The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher, without pay, for five days.
Findings Of Fact The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. The School Board hired Respondent in 2004 as a teacher at Dr. Michael M. Krop Senior High School, a public school in Miami-Dade County. Since the 2009 school year, and at all times relevant to this case, Respondent was employed at David K. Lawrence, Jr., K-8 Center (“David Lawrence”), a public school in Miami-Dade County, pursuant to a professional services contract.1 At all times relevant to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The collective bargaining agreement provides that: “Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes.” 1 Respondent is no longer a teacher at David Lawrence. However, she is still employed by the School Board as a teacher at another school. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent occurred during the 2018-2019 school year, at which time Respondent was a special education teacher at David Lawrence, teaching fourth and fifth grade autistic students in the school’s “ESE” special education program. At that time, Mary Kate Parton was principal; Dr. Charlene Olicker was assistant principal; Elvia Nunez was a classroom paraprofessional assigned to Respondent’s classroom; and Jason Hocherman was a one-to-one paraprofessional assigned to another classroom. The alleged conduct giving rise to the School Board’s proposed suspension of Respondent is contained in paragraphs 16 and 18 of the Notice of Specific Charges.2 Allegations Involving Ms. Nunez on February 15, 2019 The School Board alleges in paragraph 16 of the Notice of Specific Charges that “[o]n February 15, 2019, a student under Respondent’s supervision hit Ms. Nunez in the face causing her face to swell and causing Ms. Nunez to feel nauseous and dizzy.” According to the School Board, the incident “occurred in Respondent’s presence, however, Respondent prevented Ms. Nunez from obtaining medical treatment, did not assist Ms. Nunez with any treatment and prevented Ms. Nunez from reporting it to the administration.” The School Board further alleges Respondent “failed to write a Student Case Management Form (“SCM”) on the student for his actions toward Ms. Nunez.” On the day of the incident, Ms. Nunez wrote a statement detailing her version of the events. In her statement, Ms. Nunez explained she was in the classroom when a female student hit Ms. Nunez on her face with her elbow 2 At hearing, the School Board abandoned the allegations in paragraph 17 of the Notice of Specific Charges related to a purported incident on February 22, 2019. Accordingly, no findings are made with respect to the allegations in paragraph 17 of the Notice of Specific Charges. and fist. Ms. Nunez called the office on the radio for assistance, and Dr. Olicker and Ms. Mejia came to the room to assist her. Ms. Mejia stayed with Ms. Nunez until Respondent finished what she was doing. They all took the students to lunch. Ms. Nunez stayed outside the cafeteria and told another assistant principal what had happened. In the meantime, another student started running behind the bathroom in the cafeteria, and Ms. Nunez and other employees went to catch the student. Ms. Nunez later returned to the classroom and told another staff member she was not feeling well. Ms. Nunez then went to the library and office and told Dr. Olicker she “was feeling dizzy.” Dr. Olicker called “911,” and Ms. Nunez was transported to the hospital by fire rescue. Respondent did not witness a student hit Ms. Nunez and she had no knowledge of the incident at the time. Respondent did not prevent Ms. Nunez from obtaining medical treatment and she did not prevent Ms. Nunez from reporting the incident to administration. Respondent did not write an SCM referral for a student because she did not witness the incident. There is no School Board rule or policy requiring Respondent to write an SCM referral on a student for an incident she did not witness or have knowledge of at the time.3 In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in any of the conduct as alleged in paragraph 16 of the Notice of Specific Charges, which constitutes misconduct in office. Allegations Involving J.H. on February 25, 2019 In paragraph 18 of the Notice of Specific Charges, the School Board alleges that “[o]n February 25, 2019, Jason Hocherman (‘Mr. Hocherman’), a 3 In any event, Dr. Olicker submitted an SCM referral on the student. paraprofessional at Lawrence K-8 while in the school’s hallway[,] observed J.H. in the hallway without Respondent.” J.H. was a student in Respondent’s class who frequently and spontaneously ran from the classroom. According to Respondent, J.H. would run as often as 12 to 15 times a day. J.H. was well known as a “runner” by Mr. Hocherman, other staff members, and the school’s administrators.4 On February 25, 2019, Mr. Hocherman was leaving his assigned classroom for the day at around 3:00 p.m., when students were also being dismissed for the day. At that time, he observed J.H. unsupervised standing in the corner of the first floor interior hallway of the building by the doors leading into the main lobby of the school. Mr. Hocherman does not know how long J.H. was standing in the hallway without adult supervision. Mr. Hocherman asked J.H. if he was alright, but J.H. did not respond. A few minutes after Mr. Hocherman first observed J.H., Respondent came upon the scene. According to Mr. Hocherman, J.H. became agitated or scared upon Respondent’s arrival on the scene. Mr. Hocherman tried to calm J.H. down, but J.H. took off running towards the stairwell in the middle of the hallway. J.H. often ran to the third floor. Respondent told J.H. she was not going to chase after him, hoping that would stop him from running. J.H. ignored Respondent and ran up the stairs to the third floor landing of the stairwell. Respondent and Mr. Hocherman followed in pursuit of J.H. Mr. Hocherman got to J.H. first, was able to calm him down, and took him by the hand directly to the bus loop in front of the school to get on his bus to go home. The evidence presented at the hearing did not establish that J.H., a known runner, was ever in any danger. 