The Issue The issue in this case is whether the Petitioner is entitled to an award of costs and attorney's fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact In their Joint Stipulation, the parties have stipulated to the following facts: Dr. Fernandez is a physician licensed in the State of Florida since 1973. He is a small business party as defined in Section 57.111(3)(d)(1), Florida Statutes. Dr. Fernandez was the subject of a disciplinary action by AHCA on behalf of the Board of Medicine. The action was commenced by an administrative complaint being filed by AHCA. It was resolved by a Consent Agreement adopted by the Board of Medicine as a Final order on December 30, 1999. The relevant terms of the Consent Agreement included Dr. Fernandez's paying a $5,000 fine and attending continuing education classes; and while denying liability, the Petitioner neither admitted nor denied the facts in the administrative complaint. There is no mention of the reporting of the Consent Agreement in either the National Practitioner Data Bank ("NPDB") or the Healthcare Integrity and Protection Data Bank ("HIPDB"). Subsequent to the action by the Board of Medicine, on January 7, 2000, the Respondent submitted a report of the disposition of Dr. Fernandez's disciplinary action to the HIPDB. HIPDB was established by Pub Law 104-191 enacted in 1996. Federal legislation establishing HIPDB was enacted in August 1996 with instructions to the Secretary of Health and Human Services ("HHS") to adopt rules implementing the law. Draft rules were published in October 1998 with final rules being adopted in October 26, 1999. The Guidebook was released in February 2000. Dr. Fernandez objected to the report to HIPDB on February 3, 2000, but was advised by the Respondent in a letter dated February 23, 2000, that his discipline was correctly reported "based on Federal Register 64 CFR Part 61: Healthcare Fraud and Abuse Data Collection Program: Reporting of Final Adverse Actions; Final Rule." On March 6, 2000, the Petitioner's counsel wrote the Respondent an 8-page letter requesting the report be removed from HIPDB. The letter set forth extensive legal analysis based in large part on the Federal Register citation in the Respondent's February 23, 2000, letter with attachments in support, and included that disciplinary action involving only a fine and continuing education courses was not reportable to HIPDB under the prevailing statutes and the administering instructions issued by the federal agency in charge of operating the HIPDB. Also in the letter, the Petitioner put the Respondent on notice that the Petitioner was going to file Petitions for Administrative Hearings if the Respondent did not respond by March 13, 2000. The Respondent did not contact Petitioner until after March 13, 2000. The Petitioner filed a Petition for Formal Administrative Hearing with the Board of Medicine on March 16, 2000. On the same day, the Petitioner filed a challenge to an alleged unpromulgated rule of the Respondent regarding the reporting of disciplinary actions to HIPDB where no liability was admitted. The cases were DOAH Case Nos. 00-1562 and 00- 1253RU, respectively. In DOAH Case No. 00-1562, the Petitioner requested the Report be rescinded or, alternatively, the Consent Agreement be rescinded to allow the Petitioner the opportunity to argue the merits of the case. In DOAH Case No. 00-1253RU, the Petitioner requested that the Administrative Law Judge ("ALJ") issue a Final Order determining that the Respondent issued an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes, that the Respondent immediately discontinue reliance upon the statement as a basis for agency action, and that the Report be rescinded. The Department was seeking clarification of the issues surrounding the reporting of discipline as demonstrated by Exhibits A and B. By letter dated March 17, 2000, the Respondent informed the Petitioner that it had removed the report of Dr. Fernandez's disciplinary action from HIPDB. To confirm the Respondent's assertion, the parties agreed that Dr. Fernandez would initiate a "self-query" to the HIPDB to verify removal of the report. On May 15, 2000, the Petitioner's counsel received confirmation that a query to the HIPDB would not reveal the existence of an expunged report. On April 5, 2000, the Respondent filed a Motion to Dismiss for Mootness because relief had been granted to the Petitioner since the disciplinary report had been removed from HIPDB on March 17, 2000. On September 26, 2000, the Respondent's Motion to Dismiss was granted by the ALJ in DOAH Case No. 00-1562. The Petitioner filed an Application for Attorney's Fees and Costs on July 14, 2000.
The Issue Whether Pinellas County School Board (Petitioner or School Board) has "just cause" to terminate Respondent's employment as a bus driver, due to violation of School Board Policies: 4140(A)(19), "Failure to Correct Performance Deficiencies"; 4140(A)(21), "Conduct unbecoming a board employee that brings the district disrepute or disrupts the orderly processes of the District"; and (3) 4140(A)(23), "Failure to comply with Board Policy, State law, or appropriate contractual agreement."
