The Issue Whether Petitioner, who is employed as an occupational therapist by a local school board, is considered a “teacher” eligible for the 2015 State of Florida Best and Brightest Scholarship Program.
Findings Of Fact The 2015 Florida Legislature Appropriations Act created the Best and Brightest Teacher Scholarship Program, 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 provides as follows: 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. The Scholarship does not define the word “teacher.” Petitioner, who timely filed an application for the Scholarship, contends that she is a “teacher” and is therefore eligible for the award. Respondent and Intervenor contend that Petitioner is an occupational therapist, and, as such, she is not considered a “classroom teacher,” which is the target group that the Legislature intended for the teacher scholarship program to cover. Petitioner contends that even if the Scholarship is limited to “classroom teachers,” she meets the statutory definition of a “classroom teacher” and is therefore eligible to receive the Scholarship. It is undisputed that the 2015 Scholarship language is vague as to whether the Scholarship is limited to classroom teachers. In 2016, the Legislature made it clear that the award is intended to only cover “classroom teachers.” Legislation enacted in subsequent legislative sessions may be examined to ascertain legislative intent. See Crews v. Fla. Pub. Emp’rs Council 79, AFSCME, 113 So. 3d 1063, 1073 (Fla. 1st DCA 2013)(citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006)). Recently, the Governor signed chapter 2016-62, Laws of Florida. Section 25 of chapter 2016-62 enacts section 1012.731, Florida Statutes, the Florida Best and Brightest Teacher Scholarship Program.1/ Section 1012.731(2) provides that the “scholarship program shall provide categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic success.” The Legislature's amendment of the language, just a year after the first appropriation, confirms that the Legislature intended the award to go to "classroom teachers," as defined in chapter 1012. Petitioner was hired by Respondent as an occupational therapist. She has worked as an occupational therapist for Respondent for approximately 17 years. Petitioner does not hold a Florida teaching certificate and her position as an occupational therapist does not require a Florida teaching certificate. Instead, Petitioner is licensed by the Florida Department of Health, which has jurisdiction over ethical violations committed by occupational therapists licensed in Florida. In her position as an occupational therapist, Petitioner reports to Respondent’s director of Pupil Support Services, who supervises all therapists within Sarasota County Public Schools. Petitioner’s stated job goal is “[t]o facilitate the handicapped student’s independent functioning in the school setting.” Petitioner’s performance responsibilities, as set forth in her job description, are to: Conduct appropriate evaluation of students referred for possible exceptional student education needs and prepare reports of the evaluation and findings. Plan intervention and service delivery programs to meet student’s individual needs. Implement and direct interventions essential to meeting targeted students’ needs. Provide information and consultative services to appropriate personnel in support of students with disabilities. * * * Establish schedules for meeting with students, conferencing with parents and assisting in rehabilitation techniques. Provide resources to all stakeholders involved in the evaluation, identification of student needs and rehabilitation of students. Petitioner delivers therapeutic services individually or in a small group setting, in a room assigned to her, or in a classroom, usually at the same time a teacher is delivering instruction to the entire class. Petitioner completes “lesson plans,” which are referred to in the therapy setting as “plans of care.” Plans of care differ in substance from lesson plans prepared by teachers because lesson plans set out a teaching plan for the entire class, whereas plans of care set out therapeutic goals and activities directed to one student that complies with the goals set forth in a student's Individualized Education Plan (IEP). As an occupational therapist, Petitioner is responsible for maintaining a “class roster,” which is referred to in the therapy setting as a “caseload.” Occupational therapists maintain a caseload for student accountability purposes and for Medicaid billing purposes. Petitioner’s therapy sessions are assigned a “700” course code, which correlates in the Florida Department of Education's course directory to “related services.” Joint Exhibit O is an example of courses offered to students by Respondent. The course list includes math, language arts, physical education, science, social studies, art, Chinese, music, and occupational therapy. Petitioner is listed as the “teacher” for the occupational therapy course. Unlike the other listed “teachers,” Petitioner is not instructing students in a subject area; she is delivering a service. See § 468.203(4)(b), Fla. Stat. (2015). Succinctly stated, the difference, in this context, between “occupational therapy” and the other listed “courses,” is that occupational therapy is not a subject area that a student learns about; it is a service that a student receives to help them to achieve independent functioning. Although listed as “course” by Respondent, occupational therapy, as compared to the other listed “courses,” is not a “course” within the meaning of section 1012.01(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County enter a final order finding Petitioner ineligible for the Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 8th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 April, 2016.
