The Issue Whether the award of a contract for Request for Proposal 031-MDW-1121 Fiber WAN Lakeland E-rate by Respondent, the School Board of Polk County, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The School Board operates the public school system established for the School District of Polk County, Florida. See § 1001.30, Fla. Stat. The School Board is an authorized governmental entity allowed to contract for commodities or services using a competitive solicitation process. See §§ 1001.41(4), 1001.32(2), and 1010.04(2), Fla. Stat., and Fla. Admin. Code R. 6A-1.012(1)(e). The solicitation at the center of this protest is 031-MDW-1121, Fiber WAN Lakeland E-rate (the "RFP"). The Department published the RFP on December 2, 2020.4 The School Board initiated this competitive procurement seeking a contract for leased fiber to deliver wide area network ("WAN") communication services throughout the School District (the "WAN Services Contract"). The winning vendor's network design will directly connect the School District's main office building to approximately 65 school locations in and around Lakeland, Florida. Background Information: A WAN network provides dedicated broadband connectivity for computer networks that are geographically dispersed. For the RFP, the School Board contemplates a WAN network that delivers network resources, connectivity, and services to the various School Board facilities. WAN networks are designed using "highways" of crystal fiber optic cable. The fiber optic cables, which consist of strands smaller than a human 3 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). 4 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. hair, are fitted within a sheath. Sheaths are encapsulated by buffer tubes. Typically, 12 strands of fiber cable run through a buffer tube. The RFP: RFP Section 3.1 informed vendors that the School Board was seeking one of three options for its network infrastructure. These options included: 1) leased "lit" fiber, 2) leased "dark" fiber, or 3) leased "dark" fiber (IRU).5 Although the School Board intended to select only one "solution" for the WAN Services Contract, the RFP invited interested vendors to "propose one, two, or all three options" for the School Board's consideration. The School Board purposefully provided vendors the flexibility to design and engineer a product the vendors believed was the best fit for the School District. As stated in RFP Section 3.1, "[t]he District is not advocating or mandating any preconceived network design or construction route and leaves this decision up to the proposer to present their best solution while recognizing the cited termination locations." The School Board presented Denise Whitaker to discuss the RFP, as well as the process and procedures the School Board followed to evaluate the proposals. Ms. Whitaker served as the School Board's Purchasing Agent responsible for the RFP. In her role, Ms. Whitaker, together with a team, developed, drafted, and prepared the RFP documents and forms. Commenting on RFP Section 3.1, Ms. Whitaker relayed that the School Board was open to any of three scenarios for the WAN services. Ms. Whitaker (and later Rob Oyler) explained that: "Lit" fiber, as referenced in RFP Section 4.1, is a fiber network that is ready-made to transmit computer signals. To send data, an optical transceiver module is attached to an end point of the fiber cable, which shoots a laser through one or more of the crystal fiber strands. When activated, this 5 IRU is an acronym for Indefeasible Right of Use, which means an exclusive lease to use a telecommunications network. laser "lights" the fiber, and the fiber strand is immediately ready to send data and information. "Dark" fiber, as referenced in RFP Section 4.2, like "lit" fiber, is a WAN network that is ready to transmit data. However, once the network is constructed, the fiber is left dormant. In other words, the vendor will not activate the laser at the end point of the fiber cable. Instead, the customer (the School Board) will light the fiber using its own transceiver module. Leased Dark fiber (IRU), as referenced in RFP Section 4.3, is essentially a communications network built, owned, and operated by the vendor. To lease a dark fiber IRU, the customer (the School Board) would purchase the right to use a certain amount of network capacity for a specified number of years. Ms. Whitaker testified that the leased "lit" fiber option (the proposal the School Board eventually selected) required vendors to propose a price quote for an initial 60-month contract period, as well as five additional 60- month renewal terms, for a total of 360 months (30 years). As stated in RFP Section 4.1: Price quotes are requested for services provided on a month-to-month basis, as well as 60 month term of service with up to five additional 60 month renewal options. Ms. Whitaker explained that during the initial 60-month contract, the winning vendor was expected to construct, install, and then maintain a "lit" fiber network for the School Board's exclusive use. The School Board would then lease the "lit" fiber network from the vendor for the length of the contract. Thereafter, per RFP Sections 4.1 and 8.2, the School Board and the winning vendor could agree to renew the WAN Services Contract for up to five additional 60-month periods. Ms. Whitaker further stated that each vendor had to agree not to increase its pricing during the 360-month (30-year) total contract length. In other words, the Monthly Recurring Costs that each vendor quoted for the initial contract term would remain the same through each and every contract renewal period.6 Ms. Whitaker further stated that the School Board intended to apply for federal funding through the Federal Communication Commission's ("FCC") E-rate program to cover up to 90 percent of the cost of the fiber network.7 See RFP Sections 1.1 and 3.1 and Appendices G and H. RFP Section 4 specifically stated that "[t]he District will follow the purchasing policies of the School Board of Polk County, Florida and requirements and procedures of the FCC's E-rate program as administered by the Universal Service Administrative Company to be eligible for all available funding." Therefore, the School Board intended to use information contained within the winning proposal to apply for E-rate funding and obtain an E-rate funding commitment through the Universal Service Administrative Company ("USAC"). Obtaining E-rate funds would mean that the School Board would not have to bear the full price of the WAN Services Contract. Five vendors timely responded to the RFP. Zayo presented a proposal for the leased "lit" fiber option. WANRack submitted proposals for both leased "lit" fiber and leased "dark" fiber. The School Board also received proposals from Southern Light (leased "dark" fiber and dark fiber (IRU)); 6 Ms. Whitaker testified that the School Board landed on a 30-year procurement term for all three options as a way to establish an equal standard by which to compare and score the three different network designs ("lit," "dark," or dark IRU). This 30-year "apples-to-apples" comparison created a fairer analysis of the best network solution among the proposals. For the leased "lit" fiber option, as stated above, vendors were to submit a Financial Proposal Worksheet listing prices for a 360-month length of service. For the leased "dark" fiber option, vendors were to offer a price for an initial 120-month/10-year term of service with up to ten additional 24-month renewal options. For the leased dark fiber (IRU) option, vendors were to quote a 20-year indefeasible right of use price with up to five additional 24-month renewal options. 7 The FCC E-rate program provides funding through federal subsidies to schools for computer networks, internet access, and telecommunications systems. As explained by Mr. Oyler, the FCC created the E-rate program to provide financial support for public services. Mr. Oyler detailed that the E-rate program is funded by a universal tax on telecommunication devices. Summit (leased "lit" fiber (three options), leased "dark" fiber (three options), and hybrid "dark" fiber (three options)); and Frontier Communications (leased "lit" fiber). To score the proposals, the School Board selected three individuals to serve on an evaluation committee. The evaluation committee consisted of School Board employees Joseph "Sid" Lee, Curtis Hodnett, and Michael Chiavuzzi (collectively referred to as the "Evaluators"). Once the Evaluators were selected, Ms. Whitaker became their "facilitator." Ms. Whitaker explained that she was responsible for guiding the Evaluators through the scoring process. She was also charged with ensuring that the Evaluators followed all applicable procurement policies and procedures. Prior to scoring the proposals, Ms. Whitaker provided each Evaluator with the School Board's Request For Proposal (RFP) Evaluator's Guide (the "Evaluator's Guide"). The Evaluator's Guide explained that, "the evaluation committee members are responsible for reading and evaluating all responses for their completeness and quality of content. … Committee members meet together to discuss the proposals and determine if they missed anything during their initial review." The Evaluator's Guide further instructed each Evaluator to "exercise [their] independent judgment" and to not be "dependent on anyone else's judgment, wishes, or demands." Each Evaluator was to be free from "any influences from within the committee." Each Evaluator also signed a Conflict of Interest and Non-Disclosure Statement in which they certified that "no other relationship with or bias towards any offeror exists which will prevent me from evaluating any proposal solely on its merits." After Ms. Whitaker received the vendors' proposals, she read through them to ensure that the proposals were complete and adequately responded to the RFP. She then distributed them to the Evaluators for their individual review and scoring. RFP Section 6.2 established the RFP's evaluation criteria. The Evaluators were to score and rank vendors' proposals on a scale of 100 points. The specific award criteria and corresponding point values were set out as follows: Evaluation Criteria Maximum Possible Points Experience, Qualifications, and References ("Experience") 15 Methodology 20 E-rate eligible recurring and one-time Cost of Services ("E-rate Eligible Cost")8 25 E-rate ineligible recurring and one- time Cost of Services9 15 Demonstrated scalability of technology through pricing for higher tiered bandwidths ("Scalability") 10 Overall ability to meet the district needs ("Overall Ability") 15 Total Points 100 Under RFP Section 6.3, the Evaluators awarded points by placing a vendor's response to a specific criterion into a certain category. Based on the category assigned, a multiplier was applied to calculate the score. The categories which an Evaluator could assign were: Excellent (with a score multiplier of 1.0); Very Good (with a score multiplier of 0.8); Good (with a score multiplier of 0.6); Fair (with a score multiplier of 0.4); 8 RFP Section 6.2 emphasized that the E-rate Eligible Cost was the highest weighted factor. 9 No points were awarded to any vendor for the E-rate ineligible cost of services category because no vendor identified an E-rate ineligible cost in its proposal. Poor (with a score multiplier of 0.2); Unacceptable (with a score multiplier of 0.0). For example, if an Evaluator deemed a vendor's Methodology to be "Excellent," the Evaluator applied a score multiplier of 1.0 to the total points available for that subsection (20 points) to calculate the total points the vendor would receive for that evaluation criterion, i.e., 1.0 x 20 equals 20 total points. If an Evaluator determined that a vendor's Methodology was "Very Good," then the Evaluator applied a score multiplier of 0.8 to the total points available to reach the score awarded, i.e., 0.8 x 20 equals 16 total points. After the Evaluators completed their reviews, each Evaluator's score was added together to produce a final score for each proposal. The proposal receiving the highest point total would be designated the highest ranked proposal. After the Evaluators received the proposals, they met for two public meetings during which they reviewed, discussed, and scored all proposals. The first meeting took place on January 13, 2021. Initially, Ms. Whitaker instructed the Evaluators on the RFP's evaluation criteria and process. She also handed each Evaluator an Evaluation Criteria Sheet, which they were instructed to reference and use when scoring the proposals. Over the course of the first meeting, the Evaluators and Ms. Whitaker reviewed each proposal to determine whether the vendors properly responded to the RFP's requirements. They also discussed the merits of the different proposals. After several hours of discourse, however, the Evaluators realized that they could not complete their scoring in a single session. Therefore, the Evaluators agreed to schedule another meeting. The Evaluators reconvened for the second public meeting on January 20, 2021. During this meeting, the Evaluators determined that Zayo, WANRack, and Summit all submitted responsive proposals. The proposals from Southern Light and Frontier Communications, on the other hand, were nonresponsive. The Evaluators found that Southern Light failed to list a third customer reference per RFP Section 5.3, and Frontier Communications only provided a proposal for the first five years of service. Thereafter, the Evaluators finished their reviews, awarded their points (electronically), and turned their completed Evaluation Criteria Sheets into Ms. Whitaker. The Evaluators scored the proposals of Zayo and WANRack as follows: Mr. Lee: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Lee: Zayo: 76 points WANRack: 81 points Mr. Chiavuzzi: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Chiavuzzi: Zayo: 76 points WANRack: 81 points Mr. Hodnett: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Hodnett: Zayo: 76 points WANRack: 81 points At the final hearing, each Evaluator testified how they approached the review process and awarded points, as follows: Joseph "Sid" Lee: Mr. Lee works for the School Board as a Senior Manager in charge of electronic equipment repair and support. In his job, Mr. Lee manages all computer repairs and telecommunication support for the School Board. Mr. Lee commented that, in addition to serving as an Evaluator on the RFP, he also participated on the team that helped develop the RFP's specifications with Ms. Whitaker. Mr. Lee represented that the three Evaluation team members were School Board employees with computer networking responsibilities and were the most experienced employees in the RFP's subject matter. Mr. Lee testified that after he was selected as an Evaluator, Ms. Whitaker gave him a copy of the Evaluator's Guide, which he "skimmed" through. He also recalled that Ms. Whitaker provided him approximately seven proposals, which he read. In formulating his scores, Mr. Lee described the evaluation as the combination of a joint and individual effort amongst the Evaluators. First, the three Evaluators walked through each proposal and discussed the merits and deficiencies of the various sections. They then, individually, awarded points as appropriate. When awarding points, Mr. Lee testified that he applied the point values and procedures laid out in RFP Sections 6.2 and 6.3. Mr. Lee asserted that he used the same analysis and evaluation process for each proposal. He further stated that all his rankings and scores were based solely on his evaluations of the various proposals during the two January meetings. He asserted that he had no discussions outside of the two public meetings with any person regarding his review. Regarding his score for E-Rate Eligible Cost, Mr. Lee explained that the School Board's Purchasing Department (Ms. Whitaker) actually calculated the E-rate Eligible Cost score, not the Evaluation Team. Mr. Lee understood that Ms. Whitaker determined that Zayo's proposal should receive the top description of "Excellent" for the maximum 25 points. Mr. Lee relayed that Ms. Whitaker found that WANRack's proposal should be assigned the score of "Very Good," which equaled 21 points. Mr. Lee testified that Ms. Whitaker provided him the scores (25/21 points), which he then inserted into his score sheet. Mr. Lee further conveyed that he is familiar with and has worked on School Board E-rate projects. Mr. Lee was aware that E-rate funds are granted by the FCC to help schools pay for computer services, including the fiber network the School Board seeks through