4 Notably, J.H. was the student who ran behind the bathroom in the cafeteria on February 15, 2019. J.H. got on the bus, went home, and did not suffer any injuries as a result of the incident. Under the particular facts of this case, Respondent’s conduct was not inappropriate. In sum, the persuasive and credible evidence adduced at hearing demonstrates that on February 25, 2019, Mr. Hocherman “observed J.H. in the hallway without Respondent,” as alleged in paragraph 18 of the Notice of Specific Charges. However, such conduct does not constitute misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension of Respondent, Linda A. Moreau, with full back pay. 5 In its Proposed Recommended Order, the School Board argues that Respondent violated School Board Policy 3213 by failing to “immediately report a harmful situation to the administration.” However, the alleged conduct in paragraph 18 of the Notice of Specific Charges is not based on a failure to report; rather, the alleged conduct is solely that J.H. was observed unsupervised in the hallway. Accordingly, any contention by the School Board that Respondent engaged in misconduct in office or violated School Board policies based on a failure to report J.H. being observed unsupervised in the hallway, is beyond the scope of the charge. Even if the School Board’s contention is not beyond the scope of the charge, however, J.H. was never in any danger or harmed, and, therefore, any failure of Respondent to report the incident does not constitute a violation of School Board Policy 3213 and does not constitute misconduct in office. DONE AND ENTERED this 21st day of April, 2021, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 21st day of April, 2021. COPIES FURNISHED: Christopher J. La Piano, Esquire Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case, a bid protest, is whether Respondent, Orange County School Board (the School Board), acted contrary to its governing statutes, rules or policies when it awarded the alternative education drop-out prevention services request for proposal number 1401017 (the RFP) to Ombudsman Educational Services, LTD. (Ombudsman) instead of Catapult Learning, LLC (Catapult).
Findings Of Fact Catapult is a limited liability company organized in Delaware. Catapult currently holds the contract in Orange County for the Alternative Education Drop-out Prevention program. The School Board is a public entity responsible for procuring services for the Orange County public school system. Ombudsman is a for-profit corporation duly organized in Illinois. On or about January 31, 2014, the School Board issued the RFP, "requesting solicitations from experienced respondents with a proven track record in providing alternative education services to students at risk of dropping out or [who] have dropped out from school and seek to return to continue their education." Originally, the solicitations were to be filed "no later than 2:00 p.m. EST, on February 24, 2014." The RFP included the following admonition and time schedule: The District will attempt to use the time schedule as indicated below. Note: References to Ronald Blocker Education Leadership Center (RB-ELC) address is: 445 West Amelia Street, Orlando, FL 32801. The below dates and times are subject to change. All changes will be posted to the Procurement website as they become available. January 31, 2014 Solicitation Date February 10, 2014 Re-submittal conference at 1:00 p.m. RB-ELC, February 11, 2014 Request for Information (RFI) cut-off February 24, 2014 Proposal opening at 2:00 p.m., RB-ELC, Lobby Conference Room Proposal will be opened and only the company names will be announced March 6, 2014 Evaluation Meeting Date (Tentative Date) (8:30 a.m.) March 7, 2014 Notice of Intended Decision (Tentative Date)(8:00 a.m.) March 13, 2014 Presentations by Respondents (Tentative Date) March 14, 2014 Notice of Intended Decision Date (Tentative Date) April 8, 2014 Board Recommendation (Tentative Date) On February 19, the School Board issued Addendum No. 1 (the Addendum) which provided the new solicitation deadline, highlighted in red ink, of "11:00 A.M., EST on February 26, 2014." Additionally, the Addendum advised the potential bidders (or vendors) of "changes/clarifications" to the RFP: "REVISED PROPOSAL PRICE SHEET, APPENDIX A" with the sentence, "Please ensure you submit your proposal using this REVISED PROPOSAL PRICE SHEET," and a paragraph addition to the "Scope of Services." These announced changes were also highlighted in red ink. The evaluation criteria for the RFP were provided in section 5, "Evaluation of Proposals." Potential bidders were advised that the PEC would receive, publicly open, review, and evaluate the proposals. Additionally, the PEC reserved the right to "interview any, all or none of the Respondents . . . and to require formal presentations with the key personnel . . . before recommendation of award." Section 5.5, "EVALUATION CRITERIA," provided: Only proposals that meet the compliance requirements will be evaluated based on the following criteria. Shortlist Possible Points Evaluation Criteria I. Experience and Qualifications 100 Maximum Value 30% Weight II. Scope of Services 100 40% III.MWBE/LDB4/ Participation 100 10% IV. Proposal Price 100 20% 400 100% The Procurement Representative shall calculate all scoring and determine a ranking of all respondents. The PEC shall determine if