The Issue Whether Respondents (private schools participating in certain scholarship programs) engaged in fraud and/or failed to comply with provisions required of private schools participating in such scholarship programs and, if so, whether Petitioner (Commissioner) should suspend or revoke Respondents’ rights to participate in the scholarship programs.
Findings Of Fact Barrington and Barrington II are private schools located in Florida City. They are located in the same facility under the same administration. Both have been eligible to receive McKay and FTC Scholarships for qualified students. Gwendolyn Thomas is the long time administrator of Barrington, which has been in existence for approximately 25 years. Ms. Thomas is also the administrator of Barrington II, which has been in existence for approximately two years. For medical reasons, Ms. Thomas did not participate in the day-to-day operation of either school between October 2010 and November 2013. During her absence, Mack Brown, the assistant principal, was in charge of both schools until he left in June 2013 to start a competing school. Ms. Thomas has been in charge of the day-to-day operation of Barrington and Barrington II since November 2013. McKay Scholarship payments are disbursed on a quarterly basis.2/ Pursuant to sections 1002.39(8)(b) and 1002.421(2)(d), any private school participating in the McKay Scholarship Program is required to affirmatively verify to the Department of Education that each scholarship student is regularly enrolled in the school at least 30 days prior to the issuance of any quarterly scholarship payment. Pursuant to section 1002.39(9)(f), McKay Scholarship checks are made payable to the parent of a scholarship student, which only the parent can sign. Private school personnel cannot sign such a check on behalf of the parent, even with the parent’s permission. Prior to June 9, 2011, Student A was enrolled in Barrington and received a McKay Scholarship. On June 9, 2011, Student A left Barrington and has not been a student at Barrington since June 9, 2011. Between August 26, 2011, and August 23, 2013, nine checks, totaling $12,230.25, were issued to the mother of Student A pursuant to the McKay Scholarship Program. Those checks were issued on the following dates in the following amounts: August 26, 2011 $1,336.75 October 27, 2011 $1,336.75 January 24, 2012 $1,336.75 March 21, 2012 $1,336.75 August 21, 2012 $1,382.50 October 22, 2012 $1,382.50 January 23, 2013 $1,382.50 March 20, 2013 $1,382.50 August 23, 2013 $1,353.25 9. The back of each check contains an endorsement that appears to be the name of Student A’s mother. Student A’s mother did not sign any of these checks. Each check was signed by an employee of Barrington or Barrington II. Each check was deposited into an account owned by Barrington. For each of these payments, Barrington submitted documentation to the Department of Education that Student A was attending Barrington prior to the issuance of the payment, without verifying that Student A was in attendance. As noted above, Student A was not in attendance. On October 4, 2013, the Commissioner filed her Administrative Complaint against Barrington and suspended Barrington’s participation in the McKay and FTC Scholarship Programs. The Commissioner had information that Student A was not enrolled in Barrington and had probable cause to believe that Barrington Academy had engaged in fraudulent conduct.3/ Afterwards, many of the Barrington students were administratively transferred to Barrington II, and continued to receive scholarship payments. Prior to June 7, 2013, Student B was enrolled in Barrington II and received a McKay Scholarship. On June 7, 2013, Student B was taken into the custody of the DJJ and enrolled in a residential facility in Greenville, Florida. Student B was in the custody of DJJ until March 7, 2014.4/ Between September 25, 2013, and January 23, 2014, three checks, totaling $8,316.75, were issued to the mother of Student B pursuant to the McKay Scholarship Program. Those checks were issued on the following dates in the following amounts: September 25, 2013 $2,772.25 October 23, 2013 $2,772.25 January 23, 2014 $2,772.25 The back of each check contains an endorsement that appears to be the name of Student B’s mother. Student B’s mother did not sign any of these checks. Each check was signed by an employee of Barrington or Barrington II. Each check was deposited into an account owned by Barrington. For each of these payments, Barrington II submitted documentation to the Department of Education that Student B was attending Barrington II prior to the issuance of the payment, without verifying that Student B was in attendance. As noted above, Student B was not in attendance. On February 19, 2014, the Commissioner filed her Amended Administrative Complaint against Barrington and Barrington II and suspended their participation in the McKay and FTC Scholarship Programs. The Commissioner had information that Student B was not enrolled in Barrington II and had probable