this RFP. Mr. Lee testified that the School Board hopes that the E-rate program will cover 90 percent of the WAN Services Contract cost. Mr. Lee also recalled a discussion during the January 20, 2021, meeting when the Evaluators debated the possibility that the E-rate program might have an issue awarding funds for Zayo's proposed network. Mr. Lee understood that Zayo's network design might contain "redundancies," the cost of which would not be covered by E-rate. (Mr. Lee testified that WANRack's proposed methodology did not raise this concern.) Consequently, Zayo's proposed network configuration might not qualify for E-rate funding. For the Methodology criterion, Mr. Lee awarded WANRack with an "Excellent" (the maximum 20 points) based on its proposed network design. He gave Zayo's network a "Very Good" for 16 points. Mr. Lee explained that he had no concerns with the efficacy of WANRack's proposed "point-to-point" or "hub and spoke" network. Based on his discussion with the other Evaluators during their January meetings, he believed that WANRack's solution would mesh well with the School Board's existing network and equipment. The School Board would not be required to change or modify anything to accommodate WANRack's network design. On the other hand, Mr. Lee described what he believed to be a flaw in Zayo's "Ring Topology" design. Mr. Lee believed that Zayo's network was susceptible to multiple points of failure. Mr. Lee explained that a "ring" network is devised to connect sites in an aggregated ring before funneling into the School District central office. Therefore, a single failure along a fiber cable line could affect multiple locations. WANRack, on the other hand, proposed a central hub to be installed at the School District's office building. WANRack would then build a point-to-point connection directly from the hub to each of the 65 separate school sites. Mr. Lee stated that the advantage of WANRack's network solution is that a point-to-point design only exposes the network to a single point failure along the fiber cable between two points. In other words, one failure within the network would only affect one school destination as opposed to multiple sites. In addition, Mr. Lee believed that Zayo's "ring" topology would lead to additional costs for the School Board. Mr. Lee noted his concern on his Evaluation Criteria Sheet where he wrote, "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Mr. Lee explained that he wrote this comment during the January 20, 2021, meeting after a discussion with the other Evaluators regarding the possibility that the School Board might have to purchase extra equipment to accommodate Zayo's design. Mr. Lee understood that this supplemental equipment could include additional rack space or power sources. Mr. Lee testified that the possibility that Zayo's proposal would cause the School Board additional costs led to his decision to categorize Zayo's Methodology as "Very Good," instead of "Excellent." For Scalability, Mr. Lee awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" for 8 points. Mr. Lee explained that RFP Section 4.1 required each leased "lit" fiber proposal to be scalable to 100Gbps (gigabits per second), without limitation, at the same cost as 1GB/sec. The Scalability category contemplated the School Board's need to increase bandwidth and internet speed in the future. Mr. Lee testified that he based his score for Scalability on his overall discussion with other Evaluators. He understood that WANRack's proposed network design provided fiber dedicated to the School Board's use with no additional cost to the School Board. For Overall Ability, Mr. Lee awarded WANRack with an "Excellent" (the maximum 15 points), and Zayo with a "Very Good" for 12 points. Mr. Lee testified that in scoring this criterion, he contemplated that WANRack's proposed network would not require the School Board to make any infrastructure changes. As a final point, during his testimony, Zayo sharply examined Mr. Lee regarding one specific comment WANRack included in its proposal. The RFP Section 5.3 required each vendor to "provide three (3) references from current or recent customers (preferably Florida K-20) with projects equivalent to the size of The District or larger." WANRack, in its response, identified four referral projects. One of these projects was a current contract with "Polk County-FL." For the point of contact for this project, WANRack identified Mr. Lee, followed by his phone number and email address (sid.lee@polk- fl.net). Upon questioning, Mr. Lee disclosed that he is familiar with WANRack based on his past working relationship with the company on the "Polk County-FL" WAN contract. Mr. Lee explained that in 2020, he served as an evaluator for the School Board's RFP 032-MDW-0220, entitled Ethernet Service Bartow Sites E-rate (the "Bartow Contract"). WANRack won that RFP and currently provides the requested services to the School Board. Mr. Lee testified that, from September 2020 through May 2021, he regularly received biweekly status updates from WANRack's contract manager regarding WANRack's progress on the Bartow Contract. Despite this regular interaction, however, Mr. Lee urged that none of his communications with WANRack representatives involved the WAN Services Contract. He further testified that he never spoke to WANRack during the RFP scoring process. Neither did WANRack ever attempt to exert any influence or pressure on him regarding his evaluation of its proposal for the WAN Services Contact. Finally, Mr. Lee declared that WANRack never consulted him about using his name as the point of contact for the Bartow Contract. He had no knowledge of WANRack's decision to reference him in its proposal for the WAN Services Contract, nor did he approve it. Michael Chiavuzzi: Mr. Chiavuzzi currently works for the School Board as a Senior Manager of Network Operations. In this role, he oversees all network operations between the School District and the different school locations including connectivity, data storage, and security issues. Similar to Mr. Lee, Mr. Chiavuzzi served on the team that helped develop the RFP with Ms. Whitaker. After Mr. Chiavuzzi was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as access to electronic versions of all proposals. Prior to scoring, Mr. Chiavuzzi read through the Evaluator's Guide and all of the proposals. As with Mr. Lee, Mr. Chiavuzzi recounted meeting with the other Evaluators and Ms. Whitaker for two public meetings. During the first meeting on January 13, 2021, Mr. Chiavuzzi testified that the Evaluation Team reviewed all the proposals to ensure that they contained the required forms and information. During the second meeting on January 20, 2021, the Evaluators awarded their scores. Echoing Mr. Lee, Mr. Chiavuzzi expressed that during the meetings, the Evaluators walked through each proposal and jointly examined how the different vendors met the evaluation criteria. They also discussed any concerns they had with any of the proposals. Mr. Chiavuzzi recalled that the Evaluators specifically addressed whether a proposal imposed additional costs upon the School Board for equipment that might be needed to support a particular network design. Mr. Chiavuzzi further relayed that the Evaluators explicitly compared and contrasted the benefits of WANRack's point-to-point network as opposed to Zayo's "ring" topology. The Evaluation Team also weighed the advantages and disadvantages of WANRack's aerial network design versus Zayo's intent to construct an entirely underground network. When scoring the proposals, Mr. Chiavuzzi testified that he applied the scoring matrix and procedures laid out in RFP Sections 6.2 and 6.3. He further voiced that he looked at the information in each proposal, as well as that vendor's references and prior projects. Regarding WANRack and Zayo, Mr. Chiavuzzi commented that both vendors were very experienced, and presented good references and qualifications. As to the Methodology category, Mr. Chiavuzzi awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). To reach this score, Mr. Chiavuzzi explained that he looked at the proposed network solution each vendor offered the School Board. Mr. Chiavuzzi testified that he believed that WANRack's point-to-point network was superior to Zayo's "ring" network. He concluded that WANRack's design, which would run through aerial cables, was easier to maintain, modify, and repair, as well as presented fewer points of failure. Conversely, Mr. Chiavuzzi determined that Zayo's methodology contained more potential points of failure. Mr. Chiavuzzi repeated Mr. Lee's comment that the Purchasing Department (Ms. Whitaker) scored the E-rate Eligible Cost criterion. Mr. Chiavuzzi was under the impression that Ms. Whitaker calculated the scores based on a formula included in the RFP. However, he was not aware of the actual computations. For Scalability, Mr. Chiavuzzi awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" (8 points). Mr. Chiavuzzi based his score on the fact that WANRack proposed extra fiber cables and optic modules for the School Board's future use. On the other hand, Mr. Chiavuzzi determined that Zayo's network might not accommodate future build-out. This limitation would force the School Board to expend additional costs to support Zayo's efforts to increase the bandwidth of its system. For Overall Ability, Mr. Chiavuzzi awarded WANRack with "Excellent" (the maximum 15 points), and Zayo with "Very Good" (12 points). Mr. Chiavuzzi's score was a cumulation of the various factors he previously identified including his conclusion that WANRack's point-to-point network design offered a more attainable and reasonable solution to the WAN Services Contract with less potential points of failure, as well as the fact that WANRack's design included multiple strands of fiber and extra modules for the School Board's future needs. Zayo's proposed network, in contrast, did not dedicate as much fiber for the School Board's use and contained multiple points of failure. Finally, Mr. Chiavuzzi asserted that his rankings and scores were based solely on his personal evaluation and independent judgment. Mr. Chiavuzzi expressed that he considered all relevant criteria and factors described in the RFP, and was not influenced by any vendor. Finally, Mr. Chiavuzzi stated that, when scoring, he looked for the best vendor for the School Board, and he formulated his scores in good faith. Curtis Hodnett: Mr. Hodnett currently works for the School Board as a Senior Wide Area Network Engineer. In this job, Mr. Hodnett manages the network connections between the School District's main offices and the different school sites. As with Mr. Lee and Mr. Chiavuzzi, Mr. Hodnett served on the team that helped develop the RFP with Ms. Whitaker. Mr. Chiavuzzi is his supervisor. After Mr. Hodnett was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as an electronic version of all the proposals (which he downloaded). Mr. Hodnett testified that he read through the Evaluator's Guide and all of the proposals prior to scoring. Mr. Hodnett also confirmed that the Evaluators met for two public meetings during which they reviewed and scored the proposals. Mr. Hodnett recalled that when the first meeting on January 13, 2021, ran late, the Evaluators decided to schedule a second meeting to complete their review. When scoring the proposals, Mr. Hodnett testified that he applied the scoring procedures established in RFP Sections 6.2 and 6.3. For Methodology, Mr. Hodnett awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). Explaining his specific scores, Mr. Hodnett testified that he believed that WANRack's "super simple" network configuration would enable data traffic to be more easily routed across the network. He also found that WANRack's proposal provided all essential support equipment, including an additional power source, if necessary. Conversely, Mr. Hodnett believed that the School Board would need to provide additional equipment and power to support Zayo's network design, which would result in added costs to the School District over the life of the contract. Mr. Hodnett also found WANRack's point-to-point/hub-and-spoke design superior to Zayo's "ring" topology. Mr. Hodnett explained that, as electronic data is transmitted through the different sites located along a "ring" network, the system's bandwidth can be diluted. A point-to-point network, however, avoids this problem. Mr. Hodnett also appreciated the fact that WANRack's design not only provided two "lit" fiber strands for the School Board's immediate use, but also included 10 additional strands of fiber for future "build-out" purposes (12 total fiber strands). Zayo, however, only offered two fiber strands as part of its proposal. Regarding the School Board's desire to use E-rate funding, Mr. Hodnett was aware that the School Board intended to fund up to 90 percent of the WAN Services Contract with E-rate funds. Mr. Hodnett further relayed that, to be eligible for E-rate funds, he understood that the project's construction must be completed within one year from the request for E-rate support. For Scalability, in awarding WANRack's proposal an "Excellent" (10 points), and Zayo's proposal a "Very Good" (8 points), Mr. Hodnett explained that the ability of Zayo's proposed solution to scale up to higher bandwidths was limited by the shared network design, which included only two strands of fiber cable. WANRack's design, on the other hand, would enable more data and information traffic to be routed through District offices. Mr. Hodnett again referred to the fact that WANRack's design included two "lit" fiber strands, as well as ten additional strands for future use. For Overall Ability, Mr. Hodnett awarded WANRack an "Excellent" (15 points), and Zayo a "Very Good" (12 points). Mr. Hodnett explained that the Methodology and Scalability of WANRack's proposal offered a "better fit" for the School Board. Mr. Hodnett also believed that WANRack's proposed network would allow the School Board to more easily control the WAN network. Conversely, Mr. Hodnett reduced Zayo's "overall" score due to lingering questions regarding the amount of data that Zayo's network could route to the District sites through the "ring" design. In addition, Mr. Hodnett wondered whether the redundancies in Zayo's design would negatively impact the School Board's request for E-rate funding. Finally, Mr. Hodnett was concerned that the School Board would have to provide additional costs, manpower, and resources to ensure that Zayo's network got up and running. With their proposals, per RFP Section 5, each vendor submitted a "Financial Proposal Worksheet." (A blank Financial Proposal Worksheet was included with the RFP at Attachment 2.) The Financial Proposal Worksheet required the vendors to complete a cost spreadsheet for the initial 60-month contract term, together with a separate cost spreadsheet for each of the five 60-month options. To score the E-rate Eligible Cost criterion, Ms. Whitaker prepared a Cost Summary of the E-rate Eligible Cost for each proposal. Ms. Whitaker used the price evaluation procedure set forth in RFP Section 6.3, Calculation of the cost, which stated: Points for the cost shall be determined by summing the total cost at 100GB for all sites in the proposal for all options. Distribution of points for evaluation of cost will be calculated using the following formula: lowest proposed cost/proposer's cost x total point value = proposer's points. Using this formula, the vendor with the lowest total cost would receive 100 percent of the possible points. Ms. Whitaker's Cost Summary revealed that Zayo's proposed price for leased "lit" fiber ($10,239,494.99) was the lowest price submitted of all bidders.10 Therefore, based on the price formula, Zayo's proposal received the maximum 25 points. WANRack's price ($12,467,196.36) was the second lowest price for leased "lit" fiber. Accordingly, WANRack's proposal received the second highest score (21 points). After all Evaluators completed their scoring, Ms. Whitaker tabulated the total scores for each proposal to determine the vendors' final scores. WANRack's proposal for its leased "lit" fiber option received the highest ranking with a score of 81. Zayo's leased "lit" fiber proposal received the second highest ranking with a score of 76. On January 27, 2021, Ms. Whitaker posted a Notice of Recommended Award (the "Notice of Award"). The Notice of Award reported that, at a School Board meeting to be held on February 23, 2021, a recommended bid award would be made to "WANRack Holdings, LLC," for WANRack's Leased Lit Fiber Services Option. On February 23, 2021, the School Board unanimously voted to approve the recommendation to award the WAN Services Contract to WANRack. 