Findings Of Fact Petitioner is responsible for operating the public schools in Pinellas County School District and for hiring, firing, and overseeing both instructional and non-instructional "educational support" employees. Respondent has been employed by Petitioner as a regular bus driver and educational support employee, since April 1989. On the morning of January 15, 2010, Respondent commenced her morning elementary school route by picking up students to transport them to Eisenhower Elementary School. After completing the run to Eisenhower Elementary School, Respondent did not conduct an interior inspection of the bus, as required. As a result, a six-year-old child was left sleeping on the bus after Respondent left the school. While waiting to depart from the school grounds, the bus engine was not turned off, but, rather, it was left to idle. Respondent was in a hurry to leave Eisenhower Elementary School because she wanted to use the restroom. Although bus drivers are encouraged to use the restroom at the school, and it is considered a "best practice" to do so, Respondent thought she could cut some time off of her run and preferred to drive to the Mobile service station located at the corner of U.S. 19 North and Route 590 rather than use the restroom at the school. Once at the Mobile service station, Respondent stopped the bus parallel to Route 590 and went into the store. The restroom was occupied at the time, requiring her to wait. She testified that while she was waiting, she went out to the bus to close a window and then returned to the service station to use the restroom. Throughout this time period, the child was left unattended on the school bus. The bus was left positioned near a heavily-traveled area of Pinellas County during rush hour traffic, and the bus was left idling. Respondent denies that the bus was left idling while the child was unattended. Her denial, however, is not credible. If the engine, in fact, had been turned off as she claims, then the Child Reminder System would have caused the horn to blow, which she admits did not occur. According to Respondent, the reason that the horn did not blow when she turned off the engine was because she was "not 100 percent sure that it worked . . . during the run . . . [because she] could have hit a bump or something like that " Since 2005, all Pinellas County school buses are equipped with a device called a Child Reminder System. It is a safety device intended to enforce the bus driver's obligation to inspect his or her bus after each run. Once a bus driver turns off the engine, the horn is activated within 10-15 seconds, which forces the bus driver to walk to the back of the bus and hit a latch to de-activate the noise. Respondent acknowledged that checking the Child Reminder System is required as part of the pre-trip inspection. Respondent did not report any malfunction the morning of January 15, 2010. She stated that the Child Reminder System worked in the morning. In an effort to support her theory that the Child Reminder System may have been broken by 8:30 a.m. that same morning, Respondent claims that she has "over and over" turned in notes to the transportation department that the Child Reminder System was broken. The records from the transportation department do not support her claim. Rather, it is unrefuted that her bus--bus number 20909--was a brand new bus and never once, from the beginning of the 2009 school year through January 15, 2010, did Respondent file a request to repair or otherwise provide notification to the transportation maintenance department that the Child Reminder System was not working. The greater weight of credible evidence finds that Respondent left her bus idling at the school and at the Mobile service station. As a result, the Child Reminder System was never activated, causing additional danger to the sleeping child who remained undercover on the bus. After Respondent left the store, Respondent resumed her route and picked up several middle-school students. The sleeping child was discovered by a middle-school student, who notified Respondent. After several minutes, Respondent called the dispatcher to notify her of the situation. Respondent used her cell phone to call the dispatcher. The dispatcher directed Respondent to return to Eisenhower Elementary School with the child. Respondent denied that she used her cell phone, instead of the two-way radio, in an effort to avoid publicly broadcasting her error over the radio system. Respondent admitted that she is well aware that the use of a cell phone while driving a bus violates School Board policy and Florida law. Respondent stated that the use of her cell phone "would be easier," because the two-way radio was being used by other callers to report an accident. Respondent implied that its use was safe, because she was not actually driving on U.S. 19, but, rather, a service road adjacent to U.S. 19. Respondent subsequently changed her story, stating that she was not driving, but had pulled her bus to the side of the road. Respondent's rendition of the facts on this point is also not credible. The Digital Video Recorder (DVR) clearly showed that the bus was moving while Respondent was speaking with dispatch on her cell phone. It is also evident from the DVR recording that the radio transmission was not in use by speakers discussing an accident as claimed by Respondent. Respondent's employment is governed by the agreement (2008-2011) between the School Board and SEIU/Florida Public Services Union, Local 1220, an affiliate of Service Employee International Union (AFL/CIO) (hereinafter Agreement). The Pinellas County Transportation Department produces a "School Bus Driver Handbook” (hereinafter "Bus Driver Handbook"), which describes policies and procedures to be followed by all bus drivers. Respondent received a copy of the Bus Driver Handbook and acknowledged that she received and read it.
Recommendation Based upon the forgoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order holding that "just cause" exists for the termination of the employment of Respondent for violation of School Board Policy 4140(A)(19), (20), and (24) and the Agreement, as well as state law, and that Respondent should be dismissed from her position as a bus driver with the School District of Pinellas County. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 November, 2010.
