The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
The Issue The issue in the case is whether the Orange County School Board (Petitioner) had just cause for termination of the employment of Michele O'Neill (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed under a professional services contract by the Petitioner as a classroom teacher at Lakemont Elementary School, a unit of the Orange County Public School System. At all times material to this case, Dr. Susan Stephens was the principal of Lakemont Elementary School. The Petitioner has adopted a "Drug-Free Workplace" policy (the Policy) that in relevant part provides as follows: No employee shall use, possess, manufacture, distribute, or be under the influence of controlled substances or alcohol while on duty or on school board property, except when he/she is using a controlled substance in conformance with the instructions of a physician. The Policy provides for "Reasonable Suspicion testing" and provides that such tests may be performed "based on a belief that an employee is using or has used alcohol or drugs" in violation of the Policy, and further provides as follows: Reasonable suspicion testing must be based on specific, contemporaneous documented objective and articulable observations and circumstances which are consistent with the long and short term effects of alcohol or substance abuse; including, but not limited to, physical signs and symptoms, appearance, behavior, speech and/or odor on the person. Supervisors who have Reasonable Suspicion that an employee may be under the influence while on duty are required to immediately direct the employee to submit to testing as provided for by the board. Reasonable Suspicion shall be in accordance with training provided to managers, and will require confirmation by two trained managers. One of the two managers may include the supervisor, if trained. A refusal to submit to testing will result in a recommendation to terminate the employee. The Policy includes an "observation checklist" of characteristics indicative of potential alcohol or controlled substance use, which "includes, but is not limited to" slurred speech, confusion/disorientation, odor of alcohol on breath or person, rapid/continuous eye movement or an inability to focus, and improper job performance and/or violation of authority. Dr. Stephens has received training in "Reasonable Suspicion" observations. During the 2002-2003 school year, the Respondent was seriously injured in an automobile crash that required an extended absence from the classroom. She eventually returned to teaching about a year later, but continued to suffer the after- effects of the injuries, including an altered and uneven manner of walking. For the vast majority of the Respondent's employment with the Petitioner, her performance has been evaluated as "effective," and she was regarded as a good teacher. There is some evidence that, after the Respondent's post-accident return to teaching, there were concerns related to the Respondent's job performance. A letter from Dr. Stephens to the Respondent dated February 25, 2005, specifically addressed a number of issues, including collaboration with co-workers, anger management, and focusing on academic instruction during classroom time. Also subsequent to the Respondent's return to the classroom, a small number of parents whose children were being taught by the Respondent expressed various concerns about the education the students were receiving. For various reasons, some parents asked that their children be transferred to the classrooms of other teachers. Late in the school day on Friday, September 30, 2005, a parent contacted Dr. Stephens and reported that during a classroom meeting with the Respondent, the parent detected the odor of alcohol on the Respondent. The parent asked that the child be transferred to another teacher's classroom. Dr. Stephens attempted to locate the Respondent at that time, but the school day was finished and the Respondent had apparently left the campus. On Monday, October 3, 2005, Dr. Stephens came to the Respondent's classroom to discuss the requested transfer, and during the meeting, Dr. Stephens detected the odor of alcohol emanating from the Respondent. Dr. Stephens returned to her office and asked the school's assistant principal, Randall Hart, to go to the Respondent's classroom and talk to her. He did so and then returned to Dr. Stephens' office where he reported to her that the Respondent smelled of alcohol. Dr. Stephens contacted the Petitioner's Employee Relations department to inquire as to how to proceed, and was provided the names of several school board personnel who had received training in "Reasonable Suspicion" observations. From the names provided to Dr. Stephens, she contacted Dr. Suzanne Ackley, principal of Brookshire Elementary School in Winter Park, and asked her to come to Lakemont Elementary School and observe a teacher for indications of being under the influence. Dr. Ackley arrived shortly after being contacted by Dr. Stephens. Dr. Stephens and Dr. Ackley went to the Respondent's classroom and met with the Respondent. No students were present in the room at the time. Dr. Stephens identified Dr. Ackley as the principal of Brookshire Elementary. Dr. Ackley engaged the Respondent in a conversation about curriculum issues. During the meeting, Dr. Ackley detected the odor of alcohol emanating from the Respondent, and believed that the Respondent's speech sounded "slurred." After meeting the Respondent, Dr. Ackley and Dr. Stephens returned to the school office. Dr. Ackley told Dr. Stephens that she had detected the odor of alcohol while talking to the Respondent. Dr. Ackley then left the Lakemont campus. Shortly after Dr. Ackley departed, and in accordance with the Policy, Dr. Stephens informed the Respondent that there was concern related to possible alcohol use. Dr. Stephens ordered the Respondent to accompany her to a facility used by the school board for alcohol and controlled substance testing. Although the Respondent initially agreed to accompany Dr. Stephens to the facility and to submit to the test, within a few minutes, the Respondent changed her mind and refused to travel with the principal to the testing facility. The Respondent stated that she wanted to go home prior to going to the testing facility, ostensibly to retrieve some prescription medications that she wanted to take to the facility. The Respondent testified that she had not been using alcohol on October 3, 2005. She offered vague testimony about an immaterial personal matter, the import of which was that the Respondent went to an emergency room on October 1, 2005, where she received prescriptions for medications including Flexeril, a muscle relaxant. She asserted that she did not refuse to submit to the test, but that she merely wanted to drive herself home to retrieve the prescription medications prior to continuing on to the drug testing facility, to establish that the behaviors exhibited were related to the use of the medications prescribed at the hospital. The Respondent's testimony is not credible and is rejected. The Respondent offered the expert testimony of Dr. Rahn Shaw, who opined that the prescribed medications could have accounted for some of the Respondent's physical presentation on October 3, 2005; however, there is no evidence that use of the referenced medications could create an odor of alcohol on or about a person taking the medications. Dr. Stephens declined to permit the Respondent to go home before submitting to the test, and continued in attempting to convince the Respondent to accompany her to the testing facility. Dr. Stephens specifically and repeatedly advised the Respondent that failure to comply with the request would jeopardize the Respondent's employment status, but the Respondent refused to comply. The Respondent decided to leave the school grounds. She went to her car and began to drive the vehicle from the campus, but did not get far from her parking space. The Respondent was prevented from doing so by the school's D.A.R.E. officer, who arrived after being contacted by school personnel concerned about the Respondent's ability to operate the vehicle. The D.A.R.E. officer is also a uniformed police officer. The officer testified that she eventually persuaded the Respondent to exit the vehicle and escorted her to an office in the school where students, who were passing in the vicinity, would not see the Respondent. The officer further testified that Respondent smelled of alcohol at the time the officer intervened in the situation. The Respondent insisted that she was not under the influence of alcohol, and in response, the officer performed a gaze nystagmus test and a "finger-to-nose" test, after which the officer concluded that the Respondent was not capable of driving herself home. Several of the Petitioner's witnesses testified that they were concerned about the Respondent's ability to transport herself home in her personal vehicle. The refusal to permit the Respondent to transport herself to her home or to the testing facility was clearly reasonable based on the observations of the Respondent's behavior. It should also be noted that Dr. Shaw testified that persons using Flexeril "shouldn't be driving or operating machinery because it makes everybody I know drowsy and lethargic" and that "you could qualify for a DUI in this state by taking that medicine and driving most of the time." A cab was called, and the Respondent was taken home in the cab on October 3, 2005. Prior to leaving the campus, Dr. Stephens again attempted to convince the Respondent to submit to the testing and advised that the Respondent's employment was in jeopardy, but to no avail. Dr. Stephens had been in communication with the Employee Relations department during the incident, and had been told to direct the Respondent to contact the Employee Relations department on Tuesday, October 4th, if she chose not to comply with the testing directive. After determining that the Respondent would not comply with the directive and prior to the Petitioner's departure from the school grounds on October 3rd, Dr. Stephens instructed the Respondent to contact the Employee Relations department on the next day. The Respondent later returned to the school grounds and retrieved her vehicle. The Respondent failed to contact the Employee Relations department on October 4, 2005. At the close of that day, and after the Respondent had failed to make contact, Shonda Von Schriltz, senior manager for the Petitioner's Employee Relations department, sent two letters by express mail to the Respondent. The first letter gave notice of a meeting scheduled for October 10, 2005, to discuss the incident. The second letter advised that the Respondent would be placed on "Relief of Duty" with pay, and that the Respondent was required to remain available to school personnel during school hours while on the paid relief period. Attempts to deliver the letters apparently failed for reasons that are unclear. In any event, there was no communication between the Respondent and the Petitioner until October 13, 2005. On that date, a predetermination conference, which was arranged based on an October 12, 2005, request from a teacher's union representative, was held. During the meeting, at which Ms. Von Schriltz was present, the Respondent denied that she had used alcohol on October 3, 2005, or that she had been requested to submit to testing. She had no recollection of having been told anything by Dr. Stephens, and was unable to offer a rationale for leaving campus early on October 3rd. During the October 13th meeting, the Respondent was directed to maintain contact with the Employee Relations department, but after the meeting ended, there was no contact until November 8, 2005, when the Respondent answered one of several telephone calls that had been placed to her number by Ms. Von Schriltz. During the November 8th conversation, the Respondent had no recollection of Ms. Von Schriltz or of the October 13th meeting, and instructed Ms. Von Schriltz to contact the Respondent's legal counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Michele O'Neill. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006. COPIES FURNISHED: Joseph Egan, Jr., Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Elizabeth F. Swanson, Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether the employment screening standards in Chapter 435, Florida Statutes, can, without more, serve as the basis for the Petitioner's terminating the Respondent's employment as a teacher. If so, whether Respondent's actions were sufficient to warrant termination of his employment.