10 Zayo, in its proposal, quoted a total price of $10,239,494.99. It appears that throughout this matter, the parties rounded this figure up to $10,239,495.00. Both numbers were used interchangeably at the final hearing, as well as in this Recommended Order. On March 10, 2021, Ms. Whitaker wrote a letter to WANRack stating: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. The contract between the parties consists of RFP 031-MDW-1121 and all requirements, attachments, worksheets, appendices, addenda and WANRack's proposal signed December 29, 2020 and submitted. This constitutes the complete agreement between the proposer and the District. An additional agreement is not required. The initial contract period will begin on or about July 1, 2021. On March 11, 2021, the School Board initiated its request for E-rate funding for the WAN Services Contract. The School Board prepared and submitted two FCC Form 471 applications to USAC regarding its contract with WANRack. Zayo's Protest: In its protest, Zayo contends that the manner in which the Evaluators reviewed, then scored, the proposals was arbitrary or capricious, clearly erroneous, or contrary to the RFP specifications. Zayo further argues that the evaluation committee members awarded WANRack's proposal points to which it was not entitled. In addition, Zayo maintains that WANRack's proposal violates E-rate requirements and is therefore nonresponsive. As a result, WANRack improperly received the highest point total and was undeservedly awarded the WAN Services Contract. To support its allegations, Zayo presented the testimony of Matt Mulcahy. Mr. Mulcahy is the Solutions Engineering Director for Zayo. In this role, Mr. Mulcahy supervises Zayo's sales engineers, who support Zayo's sales teams. He also designs Zayo's WAN networks, including Zayo's proposed "ring" topology design for this RFP. Regarding the Methodology behind Zayo's proposal, Mr. Mulcahy explained that the network that Zayo designed for the School Board would consist of 100 percent underground cable. Mr. Mulcahy stated that, conversely, WANRack intends to route 75 percent its network fiber through aerial installation. Mr. Mulcahy asserted that, in Florida, Zayo's design provides a far better protected and reliable WAN infrastructure because buried cables are substantially more resistant to hurricanes and tropical storms. Mr. Mulcahy conceded, however, that aerial installations are less expensive to maintain and repair because of the ease of access. Mr. Mulcahy also commented that Zayo's network solution offers superior "fault tolerance." Mr. Mulcahy explained that WANRack's proposal includes many more miles of fiber than Zayo's design. Mr. Mulcahy declared that the larger amount of fiber cable increases the risk of failure along the network. And, any point of failure would cause a loss of service to a network's end point. Mr. Mulcahy surmised that the Evaluators may not have understood the significance of fault points. As to the points awarded to Zayo for Scalability, Mr. Mulcahy confirmed that Zayo's network design only dedicated two fiber strands to transmit data throughout the School District. However, Mr. Mulcahy advanced that the RFP did not require vendors to offer a certain number of fibers for the School Board's use. Instead, the RFP charged vendors to present a solution that offered an initial bandwidth of 10Gbps that could be "scaled" up to 100Gbps. Mr. Mulcahy explained that, in essence, the RFP sought network designs that included the capability of increased bandwidth, which would accommodate the School Board's "future business ventures." Based on this directive, Mr. Mulcahy asserted that Zayo's proposal roundly meets the RFP's Scalability criterion because it is fully scalable to a bandwidth of 100Gbps using only two fibers. Therefore, he firmly disagreed with any Evaluator's comments or scores critical of the number of fiber strands Zayo built into its proposed network infrastructure. Further, Mr. Mulcahy testified that, in practice, Zayo's network designs routinely pull 12 strands into a building as is the industry practice. Regarding the Evaluators' concerns with additional costs necessary to support Zayo's proposal, Mr. Mulcahy conceded that Zayo's network design would require the School Board to purchase supporting equipment. Mr. Mulcahy contemplated that Zayo's proposed network would cost the School Board approximately $6,000 to $12,000 to install laser optics/pluggable modules at the 65 school sites within the District. On the other hand, Mr. Mulcahy rejected the supposition that the School Board would need to purchase a supplemental power source to augment Zayo's design. Plus, the RFP represented that the School Board would provide any necessary power to support the WAN network. See RFP Addendum 2, Question 6. Mr. Mulcahy added that he believed that WANRack's network will also require the School Board to purchase pluggable modules and switches. He surmised that the School Board would spend $5,000 to $10,000 to purchase equipment to accommodate WANRack's point-to-point design, as well as install a pluggable port and a more sophisticated switch at the District's hub site. WANRack introduced Rob Oyler to discuss the details of its proposal for the WAN Services Contract. Mr. Oyler founded WANRack and currently serves as the company's Chief Executive Officer. In this role, Mr. Oyler oversees all aspects of WANRack's business operations. Mr. Oyler stated that he started WANRack with a focus on school systems similar to the School Board. He relayed that all schools need internet access and technological services. WANRack provides this support through the construction of private fiber networks. Mr. Oyler testified that WANRack proposed a point-to-point network solution for the School Board. Mr. Oyler explained that this type of design contemplates an exclusive, "private highway" of fiber cable and equipment. WANRack would establish a central hub site at the District's headquarters. Network cables would then run directly from the hub to the separate District buildings. Mr. Oyler asserted that WANRack offered the School Board a "turnkey" solution. In other words, WANRack would "light" the fiber cable so that the network would be ready for the immediate flow of data as soon as the School Board accessed it. Mr. Oyler added that WANRack would be prepared to modify or supplement its design should the School Board elect to increase the available bandwidth or add more technology. However, WANRack will not charge the School Board any additional cost for this future work. Mr. Oyler confirmed that WANRack intends to route the majority of the School Board's network via aerial installation. Mr. Oyler anticipated that WANRack would construct approximately 111 miles of fiber cable to connect the 65 school locations. Mr. Oyler acknowledged that this aerial network will be more exposed to points of failure due to tropical storms and hurricanes than underground cables. However, Mr. Oyler countered that in the event of a failure or outage, aerial cable is much more accessible for repairs or replacement. With the above background information and testimony, Zayo presented a number of arguments asserting that the School Board's recommended award to WANRack must be rejected. Each specific challenge, along with the School Board's response, is analyzed as follows. The Evaluation Committee Failed to Follow the Mandatory Requirements of the RFP and School Board Policy in Scoring the Proposals: Zayo asserts that the Evaluators' comments on their Evaluation Criteria Sheets, as well as the consensus nature of the scoring, show that the Evaluators failed to follow the RFP requirements. Specifically, Zayo argues that the Evaluators incorrectly determined that Zayo's bid would result in a large overall increased cost to the School Board. Zayo argues that the Evaluators misunderstood both the proposal specifications, as well as how to appropriately apply the evaluation criteria to the proposals. As a result, the Evaluators improperly deducted points from Zayo's proposal. Consequently, the evaluation, scoring, and ranking were based on factual inaccuracies and were conducted unreasonably. To support its claim, Zayo points to the comment Mr. Lee wrote on his Evaluation Criteria Sheet that "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Zayo asserts that Mr. Mulcahy established that this statement is demonstrably not true. Instead, the information in Zayo's proposal made it clear that all equipment and infrastructure necessary to support its network solution would not require the School Board to purchase any additional equipment. Neither would it result in additional costs above Zayo's quoted price. As a result, Zayo argues that no rational basis exists for the Evaluators to have deducted Zayo's scores for the categories of Experience, Methodology, Scalability, and Overall Ability based on the assumption that the School Board would incur additional costs if it selected Zayo's proposed network. Consequently, the Evaluators' scores were arbitrarily or capriciously derived, which provided WANRack's proposal an unfair competitive advantage. School Board Position: The School Board asserts that the testimony shows that the Evaluators carefully and completely considered all the criteria enumerated in RFP Section 6.2 when formulating their scores. Thereafter, in the Evaluators' neutral and objective judgment, WANRack's proposed network design was superior to Zayo's design. Accordingly, the Evaluators concluded WANRack's proposal best served the interests of the School Board. Finding: The evidence supports the School Board's argument that the Evaluators' concerns regarding the possibility that Zayo's proposal would result in additional costs to the School Board was not arbitrarily or irrationally derived or gave WANRack an unfair advantage. At the final hearing, all three Evaluators credibly testified that they fairly and reasonably reviewed and considered each proposal. The Evaluators voiced logical and rational explanations as to how they analyzed, and then scored, each proposal. They further provided good faith and factually based reasons why they believed that WANRack offered the most cost-effective service and presented the most advantageous network solution for the School Board. (Furthermore, Mr. Mulcahy openly confirmed that Zayo's network design would cost the School Board an additional $6,000 to $12,000 in supporting equipment.) Finally, the Evaluators persuasively testified that they measured each vendor's proposal against the same criteria and held every proposal to the same scoring standard. Accordingly, Zayo's argument on this point is rejected. The Evaluators Erred Because WANRack's Proposal is not Demonstratively Better than Zayo's Proposal: Zayo asserted that WANRack's proposed network was not demonstrably better than its own proposal. Presented through the testimony of Mr. Mulcahy, Zayo contended that the Evaluators' scores for Zayo's proposal were "misguided." Mr. Mulcahy commented that the Evaluators did not appear sufficiently knowledgeable in WAN network designs to adequately grade and rank the different network designs. He did not believe that the Evaluators gave Zayo's proposal proper consideration. While Mr. Mulcahy conceded that he was not aware of any evidence that the Evaluators acted dishonestly, illegally, or unethically, he maintained that the scores they awarded to Zayo's proposal were simply "wrong." Zayo presented examples of error based on Mr. Mulcahy's testimony: Methodology: Zayo asserts that the evidence does not support the Evaluator's collective characterization of WANRack's Methodology as Excellent, while labelling Zayo's proposal Very Good. Zayo claims that its Methodology is superior to WANRack's network design because, in Mr. Mulcahy's opinion, buried fiber cables are substantially more resilient to storms. In addition, the fact that Zayo presented the lowest bid "maximizes the cost-effectiveness" of its proposal. Consequently, the Evaluators' scores to the contrary are flawed. Scalability: Similar to Methodology, Zayo asserts that the fact that each Evaluator awarded WANRack an Excellent for Scalability while awarding Zayo a score of Very Good was unjustified. Zayo asserts that both its proposal and WANRack's proposal provided for maximum scalability without any additional costs to the School Board. Therefore, no justification existed to score Zayo's proposal lower than WANRack's proposal for an identical response to this criterion. School Board Position: The School Board highlighted that the RFP expressed no preference for a specific type of methodology. To the contrary, RFP Section 3.1 stated that the School Board would consider "traditional network designs (such as hub and spoke) or alternative proposals." Therefore, the fact that Zayo's underground cables might provide more protection from environmental hazards than aerial cables does not automatically mean that Zayo's proposal was "demonstrably" superior to WANRack's design. How the vendors proposed to construct their network cable "highway" was only one factor in the Evaluators' analysis of which proposal presented the best solution for the School Board. The School Board further contends that the evidence presented at the final hearing does not show that the Evaluators' conclusions regarding additional cost to the School Board were erroneous. Mr. Mulcahy plainly testified that the School Board would need to purchase additional equipment to support Zayo's network design. Finally, the School Board again asserts that the evidence establishes that the Evaluators neutrally and objectively determined that WANRack's proposed network design was superior to Zayo's design. The Evaluators' testimony at the final hearing shows that they considered all the criteria set forth in RFP Section 6.2 when formulating their scores. Thereafter, they individually concluded that WANRack's proposal best served the interests of the School Board. Finding: The School Board's position has merit. The evidence at the final hearing demonstrates that the Evaluators awarded points based on an honest exercise of their discretion. The Evaluators credibly testified that they fairly and in good faith considered the information presented in each proposal. During the final hearing, each Evaluator evinced a broad and comprehensive knowledge of the details of both Zayo and WANRack's proposed network designs, as well as the subject matter of the RFP. The Evaluators further provided logical and rational reasons why they believed that WANRack's proposal was superior to the other proposals, particularly Zayo's proposal. The evidence did not prove that the Evaluators' scores were based on unfair or irrational prejudice. Accordingly, Zayo's argument on this point is rejected. The Evaluators Failed to Exercise their Independent Judgment When Scoring the Proposals: Zayo charges that the Evaluators, when scoring the proposals, acted "in a concerted way" to reach a consensus score in favor of one particular proposal (WANRack's), instead of applying their independent judgment as required by the Evaluator's Guide. Consequently, the Evaluators acted arbitrarily or capriciously in awarding a winning score to WANRack. To support this allegation, Zayo points to the fact that the Evaluators' scores for the Zayo and WANRack proposals were identical in every evaluation criteria. Zayo was further troubled as to why Mr. Chiavuzzi's scoresheet was devoid of any written commentary or notes that would explain how or why he scored as he did. School Board Position: The School Board maintains that the Evaluators' testimony clearly established that they independently formulated their scores based on their individual assessment of the proposals. Further, while the Evaluator's Guide advised that the Evaluators "should record brief comments that lend insight as to why they awarded or failed to award points based on the established RFP evaluation criteria for a particular item," neither the Evaluator's Guide nor any other provision of the RFP mandated that the Evaluators must document their exact thoughts or analysis on their Evaluation Criteria Sheets. Finally, regarding "concerted" collaboration between the Evaluators, the Evaluator's Guide specifically advised: It's normal and acceptable for there to be debate, even passionate debate, within the evaluation committee about how well a proposal meets the established evaluation criteria. As an independent evaluator you may be