cause to believe that Barrington II had engaged in fraudulent conduct. Barrington has reimbursed the Department of Education for the McKay Scholarship payments made on behalf of Student A. Barrington II has deposited with its attorney sufficient funds to reimburse the Department of Education for the McKay Scholarship payments made on behalf of Student B. Although Ms. Thomas had returned as administrator when at least two of the McKay Scholarship payments at issue were processed by a school employee, she testified, credibly, that she had not authorized that action and was unaware of the misconduct before the Administrative Complaint and the Amended Administrative Complaint were filed. The persons responsible for the deficiencies discussed above have either voluntarily left their employment or have been fired. Barrington and Barrington II have hired a person to ensure compliance with McKay and FTC Scholarship Programs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education revoke the participation of Barrington Academy and Barrington Academy II in the McKay Scholarship Program and the FTC Scholarship Program. It is further RECOMMENDED that both schools be permitted to re- apply to participate in these programs after the Department of Education has been reimbursed for the scholarship payments made on behalf of Student B and after both schools demonstrate that they have personnel and written procedures that will ensure compliance with all applicable rules and statutory provisions. DONE AND ENTERED this 19th day of May, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 19th day of May, 2014.
Findings Of Fact On February 6 & 7, 1993, Petitioner, Alecia J. Miller, was the President of the student body of the University of South Florida. Petitioner, B. Mitchell Crandall, was serving as student Attorney general, a student government office. Both incumbents received financial remuneration for their services. The University of South Florida, (USF), is an institution of higher education, located in Tampa, and a part of the Florida State University System. Its President, Francis T. Borkowski, is the chief administrative officer of the university and responsible for its overall operation and administration. He is delegated statutory authority and may, within that authority, exercise such functions and take such actions as are necessary to achieve educational and other goals of the institution. The student government at USF is an integral part of the University and is subject to the direction and control of the university President and other supervisors responsible for the administration of the university's function. On February 6, 1993, Barbara J. Sherman, Interim Vice President for Student Affairs at USF, in a letter to President Borkowski, communicated her concern over the "situation involving student government leaders and the Student Coalition." She noted the continuing efforts by her and her staff to facilitate a compromise of their differences by which the parties to the dispute could be brought together for solution and the lack of success those efforts had met with. She also noted that many of the concerns of the Student Coalition appeared valid and, noting the inability of the parties to agree upon any resolution of the problem, concluded that its continuing existence was contributing to an erosion of the academic climate for a substantial number of students involved on both sides of the issues. Vice President Sherman also concluded that administration intervention was necessary to restore an orderly environment which would be conducive to the educational business of the institution. To facilitate that end, Sherman recommended certain actions be taken by Borkowski which included the deactivation of certain functions of the executive branch of student government. On February 7, 1993, these recommendations were approved in total for immediate implementation by President Borkowski. As a result of that decision, the office of Student Body President and Vice President were immediately deactivated and the incumbents, including Petitioner Miller, were directed to vacate the student government offices. Borkowski's actions also included a scheduled termination of the appointment of cabinet officers, one of whom was the other Petitioner, Mr. Crandall. As a result of this action, Petitioners claim a significant decrease in the amount of monetary compensation they receive as student officers. Pursuant to the Constitution of the Student Body of the University of South Florida, the executive and legislative powers of the student body are vested in student officers including a president and student senators elected by a majority vote of the student body. The executive officer of the association, the Student Body President, has specific responsibilities which include the selection of student members of the University's activity and service, health, and athletic fee committees who act on the setting of student fees. Among other functions of the Student Body President are participation