presentations/interviews are necessary. Note: The District will post an intended decision recommending Respondents to move to the next phase to be review [sic] by interested parties on the SBOC website at www.procurement.ocps.net. Failure to file a protest within the time prescribed in Section 120.57(3)b, Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Once the allowed time period has passed this phase of the process will be completed. Presentations/Interviews: Should the PEC members request presentation or interview from shortlisted respondents the following evaluation criteria will apply: Presentation/Interview Evaluation Criteria Possible Points Maximum Weight Value I. Planning/Delivery of Service 100 40% II. Firm Experience 100 20% III. Evidence of Student Achievement 100 40% 300 100% The Procurement Services representative shall calculate all scoring and determine a ranking of the shortlisted firms based on the presentation/interview evaluation criteria. The highest ranked firms will be recommended for negotiation and award. Timely responses to the RFP were submitted by six vendors: Catapult, Ombudsman, Atlantic Education Partners, Advanced Path, Excel Alternative Schools, and Driven Academy. These responses were reviewed by the PEC which was composed of School Board personnel with various educational based backgrounds. On March 6, the PEC evaluated all six proposals according to the RFP stated evaluation criteria: experience and qualifications; scope of services; proposal price; and MWBE/LDB. Four of the six bidders did not provide the pricing proposal as a percentage of full time equivalent. All six vendors were awarded zero points for the proposal price, and each received zero value for the proposal price. The justification for each bidder receiving a zero score was based on the School Board's procurement representative's inability to provide an "apples to apples" comparison of the six pricing proposals. Ms. Nido, the School Board's procurement representative, affirmed the School Board's position that when a proposal is non-responsive it is not scored. Here, all six proposals were scored. The PEC evaluated and ranked all six vendors. The PEC then posted its short list evaluation rankings, which included the short list evaluation form. Both Catapult and Ombudsman scored the same ranking: 64.2. Below the ranking, the following sentence appeared: "Committee agreed by consensus to invite Catapult Learning, Ombudsman, and Atlantic Education Partners for interviews/presentations." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 11, 2014 at 2:30 p.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." Catapult did not have a representative present during the March 6 meeting as Ms. Folsom, the local director, arrived late. It is the School Board's practice that if a member of the public appears late for an evaluation meeting, the staff will bring the public to the meeting room, knock on the meeting door and allow the public into the meeting. If the meeting is over, the public is not brought to the meeting room. No vendor filed a written notice of protest within 72 hours after the School Board posted the short list evaluation ranking. On March 6, the School Board posted a meeting notice that the PEC would meet on March 13 at 8:30 a.m. EST to hear the three bidders' presentations. Atlantic Educational was to make its presentation first, followed by Catapult and lastly, Ombudsman. The meeting notice also provided that the PEC would evaluate the three bidders' presentations immediately following the conclusion of the presentations. Later on March 6, Catapult made a public records request for all proposals submitted pursuant to the RFP. Catapult asked that the documents be sent via email or Catapult would have a staff member come to the "proper office" at the School Board. Catapult received the requested public records at its New Jersey office sometime after March 12, 2014. As scheduled, on March 13, the PEC met and heard the presentations of Atlantic Educational, Catapult, and Ombudsman, the three short list bidders. As set forth in the RFP, section 5.5., the criteria for the presentation evaluation included the following criteria: planning/delivery of service; firm experience; and evidence of student achievement. Four days later, the School Board posted the presentation ranking and presentation evaluation form. Out of a possible 100 points in each category, Catapult received 81 points for planning/delivery of service, 86 points for firm experience, and 83 points for evidence of student achievement, for a total of 250 points. Ombudsman received 88 points for planning/delivery of service, 87 points for firm experience, and 83 points for evidence of student achievement, for a total of 258 points. Below the presentation ranking, the following sentence appeared: "Committee agreed by consensus to enter into negotiation and contract award to the following vendor(s): Ombudsman." Additionally, below this sentence the following language appeared: "Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The 72 hour posting requirement will elapse on March 20, 2014 at 9:00 a.m. E.S.T. "The Orange County Public School Board is an equal opportunity agency." On March 19, Catapult filed its notice of protest and posted the requisite bond. On March 28, Catapult filed its formal written protest, the Petition, and thereafter on April 18, filed an Amended Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the presentation ranking that found Ombudsman to be the highest ranking bidder was not contrary to the School Board's governing statutes or the School Board's policies or rules, nor was it clearly erroneous, arbitrary, capricious or contrary to competition. DONE AND ENTERED this 5th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2014.
The Issue At issue is whether Respondent committed the offense alleged in the Final Notice of Non-Compliance and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Beverly B. Kennedy, is now and was at all times material hereto licensed by Petitioner, Department of Insurance (Department) as a Life and Variable Annuity Agent (2-14), Life, Health and Variable Annuity Agent (2-15), Life Agent (2-16), and Life and Health Agent (2-18). At all times material hereto, insurance agents licensed in Florida have been required to complete continuing education courses every two years, and Respondent was aware of such obligation. Compliance can be achieved by completing Department-approved seminars, classroom courses, or self-study courses. During the compliance period of October 1, 1995, through September 30, 1997, Respondent was required to complete 28 hours of continuing education courses. With regard to that requirement, the proof demonstrated Respondent completed 2 hours of approved study (on or about March 5, 1997) and began an approved self-study course for an additional 28 hours on March 12, 1997, but failed to complete the self-study course (by having successfully completed a monitored examination 2/ ) until February 25, 1998. Consequently, the proof supports the conclusion that Respondent failed to timely complete the 28 hours of continuing education required for the compliance period at issue. At hearing, Respondent averred she should be excused from timely compliance with the continuing education requirements because, during the two-year compliance period, she was otherwise preoccupied with hosting a daily (two-hour) radio and television show, and in 1996 ran, albeit unsuccessfully, for United States Congress. 3/ Respondent failed, however, to apply for an extension of time to complete her continuing education requirement, and failed to demonstrate that her preoccupation with other matters made it impracticable or impossible, as opposed to an inconvenience, for Respondent to timely meet the continuing education requirements. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, suspends Respondent's insurance licenses for a period of three months. DONE AND ENTERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 13th day of March, 2000.
Findings Of Fact Respondent was a 6th grade student at Mays Middle School in Dade County, Florida, during the 1987-88 school year. On June 14, 1988, another student informed the school's assistant principal that Respondent had in his possession a quantity of marijuana. Respondent was brought to the assistant principal. In the course of interrogating Respondent, the assistant principal momentarily left Respondent in the custody of a security officer. Upon returning to the room, the principal learned that Respondent had attempted to discard a foil packet, behind a filing cabinet. The packet was subsequently analyzed and found to contain one quarter to one half of an ounce of marijuana. Upon further questioning by the assistant principal, Respondent contended that he had found the contraband packet on the way to school and intended to sell the drug since his family needed the money. Thereupon, Respondent was suspended for the remaining two days of the school year and reassigned to the opportunity school program for the 1988-89 school year. In response to a telephone call by school administrators, Respondent's mother came to the school when he was apprehended for the possession of marijuana. Somewhat distraught about the incident, her major concern was what action would be taken in response to this behavior by her son. Previous conversations had been had between school officials and Respondent's mother regarding his attendance record and academic problems during the school year. The entire incident of Respondent's apprehension for possession of a controlled substance was reported to law enforcement officials for further investigation and appropriate legal action. During the course of the school year, Respondent has been absent a total of 36 days. His academic progress has been extremely poor resulting in final grades for the year of "F" in language arts, "D" in mathematics, "D" in French, "F" in reading and "F" in science. During the course of the school year, Respondent was seen by the school counselor a total of 12 times. Several of the counselling sessions were the result of Respondent's referral by his teachers for disruptive behavior. Other sessions resulted from teachers concern about Respondent's academic progress. Possible remedies for Respondent's academic needs and attendance problems are more likely to be realized in the smaller and more structured educational atmosphere of the opportunity school. Petitioner's district code of student conduct contains recommended disciplinary action for students found in possession of illegal mood modifiers. Mood modifiers are defined in the district code to mean all substances capable of producing a change in behavior or altering a state of mind or feeling. The code recommends that such students either be expelled or be suspended with a possible recommendation for administrative assignment to an opportunity school. In the absence of evidence other than Respondent's own admission of his intent to sell the marijuana, school officials elected to suspend Respondent and recommend assignment to an opportunity school. Respondent is presently attending the J.R.E. Lee Opportunity School.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assigning Respondent to the J.R.E. Lee Opportunity School. DONE AND ENTERED this 14th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1988. COPIES FURNISHED: Frank Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Clara Patino 19316 South West 121st Avenue Miami, Florida 33177 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Josesph A. Fernandez Superintendent of Schools Dade County Public School 1450 Northeast Second Avenue Miami, Florida 33132
The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 January, 1999.
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of October, 2009.