swayed by the debate in making you judgment about how many points you wish to award, and that is okay. Therefore, the RFP scoring process explicitly contemplated a collaborative process amongst the Evaluators in formulating the points to award to each proposal, as long as the ultimate score was based on each Evaluators' independent assessment. Finding: The evidence and testimony at the final hearing supports the School Board's position. While the Evaluator's Guide stressed that the Evaluators should exercise their "independent judgment," the Evaluator's Guide also clearly indicated that the Evaluators could collectively develop their scores. The Evaluator's Guide prompted the Evaluators to ask questions to understand pertinent information, as well as engage in "passionate debate" regarding the merits of each proposal. Such was the case in this RFP. During their two public meetings, the Evaluators freely and openly discussed the details of the vendors' proposals. However, each Evaluator credibly testified that when the time came to score the proposals, they applied their honest and independent opinions to the information presented by each vendor, and awarded scores as appropriate. Accordingly, Zayo's argument on this point is rejected. WANRack's Proposal Creates the Appearance of Impropriety with One of the Evaluators: Zayo alleges that a relationship between one of the Evaluators and WANRack creates an appearance of impropriety in violation of the Evaluator's Guide. The Evaluator's Guide specifically directed that Evaluators: will not have contact with any of the proposers during the evaluation process except during interviews; and, conversely, [Evaluators] are not to be contracted by any of the proposers during or following the evaluation process prior to contract award. … It is always best to err on the side of avoiding even the appearance of impropriety in the evaluation process. Zayo points to WANRack's listing of Mr. Lee's name as a point of contact for one of its references in its proposal. School Board Position: The School Board argues that no evidence indicates that WANRack ever contacted or spoke to Mr. Lee regarding the WAN Services Contract. On the contrary, Mr. Lee provided credible testimony that he and WANRack never discussed the terms, conditions, or scoring of the proposals for this RFP. For her part, Ms. Whitaker was not alarmed at finding Mr. Lee's name listed as a project contact in WANRack's proposal. Ms. Whitaker did not believe that this single reference in WANRack's proposal caused a potential impropriety. She commented that nothing in WANRack's proposal indicated that Mr. Lee was anything more than a reference regarding another contract between WANRack and the School Board. Ms. Whitaker expressed that WANRack's proposal did not contain any information that Mr. Lee was involved in WANRack's current contract with the School Board in any direct or material capacity. On the contrary, the fact that WANRack disclosed its specific point of contact on the Bartow Contract showed that WANRack openly revealed its existing working relationship with the School Board. For his part, Mr. Lee steadfastly asserted that he never spoke to WANRack during the RFP process, and WANRack never attempted to exert any influence over him regarding his evaluation of the WAN Services Contact. Mr. Lee further maintained that he was unaware that WANRack listed his name as a reference, nor did he approve the same. Mr. Lee testified that he fairly and objectively evaluated every proposal, and he formulated his scores consistent with his understanding of the RFP specifications and based on the best interests of the School Board. Finding: The School Board (and Mr. Lee) presents the most effective argument on this point. At first blush, the fact that WANRack inserted Mr. Lee as its point of contact on a prior School Board project does raise questions as to the working relationship between Mr. Lee and WANRack. And, the School Board certainly desired to prevent any inappropriate communication or influence between the vendors and the Evaluators. However, the questions were all answered. There was no evidence of any inappropriate communication or influence. No evidence or testimony establishes that WANRack received any competitive advantage or favoritism based on Mr. Lee's previous dealings with WANRack on the Bartow Contract. Neither does any evidence demonstrate that WANRack was awarded the WAN Services Contract based on its prior relationship with Mr. Lee. Mr. Lee persuasively testified that the scores he gave to WANRack and Zayo were based solely on the information contained within the proposals, and not from any other source or from his prior interactions with WANRack. Accordingly, Zayo did not prove that the fact that WANRack listed Mr. Lee as a point of contact on another contract with the School Board actually gave WANRack's proposal an unfair competitive advantage or led to the School Board's selection of WANRack for the WAN Services Contract. Therefore, an insufficient basis in fact exists to overturn the School Board's intended award to WANRack on this issue. WANRack's Proposal is Nonresponsive in that it Violates the FCC's E-rate Program Rules: Zayo contends that WANRack's proposal is ineligible for award under the RFP because it included terms that violated E-rate funding rules. Therefore, awarding the WAN Services Contract to WANRack will jeopardize the School Board's ability to use federal funds to pay for the network services. Specifically, Zayo represents that, to be eligible for E-rate funding, the E-rate program requires all special construction charges for a network to be completed and the fiber "lit" (i.e., ready to provide service) within the same 12-month fiscal year as the funding request. Zayo contends that WANRack's proposal, however, includes a timeline that stretches beyond the required, 12-month E-rate funding year. To support this argument, Zayo points to an illustration within WANRack's proposal that portrays a construction timeline that starts on July 1, 2021, and ends on October 13, 2022. (Pet. Ex. 25, pg. 61) This graphic representation indicates that WANRack will need 15 months to completely construct its network before it is able to provide WAN services to the School Board. Zayo argues that because WANRack's proposal contemplates an upfront construction time of greater than one funding year, it violates the requirements of the E-rate program. Consequently, the School Board must reject WANRack's proposal as nonresponsive because WANRack's solution is ineligible for E-Rate support and cannot meet the RFP service requirements. School Board Position: Ms. Whitaker agreed with Zayo's point that the scoring of the vendors' Methodology included evaluating how the vendors' network solutions comply with the E-rate guidance. However, in responding to this specific assertion, the School Board and WANRack argue that the illustration included in WANRack's proposal is only an "example of a construction timeline." Mr. Oyler (as supported by the School Board) testified that WANRack fully intends to construct its network within E-rate time requirements and that its network design for the WAN Services Contract will qualify for E-rate funding. At the final hearing, Mr. Oyler insisted that the October 13, 2022, date on the sample timeline is merely a conservative point of reference. He urged that, at the time WANRack submitted its proposal, the exact date that E-rate would approve funding for the WAN Services Contract was unknown. Consequently, the dates WANRack included on its illustration are simply projections for planning purposes. Further, the School Board and WANRack witnesses represented that E-rate special construction rules allow construction of the fiber network to begin up to six months prior to the start of the funding year (July 1). In light of this provision, Mr. Oyler conveyed that WANRack fully intends to begin construction of its network several months prior to the start of the pertinent E-rate funding year. Finding: Based on the testimony adduced at the final hearing, the School Board (and WANRack) persuasively counter Zayo's argument that the School Board should have deemed WANRack's proposal nonresponsive based on the inclusion of a construction completion date of October 13, 2022. WANRack credibly explained how its proposed network design can be constructed to sufficiently qualify for E-rate funding. Accordingly, Zayo did not present sufficient evidence to prove that WANRack's proposal must be disqualified as noncompliant with E-rate rules or the RFP specifications. WANRack's Score for Methodology Must be Reduced Due to the Fact that WANRack Failed to Provide a NID Switch: Zayo asserts that WANRack's Methodology did not deserve the top award of Excellent (20 points) because WANRack's proposed network failed to incorporate a Network Interface Device ("NID") switch. To support this argument, Zayo points to several provisions in the RFP that indicate that the vendors' network designs must include a NID switch. These sections include RFP Addendum 2, Question 1, which describes the School Board's expectation that vendors will use an "endpoint NID (i.e. switch, router)" that is "scalable up to 100Gbps which will connect to the district/site routers." Mr. Mulcahy also highlighted the RFP's requirement that vendors must "provide prioritization of voice traffic dependent upon the District's Voice- over-IP ["VOIP"] specifications," which, according to him, would implicitly require a switch or router. See RFP Section 4.4. Mr. Mulcahy testified that without the proper switch, the lasers that transmit data over the network will not "light" the fiber optic cable. Zayo asserts that WANRack, however, indicated that it will use a GBIC/SFP (Gigabit Interface Converter/Small Form-factor Pluggable) module in its design, rather than a NID switch. (A GBIC/SFP device is a small fiber optic transceiver, about the size of a pack of gum, that interfaces with the network to convert optical and electrical signals.) Mr. Mulcahy asserted that WANRack's decision to use a GBIC/SFP module instead of a NID switch gives WANRack's proposal a competitive advantage because the NID switch component is an expense that either the vendor or the School Board will have to bear. School Board Position: Mr. Chiavuzzi, during his testimony, directly rejected Zayo's argument that the RFP mandated all proposed networks include a NID switch. On the contrary, Mr. Chiavuzzi declared that the School Board intentionally did not require the vendors to meet a specific routing configuration in their proposals. Instead, the School Board gave vendors the flexibility to offer a broad range of network solutions to meet the School Board's needs, whether those designs included a NID switch or not. See RFP Section 3.1. Similarly, Mr. Hodnett saw no reason to reduce his score for WANRack's Methodology due to the fact that it did not provide a NID switch. Mr. Hodnett further represented that he could perform any necessary VOIP prioritization himself without the assistance of the network provider. WANRack (through Mr. Oyler) confirmed that WANRack's proposed network design does not include a NID switch. However, Mr. Oyler asserted that the corresponding equipment WANRack intends to use (GBIC/SFP devices) is scalable up to 100Gbps, and, therefore, will adequately support the network services the RFP specifies, as well as any VOIP requirements. Finding: The evidence and testimony adduced at the final hearing does not support Zayo's argument that WANRack was required to present a network solution that included a NID switch. Therefore, Zayo did not meet its burden of proving that the Evaluators acted arbitrarily or irrationally by awarding WANRack's proposal an Excellent score for Methodology, or that WANRack received an unfair competitive advantage or benefit. The Notice of Recommended Bid Award is Void and Cannot Be Enforced: Zayo asserts that the Notice of Award is void and cannot serve as the basis for an award to WANRack. Specifically, Zayo argues that the Notice of Award recommended that the WAN Services Contract be awarded to the wrong corporate entity. To support this argument, Zayo denotes that "WANRack, LLC" submitted the proposal in response to the RFP. The Notice of Award, however, recommended the School Board award the bid to "WANRack Holdings, LLC." Zayo charges that the discrepancy in the name of the intended contract winner on the Notice of Award invalidates the award to WANRack, LLC. School Board Position: Initially, the School Board asserts that Ms. Whitaker's reference to "WANRack Holdings, LLC" instead of "WANRack, LLC" was a simple scrivener's error that did not affect the integrity or propriety of the procurement process. During her testimony, Ms. Whitaker explained that she fully intended to write WANRack's appropriate corporate name on the Notice of Award. She represented that insertion of the word "Holdings" after WANRack's name was her mistake. She offered that she was not aware of the legal significance between the two companies. Ms. Whitaker urged that none of the Evaluators or School Board staff was confused over which entity was being recommended for the WAN Services Contract – WANRack was clearly the top ranked vendor. The School Board also introduced a Memorandum from the School Board Superintendent, Jacqueline Byrd, dated February 8, 2021, which recorded that the contract "for procurement of Fiber WAN Services to 65 sites in the Lakeland area" was awarded to "WANRack, LLC." In addition, the School Board argues that, at most, Ms. Whitaker's inclusion of the extraneous word "Holdings" was a harmless error that should not affect the outcome of the award. To support this argument, the School Board points to RFP Section 7.21, which states that, "The District reserves the right to waive irregularities in the proposals." The School Board insists that Ms. Whitaker's mistake should be treated as a waivable irregularity. The School Board further asserts that the terms of the WAN Services Contract will be governed by the RFP together with all requirements, attachments, worksheets, addenda, as well as WANRack's proposal. The School Board contends that these documents clearly establish that the vendor selected for this project is "WANRack, LLC."11 The School Board maintains that no vendor (including Zayo) was prejudicially affected by the incorrect reference to "WANRack Holdings, LLC" on the Notice of Award. For his part, Mr. Oyler offered that WANRack Holdings, Inc., is the holding company for WANRack, LLC. Mr. Oyler, who serves as Chief Executive Officer of both corporations, explained that WANRack, LLC, submitted the proposal in response to the RFP, and WANRack, LLC, will be the company that enters the WAN Services Contract to provide the leased "lit" fiber services to the School Board. Finding: The School Board persuasively rebuts Zayo's argument that the School Board's incorrect recommendation to award the WAN Services Contract to "WANRack Holdings, LLC" should invalidate the results of this procurement. Ms. Whitaker's mistake on the Notice of Award was not material to the award of the WAN Services Contract to WANRack. Neither did the error provide WANRack a competitive advantage or benefit under the terms of the RFP. To summarize the findings in this matter, based on the evidence in the record, Zayo did not demonstrate, by a preponderance of the evidence, that the School Board's intended award of the WAN Services Contract to WANRack was clearly erroneous, contrary to competition, arbitrary, or capricious, or that it was contrary to the School Board's governing statutes, policies, rules, or the solicitation specifications. Each Evaluator credibly 11 For example, Ms. Whitaker's letter to WANRack, dated March 10, 2021, states: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. In addition, Ms. Whitaker's "memo to file" letter, also dated March 10, 2021, states: The School Board of Polk County, Florida (PCSB) and WANRack, LLC agree the contract between the parties consists of the RFP (including addenda), and the successful proposal. testified that they fairly and objectively evaluated the information contained in WANRack's and Zayo's proposals. Further, the evidence demonstrates that WANRack's proposal complied with the RFP specifications, and WANRack is fully capable of providing the "lit" fiber services the School Board seeks through the WAN Services Contract. Finally, the evidence does not show, by a preponderance of the evidence, that Zayo was placed at a competitive disadvantage in this solicitation. Neither is there evidence that the School Board conducted this procurement in a manner that was contrary to its governing statutes, rules, or policies, or the provisions of the RFP. Accordingly, Zayo failed to meet its burden of proving that the School Board's intent to award this procurement to WANRack must be rejected.