in the selection of student representatives to serve on various Board of Regents committees, and the selection of student representation in public employee bargaining negotiations involving the University. The student senate has limited authority over the allocation and expenditure of the student activity and service fund, subject to the veto of the University President. The student government association as a whole has been granted specific statutory rights and responsibilities which include the mandatory consultation of the University President with the association on proposed projects using capital improvement trust fund fees and other functions as well. Taken together, it is clear that the student government association serves as a representative body to negotiate with the University President on many issues. Sherman's letter to Borkowski also recommended the establishment of a commission on student governance " to be comprised of students with diverse interests and concerns along with appropriate faculty and administrative representatives." The proposed charge to this commission indicated a major consideration would be to "respond to the serious accountability issues identified through the several comprehensive university audits of student government operations. "
The Issue Whether the Respondent discriminated against the Petitioner by refusing to hire him for a vacant position because of his age.
Findings Of Fact The Petitioner is a white male approximately 65 years of age at the time of the hearing, and was 63 years of age when he applied for the position. The Respondent is a state funded university with tens of thousands of students which provides housing for male, female, married, unmarried, undergraduate, and graduate students. This housing is managed and administered by the Respondent. On or about June 26, 1992, the Respondent advertised an opening for employment as a Resident Housing Coordinator, position No. 60584 (the position). The Petitioner timely applied for the position. The position was vacant as a result of the resignation of the incumbent employee. The position had been advertised by various means. The job vacancy notice stated the minimum qualifications and job description of the position. The minimum qualifications for the position were a masters degree or a bachelors degree with two years of experience. The standardized application used by the Respondent asked for the applicant's degrees and the dates it conferred. The application does not ask for the applicant's age. The Petitioner listed his degrees but did not indicate the year in which they were conferred. Ms. Granger, Coordinator of University Relations, Employment and Recruitment, reviewed the various applications for the position. Ms. Granger annotated the Petitioner's application in a handwritten marginal note to check the Petitioner's degree dates. Ms. Granger sent the Petitioner's application to the University housing office for review by Ms. McCluskey-Titus because the Petitioner met the minimum qualifications for the position. In addition to the application, the Petitioner sent a curriculum vitae which indicated his considerable experience to include recently managing a dormitory at a Florida junior college. That position had duties similar to those required for the position for which he was applying at the University. Ms. McCluskey-Titus reviewed the applications for the position in her capacity as Associate Director of the University housing. Ms. McCluskey-Titus manages the 14 on-campus residential halls housing over 4,000 students. The Resident Housing Coordinator oversees developmental programing and is responsible for student activity budget. The Coordinator assists in researching information on student residents and coordinates certain central office functions. The Resident Housing Coordinator is responsible for the administration and management of a residential hall which houses 400 to 600 students. The Resident Housing Coordinator selects, trains and supervises the student housing assistants. The Resident Housing Coordinator is the Chief Judicial Officer of the building, and administers justice for housing infractions. From the dates of the Petitioner's degrees, it is clear that he is an older individual. Ms. McCluskey-Titus described the position as an entry-level position and indicated that these positions are generally sought by individuals beginning a career in university housing management. She indicated that the applicants for these positions are generally young. The Petitioner's vitae indicates that he has a bachelors of arts in psychology and sociology, a masters in education, and had completed the course work for a doctorate in education at Florida State University. The Petitioner's work experience included teaching, speech, drama, history and reading; being a Principal; assisting in establishing a job corp training program; working overseas for the United Nations, the World Bank, and various U.S. agencies; coordinating the energy management program of the Florida