Findings Of Fact Based on the stipulations of the parties and on the contents of Exhibits 1 through 4 attached to the Agreed Motion to Request Submission of Briefs in Lieu of Hearing, the following findings of fact are made: At all times material to these proceedings, Mr. Ano was employed by the School Board as a teacher, a position that he has held for approximately 21 years. The facts and events stated in the Palm Beach County Sheriff's Office Offense Report prepared April 5, 2002,3 led to the arrest of Raymond Ano and his wife, Toby Ano, late on the evening of March 28, 2002, and the early morning hours of March 29, 2002. An Amended Information was filed on September 18, 2002, with the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, charging Raymond T. Ano with battery on a police officer, resisting an officer with violence, and defrauding an innkeeper. On October 31, 2002, Mr. Ano pled guilty to the offenses of battery (lesser), resisting an officer with violence, and defrauding an innkeeper. In an Order entered November 5, 2002, the court withheld adjudication of guilt and sentenced Mr. Ano to probation for 18 months for defrauding an innkeeper and for resisting an officer with violence and for 12 months for battery, with the sentences to run concurrently. Mr. Ano did not report his arrest and guilty plea to the School Board; however, this violation of School Board policy is not, of itself, sufficient to justify termination of his employment.4 On July 16, 2004, the School Board voted to suspend Mr. Ano without pay and to terminate his employment, based on Mr. Ano's plea of guilty to the charge of resisting an officer with violence. The School Board followed its procedural rules in investigating this matter and in voting to terminate Mr. Ano's employment. An Amended Petition for Suspension without Pay and Dismissal from Employment was issued July 30, 2003, in which the School Board alleged that there was just cause for Mr. Ano's suspension and termination based on his failure to report his arrest and his plea of guilty to an offense enumerated under Chapter 435, Florida Statutes, specifically, resisting arrest with violence, in violation of Section 843.01, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order: Finding that Mr. Ano's plea of guilty to a violation of Section 843.01(2)(gg), Florida Statutes, does not provide a legally-sufficient basis for terminating Mr. Ano's employment with the School Board of Broward County, Florida; Reinstating Mr. Ano's employment with the School Board of Broward County, Florida; and Paying Mr. Ano his back salary from the date of his suspension without pay. DONE AND ENTERED this 29th day of June, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2004.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 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 28th day of November, 2016.
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
Findings Of Fact Background And Overview Respondent was first employed by Petitioner, School Board Of Palm Beach County, Florida (the "School Board"), in 1964 as a teacher. Respondent was promoted to principal in 1971, Assistant Superintendent for the School Board in 1978, and Associate Superintendent of Schools for Planning and Operations on July 1, 1984. Respondent was one of three Associate Superintendents in the Palm Beach County school district. There was also an Associate Superintendent of Instruction and an Associate Superintendent of Administration. Each Associate Superintendent reported to the Deputy Director who reported to the Superintendent. Respondent served as Associate Superintendent of Planning and Operations until he was demoted to principal on November 5, 1991. Respondent served under an annual contract as an Associate Superintendent and maintains a continuing contract as a teacher. While employed as an Associate Superintendent, Respondent never received notice of an allegation of incompetent conduct, was never disciplined, and never received a negative performance evaluation prior to this proceeding. In the Summer of 1991, Respondent was a finalist for the position of Superintendent. The position of Associate Superintendent of Planning and Operations was subsequently abolished effective July 1, 1992. Planning And Operations: Organization And Regular Duties The organization of Planning and Operations has changed in specific regards during the years Respondent was its Associate Superintendent. 1/ For the purposes of this proceeding, however, Planning and Operations employed approximately 1,500 people and was organized and operated in three subdivisions: Growth Management; Facilities Planning and Management; and Personnel Relations. Personnel Relations is not at issue in this proceeding. 2/ Growth Management responsibilities included: identifying school district demographics; determining racial balance; and site acquisition for development of schools and other facilities. Facilities Planning and Management responsibilities included: building new schools; renovations; improvements; and maintenance. Each of the three subdivisions of Planning and Operations was supervised directly by an Assistant Superintendent. The Assistant Superintendents supervised one comptroller and nine directors. Directors had direct responsibility for assistant directors. Assistant directors supervised first-line managers. First-line managers supervised numerous employees who regularly worked on: major school center projects; new school construction; facility design and contract services; facility operations; maintenance and renovations; personnel administration; information management; recruitment and selection; and human resources. Additional Duties In addition to their regular duties, Respondent and other senior administrative supervisors were required by Mr. Thomas Mills, the former Superintendent, to promote and solicit the involvement of members of the local business community in the Palm Beach County school system. The school system faced student overcrowding, a lack of materials, a lack of adequate funding, and a rising drop out rate. Members of the business community were recruited to help raise money for operating expenses and to support a bond issue for which the School Board sought voter approval in 1986. Many members of the local business community were also vendors to the School Board. Respondent was directed by former Superintendent Mills and Dr. James Daniels, the Deputy Superintendent, to contact and network with as many members of the business community as possible. Such activities were considered by former Superintendent Mills to be a high priority. Respondent complied with the directives of the former Superintendent and Deputy Superintendent. The efforts of Respondent and other senior managers proved successful. The business community in Palm Beach County raised funds to supplement the operating expenses of the school system and supported a bond issue for construction of new facilities and capital improvements to existing facilities. In 1986, the majority of registered voters in Palm Beach County approved a Special Referendum authorizing a $678 million bond issue for the construction of educational facilities in the Palm Beach County School District. The School Board established a five year plan for the construction of educational and ancillary facilities (the "five year construction plan"). A portion of the bond money was allocated to capital improvement projects to renovate or remodel existing facilities. Planning and Operations supervised all bond issue projects, including capital improvement projects. In the 1986- 1987 school year, such projects, including capital improvement projects, were supervised by the division of New School Construction. In the Fall of 1987, supervision of capital improvements was transferred to Maintenance and Renovations. Maintenance and Renovations was also organized within Planning and Operations. Approximately 39 new schools were constructed in Palm Beach County while Respondent was Associate Superintendent of Planning and Operations. The total budget for construction of new schools was approximately $550 million. Thousands of construction projects, renovations, and improvement or maintenance projects were performed by Planning and Operations. Approximately $317 million of the authorized bond issue was issued from 1987 through 1989. In addition to the construction of new schools, the School Board approved a plan in 1985 to acquire land and construct four ancillary facilities. The ancillary facilities included a new administrative complex, a central warehouse, and a maintenance and operations facility. Planning and Operations supervised the site acquisition and construction of all four ancillary facilities. Deficiencies In Planning And Operations Deficiencies in the organization and operation of Planning and Operations were well known to both the School Board and Planning and Operations personnel. They were pandemic deficiencies that Respondent could not correct without the approval and financial support of the School Board and the technical assistance of experts. 3/ The School Board retained an outside consultant, Price Waterhouse, to study deficiencies in Planning and Operations and to formulate an improvement program. The improvement program was to be developed in three phases. The first phase identified deficiencies within Planning and Operations on the basis of discussions with department personnel and outside specialists. The second phase would have focused on verifying and prioritizing problems and their impacts. The third phase would have formulated a program for improvement of Planning and Operations. Deficiencies in Facilities Planning and Management were identified in interviews conducted by the accounting firm of Price Waterhouse with directors, assistant directors, and first- line managers. In 1987, Price Waterhouse issued a draft report to the School Board describing the deficiencies found in Facilities Planning and Management (the "Price Waterhouse Report"). 4/ The School Board determined that the Price Waterhouse Report merely told the School Board what was already common knowledge and that further expenditures on a program for improvement with Price Waterhouse would be a waste of money. The School Board knew of the deficiencies in Planning and Operations. The School Board knew that those deficiencies created impediments to the supervision of Planning and Operations. Known deficiencies within Facilities Planning and Management involved: financial procedures and controls; staff performance, including personnel and control; planning of operations and projects; contract administration; construction administration; and organization structure. Deficiencies in financial procedures resulted in budgeting without adequate preparation, historical data, timing, and coordination between departments. Poor cost and schedule accounting for capital improvements, maintenance, and operations made it difficult to capture and report cost information in sufficient detail and in a timely manner. Poor cost controls directly affected the control of operations, decisions to perform work by in-house staff or contractors, and the value received for money spent. Adequate project management tools and policies were not in place to contain costs and adhere to schedules for maintenance, capital improvements, and new construction. Payment of suppliers, contractors, architects, and other vendors was slow, frustrated vendors, and made them reluctant to do work for the School Board. There were deficiencies in staff performance, personnel, and control. Productivity appeared to be low. There was a lack of performance measurement and reporting mechanisms in place to accurately assess productivity. Productivity was significantly affected by: inadequate work planning and coordination; the condition and availability of equipment and materials; logistics; and geographic constraints. Many employees were uncertain as to their responsibilities and corresponding authority, particularly at the first-line manager level. Uncertainty over responsibility and authority undermined the effectiveness of first-line managers dealing with vendors, contractors, and architects. Staffing levels and management span were not adequate to maintain existing facilities and operations, control personnel growth, and prevent duplication of field personnel skills between maintenance and capital improvements. Support resources were weak in technical expertise, administrative staff, reference materials, and computer aided design equipment. Capital improvement, new construction, and maintenance tasks were frequently not scheduled in sufficient accuracy and detail to foresee and anticipate potential problems. Frequent schedule slippage allowed contractors less time to complete construction and meet schedules; adversely affecting productivity, project costs, and the ability to plan for and manage project issues and achieve targeted completion dates. Shortages of materials and supplies often caused project delays. Coordination of work between and within departments failed to determine the optimal sequence in which work was to be performed to maximize the utilization of trade employees and avoid conflicts and rework. Deficiencies in contract administration led to lack of clarification in the responsibilities, requirements, and expectations of parties to contracts. Contract documents and conditions were too vague and resulted in frequent disputes, delays, and occasional change orders. To avoid delays caused by change orders, contractors sometime proceeded without proper authorization at their own risk. The definition of authority and responsibility and the guidelines for quality control and inspection for in-house employees and contractors needed to be improved. Such deficiencies in construction administration resulted in project delays, poor construction, and higher facility life cycle costs. A lack of consistency in procedures and policies for project management exacerbated the deficiencies in construction administration. Deficiencies in organization structure directly affected problems in other areas of Planning and Operations. Continuity of work was lacking on new construction. Project managers changed when responsibility passed from one division to the next; resulting in a start-stop effect on the project and a loss of specific project knowledge. Improvement was needed in communications between and within departments and in upper management support of lower management authority. There was a need for a long range organization structure and staffing strategy which addressed alternatives such as internal staffing and contracted services. The presence of deficiencies described in the Price Waterhouse Report in 1987 was confirmed in 1993 in a Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report found that deficiencies similar to those described in the Price Waterhouse Report for Facilities Planning and Management also existed in Growth Management. Problems reported in the Price Waterhouse Report and in the Auditor General's Report described a deficient organizational and operational system in which the School Board required Respondent to supervise unprecedented growth and activity. Respondent was required to: supervise a $550 million construction plan involving thousands of projects and four ancillary facilities; 5/ promote involvement of the business community in the school system; and perform the duties he was otherwise required to perform in the absence of the five year construction plan established by the School Board and associated promotional responsibilities. In 1987, the Price Waterhouse Report stated that supervisors and assistant directors were stretched very thin, and their roles needed to be more clearly defined. Communication between and within departments and from directors and similar supervisors was poor. 6/ Many of the deficiencies described in the Price Waterhouse Report and the Auditor General's Report created impediments to Respondent's supervision of Planning and Operations irrespective of his additional duties associated with the five year construction plan. Petitioners' Allegations Petitioners' allegations against Respondent are based on two separate investigations conducted by Petitioners. 7/ Petitioners' allegations involve: acquisition of a site for a central warehouse for $3.161 million (the "District Warehouse Site"); acquisition of a site for a west bus compound for $750,000 (the "West Bus Compound"); construction of an addition to a new maintenance and operations building on Summit Boulevard in West Palm Beach for Maintenance and Renovations and Facility Operations and construction of an addition to a north maintenance building (the "Summit Facility"); requests for additional services on form G-604 (the "G-604" issue); acceptance of gratuities from members of the business community who were also vendors of the School Board; and evaluation of two employees. Petitioners' allegations of incompetency primarily involve the five year construction plan and ancillary facilities. Few of the alleged acts of incompetence involve other aspects of Respondent's job performance from July 1, 1984, through November 5, 1991. The District Warehouse Site The School Board determined in 1985 that a need existed for a centralized warehouse site in Palm Beach County. 8/ The School Board determined that approximately 10 acres would be adequate. Since the value of land in Palm Beach County was appreciating, the School Board also approved the policy of former Superintendent Mills that encouraged the acquisition of land for future expansion if the land could be acquired at a desirable price, i.e., "warehousing" land for future use. Respondent had advocated a decentralized warehouse system in which separate warehouse functions would be carried out in various regions of Palm Beach County. Others in Planning and Operations supported the concept of a centralized warehouse site. The centralized warehouse concept was accepted and approved by former Superintendent Mills and the School Board. On October 11, 1989, the School Board purchased approximately 16 acres of real property as a site for a centralized district warehouse. The property was purchased for $3.161 million from KEI Palm Beach Center, Ltd. ("KEI"), a limited partnership in which Mr. William Knight was a limited partner and Knight Enterprises, Inc., a corporation controlled by Mr. William Knight, was the general partner (the "Knight property"). Respondent did not act incompetently and did not violate any statute, rule, policy, instruction, or directive, or circumvent normal acquisition procedures (collectively referred to hereinafter as "applicable standards") with regard to the evaluation and purchase of the Knight property. Respondent neither proposed nor advocated the purchase of a particular warehouse site. Respondent did not propose or advocate the identification, evaluation, selection, and purchase of the Knight property. Respondent showed no favoritism to Mr. William Knight, to his son, Mr. Jim Knight, or to any entity owned by the Knights. Respondent committed no act or omission which impaired his business judgment, compromised his independence, or which was otherwise improper in connection with the acquisition of the District Warehouse Site. Initial Site Selection And Evaluation Prior to the acquisition of the Knight property, the School Board attempted to acquire property owned by Palm Beach County and known as Section 6. Negotiations for the acquisition of Section 6 terminated when Section 6 became unavailable. A site search for the District Warehouse property was conducted by Growth Management. Ten separate sites, including the Knight property, were initially identified and reviewed by a site acquisition team within Growth Management. The site acquisition team was headed by Mr. William Hukill, Assistant Superintendent for Growth Management. The site acquisition team also included Mr. Robert Skakandy, a real estate acquisition coordinator in Growth Management, and Mr. David Williams, Assistant Director of Growth Management. Respondent was not significantly involved in identifying the 10 properties considered by the site acquisition team, including the Knight property. Each property was placed on the list by the site acquisition team because it was within or proximate to the geographical area preferred by the site acquisition team or possessed other targeted location characteristics. 9/ Site selection procedures typically did not involve Respondent. Site selection procedures were described in detail in the Auditor General's Report: . . . upon identification of potential sites, the sites were evaluated by the District's Growth Management Center. A description of each site was presented to the Assistant Superintendent, Growth Management and to the Assistant Director, Growth Management for their review, after which the descriptions were . . . presented to the Superintendent. Following the Superintendent's review, the preliminary site investigations and site descriptions with the Superintendent's recommendation were to be presented to the School Board for their review and approval. (emphasis supplied) Auditor General's Report at 63. Growth Management first considered the Knight property in August, 1988. Mr. Jim Knight communicated the availability of the Knight property to Ms. Linda Howell, a real estate coordinator in Growth Management. Ms. Howell and Mr. Jim Knight conducted further discussions. Ms. Howell identified the Knight property as a potential site and relayed the site information to Mr. Skakandy. The site acquisition team reduced the list of ten sites to a list of three final sites. The Knight property was not one of the three final sites selected. The three final sites were all less expensive than the Knight property. The three final sites were the Riviera Beach site, the Boyton Beach site, and the Farmer's Market site. Feasibility problems developed with each of the three final sites. The Riviera Beach site was sold to another party. The Boyton Beach site was objected to by other staff not on the site acquisition team. It was 15-20 miles south of the center of the county and failed the express criteria for a "central" warehouse. Environmental problems and costs associated with the disposal of building materials caused Maintenance and Renovations to recommend against purchase of the Farmer's Market site. 10/ Reconsideration Of Knight Property On or about January 11, 1989, former Superintendent Mills sent a memorandum to Mr. Hukill indicating that Mr. William Knight had called the Superintendent to express his interest in having the Knight property reconsidered for the District Warehouse Site. Respondent received a copy of that memorandum but was not otherwise involved significantly in the reconsideration of the Knight property. On or about January 20, 1989, Mr. Hukill sent a letter to the former Superintendent indicating that the Knight property was still under consideration and that the Knight property location was quite good under the circumstances. Mr. Hukill indicated that appraisals had been ordered and that a site recommendation would be forthcoming. 11/ The Knight property was reconsidered in accordance with procedures customarily followed in Growth Management. There was no formalized procedure followed in Growth Management for the evaluation of property for site acquisition. Sites were discussed in a free form fashion. Except for a recommendation of the final site selected, written records for recommendations on specific properties were not customarily prepared by staff in Growth Management. 12/ Mr. Hukill made the ultimate decision to add or drop sites from consideration. Acquisition sites were added or deleted from site acquisition lists without notifying Respondent. The Knight property was evaluated by the entire staff in Growth Management. The evaluation of the Knight property included a review of environmental issues, utilities, zoning, and road use. Mr. Jim Knight had more than 20 meetings with Growth Management staff including Mr. Hukill, Mr. Skakandy, and Mr. Williams. Respondent was not significantly involved in those discussions. 13/ The Knight property was recommended by staff because of its suitability for the District Warehouse and because of the unavailability or unsuitability of the first three sites originally selected by the site acquisition team. The Knight property was located in almost the exact center of the county. It was also located on Southern Boulevard, a roadway that runs directly to western communities in Palm Beach County where many new schools were scheduled for construction. Respondent properly relied on staff recommendations for the Knight property in accordance with his customary practice. At no time prior to the time the property was acquired did any employee within Growth Management state to Respondent that the Knight property was not a suitable site or that the purchase of the Knight property would be detrimental to the School Board. Mr. Hukill did not sign the written recommendation for the Knight property. The reason for his refusal, however, had nothing to do with the suitability of the Knight property for the District Warehouse. Mr. Hukill believed, as a philosophical matter, that the School Board should spend its money on schools rather than on additional warehouse sites. Mr. Hukill, in effect, objected to a determination made by the School Board in 1985. Mr. Hukill agreed with the recommendation that the Knight property was suitable based on the marketplace, location, and ease of distribution for servicing schools. Respondent neither identified nor advocated the Knight property. Respondent had no conversations with either Mr. William Knight or Mr. Jim Knight concerning the evaluation of the Knight property as a site for the District Warehouse except as previously described. Except for the price paid for the Knight property, Respondent's involvement in the acquisition of the Knight property was limited to a review of staff recommendations and the acceptance of those recommendations. Additional Acreage The initial search for a District Warehouse site focused on the acquisition of 10 acres of property. However, the Knight property included 16 acres. The additional acreage was purchased to overcome access problems that would have occurred if only 10 acres had been purchased. Unanticipated problems in site selection was one of the deficiencies known to the School Board and discussed in the Price Waterhouse Report in 1987. Engineering involvement frequently did not occur early enough in site acquisition. As a result, sites selected by the site acquisition team required unanticipated expenses, and the full cost of the project was not properly assessed. 14/ The decision to purchase additional acreage was not made by Respondent. Former Superintendent Mills wanted the additional acreage to accommodate future expansion for office space on the warehouse site. The former Superintendent believed that a larger site was desirable to properly accommodate future expansion needs and directed the purchase of the additional acreage. The issue of whether to increase the site for the District Warehouse from 10 acres to 16 acres was discussed at a Superintendent's staff meeting. The former Superintendent, the School Board attorney, Respondent, and a dozen other members of the former Superintendent's staff attended the meeting and participated in the discussion. The decision and recommendation to purchase the additional acreage was made by the former Superintendent. Purchase Price The final purchase price for the Knight property was reasonable and beneficial for the School Board. Respondent was responsible for the final purchase price. Two separate appraisals for the Knight property were obtained by Growth Management in accordance with its customary practice and applicable law. 15/ Respondent did not select the appraisers. They were selected by Mr. Skakandy with the approval of Mr. Williams. The appraisers were qualified and had been used many times in the past by Planning and Operations. The two appraisals for the Knight property differed by $1.00 a square foot. The higher appraisal was for $5.50 a square foot. The lower appraisal was for $4.50 a square foot. 16/ Respondent refused to accept Mr. William Knight's offer to split the difference between the two appraisals and insisted on a sales price of $4.42 a square foot. The price paid for the Knight property was reasonable and less than the lowest appraised value. Contract Negotiations Respondent was not involved in contract negotiations for the Knight property and did not dictate any of the terms of the contract for the purchase of the Knight property; except the final purchase price discussed in the preceding paragraph. Site acquisition personnel typically negotiated site acquisition contracts in concert with the School Board attorney. Site acquisition personnel did not customarily report the status of contract negotiations to Respondent. No established procedure required such reports. Contract negotiations for the acquisition of the Knight property were carried out entirely by site acquisition personnel within Growth Management and Mr. Robert Rosillo, the School Board attorney. Negotiations by staff and the School Board attorney for the Knight property were within the scope of normal functions for site acquisition. The School Board attorney did not confer with Respondent during the three months in which contract negotiations for the Knight property were conducted. Respondent never gave the School Board any direction or other information concerning the acquisition of the Knight property. It is the responsibility of the School Board attorney and technical staff in Growth Management to draw acquisition contracts, address zoning requirements, and determine contingencies for closing. Any problems associated with the final contract for purchase of the Knight property were the responsibility of the School Board attorney and staff negotiators. Road Improvements: Allocation Of Costs Between The Parties The contract for the Knight property addressed road improvements, right-of-way, and relocation measures necessary for the use of the property. Engineering drawings reflected the right-of-way issues, the need to relocate water and sewer lines and a lift station, and the need for road improvements. The parties to the contract agreed to share the cost of road improvements proportionally. The contract required the seller to place $70,000 in a separate escrow account to be used to fund the necessary road improvements. While Petitioners now complain that the amount escrowed by the seller was inadequate, the terms of the contract were prepared by the School Board attorney and recommended by Growth Management staff in accordance with long standing practice. In 1987, The Price Waterhouse Report stated that contract documents did not delineate specific responsibilities. The result was confusion, disagreements, and additional costs to the School Board or outside parties. 17/ Adverse impacts from the purchase of the Knight property on October 11, 1989, reflected deficiencies reported in the Price Waterhouse Report in 1987. Those deficiencies were well known to the School Board at least two years before the acquisition of the Knight Property. The School Board chose not to expend additional funds on a program of improvement suggested by Price Waterhouse. Financial Ability Of Seller To Comply With Repurchase Option The contract for the Knight property contained a provision which gives the School Board the right to require the seller to repurchase the property if conditions pertaining to zoning are not satisfied (the "repurchase option"). The repurchase option was drafted by the School Board attorney. A decision not to enforce the repurchase option was made by the School Board, the School Board attorney, and the former Superintendent. If the School Board had elected not to proceed with closing, the contract afforded the seller to right to sue for specific performance. A foreclosure suit was filed against the Knight property a few days prior to the closing on October 11, 1989. Mr. Rosillo discussed the impact of the foreclosure suit on the purchase with former Superintendent Mills. The issue was not discussed with Respondent. The contract did not require the seller to evidence its financial ability to perform the terms of the contract. Nor did the contract require Mr. William Knight to personally guarantee the obligation of the seller under the repurchase option. Temporal Considerations The time required for the evaluation and purchase of the Knight property was reasonable and adequate. The transaction was not "rushed." The evaluation and purchase of the Knight property required approximately 14 months to complete. Once the decision to purchase the property was made, approximately three months were required to finalize the terms of the contract and close the transaction. Even if the evaluation and purchase of the Knight property was rushed, Respondent did not act as an impetus to rush the transaction. Respondent was not significantly involved in the identification, evaluation, and purchase of the Knight property except for the final purchase price. Mr. Jim Knight actively negotiated the transaction with Mr. Rosillo, Mr. Hukill, Mr. Williams, and Mr. Skakandy. The entire transaction was discussed fairly and adequately by Growth Management staff and the School Board attorney. Respondent did not propose or advocate the Knight property. Respondent did not negotiate the terms of the contract to purchase the Knight property except for the final purchase price. Respondent did not decide whether to close the transaction or whether to enforce the repurchase option. Bifurcated Funding For Land Acquisition And Construction The fact that the Knight property was acquired prior to the time that money was available to construct the District Warehouse does not make Respondent incompetent. Property was customarily purchased first and a building constructed out of budget appropriations in subsequent years. In 1987, The Price Waterhouse Report included such practices in its list of deficiencies. The capital budgeting process lacked sufficient coordination, timing, and input. Adequate cost accounting tools were not available. Existing reports lacked sufficient detail, accuracy, and timeliness. Capital improvement funding sources were not clearly identified. The fact that priorities for capital improvements were not easily or accurately tracked was a source of frustration for administrators including Respondent. 18/ Those deficiencies were known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a program of improvement with Price Waterhouse. In 1993, the Auditor General's Report found that originally designated capital outlay moneys had been expended on projects, land purchases, and other purposes which were not contemplated in the 1986 school construction plan. Expenditures not contemplated in the five year construction plan included the District Warehouse Site. 19/ The notice of tax levy for capital improvements had not been prioritized within categories as required by Section 200.065(9)(a), Florida Statutes. Failure to prioritize the projects contributed to delays in undertaking some of the projects at issue. Furthermore, the School Board did not segregate and account for the proceeds and related expenditures of each respective year's levy. 20/ The decision to purchase the Knight property and rely on budget appropriations in subsequent years for construction was made by former Superintendent Mills. The former Superintendent's policy was to purchase land at a reasonable price if there was a future need for the property. Land values in Palm Beach County were appreciating rapidly. The money to construct the buildings on such properties typically came from budget appropriations in subsequent years. The Knight property was purchased for less than its lowest appraised value. 2.10 Gratuities And The Knight Property Respondent went fishing in 1986 and 1987 on Mr. William Knight's fishing boat in St. Thomas, U.S. Virgin Islands, and in Bimini, Bahama Islands. Respondent reported both fishing trips on his annual financial disclosure forms. The two fishing trips did not adversely affect Respondent's business judgment or create the appearance of impropriety. Respondent was not significantly involved in the acquisition of the Knight property in October, 1989. In 1986, Respondent accepted an invitation from Mr. Robert Howell, a member of the School Board at the time, to go fishing in St. Thomas. The invitation was made to Respondent through former Superintendent Mills. The former Superintendent joined Respondent on the fishing trip. Respondent had never met Mr. William Knight before that time. The fishing trip lasted two days. Respondent paid for his own transportation to St. Thomas. In 1987, Respondent and former Superintendent Mills accepted an invitation from Mr. William Knight to fish with their children in Bimini. The fishing trip lasted one day. The West Bus Compound On or about April 24, 1990, the School Board purchased property in Royal Palm Beach for $750,000 (the "West Bus Compound"). The property was purchased from Mr. John Bills. Site selection procedures typically did not involve Respondent. 21/ Respondent did not act incompetently or violate applicable standards with regard to the identification, evaluation, and purchase of the West Bus Compound. Respondent did not propose or advocate the West Bus Compound or the evaluation, selection, and purchase of the West Bus Compound. Respondent showed no favoritism to Mr. Bills, or any entity owned by Mr. Bills. Respondent committed no act or omission which impaired his judgment, compromised his independence, or which was otherwise improper in connection with the evaluation and acquisition of the West Bus Compound. The need for a site to service the western portion of Palm Beach County was identified by Mr. George Baker, the Director of Transportation. Transportation was a division of the Department of Administration. The Associate Superintendent of Administration was Dr. Henry Boekhoff. Respondent had no authority or responsibility over Transportation. The need for a site to service the western portion of Palm Beach County was uncontroverted. Due to westward population migration, several new schools were built in the western regions of the County. Mr. Baker determined that it was not cost effective to transport buses back and forth from compounds in the eastern portion of the County for maintenance and storage. Mr. Baker and Dr. Boekhoff determined that a West Bus Compound would result in significant savings in the operating budget. The need for a West Bus Compound was well known within the school district administration, including Growth Management. Mr. Baker had repeatedly stated to everyone "within earshot" that the need for a West Bus Compound was urgent. Mr. Baker identified a site location in Royal Palm Beach owned by Mr. Bills. Mr. Baker told Mr. Williams, who worked in Growth Management, that Transportation wanted the site owned by Mr. Bills for the West Bus Compound. Mr. Bills was trying to sell his property. Mr. Bills submitted a brochure on the property to Mr. Hukill and other staff in Growth Management. Mr. Hukill recommended the property owned by Mr. Bills to Respondent. Respondent discussed the site with former Superintendent Mills. At Mr. Hukill's request, the former Superintendent authorized Mr. Hukill to proceed with negotiations for the property owned by Mr. Bills. Respondent advised Mr. Williams of the availability of the property owned by Mr. Bills. Respondent instructed Mr. Skakandy to follow normal procedures regarding the West Bus Compound site. The West Bus Compound site was evaluated by Mr. Skakandy and Mr. Williams. They also negotiated the contract for acquisition. Such action on the part of Mr. Skakandy and Mr. Williams was consistent with customary practice within Growth Management and was within the scope of their regular duties and responsibilities. Two appraisals were obtained for the West Bus Compound. The higher appraisal was for $810,000. The lower appraisal was for $703,000. The property was purchased for $750,000. Respondent properly relied on the recommendations and advice of technical staff in Growth Management with respect to the acquisition of the West Bus Compound site. Respondent was never informed by anyone within Growth Management that there were any limitations on the use of the site. Certain zoning and easement requirements reduced the usable area for the site below that originally projected by Growth Management. Mr. Baker recommended the site even though the usable area was less than originally projected. Respondent was not acquainted with Mr. Bills at the time that the West Bus Compound was evaluated and acquired. Subsequently, however, Respondent developed a friendship with Mr. Bills. Respondent never showed any favoritism to Mr. Bills in connection with the West Bus Compound. The Summit Facility On July 1, 1989, employees of Maintenance and Renovations and employees of Facility Operations were housed in a leased facility at 3323 Belvedere Road, West Palm Beach, Florida (the "Belvedere" site). A new ancillary facility was nearing completion in the Fall of 1989. The new facility was located at 3300 Summit Boulevard in West Palm Beach (the "Summit Facility"). The Summit Facility included a second building known as the north building. The landlord for the Belvedere site exercised its rights under the lease to obtain use of the Belvedere site sooner than originally anticipated by the School Board. Electronics employees housed at the Belvedere site were moved to Northshore High School ("Northshore") on a temporary basis until the Summit Facility was completed. Residents of the neighborhood adjacent to Northshore complained to some members of the School Board about increased traffic. The School Board took the matter up at a public meeting during the Fall of 1989. Approval Of Day Laborers In Trades Sections At the public meeting conducted in the Fall of 1989, the School Board specifically authorized Mr. David Lord, Director of Maintenance, and former Superintendent Mills to use day- laborers in the trades sections 22/ to construct additions to buildings at the Summit Facility and to relocate electronics employees from Northshore to the Summit Facility by January 1, 1990. Mr. Lord and the former Superintendent discussed the matter with the School Board in detail. 23/ At the public meeting, the School Board instructed Mr. Lord to use whatever resources were available to him to make needed capital improvements to the Summit Facility by January 1, 1990. Confusion over when to use contractors or in-house personnel was one of the deficiencies discussed in the Price Waterhouse Report in 1987. Criteria for determining when to perform work on a contract basis and when to perform work in- house were not clearly established. This made planning difficult and increased project costs. 24/ Lack of communication and agreement between project managers and construction personnel concerning time and cost of in-house projects resulted in incorrect decisions concerning the desirability of building in-house or by contract, caused delays, cost overruns. 25/ Comparative cost analyses of in- house and contract maintenance construction were not available. 26/ In 1993, the Auditor General's Report found that established procedures did not provide reasonable safeguards to monitor day-labor projects to ensure that goods and labor were used only for authorized projects. The Auditor General's Report recommended that such procedures be established. 27/ Mr. Lord used day-laborers from his trades sections to make the capital improvements mandated by the School Board in accordance with the School Board's instructions. The work was begun in December, 1989, and completed in March, 1990. Code Violations In 1991, after considerable time for discussion and analysis among attorneys and technical staff within the Department of Education and Planning and Operations, it was determined that some additions to the Summit Facility were not in compliance with applicable safety code regulations. Respondent properly relied on Mr. Lord and Mr. Lord's immediate supervisor for technical compliance with applicable code provisions. Florida Administrative Code Chapter 6A-2 contains the State Uniform Building Code. Part A of Chapter 6A-2 ("Part A") applies in some circumstances, and Part B of Chapter 6A-2 ("Part B") applies in other circumstances. In July, 1990, officials of the Department of Education, Educational Facilities Department, in Fort Lauderdale, Florida, were invited to a demonstration of fire alarms at the Summit Facility. Mr. Russell Smith, Director of Facilities Design, determined that life/safety code violations existed in the two buildings at issue in the Summit Facility. Mr. Smith's determination of code violations was based on the assumption that Part A applied to the capital improvements at the Summit Facility. Mr. Lord had determined that Part B applied to the capital improvements. The capital improvements at the Summit Facility complied with the requirements of Part B but not Part A. Mr. Smith did not report the alleged code violations to Respondent until December, 1990. Respondent directed Mr. Smith to obtain a determination from the Department of Education. Mr. Smith pursued the matter with representatives of the Department of Education as well as Mr. Lord in Growth Management. Ms. Abbey Hairston, General Counsel for the School Board, concluded that there was a strong likelihood that Part B applied. Mr. Lord suggested that an outside consulting firm be retained to determine the applicability of Part A or Part B to the capital improvements at the Summit Facility. Respondent could not have detected the existence of the alleged code violations in the capital improvements to the Summit Facility. Respondent did not have the expertise to make such a determination. Respondent's regular duties and responsibilities did not require that Respondent maintain such expertise, conduct inspections for the purpose of detecting code violations, or correct code violations. Respondent did not act incompetently and did not violate applicable standards with regard to the capital improvements to the Summit Facility. Respondent did not propose or advocate that capital improvements be made to the Summit Facility in compliance with Part B. Respondent properly relied on his staff for technical compliance with applicable code requirements. When Respondent received notice of alleged code violations, Respondent acted in a competent and timely manner. In 1987, The Price Waterhouse Report discussed several deficiencies in staff performance, personnel, and control. The Price Waterhouse Report stated: Internal expertise is limited. Knowledge of specialized areas is limited, project quality suffers, life cycle costs are higher. . . . Training programs and budgets are insufficient, especially with respect to technical and safety training. Employees are not as efficient or effective as they could be. Knowledge of project managers is less than they feel is necessary Project managers are resistant to new management techniques. . . . Inadequate technical library. . . . Price Waterhouse Report, Staff Performance, Personnel And Control, Issues 5, 7, and 9, and corresponding Impacts. In 1993, the Auditor General's Report recommended that: . . . District personnel strengthen procedures to provide that, prior to occupancy in the future, the required approvals for occupancy are obtained to ensure that the facilities meet the prescribed safety standards. Auditor General's Report at 64. Tracking And Reporting Costs The computer codes and accounting approach used to track and report the cost of capital improvements to the Summit Facility complied with applicable standards. The computer codes and accounting approach recorded each transaction and were subject to separate retrieval in accordance with established procedures. Required object, fund, and function codes were used to document the expenditure of funds for the capital improvements to the Summit Facility. In 1987, the Price Waterhouse Report stated: Adequate cost accounting tools are not available. Existing reports lack sufficient detail, accuracy and timeliness. [There is] . . . [n]o ability to manage and control project cost. This results in true project cost being unknown and lack of problem identification on a timely basis. . . . Capital Improvement Requests are not easily or accurately tracked. Priorities are difficult to track and coordinate. This is a source of school administration frustration. . . . Project management tools are not available. Project cost containment suffers. Control and reporting is lacking. . . . Accountability is difficult to enforce. Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, and 17, and corresponding Impacts. The day-labor hours billed for additions to the Summit Facility totaled approximately 6,373. In the three fiscal years from 1989 through 1992, approximately 566,853.75 day-labor hours were paid and approximately 454,701.75 were billed. Day-labor hours paid exceeded day-labor hours billed by approximately 112,152 hours. 28/ As the Price Waterhouse Report indicated in 1987, adequate cost accounting tools were not available. The cost accounting and reporting procedures that were in fact utilized for the additions to the Summit Facility complied with available cost accounting procedures. Respondent did not act incompetently and did not violate applicable standards in connection with the method used to track and report the cost of capital improvements to the Summit Facility. Respondent did not propose or advocate any particular accounting procedure. Respondent properly relied on technical staff to track and record the cost of capital improvements to the Summit Facility, and staff properly utilized the accounting tools available to them. Purchase Orders Purchase orders for mezzanine and modular offices were originated by staff in lower levels of Maintenance and Operations. The purchase orders were processed in accordance with normal procedure and approved by Ms. Betty Helser, Director of Purchasing. Ms. Helser was under the supervision of the Associate Superintendent of Administration and was not subject to the authority of Planning and Operations. Planning and Operations had no authority over Purchasing. Respondent did not participate in the purchase order approval process. Respondent was not responsible for that process. Several names were listed on the purchase orders as resource or contact persons in connection with the purchase order. Respondent was not one of those named. Funding Source For Capital Improvements Respondent did not act incompetently and did not violate applicable standards in connection with the funding source for capital projects, including acquisition of the District Warehouse site, the West Bus Compound, and additions to the Summit Facility. Funding sources for such projects were approved by the School Board. The funds used to pay for the District Warehouse, the West Bus Compound, and the Summit Facility were not misappropriated or misapplied. The School Board approved those capital projects and their corresponding budgets. The budget for each capital project provided for the transfer of capital outlay moneys to the general fund. 29/ Taxes had been levied for capital improvements pursuant to Section 236.25(2), Florida Statutes. Funds were transferred from this special millage money and not from general obligation bond money. Such transfers occurred in prior years and were consistent with customary procedure. Moreover, no funds were used for capital projects without the prior knowledge and consent of the School Board. Deficiencies in the budget reporting and control process impeded full consideration by the School Board of the impact of capital projects and budget transfers on the 1986 school construction plan. As a result, originally designated capital outlay moneys were expended on capital projects not contemplated in the 1986 school construction plan. Accordingly, some originally contemplated projects were not undertaken in the five year plan due to lack of funds. 30/ Deficiencies in financial processes and controls reported by Price Water House in 1987 and known to the School Board prior to that time created impediments to proper budgeting and resulted in poor budget quality. In 1987, the Price Waterhouse Report stated: Performance measurement (feedback) needed to assess and improve budget accuracy is lacking. Poor budget accuracy, control, and forecasting [results]. . . . The capital budgeting process lacks sufficient coordination, timing and department input. Budget priorities may not be sufficiently addressed and quality of actual budgets may suffer. Priorities for improvements are defined by construction and remodeling, but they may not be consistent with the school's needs. High priority projects may not be addressed on a timely basis. Price Waterhouse Report, Financial Procedures And Controls, Issues 2, 16, and corresponding Impacts; Price Waterhouse Report, Planning Of Operations And Projects, Issue 9 and corresponding Impact. Projects funded by the capital outlay millage derived under Section 236.25(2), Florida Statutes, were not prioritized within categories in the notice of tax levy as required by Section 200.065(9)(a). Failure to prioritize the projects to be funded by the capital outlay millage contributed to delays in undertaking some of the projects contemplated in the 1986 construction plan. In addition, the proceeds and related expenditures of each year's levy was not segregated and accounted for. 31/ Reports reviewed by the School Board consisted of monthly financial statements containing analyses of revenues by source of funds and analyses of expenditures by function. Status reports showed comparisons of projected revenues designated for the 1986 school construction plan with actual revenues received. Comparisons of projected construction costs anticipated in the five year construction plan with actual construction costs were not available. Like the notice of tax levy, available status reports did not prioritize projects within categories. The failure to prioritize projects and reporting inadequacies constituted some of the pandemic deficiencies known to the School Board prior to 1987 and did not result from Respondent's alleged incompetence. In 1993, the Auditor General's Report recommended several procedures for rectifying deficiencies in the budgeting process. First, quarterly status reports on capital projects should be revised to show the projected costs of projects, current expenditures, and the variances over or under projected costs. Second, proposed budget amendments should include an explanation of the possible effects on capital construction plans and operating budgets. Third, the ". . . Board and the Superintendent. . ." 32/ should develop written management reporting guidelines. Finally, the School Board should re- examine the remaining bond plan projects to ensure that they reflect current needs. G-604s: Requests For Additional Services Respondent did not act incompetently and did not violate applicable standards with regard to the use of requests for additional services or change orders on form G-604. Requests for additional professional services or for change orders are made on form G-604. Palm Beach County requires that such requests be reviewed by the School Board. Respondent never attempted to hide requests for architectural services from the School Board or to prevent their review by the School Board. In August of 1986, Mr. Hukill wrote a memorandum to Respondent requesting that directors be allowed to review and approve appropriate requests for additional services in an amount no greater than $20,000 per request and then submit the G-604 to the School Board for subsequent review. Respondent approved the procedure requested by Mr. Hukill. Two weeks later, Mr. Larry Mione, Contract Administrator, erroneously wrote a memorandum to four assistant directors authorizing requests for additional services of up to $20,000 per request without the need to have such requests subsequently reviewed by the School Board. As a result of the erroneous memorandum from Mr. Mione, some G-604s were approved by directors and were not subsequently reviewed by the School Board. This practice was in derogation of the memorandum issued by Respondent. When the discrepancy was discovered, several investigations were ordered by former Superintendent Mills and Deputy Superintendent Daniels. There were approximately 30 people at staff meetings two times a month. All of them review School Board reports. None of them discovered the discrepancy in the conflicting memoranda until after the violations had occurred. Respondent was not charged with wrongdoing or incompetence and was not found incompetent. An independent outside consultant confirmed the need for the G-604s and the procedure authorized by Respondent. Gratuities Former Superintendent Mills established a policy that required all senior administrative personnel, including Respondent, to promote the involvement of members of the business community in the school system. The policy was designed to obtain the aid of business in solving problems such as overcrowding, lack of materials and text books, a lack of funding, and an increasing drop out rate. The policy was a high priority for former Superintendent Mills. Respondent performed the duties required under the policy established by former Superintendent Mills. Respondent entertained members of the business community and was entertained by them. The gratuities accepted by Respondent generally involved free lunches, dinners, and golf outings. Policy Directive Respondent's activities did not violate the policy directive of former Superintendent Mills. Former Superintendent Mills knew of Respondent's activities and approved of those activities. Upper management was encouraged to socialize with members of the business community, including contractors and architects, in an effort to get them involved in solving problems facing the school system. Business Judgment And Impropriety Respondent's business judgment was not adversely affected by his association with vendors of the school system. Respondent's association with such members of the business community did not create the appearance of impropriety. The award of contracts to vendors was the responsibility of Purchasing. Purchasing was under the control of Dr. Boekhoff, the Associate Superintendent of Administration. Ms. Helser was the Director of Purchasing. Respondent did not have the authority to influence decisions made in Purchasing. Incompetence Respondent carried out the policy directive of former Superintendent Mills competently with no adverse affect on his business judgement and without the appearance of impropriety. The business community became actively engaged in solving problems of the school district. Companies such as Motorola, Pratt Whitney, and IBM provided opportunities for speakers to address employees to promote the bond issue. The bond issue was approved by the voters. A program known as "Cities in Schools" was developed as a business partnership to prevent drop out. Funds were raised for programs and materials. Respondent did not improperly promote a particular vendor or product in connection with the business of the School Board. Respondent never violated any administrative directive or established standard of conduct of the Department of Education. Evaluations 128. The Amended Petition For Demotion alleges that Respondent was incompetent in evaluating two employees. Those employees were Mr. Goode and Mr. Hukill. No credible and persuasive evidence was submitted by Petitioners to support their allegations in this regard. Attorney Fees And Costs The parties' request for attorney fees and costs are addressed in the Conclusions of Law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order finding Respondent not guilty of any of the allegations in the Amended Petition For Demotion, award Respondent back salary with applicable interest for the entire period of his demotion, immediately reinstate Respondent to a salary level comparable to that received as Associate Superintendent of Planning and Operations in accordance with Section 231.36(6)(b), Florida Statutes, dismiss the request to return Respondent to annual contract status under Section 231.35(4)(c), and maintain Respondent on continuing contract. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 23rd day of July, 1993.
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 30 workdays without pay?
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2009).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Peters has been employed by Petitioner as a Special Education Teacher for eight years. Her first two years of employment as a full-time teacher were at Edison Park Elementary School. Peters has been assigned to Morningside Elementary School ("Morningside") as a full-time Exceptional Student Education ("ESE") teacher for approximately six years. She remains employed at Morningside presently. During the 2007-2008 and 2008-2009 school years, Respondent worked as an ESE teacher dealing with kindergarten and first grades. Even though Peters had a room, she went to the classrooms of the students assigned to her to perform her duties. Peters' job duties and responsibilities included but were not limited to developing IEPs, maintaining attendance and grade records, keeping students records, participating in various meetings and in-services, and performing work as required or assigned by the supervising administrator or his/her designee. At all times relevant hereto, Respondent was provided with an assigned class schedule. During Peters' employment at Morningside from August of 2005 through March of 2009, Respondent was disciplined numerous times for not complying with her job duties. Peters repetitively failed to adhere to her class schedule; failed to request administrative permission to leave the worksite; failed to follow faculty sign in/out procedures; left the school site during scheduled classroom work time; failed to complete student IEPs; failed to keep student grading, attendance, and other student records; and continually refused to obey the direct and reasonable orders given by her supervisors, Morningside Principal Ms. Kathleen John-Lousissaint ("Principal" or "John- Lousissaint"), and Morningside Assistant Principal Ms. Sandra Cue ("Assistant Principal" or "Cue").2 The School Board kept a record of the occurrences in Peters' personnel file and went through all the required procedures for disciplining Peters, including repetitive verbal directives, approximately 47 written directives by memorandums, numerous Conferences-for-the-Record ("CFR"), and ultimately written reprimands after Respondent continuously refused to comply with previously given directives. From October 4, 2006, to March 16, 2009, Peters failed to adhere to her schedule as written and was issued 16 written directives, including two written reprimands, to adhere to her class schedule and not to make any changes to the class schedule unless approved by the Principal or Assistant Principal.3 On September 3, 5, 8, 9, 10, 11, and 12, 2008, Peters did not adhere to her daily schedule as written when she didn't report to her assignment. Peters received her first written reprimand for failing to adhere to her schedule on September 21, 2008.4 The Principal went out of her way to work with Peters constantly and met with her numerous times providing verbal directives to follow the school policies including adhering to the class schedule. After the first reprimand, Peters continued to fail to adhere to her class schedule numerous times in November and December 2008 and January 2009. Peters received a second written reprimand for failing to adhere to her class schedule on March 16, 2008. Peters signed both of the written reprimands dated September 21, 2008, and March 16, 2008. Each informed Peters that "Any recurrence of the above infraction [would] result in further disciplinary action." By failing to adhere to her schedule, Peters burdened the Morningside administrators and other teachers who had to cover for Respondent or do her work. Peters also impaired the learning environment for the ESE students when she didn't show up, since she was responsible for educating the students assigned to her. Further, when Peters did not report to her assigned classes, she jeopardized the health, safety, and welfare of the children assigned to her care. From November 8, 2006, to February 16, 2009, Peters was issued several written directives including one written reprimand for failing to request authorization from the administration before leaving the school site, and three written directives for failing to sign in and out when leaving and returning to the school site, as per school site policy.5 Peters received two written reprimands on March 27, 2007, and on March 16, 2008, for failing to comply with the established timelines in the execution of a variety of her duties including, but not limited to, recording student grades, failing to complete IEPs in a timely manner, and failing to utilize the WISE system to complete IEPs. When Peters failed to complete her IEPs, the Morningside administrators had to get other teachers to complete Peters' job in addition to their own assignments. On February 2, 3, and 4, 2009, Peters failed to adhere to her schedule as written. Peters was reprimanded on February 20, 2009, for numerous violations of school policy. The reprimand was entitled RESPRIMAND-INSUBORDINATION and stated: On the following dates, November 3, 6, 18, 20, and 25, 2008, December 1, 5, 8, and 9, 2008, January 12, 13, 15 and 21, 2009 and February 2, 3, and 4, 2009, you did not adhere to your schedule as written. On December 10 and 11, 2008, you attended a two day WISE training without prior approval from this administrator. On January 13, 2009, you refused to meet with this administrator. On January 14, 2009, you did not attend a scheduled faculty meeting. Since your Conference-For-[the-]Record meeting in September, you have failed to follow your schedule on 16 occasions, did not attend a scheduled faculty meeting, and have refused to meet with this administrator on five different occasions and refused to meet with the Assistant Principal on one occasion. Your continuous defiance and compliance with the site directives issued on September 25, 2008 and reissued on October 20, 2008, is considered insubordination. It is your professional responsibility as a Miami-Dade County Public School employee to comply with directives issued by the site supervisor. You are hereby officially reprimanded for the following violations of your professional contractual responsibilities: Non-compliance with Miami-Dade County School Board Rule 6GX13-4A-1.21, Responsibilities and Duties.[6] Refusal to meet with this administrator. Failure to adhere to school site procedures. Failure to adhere to assigned schedule as written. At hearing, Respondent answered in the affirmative that she believed that the directives relating to adhering to a work schedule, seeking administrative approval before leaving a school site, and signing in and out when leaving campus were reasonable. Peters' journal, submitted to the School Board detailing her responses to the disciplinary action of February 20, 2009, stated “I’m not following the schedule because it doesn’t make sense.”7 After receiving the reprimand of February 20, 2009, Peters failed to secure approval from an administrator on either February 26, 2009, or March 3, 2009, when she signed out on the staff sign out log and left the building at a time when she was scheduled to work with students. On March 5, 2009, Peters refused to sign the memorandum dated March 4, 2009, entitled RESPONSIBILITIES AND DUTIES that the Assistant Principal provided Peters. The memorandum advised Peters that she had been told on February 20, 2009, to "adhere to [her] schedule and secure administrative approval prior to leaving the building at a time other than the scheduled lunch time.” It also stated: This memorandum serves as a final reminder that you are to adhere to your schedule and you are to request prior approval from this administrator to leave the building at anytime other than your scheduled duty free half hour lunch block. On March 16, 2009, John-Lousissaint observed Peters in the hallway at approximately 8:30 a.m. and instructed her to report to her scheduled assignment. At approximately 8:40 a.m., the Assistant principal saw Peters and told her several more times to report to her scheduled assignment. At 9:00 a.m. Peters was not in her scheduled classroom assignment. On March 16, 2009, the Assistant Principal gave Peters a memorandum dated March 16, 2009, entitled RESPONSIBILITIES AND DUTIES that stated, "You are reminded that you are to adhere to school site procedures and your schedule as outlined unless notified by an administrator." As a result of Peters actions described in paragraphs 21 and 22 above, on or about April 16, 2009, a CFR was held with Peters. Administrators addressed Peters' gross insubordination and misconduct at the CFR. Peters was instructed yet again to adhere to the directives previously issued by the Principal on numerous occasions, and to comply with the reasonable requests of the Principal. Peters testified at hearing that her personal relationship with the school administrators has become strained and she felt she was being singled out. Peters felt as though she were not being treated like a teacher. Peters asserted that she should work with higher level students and didn't feel like she was part of the Morningside team since she didn't have a homeroom.8 On or about May 18, 2009, Morningside's Principal observed Peters in the school's resource room, sitting in front of a laptop, during a time when Respondent was scheduled to be instructing students. John-Louissaint instructed Respondent to follow her schedule and report to room 103. Peters refused and replied, "No, I don't think I will be going." The Principal left and went and brought a union steward back to the resource room, and repeated to Peters, "Ms. Peters as your supervisor and in front of your union steward, you are directed to report to your scheduled assignment." Peters was insubordinate and refused to go stating again, "No, I am not going." The students in room 103 were unattended. On May 20, 2009, the Principal issued a memorandum to Peters regarding the May 19, 2009, incident stating that Respondent's "continuous defiance and non-compliance with previously issued directives is considered blatant and gross insubordination." On or about August 26, 2009, Peters was notified by letter that the Superintendent of Schools was recommending to the School Board to suspend her without pay for 30 workdays. The letter further notified Respondent the reasons for the recommendation included, but were not limited to: gross insubordination and violations of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties and 6Gx13-4A-1.213 Code of Ethics. At a regularly scheduled meeting on September 9, 2009, the School Board of Miami-Dade County took action to suspend Respondent for 30 workdays without pay for just cause including, but not limited to, gross insubordination and violations of those School Board Rules as set forth above in paragraph 28. Respondent was notified of the School Board's action by letter dated September 10, 2009. On March 15, 2010, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board rules regarding responsibilities and duties, and ethics.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Peters without pay for 30 days. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2010.
The Issue This is a bid protest proceeding arising from the School Board's notice that it intends to reject all bids. The Petitioner, one of the bidders on the subject project, asserts that rejection of all bids would be illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact 1. In their Joint Pre-Hearing Stipulation the parties stipulated to the following facts, which they agreed could be taken as established without the need for further proof.? School Board Policies and Approved Design-Build Evaluation Procedures 1. A true and correct copy of School Board Policy 3320 concerning "Purchasing Policies" is submitted as Joint Exhibit 1. School Board Policy 3320 was adopted by SBBC's [the School Board of Broward County] governing board in the exercise of its rule-making authority and was last revised on September 7, 1993. 2. A true and correct copy of School Board Policy 7009 concerning Award of Design-Build Contracts is submitted as Joint Exhibit 2. School Board Policy 7009 was adopted by SBBC's governing board in the exercise of its rule-making authority on January 17, 1995. 3. A copy of SBBC's typical Document 00100 "Instructions - Request for Proposal" is submitted as Joint Exhibit 3. Invitation to Bid No. 21-174T 4. On or about September 15, 2000, SBBC advertised Invitation to Bid No. 21-174T ("IM") entitled "Concession Building (Design-Build) for Coral Springs High School." A copy of the ITB is submitted as Joint Exhibit 4. 5. Invitation to Bid No. 21-174T was not submitted by district staff to SBBC's governing board for approval prior to its issuance to the public. 6. SBBC had an open contract with Williams Engineering. Joint Exhibit 33. Williams was authorized by an SBBC project manager to proceed under its open contract with schematic design, design development, construction documents, construction contract administration and warranty services under the open contract for "Project 1151-99-03" which had the Project Title "Track Drainage, Grading, Concession Building Water, Sewer & Walkways, Driveway Relocation; Campus Site Master plan." Said project was to occur at Coral Springs High School- Joint Exhibit 32. 7. %ITB No. 21-174T contained the design criteria package prepared by Williams Engineering. The design criteria package for the subject project was not submitted to or approved by SBBC's governing board prior to issuance of ITB No. 21-174T. 8. No request for proposals (RFP) was issued by SBBC to solicit competitive proposals from qualified design-build firms for the design criteria package for the subject project. Instead, SBBC issued an ITB containing the design criteria package. The SBBC did not revise the ITB by addendum to become a RFP at any time prior to the opening of bids for this procurement. 9. The SBBC's governing board never approved the criteria, procedures and standards for the evaluation of ITB No. 21- 1741. 10. ITB 21-1741 did not include provisions for award that would require the Superintendent of Schools to recommend to SBBC's governing board not less than three design-build firms as the most qualified for this procurement. 11. ITB 21-1741 did not include provisions for award under which SBBC's governing board would interview the three finalists for the project and to award a contract for the project to one or more of said firms. Addenda 1, 2 and 3 12. Three addenda were issued by SBBC regarding Bid 21-1741. Addendum No. 2 was labeled as "RFP 21-1741." Addendum No. 3 was issued on September 28, 2000 and changed the reference in Addendum No. 2 from "RFP 21-1741" to that of "Bid 21-1741" and changed the bid posting date to October 11, 2000 at 3:00 pm. Joint Exhibits 5, 6 and 7. Post-Submittal Activities. 13. Pursuant to the ITB, SBBC opened bids for Bid 21-1741 on October 10, 2000. Joint Exhibit 4 at Page 1. Responses to the ITB were submitted by Petitioner BT Builders, Inc.; C.G.R Construction Company, Incorporated; and R.L. LaRoche, Inc. Joint Exhibits 8, 9 and 10. 14. The bid proposal submitted by C.G.R Construction Company, Inc., at the bid opening consisted of a cost proposal and was not accompanied by any drawings or specifications. Drawings for the project were presented to SBBC by C.G.R Construction Company, Inc., during SBBC's Meeting of November 9, 2000. 15. On or about October 11, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to Petitioner BT Builders, Inc. The posted recommendation also recommended rejection of the bid of C.G.R. Construction Company, Incorporated for a failure to submit a package comprised of documents (including drawings, specification materials, narratives and other materials) responding to the Design Criteria Package. Joint Exhibit 11. 16. At the time of the October. 11, 2000 posting, the proposals submitted under Bid 21-174T had not been submitted to SBBC's governing board for evaluation or to SBBC's Consultant's Review Committee ("CRC'). Any review of the proposals made at this point was conducted by staff within SBBC's Facilities Department. 17. On or about October 13, 2000, C.G.R. Construction Company, Incorporated notified SBBC that the procedures being followed in this procurement were not in compliance with Section 287.055(10), Florida Statutes. This notification was presented to SBBC by C.G.R. in a document that characterized itself as "a formal written protest." Joint Exhibit 12. 18. On or about October 16, 2000, SBBC’'s Purchasing Department notified the proposers that the Recommendation/Tabulation that had been posted on October 11, 2000 had been withdrawn. Proposers were notified that a new date for posting a recommendation would be November 10, 2000 at 3:00 pm. Joint Exhibit 14. A subsequent notice informed the proposers that the new date for posting a recommendation would be November 13, 2000 at 3:00 pm. Joint Exhibit 15. 19. On or about October 19, 2000, SBBC's Facilities and Construction Management Department ("the Department") notified proposers under Bid No. 21-174T that SBBC's Consultant's Review Committee ("CRC') would consider the proposals for short-listing on November 2, 2000 at 3:00 pm. Proposers were further notified that, if a firm was short-listed by the CRC, the firm would make a presentation to SBBC's governing board on November 9, 2000 and that SBBC's governing board would make the final selection of proposers at that meeting. Joint Exhibit 13. 20. On November 2, 2000, SBBC's Consultant's Review Committee ("CRC") met and short-listed the proposals submitted for Bid No. 21-1-74T. A binder of materials regarding the project was delivered to SBBC staff by C.G.R Construction Company, Inc. on November 2, 2000, but was not distributed by SBBC staff to the CRC. The CRC short-listed all three proposers for consideration by SBBC's governing board. 21. The Department notified the proposers that interviews of the short-listed proposers would be conducted by its governing board on November 9, 2000. Each proposer was able to be present for each of the presentations made before SBBC's governing board. Joint Exhibit 16. 22. At a public meeting conducted on November 9, 2000, the governing body of SBBC considered the proposals submitted in response to Bid No. 21-174T and selected C.G.R. Construction Co., Inc., for award of a design-build contract. Joint Exhibits 17, 18 and 19. 23. On November 13, 2000, SBBC posted an intended recommendation under the ITB for award of a contract to C.G.R. Construction Co., Inc. Joint Exhibit 20. 24. On November 13, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department a notice of intent to protest regarding the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 21. 25. On or about November 20, 2000, Petitioner BT Builders, Inc., filed with SBBC's Purchasing Department its formal written protest of the proposed award of a contract to C.G.R. Construction Co., Inc., under Bid No. 21-174T. Joint Exhibit 22. 26. On December 4, 2000, a Committee designated by SBBC conducted a meeting with the Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes and School Board Policy 3320. During this meeting, it was argued by SBBC's staff that the terms and conditions of Bid No. 21-174T were not in material compliance with the procedures described in Section 287.055(10), Florida Statutes, and Rule 4.1(7) of the State Regulations for Educational Facilities ("SREF") or with School Board Policy 7009 ("Awarding of Design-Build Contracts"). The Committee voted that the recommendation to award a contract to C.G.R. Construction Co., Inc., should be rescinded and that a new recommendation should be posted for the rejection of all bids. Joint Exhibit 23. 27. On or about December 12, 2000, SBBC posted a Revised Recommendation/Tabulation that "the award to C.G.R. Construction be rescinded, and that all bids received be rejected, in accordance with School Board policy and procedures." Joint Exhibit 28. 28. SBBC notified BT Builders, Inc., that the school district considered the formal written pretest filed on or about November 20, 2000 to have been rendered moot by the Revised Recommendation/Tabulation which rescinded the former intended action and stated that a recommendation for rejection of all bids would be made. Joint Exhibit 24. 29. On December 15, 2000, BT Builders, Inc. filed with SBBC's Purchasing Department its notice of intent to protest regarding the proposed rejection of all bids. BT Builders also continued to protest the prior recommendation to award to C.G.R. Construction Co., Inc. Joint Exhibit 29. 30. On January 2, 2001, BT Builders, Inc. filed with SBBC's Purchasing Department its formal written protest regarding the proposed rejection of all bids. The formal written protest also continued to protest the earlier recommendation to award to C.G.R. Construction, Co., Inc. Joint Exhibit 30. Due to the closure of the school system for winter holiday recess, the filing of the formal written protest on January 2, 2001, was timely and occurred on the first business day following winter holiday recess. 31. SBBC scheduled a meeting with BT Builders, Inc., for January 12, 2001 to provide an opportunity to resolve the protest by mutual agreement in accordance with School Board Policy 3320 and Section 120.57(3) (d), Florida Statutes. That meeting was cancelled upon notification from BT Builders' attorneys that the protest was withdrawn. BT Builders subsequently informed SBBC that their attorneys had not been authorized to withdraw the protest or cancel the meeting. A new meeting date was then scheduled by SBBC. 32. On January 17, 2001, SBBC conducted the rescheduled meeting with Petitioner BT Builders, Inc. in order to provide an opportunity to resolve the protest by mutual agreement in accordance with Section 120.57(3) (d), Florida Statutes, and School Board Policy 3320. During this meeting, the parties were unable to resolve the protest by mutual agreement. Joint Exhibit 31. 33. On January 22, 2001, BT Builders, Inc. requested the referral of its formal written protest to the Florida Division of Administrative Hearings. 34. SBBC is proceeding to build the improvements that were the subject of this procurement through the use of its own personnel instead of seeking construction services from an outside vendor.
Conclusions For Petitioner: Thomas J. Ricci, Vice-President BT Builders, Inc. 1773 Blount Road, Suite No. 303 Pompano Beach, Florida 33069 For Respondent: Robert Paul Vignola, Esquire Broward County School Board K.C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case dismissing the petition and denying all relief requested by the Petitioner. 18 DONE AND ENTERED this 24 “aay of June, 2001, in Tallahassee, Leon County, Florida. co yy Lllidtt ; Sue MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2 q day of June, 2001.
Findings Of Fact Petitioner, COOK-REIFF, is an architectural firm located in Broward County, Florida. Respondent, BOARD is the governing body for the Broward County, Florida school district. On February 17, 1977, the BOARD approved the composition of the ASC. Since that dated the ASC, composed of: The Director of School Facilities, the Director of Facility Planning and Construction, two architects, two engineers, a representative of the District Advisory Committee, a representative of the Broward County Council for the P.T.A., and one designee from the office of the Superintendent of Schools for Broward County, Florida has acted for the BOARD in performing the major portions of those functions required of the BOARD by Section 287.055, Florida Statutes. The responsibility for selection of an architectural firm and the negotiation of the fee for School Board projects has been delegated by the School Board to the ASC. On January 21, 1982, the BOARD adopted Rule 6GX6-7003. The Rule as amended on January 20, 1983, sets forth administrative procedures for selecting professional services in compliance with the Consultants' Competitive Negotiations Act, Section 287.055, Florida Statutes (Supp. 1984), and Rule 6A-2.04, Florida Administrative Code. In particular, this Rule sets forth criteria to be considered in selection of an architectural firm for BOARD projects. Prior to 1982, the ASC used Chapter 287, Florida Statutes, as it's guideline in selecting architectural firms. The procedures and criteria contained in the administrative rule were modeled after Chapter 287, Florida Statutes. From January 1982, up to and including September 30, 1985, the ASC selected various architects for contracts for school projects by following the criteria provided for in the BOARD'S Rule 6GX6-7003. From the inception of the Rule in 1982 until the October 17, 1985, meeting of the BOARD, the BOARD approved each and every recommendation of the ASC. At no time prior to October 15, 1985, did anyone including BOARD members, directly or indirectly express dissatisfaction with the criteria that were contained within Rule 6GX6-7003 or the selection process that was being used by the ASC. On May 16, 1985, the BOARD approved advertising for the selection of an architect to design the new Prototype High School. In accordance with the authorization to advertise, the BOARD, through the department known as School Facilities, notified architects of the project and sought applications. On June 14, 1985, COOK-REIFF filed its application, i.e., an answered Architectural Questionnaire, with the Director of School Facilities for consideration for the Prototype High School. The application was reviewed and evaluated by Mr. Crouch using an evaluation form developed by Mr. Pulver's office. Mr. Pulver serves as director for School Facilities for the BOARD and Mr. Crouch, who mainly acts as Mr. Pulver's assistant, is the Director for Facility planning and Construction Supervision. On September 17, 1985, the ASC, in keeping with procedure established since 1982, met to "shortlist" i.e., to reduce the field of applicants for the Prototype High School. On September 17, 1985, a short list, which included COOK-REIFF, was prepared by the ASC which reduced the field of architectural firms to eight (8). Notice was then given to each of these firms advising that they would be allowed to make a twenty (20) minute oral presentation on September 30, 1985, before the ASC. On September 30, 1984, the ASC met with seven (7) members present and interviewed each of the eight (8) architectural firms on the short list. Following the interviews, the ASC met and discussed the eight (8) applicants. Following the discussions of these applicants, the following occurred: Each of the committee members that were present, wrote their first, second and third preferences on a piece of paper. This piece of paper was then placed in the middle of the table and one of the committee persons, Ms. Pat Mason, opened each of the ballots and announced the results. As a result of this first ballots the list of eight firms was narrowed to five firms and a second vote was held in the same manner. As a result of the second vote, three architectural firms were selected in order of preference with COOK-REIFF being selected by the ASC as its first preference as the architect for the Prototype High School project. Both the meetings of September 17 and September 30th. 1985 were open to the public. The record does not reflect whether notice of these meetings was published or advertised to place the public on notice as to when the ASC would be meeting. The format of voting used by the ASC was chosen so that various members would not be influenced by how other members might vote. The voting procedure which is described above is the same procedure which the ASC had used on different occasions in the past since 1982 where voting was by ballot and not by motion from the floor. This procedure was referred to as "secret ballot" in the Minutes of the ASC. No objections to these minutes were made by any member and Mr. Crouch received no objections from the members. The BOARD was aware that this method of balloting was being used by the ASC. No members of the then constituted ASC ever objected to this manner of voting either before or after September 30, 1985. In fact, prior to October 15, 1985, no one, including BOARD members had ever objected to this process which had been in use since 1982. And, prior to November 21 or 25, 1985, no one ever advised Mr. Pulver as Chairman of the ASC, that the process might be in violation of State Law. By letter dated October 3, 1985, Mr. Crouch notified COOK-REIFF that they had been selected by ASC as its first choice as the architect for the prototype high school. Following notification that they had been selected, COOK-REIFF through Cary B. Cooke negotiated a fee for the contract with Mr. Robert Pulver the BOARD's representative. These negotiations took place over a two-day period with a resultant $706,500.00 fee. Although Mr. Crouch negotiated the feed the fee as well as the balance of contract would have to be submitted to the BOARD for approval. After the fee was negotiated, Mr. Edwin Jacquith, the Project Coordinator for the Prototype High School for the BOARD, met with Cary B. Cook of COOK-REIFF on at least three (3) occasions to discuss, among other things, a Schedule of Events. Mr. Jacquith provided Mr. Cook with various documents including aerial photographs, surveys, facility lists, specifications, Chapter 6A-2 Florida Administrative Code and a proposed Schedule of Events. Mr. Jacquith requested that Mr. Cook prepare a Schedule of Events and submit it to Mr. Jacquith. Mr. Cook prepared a Schedule of Events which was provided to Mr. Jacquith and approved. In addition, after the fee was negotiated, but prior to October 15, 1985, Mr. Cook reviewed the documents which were provided to him by Mr. Jacquith and Mr. Cook prepared certain preliminary drawings in conjunction with the Prototype High School project. The minutes of the meetings of September 17, 1985, and September 30, 1985, were first officially provided to the BOARD members as supporting documentation for the recommendation for the approval of the contract with COOK-REIFF. The aforesaid recommendation was placed on the BOARD's agenda for October 17, 1985. The BOARD met on October 15, 1985, for a conference meeting to review the agenda for the meeting on October 17, 1985. On October 17, 1985, the BOARD discussed "Item E-14--Assignment of architect--prototype high school" with regard to several members concern over the BOARD's present procedure as set out in its Rule 6GX6-7003 and voted to disapprove the Recommendation of the ASC. Although one member mentioned in passing some concern over the balloting process used by the ASC, the minutes do not reflect any further mention or discussion on this point and the balloting does not appear to be the basis for disapproval of Item E-14. The minutes do not reflect that any member of the BOARD ever contended that the ASC failed to follow the procedure adopted by the BOARD in its Rule 6GX6-7003 in January 1982 and amended in January 1983 or that the selection of COOK-REIFF was improper. The BOARD heard presentations with regard to Item E-14 by COOK-REIFF, counsel for COOK-REIFF, school administrators and by the general public. At the October 17, 1985 meeting, Mr. Robert Pulver, the BOARD'S representative, responded at length to questions from BOARD members with emphasis on how the ASC applied the criteria contained in Rule 6GX6-70O3 and was surprised that the BOARD questioned the criteria that the ASC had been following since 1982. After the vote to reject the recommendation of the ASC by the BOARD on October 12, 1985, COOK-REIFF filed a Notice of Protest and subsequently filed a formal written protest in the form of the document known as Petition To The School Board of Broward County, Florida, in accordance with Section 120.53(5)(b), Florida Statutes (Supp. 1984), as amended by Chapter 85-180, Section 77, Laws of Florida. The BOARD convened a meeting on November 21, 1985, to consider the petition of COOK-REIFF but no decision was reached on this date and the meeting was adjourned to allow counsel for the BOARD to research the matter and reconvened on November 25, 1985. It was during the meeting on November 25, 1985, that the violation of Chapter 286, Florida Statutes, commonly known as the Florida Sunshine Law, was first raised. The violation involved the method of voting used by the ASC in the September 30, 1985 meeting which was described by the ASC chairman in the minutes of that meeting as a "secret ballot." The method of voting is more fully set out in Finding of Fact 15. The BOARD has not selected another architectural firm to be awarded with the contract for the Prototype High School Project. BOARD Rule 6GX6-7003 has not been amended or changed since January 20, 1983. The BOARD has however, recommended to the Superintendent of Schools that he formulate a committee for the purpose of reviewing the criteria and procedures so that this policy can be amended and, in fact, such a committee has met for that purpose. COOK-REIFF'S competence is not at issue in this matter. The BOARD had used a form contract with architectural firms for a number of years. Although this form contract was modified during 1985, the only changes to that contract are contained in the section with respect to professional fees for services rendered. In selecting COOK-REIFF as the architectural firm to be awarded the Prototype High School project, the ASC followed the procedures and applied the criteria contained in the BOARD's Rule 6GX6-70O3.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondents School Board of Broward County, Florida enter a final order awarding the contract for architectural services on the Prototype High School to the Petitioner, Cook-Reiff Association, Inc. Respectfully submitted and entered this 6th day of February 1986, in Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of February 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-3985-BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1, except for last sentence which is included in conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 16 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21 but clarified. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Rejected as unnecessary, immaterial and irrelevant. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Rejected as unnecessary. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 8, but corrected to show the date as May 16, 1985. 2. Adopted in Finding of Fact 9. 3. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 2. Adopted in Finding of Fact 12 but corrected to show the date as September 17, 1985. Adopted in Finding of Fact 32. Adopted in Finding of Fact 4. Adopted in Finding of Fact 14 and 15. Adopted in Finding of Fact 15 and 18. Adopted in Finding of Fact 16. Adopted in Finding of Fact 15 with the exceptions of the language secret ballot" which was changed to "procedure was referred to as secret ballot" in the minutes . . ." and that the "voting was . . . conducted prior to any discussion by the committee as to architectural presentations" which are rejected as not supported by the minutes of the September 30, 1985 meeting of the ASC. See Petitioner's Exhibit No. 8. Adopted in Finding of .Fact 15. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. The first two (2) sentences adopted in Finding of Fact 24. The last sentence is rejected as not supported by substantial competent evidence in that the minutes do not reflect any discussion of "secret balloting." 21. Adopted in Finding of Fact 24 except for the portion indicating that the BOARD discussed "secret balloting" which rejected for the same reasons expressed above in paragraph 20. COPIES FURNISHED: Maurice M. Garcia, Esquire Kenneth A. Rubin, Esquire 2021 Tyler Street Post Office Box 650 Hollywood, Florida 33022 Edward J. Marko, Esquire Suite 322, 1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338-4369 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Superintendent School Board of Broward County 1320 Southwest Fourth Street Ft. Lauderdale, Florida 33312