Conclusions For Petitioner: Robert A. Shimberg, Esquire Trae S. Weingardt, Esquire Hill, Ward and Henderson, P.A., 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33601 1 Unless otherwise stated, all citations to the Florida Statutes are to the 2021 version. For Respondent: Jonathan Stidham, Esquire Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Warren Andrew Crawford, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830 For Intervenors: Stephen R. Senn, Esquire Matthew J. Vaughn, Esquire Peterson & Myers, P.A. 225 East Lemon Street, Suite 300 Lakeland, Florida 33802
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order dismissing the protest of Zayo. It is further recommended that the School Board of Polk County award Request for Proposal 031-MDW-1121, Fiber WAN Lakeland E-rate to WANRack as set forth in the Notice of Award. DONE AND ENTERED this 17th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2021. Charles Wesley Bridges, General Counsel The School Board of Polk County, Florida Post Office Box 391 Bartow, Florida 33831 Trae S. Weingardt, Esquire Hill Ward Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Robert A. Shimberg, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Tampa, Florida 33602 Warren Andrew Crawford, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33830 Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Stephen R. Senn, Esquire Peterson & Myers, P.A. Suite 300 225 East Lemon Street Lakeland, Florida 33802 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jillian T. Spangler, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 Frederick Heid, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent is guilty of violating section 1012.795(1)(c), Florida Statutes (2014)1/; and, if so, what penalty should be imposed by the Education Practices Commission (Commission).
Findings Of Fact During all times relevant hereto, Petitioner was a teacher certified by the State of Florida in the areas of elementary education and social science, and she held Florida Educator's Certificate 842941, which expired June 30, 2016. Respondent first entered the teaching profession in 1999. At all times material to the allegations in this case, Respondent was employed by the Hillsborough County School District (HCSD). During the 2012-2013 and 2013-2014 school years, Respondent taught social science at Madison Middle School. During the years in question, HCSD had a written system for evaluating the classroom performance of its teachers. The evaluation system was reviewed and approved by the Florida Department of Education. The evaluation system consists of multiple components which, when combined, result in a final teacher evaluation performance rating. In its broadest sense, the system used by HCSD to evaluate teacher performance relies on input from a teacher’s supervising principal, input from a teacher’s peers and/or mentors, and a value-added measure (VAM) score, which is based on student achievement. According to the Teacher Evaluation Handbook for the HCSD, the principal’s evaluation accounts for 35 percent of a teacher’s overall evaluation score, the peer/mentor’s evaluation accounts for 25 percent of a teacher’s overall evaluation score, and the VAM score accounts for 40 percent of a teacher’s overall evaluation score. Observation and Written Evaluation Throughout the course of a school year, an evaluating principal and peer/mentors (collectively referred to as evaluators) conduct a number of formal and informal classroom “observations” of the teacher being evaluated. Findings from formal and informal observations are characterized, based on a framework of four “domains,” as highly effective, effective, needs improvement, and unsatisfactory. The observations are memorialized and feedback is regularly provided to the teacher during the school year. At the conclusion of the observation cycle, the evaluators, based on the formal and informal observations, prepare a written “evaluation” which summarizes and quantifies (assigns a numerical value) the teacher’s performance for the entire school year. The framework for rating observations and scoring evaluations consists of four domains, each of which has five to six components. According to the teacher evaluation instrument, the domains and their components are as follows: Domain 1: Planning and Preparation. The components in Domain 1 outline how a teacher organizes the content and plans the instructional delivery. (1A) Demonstrating Knowledge of Content and Pedagogy (1B) Demonstrating Knowledge of Students (1C) Setting Instructional Outcomes (1D) Demonstrating Knowledge of Resources and Technology (1E) Designing Coherent Instruction (1F) Designing Student Assessments Domain 2: The Classroom Environment. The components in Domain 2 address the learning environment. This includes the interactions in the classroom, the classroom culture, the teacher’s use of physical space, and established routines and procedures. (2A) Creating an Environment of Respect and Rapport (2B) Establishing a Culture for Learning (2C) Managing Classroom Procedures (2D) Managing Student Behavior (2E) Organizing Physical Space Domain 3: Instruction. The components of Domain 3 embody the core of teaching –the engagement of students in activities that promote and foster learning. (3A) Communicating with Students (3B) Using Questioning and Discussion Techniques (3C) Engaging Students in Learning (3D) Using Assessment in Instruction (3E) Demonstrating Flexibility and Responsiveness Domain 4: Professional Responsibilities. The components of Domain 4 represent the wide range of a teacher’s responsibilities outside the classroom. These include reflecting on teaching, maintaining accurate records, communicating with stakeholders, contributing to the school and district, growing and developing professionally, and showing professionalism. (4A) Reflecting on Teaching (4B) Maintaining Accurate Records (4C) Communicating With Stakeholders (4D) Participating in a Professional Community (4E) Growing and Developing Professionally (4F) Showing Professionalism The weight assigned to each domain (within either the principal or peer/mentor category) is 20 percent, with the exception of Domain 3, which is weighted at 40 percent. Domain components 4B through 4F are only reviewed by the teacher’s principal. Domain 1 addresses “planning and preparation,” and “[t]he components of Domain 1 outline how a teacher organizes the content and plans the instructional delivery.” Domain 2 addresses “classroom environment,” and “[t]he components of Domain 2 address the learning environment [which] . . . includes the interactions in the classroom, the classroom culture, the teacher’s use of physical space, and established routines and procedures.” Domain 3, which again is weighted twice as much as the other domains, addresses “instruction,” and “[t]he components of Domain 3 embody the core of teaching–the engagement of students in activities that promote and foster learning . . . [and the] components include: communicating clearly and accurately, using questioning and discussion techniques, engaging students in learning, providing feedback to students, and demonstrating flexibility and responsiveness.” Domain 4 addresses “professional responsibility,” and “[t]he components of Domain 4 represent the wide range of a teacher’s responsibilities outside the classroom . . . include[ing] reflecting on teaching, maintaining accurate records, communicating with stakeholders, contributing to the school and district, growing and developing professionally, and showing professionalism.” For purposes of scoring a teacher’s evaluation, a zero point value is assigned whenever a domain component is given a rating of “requires action,” a single point is given whenever a domain component is rated as “progressing,” two points are given whenever a teacher is rated as “accomplished,” and three points are given for an “exemplary” rating. Value Added Measure According to the Teacher Evaluation Handbook for Hillsborough County, VAM is: statistical model that uses a variety of variables to estimate the expected one year learning growth of each student. The growth expectation estimate is then compared to actual growth, as measured by relevant course and content assessments. In order to measure a teacher’s impact on student achievement, the model controls for variables that are outside of the teacher’s control, such as past years’ learning growth trajectory, and special needs. In doing so, the teacher’s impact on student growth can be isolated and calculated. The VAM score is 40 percent of the teacher’s overall annual evaluation. 2012-2013 Observations and Evaluation Respondent, during the 2012-2013 school year, had one formal and two informal observations conducted by peer/mentors, and one formal and two informal observations conducted by her principal. Respondent, at the end of the 2012-2013 school year, was evaluated by both her peer/mentor and her principal. Katherine Hodges is one of the peer/mentors who observed and evaluated Respondent during the 2012-2013 school year. Ms. Hodges was a teacher in the HCSD from 2005-2015 where she taught eighth grade U.S. history, humanities, and served as a middle school social studies peer/mentor evaluator. Twanya Hall-Clark is another individual who conducted observations of Respondent during the 2012-2013 school year. Ms. Hall-Clark has been employed by HCSD as an educator for more than 20 years and has served as a school administrator since 2000. Ms. Hall-Clark has been trained in the use and implementation of the HCSD teacher evaluation system and has conducted hundreds of teacher observations and evaluations. Jeffery Colf also served as a peer/mentor and observed Respondent during the 2012-2013 school year. Joseph Brown served as the school principal where Respondent worked during the 2012-2013 school year, and was responsible for observing and evaluating Respondent’s performance. Dr. Brown became an educator in 1986 and a principal in 1998. Dr. Brown was trained in the use and implementation of the HCSD teacher evaluation system and has observed and evaluated hundreds of teachers during his tenure as an administrator. In determining a teacher’s evaluation rating, evaluators consider observation ratings and information provided by the teacher who is being evaluated. After considering these factors, Respondent’s peer/mentor evaluation for the 2012-2013 school year was “requires action” for component 2C; “progressing” for components 1A through 1C, 1E through 2B, 2D, and 3A through 3E; and “accomplished” for components 1D, 2E, and 4A. Respondent’s principal evaluation for the 2012-2013 school year was a rating of “progressing” for every component except 4A, for which she received a rating of “accomplished.” When quantified, Respondent’s 2012-2013 peer/mentor evaluation score was 8.80 and her principal evaluation score was 12.00, which resulted in a combined total evaluation written score of 20.80. The HCSD mean (average) for teachers during the 2012-2013 school year was 36.86. For the 2012-2013 school year, Respondent’s written evaluation score gave her a percentile rank of 1.70 percent. In other words, 98.30 percent of the teachers evaluated by HCSD for the 2012-2013 school year had a higher written evaluation score than Respondent. Respondent’s 2012-2013 VAM score was 18.7201. The HCSD mean for teachers during the 2012-2013 school year was 24.14. For the 2012-2013 school year, Respondent’s VAM score gave her a percentile rank of 2.30 percent when compared to her peers. Stated succinctly, 97.70 percent of the teachers evaluated by HCSD for the 2012-2013 school year had a higher VAM score than Respondent. Respondent’s total evaluation score for the 2012-2013 school year was 39.3. The HCSD mean for all teachers evaluated during the 2012-2013 school year was 61. Respondent’s total evaluation score for the 2012-2013 school year resulted in her achieving a percentile rank of 0.89 percent, meaning that 99.11 percent of the teachers evaluated by HCSD during the 2012-2013 school year scored higher than Respondent. Respondent’s total evaluation score of 39.3 resulted in Respondent receiving an overall evaluation rating of “unsatisfactory” for the 2012-2013 school year. For the 2012- 2013 school year, Respondent would have needed an overall evaluation score of 40 in order to secure the next highest evaluation designation of “needs improvement.” By letter dated September 18, 2013, Respondent was notified of the deficiencies in her performance and advised that she would be placed on a teacher assistance plan for the 2013- 2014 school year. Teacher Assistance Plan Respondent, as a consequence of receiving an unsatisfactory evaluation for the 2012-2013 school year, was placed on a mandatory teacher assistance plan during the 2013- 2014 school year. The stated goal of the plan is “[t]o assist teachers who earned a previous overall Unsatisfactory evaluation so that their performance reaches a satisfactory level for the current school year.” Teachers who are placed on a teacher assistance plan are assigned a support team which is composed of experienced educators. Teacher assistance plans have “areas of focus” which correspond to the four domains covered by the annual evaluation. The teacher assistance plan developed for Respondent focused on the domains of “planning and preparation (Domain 1)” and “instruction (Domain 3).” Respondent first met with her support team on October 15, 2013, where “assistance strategies” were developed for Domains 1 and 3. The specific strategies set goals of “designing coherent instruction (component 1-e)” and “improving feedback practices (component 3-d).” During the support team meeting on October 15, 2013, Respondent explained that her unsatisfactory rating for the 2012- 2013 school year was largely attributable to the fact that she “floated” between classrooms, and that she expected improvement in her performance for the 2013-2014 school year because she had her own classroom. Support team members provided Respondent with “a packet of resources” and arranged for Respondent to observe a high-performing teacher in an instructional setting. On December 18, 2013, Respondent met with members of her support team to discuss and review Respondent’s progress towards achieving the goals established in her teacher assistance plan. A summary report from the meeting provides as follows: The meeting began with a review of the Oct. 2013 action plan meeting and an update of the action steps. Ms. Patti also presented her summary notes of the observations and action she has taken since October. Those notes are included in her folder. Ms. Patti said that she observed Mr. Kline in his science class. She liked how each student had an assigned role while in group work. Ms. Patti also showed a teacher[-]made quiz she designed based off information from the LDC lesson. For the quiz she prompted students to use text marking and identify the key concepts not just the action (such as describe or discuss). Ms. Patti is using a website titled floridacivics.org for lesson plan ideas and resources. Ms. Patti also wants to observe another teacher. Dr. Brown will ask Mr. Sullins if he is willing to have Ms. Patti observe during the third nine weeks. Suggestions were made to either have another teacher observe or have a lesson video-taped for Ms. Patti to watch herself. She did not want to pursue either option at this time. Dr. Brown will follow up to set a date for the February Action Plan review. On March 27, 2014, Respondent again met with her support team. A written summary of the meeting notes that Respondent did not meet the goal of observing another teacher’s class as discussed during the meeting on December 18, 2013. 2013-2014 Observations and Evaluation Respondent, during the 2013-2014 school year, had two formal and three informal observations conducted by peer/mentors, two formal and three informal observations conducted by her principal, and one formal observation by her supervisor. Respondent, at the end of the 2013-2014 school year, was evaluated by both her peer/mentor and her principal. As previously noted, when determining a teacher’s evaluation rating, evaluators consider observation ratings and information provided by the teacher who is being evaluated. After considering these factors, Respondent’s peer/mentor evaluation for the 2013-2014 school year was “requires action” for component 3E; “progressing” for components 1A through 1C, 1E through 2D, 3A through 3E, 4A; and “accomplished” for components 1D and 2E. Respondent’s principal evaluation for the 2013-2014 school year was “requires action” for components 4F; “progressing” for components 1A through 1C, 1E through 2B, 2D, 3A through 3E, and 4B through 4E; and “accomplished” for components 1D, 2C, 2E, and 4A. When quantified, Respondent’s 2013-2014 peer/mentor evaluation score was 8.35 and her principal evaluation score was 11.90, which resulted in a combined total evaluation written score of 20.25. The HCSD mean (average) for teachers during the 2013-2014 school year was 36.86. For the 2013-2014 school year, Respondent’s written evaluation score gave her a percentile rank of 1.47 percent. In other words, 98.53 percent of the teachers evaluated by HCSD for the 2013-2014 school year had a higher written evaluation score than Respondent. Respondent’s 2013-2014 VAM score was 17.4192. The HCSD mean for teachers during the 2012-2013 school year was 24.04. For the 2013-2014 school year, Respondent’s VAM score gave her a percentile rank of 0.85 percent when compared to her peers. Stated succinctly, 99.15 percent of the teachers evaluated by HCSD for the 2013-2014 school year had a higher VAM score than Respondent. Respondent’s total evaluation score for the 2013-2014 school year was 37.66. The HCSD mean for all teachers evaluated during the 2013-2014 school year was 60.94. Respondent’s total evaluation score for the 2013-2014 school year resulted in her achieving a percentile rank of 0.24 percent, meaning that 99.76 percent of the teachers evaluated by HCSD during the 2013-2014 school year scored higher than Respondent. Stated differently, in Hillsborough County public schools for the 2013-2014 school year, there were only 28 teachers of 12,068 who had a worse evaluation score than Respondent. Respondent’s total evaluation score of 37.66 resulted in Respondent receiving an overall evaluation rating of “unsatisfactory” for the 2013-2014 school year. For the 2013- 2014 school year, Respondent would have needed an overall evaluation score of 42 in order to secure the next highest evaluation designation of “needs improvement.” Despite being on a teacher assistance plan, Respondent’s performance, relative to her peers, actually declined during the 2013-2014 school year when compared to the previous school year. By letter dated July 10, 2014, Respondent was advised that because she received unsatisfactory evaluations for the 2012-2013 and 2013-2014 school years, HCSD was notifying the Department of Education of her poor performance and that she was being reassigned pending confirmation of her VAM scores for the year. By order dated April 6, 2016, the School Board of Hillsborough County terminated Respondent’s employment. Domain 3 and VAM As noted previously, Domain 3 embodies “the core of teaching.” The peer/mentor and principal comments for Domain 3 components for the 2012-2013 school year provide as follows with respect to Respondent’s performance: (3A) The teacher’s attempt to explain the purpose/relevancy of the lesson’s instructional outcomes has only limited success, and/or directions and procedures must be clarified after initial student confusion. The teacher’s explanation of the content may contain minor errors; some portions are clear; other portions are difficult to follow. The teacher’s explanation consists of a monologue, with no invitation to the students for intellectual engagement. The teacher’s spoken language is correct; however, vocabulary is limited or not fully appropriate to the students’ ages or backgrounds. (3B) The teacher’s questions lead students through a single path of inquiry, with answers seemingly determined in advance. Alternatively the teacher attempts to frame some questions designed to promote student thinking and understanding, but only a few students are involved. The teacher attempts to engage all students in the discussion and to encourage them to respond to one another, with uneven results. (3C) The learning tasks or prompts are partially aligned with the instructional outcomes but require only minimal thinking by students, allowing most students to be passive or merely compliant. Learning activities are not sufficiently challenging and lack the rigor to promote intellectual engagement. The pacing of the lesson may not provide students the time needed to be intellectually engaged. (3D) Assessment is occasionally used in instruction, through some monitoring of progress of learning by teacher and/or students. Feedback to students is uneven, and students are aware of only some of the assessment criteria used to evaluate their work. (3E) The teacher attempts to modify the lesson when needed and to respond to student questions with moderate success; however, alternate instructional strategies are limited and minimally successful. The teacher accepts responsibility for student performance. In response to student progress data, the teacher re-teaches, as appropriate. Because Respondent received an overall unsatisfactory performance rating for the 2012-2013 school year, she was evaluated by her principal mid-way through the 2013-2014 school year, and again by both her principal and peer/mentor evaluator at the end of the 2013-2014 school year. Respondent, for each of the evaluations performed during the 2013-2014 school year, received identical marks for the Domain 3 components, with the same deficiencies noted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(g), Respondent be prohibited from applying for a new certificate for a period of at least five years. DONE AND ENTERED this 28th day of June, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2017.
Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
The Issue Whether the Early Learning Coalition of Duval (ELC of Duval) is a state agency as defined in Section 120.52, Florida Statutes, and whether the quality improvement rating system identified in Petitioner's Amended Petition is an agency statement that constitutes an unadopted rule in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Florida Association for Child Care Management, Inc. (FACCM) is a Florida not-for-profit corporation which serves as a trade organization of private child care facilities. Respondent, AWI, is the state agency that has the authority and obligations relating to school readiness programs as set forth in Section 411.01, Florida Statutes, and applicable federal law. Respondent, ELC of Duval, is an early learning coalition as that term is applied in Section 411.01, Florida Statutes. The School Readiness Act The Florida Legislature passed the School Readiness Act in 1999. The Act, codified at Section 411.01, Florida Statutes, required the creation of local school readiness coalitions with the goal of ensuring that children are eager to learn and ready to succeed when they enter kindergarten. The Act is directed toward at-risk children in the State. The following portions of Section 411.01, Florida Statutes, provide part of the framework for the school readiness programs in Florida: (2)(a) . . . Each school readiness program shall provide the elements necessary to prepare at-risk children for school, including health screening and referral and an appropriate educational program. * * * (d) It is the intent of the Legislature that the administrative staff at the state level for school readiness programs be kept to the minimum necessary to administer the duties of the Agency for Workforce Innovation, as the school readiness programs are to be regionally designed, operated, and managed, with the Agency for Workforce Innovation developing school readiness program performance standards and outcome measures and approving and reviewing early learning coalitions and school readiness plans. * * * (g) It is the intent of the Legislature that the federal child care income tax credit be preserved for school readiness programs. The administration of the school readiness programs was moved to AWI in 2001. The Agency now oversees the coalitions operating school readiness programs throughout the state, and is considered, for purposes of the administration of the federal Child Care and Development Fund, 45 C.F.R. parts 98 and 99, the lead agency for the State of Florida. The Agency's responsibilities with respect to school readiness programs include coordinating birth-to-kindergarten services for eligible children, as well as the programmatic, administrative and fiscal standards for all public providers of school readiness programs; providing leadership for school readiness through early learning coalitions; responsibility for prudent use of all public and private funds in accordance with all legal and contractual requirements; providing final approval and periodic review of early learning coalitions and school readiness plans; providing technical assistance to early learning coalitions; and developing and adopting performance standards and outcome measures for school readiness programs, which must address age-appropriate progress of children regarding school readiness skills and must be integrated with performance standards adopted by the Department of Education in the Voluntary Prekindergarten Education Program. See generally § 411.01(4), Fla. Stat. The Legislature has granted authority to the Agency to adopt rules with respect to the preparation and implementation of the school readiness system, the collection of data, the approval of early learning coalitions and school readiness plans, the provision of a method by which more than one county may be served by an early learning coalition, the award of incentives to early learning coalitions and the issuance of waivers. As of the date of hearing in this case, there are no rules adopted by the Agency regarding the approval of school readiness plans or performance standards and outcome measures for school readiness programs. Early Learning Coalitions and School Readiness Plans Services for at-risk children are furnished through child-care providers such as pre-schools. School readiness programs provide, through early learning coalitions, tuition vouchers to the parents of eligible children, and the parents use the vouchers to enroll their children with a provider. Priority for participation is afforded to children served by the Family Safety Program Office of the Department of Children and Family Services or a community-based lead agency under Chapter 39, Florida Statutes, and for whom child care is needed to minimize the risk of further abuse, neglect or abandonment. Section 411.01, Florida Statutes, authorizes a series of early learning coalitions throughout Florida to administer school readiness programs at the local level. The law contemplates 30 or fewer coalitions to be established, and requires that each one serve at least 2,000 children based upon the average of all children served per month through the program during the previous 12 months. Multi-county coalitions generally are established when a learning coalition would serve fewer than 2,000 children as described above. At present, there are 31 early learning coalitions in the State of Florida.1/ There are 12 coalitions that serve more than one county. Respondent ELC of Duval operates only in Duval County. It does not have the authority to act outside the bounds of Duval County, and has no rulemaking authority. Whether an early learning coalition serves one county or multiple counties, it is composed of 18-35 members, with the chair and two other members being appointed by the governor. In addition, each early learning coalition must include a Department of Children and Family Services district administrator or designee; a district superintendent of schools or designee; a regional workforce board executive director or designee; a county health department director or designee; a children's services council or juvenile welfare board chair or executive director, if applicable; an agency head of a local licensing agency as defined in Section 401.302, Florida Statutes, if applicable; a president of a community college or designee; a member appointed by a board of county commissioners; a central agency administrator, where applicable; a Head Start director; a representative of private child-care providers, including family day care homes; a representative of faith-based child-care providers; and a representative of programs for children with disabilities under the federal Individuals with Disabilities Act. The last five categories of members are non-voting members. ELC of Duval was incorporated as a not-for-profit corporation in 2000. It provides school readiness services pursuant to a grant agreement entered into with the AWI and is considered an independent contractor. Under the grant agreement and in accordance with the provisions of Section 411.01, ELC of Duval must submit a school readiness plan detailing how the coalition will meet state and federal requirements for school readiness programs, including the implementation of quality initiatives. The AWI may suspend or terminate its agreement with the ELC of Duval, as it can with any early learning coalition, if it fails to comply with the terms and conditions of the grant agreement. The grant agreement provides in pertinent part: In the Coalition's performance of its duties and responsibilities under the Agreement, it is mutually understood and agreed that the Coalition is at all times acting and performing as an independent contractor and not a division or subpart of the [Agency]. The [Agency] shall neither have nor exercise any control or direction over the methods by which the Coalition shall perform its functions other than as provided herein and in law. Nothing in the Agreement is intended to or shall be deemed to constitute a partnership or joint venture between the parties. Early learning centers operating in Duval County are not required to participate in any program or receive any funding from ELC of Duval to legally operate as an early learning center in Duval County. In fact, Section 411.01(4)(g), Florida Statutes, prohibits the Agency from imposing requirements on a child care or early childhood education provider that does not deliver services under a school readiness program or receive state or federal funds pursuant to Section 411.01. Participation in school readiness programs is voluntary. Payments for school readiness services are made by a transfer of funds from the ELC of Duval to legally operating school readiness providers that have entered into a negotiated service agreement with the coalition. In other words, while participation is voluntary, early learning centers wishing to participate must sign a contract saying that they will abide by certain minimal quality standards. There is, however, no requirement that any early learning center accept children requiring subsidies to pay for attendance as a condition of operating an early learning center in Duval County. There are between 500 and 600 preschools in Duval County, including family childcare homes. Of those, approximately 315 have contracts with the ELC of Duval to accept school readiness children. Approximately 7,500 children in Duval County receive school readiness subsidies. There are approximately 2,000 additional children on a waiting list for school readiness subsidies. One of ELC of Duval's obligations, under both its grant agreement and the terms of Section 411.01, is to submit a plan for implementing its school readiness program to the AWI for approval. The plan must demonstrate how the program will ensure that each 3 and 4-year-old in a publicly funded school readiness program receives scheduled activities and instruction designed to enhance the age-related appropriate progress of the children in performing the performance standards adopted by the Agency. The plan must also include a single point of entry and unified waiting list, which is part of a statewide information system established by the Agency. The plan must include developmentally appropriate curriculum designed to enhance the progress of the child; a character development program to develop basic values; an age-appropriate assessment of each child's development; a pretest administered when children enter the program and a posttest when they leave; an appropriate staff-to- children ratio; a healthy and safe environment; and a resource and referral network to assist parents in making an informed choice of a learning center for their children. An early learning coalition may not implement its school readiness plan until the Agency has approved it. Plans must also be reviewed by the Agency at least annually. The early learning coalition must review and revise the plans as necessary, at least biennially.2/ Revisions to the plan cannot be implemented until approved by the Agency. § 411.01(5)(d), Fla. Stat. The Agency has been given the authority to adopt rules related to the approval of early learning coalitions and school readiness plans. It has been directed to adopt criteria for the adoption of school readiness plans consistent with the performance standards and outcome measures adopted by the Agency and must require each approved plan to include certain minimum standards related to a sliding fee scale based upon ability to pay; a choice of settings and locations to be provided to parents; instructional staff with certain delineated training; specific eligibility priorities; performance standards and outcome measures; payment rates adopted by the early learning coalition and approved by AWI; certain delineated system support services and direct enhancement services to families and children; the early learning coalition's business organization; and strategies to meet the needs of unique populations, such as migrant workers. In the absence of a rule, AWI has provided to the early learning coalitions a "guidance document" for submitting their school readiness plans, entitled the Early Learning Coalition Guidance and Instruction Workbook (Workbook). This Workbook was developed at least by 2006. The Workbook was used by ELC of Duval in preparing its plan for approval by AWI. The ELC of Duval submitted its school readiness plan on July 22, 2006. This plan was approved by the Agency. ELC of Duval submitted amendments to the 2006 plan in early 2008. These amendments were approved by the Agency via letter dated March 6, 2008. Funding for Early Learning Programs In addition to the program components outlined above, both AWI and early learning coalitions must be mindful of the spending allocations outlined in federal regulations. School readiness programs administered by the early learning coalitions are funded by a combination of state and local funds. The federal portion of the school readiness funding comes from the Child Care and Development Fund (CCDF) administered by the Department of Health and Human Services (HHS). 