Department of Transportation; managing his own consulting business; and most recently was director of resident halls at Chipola Junior College for 14 months. The Petitioner's synopsis of his experience points out his varied career and highlights his work at Chipola Junior College. Ms. McCluskey-Titus selected Sara Steyer to fill the position for which the Petitioner had applied. Ms. Steyer was born on March 24, 1968. Ms. Steyer's experience included managing a residents hall for two academic years; serving as a resident assistant for three academic years; and experience while in school in student affairs related areas, to include freshman orientation, fraternal organizations, and the University's judicial process. Ms. Steyer received a masters degree from Bowling Green State University in student personnel management. The position at FSU was her first position after receiving her masters degree. Ms. McCluskey-Titus has hired no applicants who are over the age of 30 for positions in the University housing office. Ms. McCluskey-Titus assessed the applicants, looking for people who had degrees in student personnel, a relatively-recent degree field, and people who were beginning a career in this area. Ms. McCluskey-Titus was looking for an applicant with experience as a dorm leader as an undergraduate, and a degree in college student personnel and a background in student affairs. These criteria were not part of the stated education and experience for the position. The criteria utilized by Ms. McCluskey-Titus resulted in the consideration of only young people, just beginning their careers. The selection criteria used by Ms. McCluskey-Titus excluded older applicants. The criteria used as a basis by Ms. McCluskey-Titus were not those developed by the employer on the basis of job related necessities. Ms. McCluskey-Titus admitted that FSU did not have any mid-level career positions into which to promote these young people, and that this resulted in a high turnover of the employees who were hired in entry-level positions. Although it is not stated on the Petitioner's curriculum vitae, he did possess experience in student government and related areas during his undergraduate training. He did not include these in his curriculum vitae because of the more extensive experience which he has had since leaving school. Ms. McCluskey-Titus was aware that it would have been illegal to advise applicants that they were looking only for young people.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission find that the Respondent discriminated against the Petitioner and enter its Final Order directing the Respondent to cease from such discriminatory activities and directing the Respondent to place the Petitioner in a position as Resident Housing Coordinator. DONE AND ENTERED this 26th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4647 The Petitioner filed a lengthy post hearing brief which was read and considered; however, it did not follow the format required by the rules and it is not possible to identify the facts offered by Petitioner which were rejected or adopted. The Respondent filed a proposed order which was read and considered. The following states which of the proposed facts were adopted, and which were rejected and why: Respondent's Recommended Order Findings Para 1 Para 1, 3 Para 2 Para 5, 6 Para 3 Para 1, 4 Para 4 Para 8 Para 5 Para 9, 11, 12 Para 6 Para 12. Although specialized degrees have been developed since WW II, these degrees built upon the work which was part of already acknowledged academic fields. Psychology and sociology are the precursors of more specialized degrees in college student personnel management. Para 7,9,10,11 Irrelevant. These hires were the result of the same approach used in the instant case with the same result. Para 8 See findings in 18, 19, 21 Para 12 Para 17 Para 13 Para 17, and rejected in part as argument. Para 14 Irrelevant. Para 15 See 20-22 Para 16 Irrelevant because Ms. McCluskey-Titus made the actual hiring decision. Para 17 Irrelevant. Para 18 Irrelevant in part, covered in 20, 21, 23 in part. Para 19 Statement of Case. COPIES FURNISHED: D. Paul Sondel Route 10, Box 646 Tallahassee, Florida 32310-1169 Robert B. Jurand, Esquire Associate General Counsel Florida State University 540 West Jefferson Street Tallahassee, Florida 32306-1612 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether DOE properly evaluated the proposals in Bid No. 87-0123 and, if not, what corrective action should be taken. CAB contends that a proper evaluation of the bids would have resulted in a contract award to it. More specifically, CAB claims that it should have received a higher evaluation score in bid items #1 and #4. It also questions the scores received by two other competing firms. DOE contends that its evaluation was proper, the results should be upheld and the contracts be awarded as proposed.
Findings Of Fact The Invitation to Bid and Evaluation Process The purpose for Invitation to Bid No. 87-0123 is stated in the Introduction to that document:
