifies for a scholarship will receive approximately $4,500 - $5,000 a year, which will be forwarded to the Academy if its application is approved. Ms. Bishop disclosed that she cannot feasibly run her school unless the Commissioner allows it to participate in the Scholarship Programs. Ms. Bishop expounded that, with the financial assistance awarded through the Scholarship Programs, the Academy will offer free, private school education to low-income students living nearby. Consequently, the Commissioner’s decision to disallow the Academy from accepting scholarship funds only serves to negatively impact needy children in the Orlando area. Ms. Bishop urges that she independently founded the Academy, and her school has no connection with the now-defunct Agape or any of its previous officers, directors, or employees. Ms. Bishop insists that the Academy is not a strawman or surrogate for Agape. She has not allowed anyone associated with Agape to help her incorporate or organize her school. Specifically, Ms. Bishop testified that neither her mother nor Ms. Cook have played any role in creating the Academy. They have not provided any financial assistance to the Academy. Neither will they receive any benefits or compensation from Academy income or resources. In addition, Ms. Bishop asserted that she was not involved in, nor did she have any connection with, the administration, creation, or management of Agape. Ms. Bishop further testified that she was not personally bound by, named, identified, or referenced in the Settlement Agreement between Agape and the Commissioner. Accordingly, she argues it is fundamentally unfair to deny the Academy the ability to participate in the Scholarship Programs based on the breach of an agreement to which she was not a party. Regarding the Academy’s location, Ms. Bishop explained that she is interested in leasing the building located at 2332 N. Hiawassee Drive, which is currently owned by Northwestern. Ms. Bishop explained that the property would provide a great location for the Academy. It is located within her community and was previously used as a school. Further, while the building the Academy may use is situated across the street from the former Agape site (2425 N. Hiawassee Drive), Ms. Bishop proclaimed that, other than being located in close proximity with each other, there is no connection between the two schools. Further, while setting up in the 2332 N. Hiawassee Drive location will require her to rent property from Northwestern, no one associated with Northwestern helped her create the Academy. Neither does she plan on conferring with or employing anyone who currently works for Northwestern, or who previously worked for Agape. Ms. Bishop’s testimony describing the relationship between the Academy and Agape, Northwestern, Ingrid Bishop, and Ms. Cook was credible and is credited. Ms. Bishop spoke with conviction, and no documents or other witness testimony refute her representation that she was not involved in the administration or management of Agape. Neither does the competent, substantial evidence prove that any individual associated with Agape or Northwestern will be involved in the administration or management of the Academy. Ingrid Bishop testified at the final hearing to support the Academy’s application. Ingrid Bishop is Ms. Bishop’s mother. Ingrid Bishop and her husband, Richard (Ms. Bishop’s father), founded Agape. Ingrid and Richard Bishop also lead the Agape Assembly Baptist Church (“Agape Church”). Agape Church is located at 2425 N. Hiawassee Drive, which was the same location as the Agape school. Ingrid Bishop expressed that Agape served as an outreach ministry for the Agape Church. According to Ingrid Bishop, Agape was founded in 2002 as an independent non-profit corporation. The school’s initial board members included Ingrid Bishop, Richard Bishop, and Cassandra Cook. These three individuals remained Agape’s corporate officers through the school’s dissolution in 2018, and are subject to the Commissioner’s 2018 Final Order. Mirroring her daughter’s intentions for the Academy, Ingrid Bishop explained that Agape’s goal was to provide a private school option for low- income children and children with disabilities from the local community. Ingrid Bishop relayed that 98 percent of the students who matriculated at Agape were from underprivileged families. Based on that population, Agape’s ability to operate relied heavily on the funds its students received through the Scholarship Programs. Ingrid Bishop further stated that Agape elected not to charge tuition to any student. Instead, the school relied on the scholarship funds as its sole source of revenue. At its peak, Agape averaged about 300 students on scholarships during a school year. Ingrid Bishop freely recounted that Agape ran into trouble with the Commissioner in 2016 based on a fire inspection report that one of her employees had allegedly forged. Agape and the Commissioner subsequently entered into the Settlement Agreement. Ingrid Bishop signed the Settlement Agreement on behalf of Agape. Regarding her daughter’s involvement in Agape, Ingrid Bishop credibly testified that Ms. Bishop never served as an employee, administrator, agent, or director of Agape. Ms. Bishop’s only interaction with Agape was when she attended the school as a student from kindergarten through high school. Ingrid Bishop further asserted that her daughter had no involvement in the underlying issues between Agape and the Commissioner. She conveyed that Ms. Bishop graduated from Agape high school in 2014 and was a student at FAMU in Tallahassee when the Commissioner began its investigation into Agape. Neither did Ms. Bishop play any part in Agape’s decision to settle with the Commissioner or negotiating the terms of the Settlement Agreement. Ingrid Bishop acknowledged that Agape has not been an active school since 2018. After the Commissioner revoked Agape’s authority to receive funds from the Scholarship Programs in 2017, Agape could only effectively operate for one more year. Agape’s corporate entity was administratively dissolved in September 2018. Finally, Ingrid Bishop convincingly represented that Ms. Bishop is acting completely independently in creating the Academy, as well as drafting the Academy’s application to participate in the Scholarship Programs. Ingrid Bishop asserted that she has not been included in her daughter’s designs and plans for the Academy. She denied that she will work for the Academy in any capacity. Neither will she have any financial interest in the school. Similarly, Ingrid Bishop commented that the location the Academy selected to use, 2332 N. Hiawassee Road, is not the same location as Agape. It is across the street. Ingrid Bishop disclosed that Agape, at one point, leased this site to use as a separate facility for its high school, but it currently does not own or use this property. As a final declaration, Ingrid Bishop readily recognized that her involvement in the Academy’s affairs would jeopardize her daughter’s efforts to run her own school. Therefore, she has deliberately avoided any participation in the Academy’s formation. Ingrid Bishop expressed that she understands that she must keep Agape’s past dispute with the Commissioner completely separate from her daughter’s application for scholarship funds. Ms. Cook also testified to support Ms. Bishop’s representation that the Academy is not connected to either Agape or herself. Ms. Cook declared that she has no involvement or relationship with the Academy. She was not consulted when Ms. Bishop formed the school. Neither has Ms. Bishop asked Ms. Cook to work there. Regarding her relationship with Ms. Bishop, Ms. Cook relayed that she has known Ms. Bishop since she was a student at Agape. Addressing her time with Agape, Ms. Cook admitted that she worked for the school in a number of roles between 2003 and 2018. Her responsibilities included administrator and dean of students. However, she declared that Ms. Bishop was not involved in the administration or management of Agape. Ms. Cook never saw Ms. Bishop in the Agape administrative offices when she was in school there. Regarding Orlando Christian, Ms. Cook stated that this school was to be located at 2425B N. Hiawassee Road in a building just next to the Agape Church. However, neither Orlando Christian nor the Agape school occupied the same proposed site as the Academy (2332 N. Hiawassee Road). Finally, Ms. Cook confirmed that Northwestern owns the property located at 2332 N. Hiawassee Drive, where the Academy may be located. However, Ms. Cook offered that she no longer serves on Northwestern’s board of directors. She represented that in 2019, she was dismissed from the board due to lack of participation. During the final hearing, Ms. Cook’s testimony came across as self- serving and lacking in details. However, no evidence or testimony directly refutes her representation that she is not involved, and will not be involved, in the Academy’s formation, administration, management, or operation. Accordingly, Ms. Cook’s testimony is credited to the extent that it was corroborated by Ms. Bishop and Ingrid Bishop. Based on the competent substantial evidence presented at the final hearing, the greater weight of the facts do not establish that the Academy is inappropriately associated with Agape, Ingrid Bishop, Ms. Cook, or Northwestern, or that the Academy is “operating as a proxy or surrogate for Agape and/or Cassandra Cook and/or Ingrid Bishop.” Neither do the facts in the record show that the Academy is attempting to perpetrate a fraud on the Commissioner in order to qualify for scholarship eligibility by concealing or misrepresenting its relationship with Agape, Ingrid Bishop, Ms. Cook, or Northwestern. Consequently, the Academy demonstrated that the preponderance of the evidence does not support the Commissioner’s decision to deny the Academy’s application based on the reasons cited in the Commissioner’s letter, dated May 21, 2020. Accordingly, the Commissioner should continue to process the Academy’s application under section 1002.421, and, if appropriate, grant the Academy eligibility to participate in the Scholarship Programs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner withdraw its letter, dated May 21, 2020, indicating its intent to deny the Academy’s application and continue to review the Academy’s eligibility to participate in the Scholarship Programs under chapter 1002. DONE AND ENTERED this 8th day of December, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 8th day of December, 2020. 6 This Recommended Order should not be interpreted to mean that the Commissioner should automatically approve the Academy’s application. As the Commissioner emphasized in its Proposed Recommended Order, the Academy must still complete several additional steps in order to gain eligibility to participate in the Scholarship Programs under chapter 1002. The focus of this administrative proceeding is restricted to the allegations and issues specifically raised in the Commissioner’s letter, dated May 21, 2020, which notified the Academy of the Commissioner’s intended action to deny the application. COPIES FURNISHED: Robert Leroy Ehrhardt, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32399 (eServed) James Sweeting, III, Esquire James Sweeting, III, LLC Post Office Box 215 Churchville, Maryland 21028 (eServed) Jason Douglas Borntreger, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32310 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) 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)
The Issue Whether Petitioner, David Oness, is eligible to receive the remuneration from the 2015 state of Florida Best and Brightest Scholarship program.
Findings Of Fact Mr. Oness is employed by the SCSB and is in his 11th year as a teacher at Sarasota High School. The 2015 Florida Legislature Appropriations Act created the Best and Brightest Teacher Scholarship Program (the scholarship), chapter 2015-232, p. 27, Item 99A. The eligibility pre-requisites for applying to and being awarded the scholarship (up to $10,000) were established in the scholarship. The scholarship provided the following: Funds in Specific Appropriation 99A are provided to implement Florida's Best and Brightest Teacher Scholarship Program. The funds shall be used to award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT. To be eligible for a scholarship, a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment and have been evaluated as highly effective pursuant to section 1012.34, Florida Statutes, or if the teacher is a first-year teacher who has not been evaluated pursuant to section 1012.34, Florida Statutes, must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment. In order to demonstrate eligibility for an award, an eligible teacher must submit to the school district, no later than October 1, 2015, an official record of his or her SAT or ACT score demonstrating that the teacher scored at or above the 80th percentile based upon the percentile ranks in effect when the teacher took the assessment. By December 1, 2015, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall submit to the department the number of eligible teachers who qualify for the scholarship. By February 1, 2016, the department shall disburse scholarship funds to each school district for each eligible teacher to receive a scholarship. By April 1, 2016, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall provide payment of the scholarship to each eligible teacher. If the number of eligible teachers exceeds the total the department shall prorate the per teacher scholarship amount. Mr. Oness timely filed an application to participate in the scholarship. Mr. Oness was evaluated as “highly effective” pursuant to section 1012.34, Florida Statutes. Mr. Oness was raised and educated in Canada. Mr. Oness did not take either the ACT3/ or the SAT4/ when he went to college, as it was not necessary in Canada. Mr. Oness took the ACT in Las Vegas, Nevada, on September 12, 2015. On “The ACT® Student Report” (pages 6 and 7 of Exhibit A), it recorded Mr. Oness’s ACT score as: Composite Score 24 U.S. RANK 74%|STATE RANK 81% No credible testimony or evidence was received from any authoritative figure from the ACT entity or otherwise that clearly establishes what is meant by the “STATE RANK” percentile. The form provides: U.S. Rank and State Rank: Your ranks tell you the approximate percentages of recent high school graduates in the U.S. and your state who took the ACT and received scores that are the same as or lower than yours. It remains unclear whether the term “STATE RANK” means: the state of Nevada, where Mr. Oness took the ACT; the state of Florida, where Mr. Oness lives and works; or some other state. On November 13, 2015, SCSB’s Human Resources Salary Specialist, Mary McCurry, advised Mr. Oness that he did not qualify for the scholarship award “because your ACT test scores do not reflect the 80th national percentile or higher.” Mr. Oness asked Respondent to review the non- qualification determination by e-mail dated November 13, 2015, and received an e-mail in return from the SCSB’s Employee Relations and Equity Administrator, Al Harayda, advising that the DOE provided “the percentiles that we had to use” in determining eligibility. The DOE provided guidance to the SCSB that “the national percentile score should be used to meet eligibility requirements.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order that Petitioner is not eligible for a Best and Brightest Scholarship. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 29th day of March, 2016.
Findings Of Fact The Petitioner is a Florida not-for-profit corporation which is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. The Petitioner has established a Mark Twain Scholarship Fund the purpose of which is to give recipients funds to pay for post-secondary tuition and books. On or about September 26, 1994, Petitioner filed an application with Respondent for a consumer certificate of exemption and stated as its basis "other." The applicant then identified itself as "state/church separation" organization. Petitioner did not check any of the other categories for exemptions such as "religious," "educational," or "charitable." The application was reviewed by the Department considering all of the categories listed on the application and available under the pertinent statute. Based on the criteria set forth in Section 212.08(7), Florida Statutes, the Department reached a preliminary decision which denied the Petitioner's application for a certificate of exemption. Petitioner was notified of the denial and timely challenged the agency action. All of the members of the Petitioner's group are voluntary, unpaid, participants who pay yearly dues to join the organization. Students pay $10.00, individuals $30.00, and couples $35.00. If someone were to allege poverty, Petitioner would arrange a free membership for such individual. No evidence of members of that category was presented. The only information about its members Petitioner seeks is their educational background. Documentation regarding financial circumstances of each member is not requested nor kept. Petitioner provides benefits to minors by providing speakers for various topics at the university and high school levels, and by allowing students to attend monthly meetings. Monthly meetings for the south Florida group are held in the Fort Lauderdale library. Other chapters in Tampa and Sarasota also hold meetings periodically and such meetings are, presumably, available to students. In Tampa, for example, Petitioner has an information booth on the campus of the University of South Florida. Petitioner attempts to offer a "scientific and more rationale" point of view to young adults. For the south Florida meetings, approximately 5 to 10 persons under 18 years of age might attend. The average attendance of all members is 20 to 40 persons. Petitioner also produces a public access cable television program consisting of twelve half-hour episodes per year. Topics of this program have included "Sin and Sexuality." Petitioner established the scholarship fund indicated above. One recipient was a woman in prison for life in California who wanted to attend the University of California. More recently, Petitioner conducted an essay contest and two men from that event received awards. None of the scholarship recipients was a minor. The total amounts expended on scholarships by the Petitioner did not exceed 10 percent of its total expenditures. The Petitioner's group started with approximately 53 members but has grown to over 200 members. Petitioner provides support to its members who may encounter scorn or harassment from the public and has a telephone line set up so that messages can be taken twenty-four hours of the day. Someone from the organization can then return the call and assist the caller. Public harassment is not uncommon for members of the group. For example, when Mr. Tzanetakos opposed the use of public monies in connection with the Pope's visit to south Florida, he received so many telephone calls that he had to change to an unpublished number. Mr. Tzanetakos maintains that while his organization's views are an unpopular minority in this country, that they are in the majority in Europe and other places. One of the purposes of the Petitioner's group is to advocate, support, and defend "in all lawful ways the complete and absolute separation of church and state." Another purpose is to promote freedom of expression. Thirdly, the group seeks to "protect the constitutional and civil rights of Atheists as members of a free and democratic society." According to its articles of incorporation, Petitioner promotes the following concepts: Because human beings, along with all other species of animal and plants, evolved from a primordial cell, Homo sapien is only a link in the chain of living matter. Because Homo sapiens is the species with the most advanced brain and the most manipulative hands, and because we have developed excessively destructive weapons (nuclear and others), we are solely responsible for the well-being of our own species and to a great extent the rest of the life on planet Earth. Global population control is vital, and the extinction of other living animal and plant species must be avoided. Cooperation and equality--not conflict-- among all peoples must be encouraged and promoted. Because all humans have a common origin, and because the classification of peoples by races and ethnic groups is divisive and detrimental to our species and to life itself, all inhabitants on planet Earth (sic) [should?] be called "Homo Sapiens", and the current national names to denote the geographical origin of peoples and their distinctive cultures. Minors are not specifically mentioned in the Petitioner's articles of incorporation nor given benefits of membership not available to other members or, in the case of the television broadcasts, the public as a whole. Mr. Tzanetakos conceded that one of the television topics, "Euthanasia," may not have been of particular interest to minors. He further acknowledged that it is difficult to get children to watch educational television. The Petitioner does not advertise its programs to the general public, nor does it survey viewers to determine the numbers of minors, if any, that support its television program. Petitioner accepts only "what can be verified by the scientific method and rejects supernatural entities, acceptable only as articles of faith." Accordingly, Petitioner's members do not "worship" god or anything. The Petitioner did not present evidence that it is qualified for accreditation by, or membership in, the Department of Education, the Southern Association of Colleges and Schools, the Florida Council of Independent Schools, or the Florida Association of Christian Colleges and Schools.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Revenue enter a final order denying the application for a consumer's certificate of exemption filed by Petitioner. DONE AND ENTERED this 8th day of March, 1996, 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 8th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0654 Rulings on the proposed findings of fact submitted by Petitioner: 1. None timely submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 22 are accepted. COPIES FURNISHED: Linda Lettera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Mark Trop Shoreview Building 9999 Northeast Second Avenue, Suite 201 Miami, Florida 33138 Ruth Ann Smith Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of March, 1989.
The Issue Whether the Petitioner qualifies for renewal of a consumer's certificate of exemption as an "educational institution" as defined in Section 212.08(7)(o)2.d., Florida Statutes.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: Petitioner is an active not-for-profit incorporated organization, having its principal place of operation in the State of Florida. Petitioner is a recipient of a 501(c)3 Letter from the Internal Revenue Service (IRS) and maintains its exempt status thereunder. Respondent is the state agency charged with the administration of the tax laws of the State of Florida and is the agency responsible for issuing or denying certificates of exemption to qualified organizations. Petitioner applied for renewal of its certificate of exemption on or about January 5, 1997, as an educational institution. The application for exemption was denied by Notice of Intent to Deny rendered by Respondent, after several requests for information, on the grounds that Petitioner did not qualify under the statutory requirements for a consumer certificate of exemption. Petitioner, founded in 1981, is a nationwide organization of writers, located in east central Florida, which seeks to encourage, train, and develop professional and avocation writers. It holds an annual writers' conference for adults and students; sponsors writing contests in the public schools and community colleges; provides a community speakers' bureau in the community and schools of the area; bestows scholarship and awards service to deserving individuals; and publishes periodic newsletters and an annual directory. The only criteria Petitioner could meet as an educational institution was as an "administrative office." No evidence was presented to indicate that Petitioner could qualify under any other alternatives or options allowed under Section 212.08(7)(o)2., Florida Statutes. Petitioner is not an accredited educational institution with regular classes, a television or radio network, a museum, library, or an accepted and statutorily recognized continuing educational program. There was no evidence to show that Petitioner has any control of or any organizational nexus with any accredited educational institution; or that Petitioner functions to assist or regulate any specific educational institution within the meaning of the applicable statute as it has been defined by prior Final Orders of the Department. See Section 212.08(7)(o)2.d., Florida Statutes. There was no evidence to show that Petitioner customarily and routinely exercised any control over any specific educational institution or that an agreement of any kind with any educational institution existed. There was no evidence to show Petitioner functions or operates within a larger hierarchy of any educational institution, or that any administrative rules, policies or by- laws have been promulgated or adopted by any educational institution that specifically identify the Petitioner or the conditions in which Petitioner uses or controls public property, facilities, or personal services operated by an educational institution. The Florida Department of Education has not approved Petitioner as an educational institution or promulgated any administrative rules regarding the Petitioner. Petitioner has not provided or raised funds for any educational institutions or for the administrative assistance of any educational institutions, nor does it directly provide 50 percent of its expenditures to any educational institution; Petitioner provides no volunteers and raises no funds for any charitable or educational organizations; and does not provide 50 percent of its expenditures to statutorily provided educational or charitable programs. Petitioner is not organized or operated exclusively to receive, hold, invest and administer property and to make expenditures to or for the benefit of public education programs in this state, nor is Petitioner a Charter School under Section 228.056, Florida Statutes, a Direct Support Organization under Sections 237.40, 240.299, or 240.331, Florida Statutes, or a Nonprofit Cable Consortium.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying a consumer's certificate of exemption for Petitioner. DONE AND ENTERED this 27th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1998. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street Carlton Building, Room 204 Tallahassee, Florida 32301 Dr. Ed Kirschner Petitioner's Representative Space Coast Writer's Guild Post Office Box 804 Melbourne, Florida 32902-0804 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issues to be determined are whether Respondent, Trudy M. Benson, violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and/or 6A-10.081(2)(a)5., as charged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Background At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator’s Certificate 868131, covering the areas of elementary education and exceptional student education (ESE), which was valid through June 30, 2019. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, Florida Statutes, if the educator disputes the allegations in the complaint. At all times pertinent hereto, Respondent was employed as a fourth grade teacher at Suwannee Intermediate School (SIS), a fourth and fifth grade intermediate school, in the Suwannee County School District (SCSD). Respondent began her teaching career with the SCSD during the 2016/2017 school year at Suwannee Middle School as an ESE teacher. For the 2018/2019 school year, Respondent was transferred to SIS where she taught fourth grade math and science. Respondent received two consecutive Highly Effective Evaluations as an ESE teacher, from two different principals in her first and second years teaching in the public school system. Respondent also offered in evidence letters of recommendation from both principals, Jerry Jolicoeur and Jimmy Wilkerson, the superintendent, Mr. Roush, and a newly retired veteran ESE teacher, Ms. Candy Vickers; a letter of praise from ESE director Elizabeth Simpson; and a letter of Ms. Benson's major accomplishments as both an ESE volunteer and ESE teacher. Respondent had not been the subject of any previous complaints or disciplinary actions during her period of employment and by all accounts was a very successful ESE teacher. Leigh Fountain was also a fourth-grade teacher at SIS. She taught reading and language arts. Respondent and Ms. Fountain had a combined total of 49 students and taught in adjoining classrooms. One class of students would be with Respondent in the morning, while the other class was with Ms. Fountain. They would then switch students for the second part of the day. Whoever had the students at the beginning of the day was the students’ homeroom teacher. Ms. Fountain had student N.C. at the beginning of the day and was therefore N.C.’s homeroom teacher. Toward the end of the school day, N.C. and his classmates would return to their homeroom teacher, Ms. Fountain. The Events of October 29 and 30, 2018 On October 29, 2018, N.C. was at home attempting to do math homework assigned by Respondent. N.C.’s older sister was assisting him. She thought the homework was a little difficult for a fourth grader. She asked their mother if she could write a note to Respondent regarding the difficulty of the homework. Their mother, Mrs. W., said yes. The note stated “Don’t you think this is a little advanced for fourth grade.” The note was written in a “bubble cloud” on the worksheet next to the math problem. On October 30, 2018, N.C. was in Respondent’s class along with 21 or more other students. This was a difficult class for Respondent to manage because of the behavior issues, disciplinary issues, and ESE issues. Respondent considered N.C. as one of the students who contributed to disruption in the classroom. Respondent asked the students to pass their math homework forward. N.C. came up to Respondent with his homework and told her “there’s a note from my mother you need to read.” Respondent told N.C., “I will read it later when I have a moment when we’re done with the lesson.” N.C. insisted that Respondent read the letter. Respondent read the note “out loud to myself.” The note stated that the homework was a bit difficult for 4th graders or too difficult for 4th graders. Respondent then told N.C. “Well, maybe we should write your mom a note and let her know that even though these might be a little difficult, that you’re up for the challenge and that we think you can handle it.” Though not directed to the class, Respondent’s statement could have been loud enough for some of the students (five to ten) in the classroom to hear her. What occurred next is at the heart of this dispute. According to the Material Allegations set forth in the Administrative Complaint: During October of the 2018-2019 school year, Respondent engaged in inappropriate conduct when she instructed her fourth grade class to write letters to the parent of N.C., a fourth grade student in her class. The purpose of the letters was to explain that an assignment N.C.’s parent had complained about being too difficult, was not actually difficult. N.C. was embarrassed by the assignment. (emphasis added). Thus, according to Petitioner, Respondent instructed her students to write letters to N.C.’s parent regarding the homework. To support this allegation, Petitioner called as witnesses several of the students who had been in class that day. Petitioner also introduced in evidence six of the students’ written accounts of the events of October 30, 2018, obtained by its investigator, Randy Kosec, Jr. Neither the testimony of the students at hearing, nor their written statements, persuasively corroborate Petitioner’s version of the events that transpired that day. The Testimony of the Students N.C. was the first of the students to testify. On direct examination N.C. testified that when he gave his homework sheet to Respondent “She said to everyone, don’t you think this---she thinks y’all are a little---my mom thinks you all are stupid.” He further testified that after making this statement, Respondent told the students to write a letter to his mother, and then made N.C. “sit in the back at this little circle table while the kids asked me questions.” N.C. further testified on direct examination that Respondent put his homework sheet under a projector in order to show all of the other students what was written there. On cross examination N.C. conceded that after reading the note on N.C.’s homework, Respondent told him that “maybe we should write your mom a note and let her know that it is a little challenging, but we think you are up for it.” N.C. also confirmed that while Respondent was discussing the note with N.C. at the front of the classroom, another student, A.P., jumped up saying “yeah, let’s do that, let’s write her a letter.” After that, several other students chimed in and said, “yeah, let’s do it.” This version of events was corroborated by students D.P. and A.P., including the statement by A.P. that Respondent was having a conversation with N.C. only, and was not addressing the class. The written account of student A.G. includes the statement “I don’t remember writing a letter to anybody about the homework.” The written account of student A.J. includes the statement “I didn’t have to right [sic] any letter to a parent.” The written account of student J.P. includes the statement “I never have to write a letter to anyone [sic] parent.” The written account of student A.P. includes the statement that “One day she told us to write a letter to [N.C.’s] mom about my class because he and his mom said the homework [was too] easy so we all wrote letters to his mom and he took them home that day.” However, on cross-examination at hearing A.P. agreed that Respondent did not tell the class to write a letter. She was also emphatic that N.C. took the letters home with him that day because “I remember him stuffing all of them—trying to fit them into his bookbag.” Neither the written accounts of the students, nor their testimony at hearing, credibly support a finding that Respondent instructed her fourth grade class to write letters to N.C.’s parent about the homework assignment. To the contrary, the students’ testimony is conflicting and self-contradictory in many instances. By this, the undersigned does not mean to suggest that the students were intentionally being untruthful in their testimony, but rather that the precise events of that day, nearly two years earlier, had become vague in their memories. More significantly, the written accounts recorded by Investigator Kosec approximately seven months after the day in question, do not support a finding that the students were instructed to write letters to N.C.’s mom, since three of the six written accounts state that the students did not write such a letter. At hearing, Respondent credibly testified that she never instructed her fourth grade class to write letters to N.C.’s mother, as follows: I never assigned this to the students to do. I never told the students to write a letter. It was not my job for the students to write assignments. As I told Ms. Fountain and as she testified, I had never given them a writing assignment prior. Why on earth would I give them a writing assignment now? The credible evidence of record establishes that some of the students overheard Respondent’s conversation with N.C. and took it upon themselves to write a letter to N.C.’s mother. Respondent told the students “if you are going to write a letter, it needs to be respectful and polite.” While N.C. was still in front of Respondent, some of the students jumped up for paper. Others pulled out paper. It was a “hectic situation.” Some of the students wrote letters to N.C.’s mother. After the students wrote the letters, Respondent retrieved the letters. There were about ten letters. Respondent allowed the students 2 - 3 minutes to write the letters. After the students wrote the letters, N.C. went back to his seat. After the class, Respondent had a planning period. Respondent called and spoke with N.C.’s mother by telephone. Respondent “explained to her what had taken place.” N.C.’s mother was angry. Respondent shredded the letters at the end of the school day. As to why Respondent even permitted the students to write the letters, Respondent cited to the Principles of Professional Conduct for the Education Profession in Florida, which provides in part that Florida educators “Shall not unreasonably restrain a student from independent action in pursuit of learning.” Fla. Admin. Code R. 6A-10.081(2)(a)2. According to Respondent, she was attempting to avoid violating this provision when she allowed some of the students to write letters. As Respondent testified at hearing: They overheard a conversation I was having with a student who insisted I read the note and insisted on a response, and they took it upon themselves to say, yes, let’s write her a letter. It is not for the undersigned to determine whether Respondent did, or did not, exercise good judgment in allowing some of the students to write letters to N.C.’s mother. Rather, it is the undersigned’s task to determine whether the Material Allegations set forth in the Administrative Complaint have been proven by clear and convincing evidence in this record. Based upon the competent substantial evidence of record, the undersigned finds that Petitioner has failed to prove, by clear and convincing evidence, the sole material allegation of the Administrative Complaint, to wit, that Respondent engaged in inappropriate conduct when she instructed her fourth grade class to write letters to the parent of N.C., a fourth grade student in her class. Rather, the evidence clearly and convincingly established that no such instruction was ever given by Respondent to her students.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of October, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 20th day of October, 2020. COPIES FURNISHED: Trudy Benson 19378 County Road 250 Live Oak, Florida 32060 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