45 C.F.R. § 98.50 describes the required funding allocations for child care services related to school readiness programs: § 98.50 Child Care Services. Of the funds remaining after applying the provisions of paragraphs (c), (d) and (e) of this section the Lead Agency shall spend a substantial portion to provide child care services to low-income working families. * * * Of the aggregate amount of funds expended (i.e., Discretionary, Mandatory, and Federal and State Share of Matching Funds), no less than four percent shall be used for activities to improve the quality of child care as described at §98.51. Of the aggregate amount of funds expended (i.e., Discretionary, Mandatory, and Federal and State share of Matching Funds), no more than five percent may be used for administrative activities as described in § 98.52. Not less than 70 percent of the Mandatory and Matching Funds shall be used to meet the child care needs of families who: Are receiving assistance under a State program under Part A of title IV of the Social Security Act, Are attempting through work activities to transition off such assistance program, and Are at risk of becoming dependent on such assistance program. 45 C.F.R. § 98.51 further describes quality activities: No less than four percent of the aggregate funds expended by the Lead Agency for a fiscal year, including the amounts expended in the State pursuant to §98.53(b), shall be expended for quality activities. These activities may include but are not limited to: Activities designed to provide comprehensive consumer education to parents and the public; Activities that increase parental choice; and Activities designed to improve the quality and availability of child care, including, but not limited to those described in paragraph (2) of this section. Activities to improve the quality of child care services may include, but are not limited to: Operating directly or providing financial assistance to organizations (including private non-profit organizations, public organizations, and units of general purpose local government) for the development, establishment, expansion, operation and coordination of resource and referral programs specifically related to child care; Making grants or providing loans to child care providers to assist such providers in meeting applicable State, local, and tribal child care standards, including applicable health and safety requirements, pursuant to §§ 98.40 and 98.41; Improving the monitoring of compliance with, and enforcement of, applicable State, local and tribal requirements, pursuant to §§98.40 and 98.41; Providing training and technical assistance in areas appropriate to the provision of child care services, such as training in health and safety, nutrition, first aid, the recognition of communicable diseases, child abuse detection and prevention, and care of children with special needs; Improving salaries and other compensation (such as fringe benefits) for full-and part-time staff who provide child care services for which assistance is provided under this part; and Any other activities that are consistent with the intent of this section. Development of the Quality Rating Improvement System In 2002, the ELC of Duval began discussions on how to best improve its school readiness program through the expenditure of "quality activity" funds contemplated by 45 C.F.R. §98.51. In September 2002, it began work on a quality rating system for school readiness programs operating in Duval County. The purpose of the quality rating system was to assist early learning centers providing school readiness services through contracts with ELC of Duval in improving their programs and to assist parents in selecting quality care for their children. The quality rating system was developed through two pilot programs. The initial pilot program involved 14 volunteer early learning centers. The second year pilot program, which began in 2005 and lasted until 2007, involved 100 centers. Participants for this portion of the pilot were taken from sites located in the boundaries of elementary schools where 75 percent or more of the children were on free or reduced lunch programs, and the site indicated a willingness to participate. The quality rating system was fully implemented in November 2007 and currently has 96 early learning centers participating in Guiding Stars. Seventy-two of the 100 centers in the second year pilot have graduated or exited the program. As will be discussed more fully below, the name of the program was changed in early 2008 to the Quality Rating Improvement System (QRIS). Phase I of the current program is called "Quality Connections." This phase involves an environmental assessment of the early learning center based upon rating scales referred to as ITERS (Infant/Toddler Environmental Rating Scale) and ECERS (Early Childhood Environmental Rating Scale). The purpose of this phase is to determine the environmental needs of the provider and to determine whether the provider is ready for Phase II, which is known as the "Guiding Stars." Notably, assessment using ITERS and ECERS is required of all providers accepting school readiness children, and is not a requirement unique to the QRIS. There are presently 110 school readiness providers in Phase I. These providers receive grants from the ELC of Duval for books, materials, and equipment as indicated in the ITERS and ECERS assessments. If a participant receives a score of three (out of five) on the environmental assessments, then they are eligible to participate in Guiding Stars. Phase II is the portion of the QRIS that has 96 participants. However, Phase II envisions a two-year window of participation, and not all participants start on the same schedule. There was no testimony presented that any early learning center had completed Phase I and was denied entrance in Phase II for want of a slot. Based on the assessment in Phase I, the ELC of Duval assists the provider by supplying technical assistance support for up to two years. Technical assistance can include classroom assessments by trained evaluators, development of an action plan to address areas identified as needing improvement, training for staff members, educational stipends and scholarships, and wage incentives. Once the provider has had an opportunity to improve any shortcomings identified in the initial assessment, it is evaluated by a team of early learning professionals based on factors such as: a) the quality of a provider's facility; b) the quality of the educational environment at the provider's facility; c) the ratio of staff to children; d) the qualifications of the provider's staff members; e) the quality of the curriculum; and f) parental/family involvement with the children's learning and development. After the evaluation team has completed its assessment, a provider receives one to five stars, and each star represents an increasing level of quality. Once a child-care provider has received a star rating, it is considered to be an "exited" provider and receives a maintenance support plan which may include, but is not limited to quarterly contacts by the Guiding Stars program manager; on-site training opportunities and technical assistance for directors and teachers; educational scholarships for the professional development and continuing education of staff members; recognition through the Child Care Resource and Referral Network and the Northeast Florida Early Care and Education Guide; curriculum support; staff training; mini-grants to enhance program development; and wage incentives for staff. A significant amount of evidence was presented regarding the funding of the Guiding Stars program. In compliance with the federal requirements in 45 C.F.R. § 98.50, ELC of Duval allocates approximately 80 percent of its funds for child care slots (as opposed to the 70 percent required for this purpose). ELC of Duval devotes approximately 9 percent to quality enhancement activities, including the Guiding Stars program. The funding for services provided to exited centers comes from a combination of state, federal and private sources. While "quality dollars" from CCDF are used to finance the program, the majority of the funding (approximately $3.5 million) comes from the Mayor of Jacksonville's Early Literacy Initiative. The Guiding Stars program also receives significant funding from private sources, including the Rice Foundation and Blue Cross-Blue Shield. Early learning centers that participate in ELC of Duval's school readiness program are qualified to participate in the Guiding Stars program, but are not required to do so. There is no cost to early learning centers that accept children attending school readiness programs under tuition subsidies to participate in the Guiding Stars programs. Every early learning center who has a signed provider agreement with ELC of Duval receives the same amount of subsidy per eligible child whether or not they participate in the Guiding Stars program. Information regarding the rating received by participants in the program is available to parents seeking placement for their children. Reference to the Guiding Stars ratings is a way for parents to assess the provider's commitment to quality, and the program is featured in some of ELC of Duval's promotional materials. Description of quality activities and services is required in an early learning coalition's school readiness plan submitted to and approved by AWI. Reference to ELC of Duval's QRIS is included in "Section 5: Quality Activities and Services. The ELC of Duval could not have implemented the QRIS program unless some description of the program was included in the school readiness plan. The school readiness plan submitted by the Early Learning Coalition of Duval in 2006 did not contain documentation on the Guiding Stars Program itself. It did reference the program under the following categories in the School Readiness Plan (consistent with the format required by the Early Learning Coalition Guidance and Instruction Workbook): 1.92 (Evaluation Plan); 2.5 (Collaboration and Coordination of Services with Other Entities); and 3.4 (Parent Involvement and Skill Building). More substantial information is provided in Section 5 (Quality Activities and Services). When ELC of Duval decided to change the description of the program from a quality rating system to a quality rating improvement system, it submitted amendments to its school readiness plan to reflect the change. These amendments are included in the submission referred to in paragraph 26, above. The ELC of Duval's plan amendment likewise did not incorporate the actual workings or substance of the QRIS. It did not submit the material identified as an agency statement attached to the Amended Petition in this case. Brittany Birken, Director of the Office of Early Learning for the AWI, did not review the QRIS or Guiding Stars program as a part of the review of ELC of Duval's early learning readiness plan. On behalf of the Agency, she reviewed ELC of Duval's school readiness plan to make sure that it complied with federal and state law requirements that at least four percent of identified funding was being spent on appropriate quality activities. AWI determined that the wage incentives, technical assistance and professional development proposed through the QRIS were consistent with federal requirements for quality activities. AWI approved the ELC of Duval's school readiness plan. It did not approve the QRIS or endorse it. Standing The Florida Association for Child Care Management is a not-for-profit corporation that functions as a trade association for approximately 2,500 private child-care providers in Florida. It monitors legislation and provides lobbying services on behalf its members before both the executive and legislative branch. Ninety-three of its members are in the Duval county area. There was no indication of how many members receive children using vouchers via the school readiness program. However, thirty-three members participate in the Guiding Stars program. Two of the board members for FACCM own preschools in Duval County. In the one meeting called to discuss the challenge to the Guiding Stars program, approximately 20 to 25 members attended. There was no evidence presented to indicate how many of those in attendance supported the challenge in this case. With regard to its standing to initiate the challenge in this proceeding, FACCM alleged that a substantial number of FACCM members are substantially affected by the QRIS, which they claim is an unadopted rule, because only providers who participate in the Guiding Stars program are entitled to the benefits of the program; the star ratings are publicized as an indication of the quality of a program, and providers face increased costs to achieve higher star ratings. The Executive Director for FACCM testified that FACCM members are substantially affected by Guiding Stars because a) the funding of the Guiding Stars program reduces the funding that would otherwise be available for school readiness programs operated by FACCM members; b) providers who do not participate in the program are denied positive public promotion by ELC of Duval, mini-grants, educational scholarships and wage incentives for staff; c) the Guiding Stars program imposes additional regulatory costs on FACCM members; d) some providers are not eligible to participate in the Guiding Stars program even though they operate school readiness programs in Duval County; and e) the Guiding Stars program determines the level of benefits a participating member may receive. Only one child care program owner testified regarding participation (or lack thereof) in the program. Carol Moore is the owner/director of the Learning Tree Schools of Jacksonville. There are two locations: Fort Caroline and Hidden Hills. Both schools are in the Arlington area of Jacksonville. The Fort Caroline School has 160 preschool children, with 22 of them receiving subsidies. Hidden Hills has 80 preschool children, with 4 children receiving subsidies. At the time of hearing, both schools were at full enrollment with a wait list of about a year. Ms. Moore testified that she was visited by representatives from ELC of Duval in November or December 2007 regarding possible participation in the Guiding Stars program. She testified that sometime soon after the visit she was informed that only one of two schools could be accepted into the program. However, she could not identify who made this statement, when it was made or any reason provided for such a statement. Ms. Moore admitted that she never formally applied to participate in the program and never received any type of rejection in writing. She also indicated that things have changed since the time ELC of Duval representatives visited her program. Ms. Moore was only interested in being in the program if she could obtain a five-star rating. To do so, she claimed that she might be required to purchase an additional piece of playground equipment, although the type and price was not identified. Once again, she did not identify who told her such equipment would be required, and no documentation was produced. Indeed, Ms. Moore admitted that there was no regulatory cost to participate in the program, but "if you wanted to be a five-star school, yes, it's going to cost you some money." Ms. Moore has not suffered a decrease in enrollment or any other financial harm resulting from the existence of the program. As a program receiving subsidies for care, her schools are already assessed in terms of ITERS and ECERS, and her program is accredited as a Gold Seal Program through the Department of Children and Families. No other FACCM member was identified whose program had been denied participation in the Guiding Stars or who had suffered additional costs as a result of the program. The more credible evidence indicates that no provider accepting school readiness children has been denied access to participate in the Guiding Stars program. The program has sufficient capacity to serve current provider requests and ELC of Duval is attempting to recruit additional programs to participate. The ELC of Duval advertises the existence of the program encouraging additional child-care providers to enroll. Susan Main, the Executive Director for ELC of Duval, testified that she was unsure whether the program could accommodate all 315 child care programs accepting early readiness children if all of the programs wanted to participate in the program, and to do so would dilute the resources each program would receive. However, she believed that ELC of Duval would, in that instance, seek additional funding for the program. The more credible evidence indicates that the Guiding Stars program does not necessarily reduce the funding available for subsidies to school readiness children. ELC of Duval already exceeds the required level of funding for this component by ten percent. Much of the funding for Guiding Stars does not come from the funds received through AWI. There is no credible evidence from any witness in a decision to participate in decision-making that, absent the Guiding Stars program, funding would divert to providing additional subsidies. The more credible evidence indicates that providers who do not participate in the program choose not to participate. It cannot be said that they are denied promotion by ELC of Duval when they have declined participation in the program. Participation in the Guiding Stars program does not result in additional regulatory costs. The more credible evidence indicates that participation in the program results in additional funding being available to a child-care provider for improvements in the quality of its program. No credible evidence was presented indicating that there are programs that are not eligible for participation in the program. As noted above, the more credible evidence is that no program has been denied participation. Finally, Guiding Stars benefits are determined on a case by case basis, depending on the needs of the individual providers and the level of funding available. Petitioner has not established that it is substantially affected by the implementation of the Guiding Stars program by the ELC of Duval.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 July, 2011.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders). Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 5 through 12 are accepted. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 14 through 19 are accepted. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance. Paragraph 21 is accepted. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument. Paragraphs 23 through 25 are accepted. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact. Paragraphs 29 and 30 are accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER): Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time. Paragraphs 2-4 are accepted. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Frank Harder Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY 2929 South West Third Avenue, Suite One Miami, Florida 33129 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue in this proceeding is whether Petitioner should dismiss Respondent as an educational support employee for alleged inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination.
Findings Of Fact Petitioner employed Respondent as a plant operator from August 17, 1998, until the date of suspension without pay on December 14, 2004. A plant operator is a non-instructional employee responsible for housekeeping and janitorial tasks at the school to which the operator is assigned. From sometime shortly after Respondent began his employment with Petitioner in 1998 through November 2, 2004, Respondent engaged in repeated acts of inappropriate interactions with colleagues, including physical and verbal altercations, failure to correct performance deficiencies, and insubordination. Respondent has a long history of discipline, and efforts to correct his deficiencies have been unsuccessful. Petitioner first assigned Respondent to Forest Lake Elementary School (Forest Lake) and, sometime in November 2004, transferred Respondent to the Palm Harbor University High School (Palm Harbor). The attitude and job performance of Respondent at Forest Lake were inadequate. The principal at Forest Lake issued a letter of reprimand to Respondent in November 2004, and transferred Respondent to Palm Harbor later in the same month. At Palm Harbor, Respondent worked the "evening shift" from 2:30 p.m. until 11:00 p.m. The work performance was satisfactory, and Respondent earned a satisfactory annual appraisal on January 20, 1999, for the 1998-1999 school year. The work performance of Respondent declined through June 1999. Respondent lost productivity, lacked teamwork, complained, and cursed. The night foreman discussed the decline in performance with Respondent and, in an attempt to assist improvement, changed the area of the school for which Respondent was responsible. The night foreman noted in the personnel record that Respondent had lost productivity, lacked teamwork, complained, and cursed. The annual appraisal issued in June 2000, for the 1999-2000 school year indicated a rating of "needs improvement" in quality of work, quantity of work, and attitude. During the 2000-2001 school year, Respondent filed a complaint against the night foreman and unsuccessfully attempted to enlist other plant operators to file similar complaints. Petitioner investigated the complaint, found insufficient evidence to substantiate the complaint, and Respondent did not pursue the complaint. The job performance of Respondent continued to decline. Respondent failed to adequately clean the gym lobby, sometimes left work early, and ignored directions for improvement. The annual appraisal issued in January 2001, for the 2001-2002 school year, rated Respondent as "unsatisfactory" in the quality of work, quantity work, and attitude. The appraisal further indicated that Respondent "needs to improve" in his relations with others, initiative, and judgment. Respondent did not improve his job performance. A teacher complained to the administration about the condition of her classroom, and another plant operator reported that Respondent described the night crew as a "bunch of pussies." Other plant operators requested that they not be assigned to a crew with Respondent. Between February and May 2001, the night foreman counseled Respondent on a number of occasions. Sometime in August 2001, the Head Plant Operator (HPO) reassigned Respondent from Buildings 6 and 8 to Buildings 3 and 11 in an effort to assist Respondent in the improvement of his job performance. Respondent refused alternatives for reassignment to portable classrooms at Palm Harbor or reassignment to a nearby middle school. On September 13, 2001, Respondent smoked on campus during his shift. Respondent also watched television during his shift. Deficiencies in performance continued through September of that year. On October 8, 2001, the principal counseled Respondent about smoking on campus and poor job performance and issued a letter of caution to Respondent. In relevant part, the letter required Respondent to improve his job performance and to refrain from smoking on campus. The annual appraisal issued in January 2002, for the 2002-2003 school year, rated Respondent as "needs to improve" in punctuality. The appraisal rated Respondent as "unsatisfactory" in quality of work, quantity work, relations with others, initiative, judgment, and attitude. The annual appraisal issued in January 2003, for the 2003-2004 school year, rated Respondent as "needs to improve" in quality of work, quantity of work, relations with others, initiative, and judgment. Several areas in job performance showed improvement or were "getting better." The appraisal did not rate Respondent as "unsatisfactory" in any category. In May 2003, Respondent was watching television during work, not staying on task, not adequately cleaning the areas of his responsibility, and not properly stocking restrooms. Respondent exhibited hostility and disdain in response to efforts to assist him in improving his deficiencies. On May 19, 2003, the HPO counseled Respondent and notified Respondent that it was the last verbal warning for Respondent to improve his job performance. On May 27, 2003, the assistant principal at Palm Harbor conducted a meeting with Respondent, the night foreman, and the HPO. The assistant principal created a Success Plan that included guidance for Respondent to improve his job performance. Respondent signed the Success Plan. In July 2003, Respondent was absent from his work on one occasion for several hours. During the month, Respondent cleaned little and took excessive breaks. By July 16, 2003, Respondent had made no progress toward the goals outlined in the Success Plan. The assistant principal again met Respondent and notified Respondent that excessive breaks and absences from his assigned work areas constituted insubordination and misconduct. The assistant principal directed Respondent not to make threatening comments to the night foreman and issued a letter of reprimand that Respondent signed. Respondent continued to work inadequately and to take excessive breaks. On September 4, 2003, Respondent angrily confronted a plant operator who had criticized Respondent for leaving a building door open. Respondent uttered profanities, took several steps toward the co-worker, and made physical contact in a threatening manner. Respondent subsequently returned to his work area. On September 4 and 11, 2003, Respondent failed to empty the trash in a classroom and failed to vacuum the classroom for several days. The condition attracted roaches, and the classroom teacher complained to school administrators. Respondent persisted in failing to add soap to restrooms that Respondent cleaned. In October 2003, Respondent engaged in another angry exchange with a second plant operator. Respondent cursed at his peer and accused the peer of unfair treatment. On October 23, 2003, the assistant principal again met with Respondent, the night foreman, and the HPO to review the progress of Respondent toward the goals in the Success Plan. The assistant principal notified Respondent that the incidents involving profanity, defiance, and insubordination were unacceptable violations of the Success Plan. The assistant principal also discussed other instances of failure to complete tasks on time or not at all. On November 3, 2003, the assistant principal issued a letter of reprimand to Respondent. Respondent refused to sign the letter. On January 7, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. They focused on three violations of the Success Plan involving Respondent's interactions with others, insubordination, and failure to perform daily tasks. The assistant principal issued another letter of reprimand to Respondent that Respondent signed. On January 8, 2004, Respondent slapped the hand of second plant operator during a confrontation between the two. During the same month, Respondent did not adequately clean and stock restrooms. Respondent also failed to use plastic bags for trash cans in one classroom. The annual appraisal issued in January 2004, for the 2004-2005 school year, rated Respondent as "needs to improve" in areas of job knowledge and punctuality. The appraisal rated Respondent as "unsatisfactory" in the areas of quality of work, quantity of work, relations with others, initiative, judgment, and attitude. Between February 9 and 12, 2004, Respondent failed to clean a men's restroom after repeated instructions to do so by the HPO. Respondent eventually cleaned the restroom, but did so inadequately. In March 2004, Respondent repeatedly failed to lock a classroom he cleaned. In April 2004, Respondent failed to clean tables in another classroom. Respondent continued to clean other areas of responsibility in a deficient manner. In March 2004, Petitioner referred the matter to its Office of Professional Standards (OPS). The OPS administrator offered Respondent a three-day suspension without pay, and Respondent accepted the offer. Respondent served the suspension from April 14 through April 16, 2004. During Respondent's work shift on April 30, 2004, Respondent took breaks early, sat in a plant operations closet, and watched television. During Respondent's work shift on May 4, 2004, Respondent began lunch 35 minutes before the scheduled lunchtime in a dark room and watched television. The night foreman instructed Respondent to work until the normal lunch break. Approximately 20 minutes after the instruction, Respondent was viewing television and not working. Later that evening, Respondent sat in a closet doing nothing. By May 5, 2004, Respondent continued to perform unsatisfactorily. The unsatisfactory job performance continued through May 18, 2004. On May 19, 2004, the assistant principal again met with Respondent, the night foreman, and the HPO. The level of performance by Respondent continued to be unsatisfactory. Respondent refused to vacuum a hallway carpet or to sweep a floor in his area and stated that he had "other work to do." Respondent did not complete assigned tasks. Respondent continued to ignore instructions not to store a vacuum cleaner in a particular room. The assistant principal issued another letter of reprimand to Respondent. On September 8, 2004, Respondent failed to vacuum eight of 17 portable classrooms in a timely manner. Respondent failed to assist another worker in an assigned task. On October 21, 2004, Respondent angrily confronted a third plant operator. On November 2, 2004, Respondent called a fourth plant operator a liar and made physical contact with the worker. It required three attempts by the night foreman before he could separate the two workers. The night foreman reported the incident to the HPO. The HPO directed the foreman to instruct Respondent to go home. Respondent called the foreman a "lying SOB," and Respondent declared that he would "get even." Petitioner placed Respondent on administrative leave with pay during an investigation of the incident. By letter dated November 19, 2004, the Superintendent of the Pinellas County School District (Superintendent) suspended Respondent with pay from November 11 until the next School Board meeting on December 14, 2004. At the meeting, Petitioner adopted the recommendation of dismissal. Petitioner has adopted as a rule "Policy 8:25 Disciplinary Guidelines for Employees" (Policy 8:25) in accordance with Sections 1012.22 and 1012.23, Florida Statutes (2004). The rule provides relevant standards for employee discipline.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violations and dismissing Respondent from his employment. DONE AND ENTERED this 20th day of July, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2005. COPIES FURNISHED: Michael P. Begeny 62046 Polly Drive Tarpon Springs, Florida 34689 Thomas L. Wittmer, Esquire Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