The Issue Whether the School Board was bound to renew respondent's contract, once the Superintendent nominated him to continue as General Director of Security? If not, whether good cause exists to reject the nomination?
Findings Of Fact The Duval County School Board's security office is responsible for coordinating and maintaining an incident reporting records system, collection and cross-checking school employees' criminal records, conducting various internal investigations and for "coordination and monitoring of the security alarm systems ... " Respondent's Exhibit No. 5, p. 13. As associate superintendent of personnel for the Duval County School Board, before he became superintendent in 1976, Herb A. Sang had hired James W. Heard to head up the Board's security operations. Eleven years later, Superintendent Sang learned that law enforcement officers who worked under Mr. Heard's supervision (although they were furnished to the School Board under an agreement between the Board and the Sheriff's Office) were using School Board cars "moonlighting ... for stores like May Cohens." (T. 200-201) On this account, and because of "concerns about theft inside," (T. 201) Mr. Sang decided to create a new position to oversee security for the School Board. Mr. Heard enjoyed civil service protection, and stayed on. When respondent Richard M. Davis became the first person to hold the new position, he was known as general director of security and Mr. Heard began reporting to him. Mr. Davis had gone to work for the F.B.I. upon graduation from law school, and only left to take the job with the Duval County School Board, where he began on December 28, 1984. Continuously since 1970, he had had supervisory duties. As the School Board's General Director of Security, he supervised, in addition to Mr. Heard, three clerical employees, Linda Hancock, Lorraine Hampton and Agnes Carlyle; and several investigators, including Robert Dickinson, Jack Adams, Thomas Tawes, Messrs. Poston, Hogan, Harrington, Dixon, and Miller. SONITROL Soon after respondent Davis began work with the School Board, he relieved James W. Heard of responsibility for overseeing Sonitrol's installation of security systems. He took on this responsibility himself, although he shared the duties with Jack Adams until school opened in the fall of 1985. Mr. Davis never discussed "the problems of the Sonitrol system," Mr. Heard deposition, P 75, with Mr. Heard. He never asked Mr. Heard's advice, and Mr. Heard volunteered none. When Mr. Davis began as general director of security, Sonitrol of Jacksonville, Inc. (Sonitrol) had already installed 82 alarm systems in 73 of the some 140 schools the Duval School Board operates, in accordance with a contract entered into, perhaps in 1982. Heard deposition, P. 52. In early 1985, another system was installed at another school. On April 15, 1985, the School Board approved installation of 71 more Sonitrol alarm systems. In separate action the same month, the Board approved installation of two other systems for a total of 73 systems for 66 sites. At the schools selected, systems were installed to monitor the school office, the computer room, other places where high dollar items are" (T.I. 132) and "major entries," id., but many classrooms went unmonitored in order to keep costs down. Installation of such a system entails attaching metal plates or "door-contacts" on doors opposite like plates on jambs. Wires are then run so that, when current is supplied, opening the door breaks an electrical circuit, which "registers in the control panel that's in the school ... [which panel) transmits that information in code form over a telephone line to ... [the central monitoring station ... (T.II. 153, 154) In addition, up to 16 "preamps," audio sensors known loosely as microphones, can be wired to each central panel so that sound is also transmitted to the central monitoring station, if the noise level rises above a certain level. How best to use a limited number of preamps varies from building to building, depending on, among other things, where noise-generating equipment is located. Once they are in place, the system is calibrated to avoid transmissions of routine, background or "ambient" noise, sounds emanating from water coolers, fluorescent lights, cooling and heating systems and other "internal" sources. Anybody with the access number can turn the alarm system on and off. Systems ordinarily remain off during the school day. Once their work is completed, the custodial staff turn them on for the night. At least at night, a school board employee monitors a video display terminal on which "PE" indicates that a perimeter entry" has been effected, i.e., that a door has opened. When sound picked up by an audio sensor is transmitted to the central monitoring station, "AU" appears on the screen while the sound is reproduced on a loudspeaker. Next to "PE" or "AU" appears a number corresponding to the school or other facility at which opening a door broke a circuit or from which sound is transmitted. The audio transmissions are recorded and can be replayed by the monitor who must decide whether something is amiss. Computerized storage equipment creates a permanent record on magnetic tape of all "occurrences ... any time there is an activation audible or perimeter entry or code ... when someone comes in the school, when someone leaves the school, or the telephone line falters and the system redials, whatever transpires out there " (T.II. 160) Under its agreement with the School Board, Sonitrol was to furnish school board personnel a detailed, written plan for each school involved, and, once the security chief approved the plan, to install the system. Installation has three phases: Physical Installation - This is complete when the school has been wired, and the control unit, microphones and door contacts installed. On-Line - This is complete when the Contractor has "powered the system up" and performed tests on the microphones. Operational - This is complete when access numbers have been issued and the systems are monitored by the central monitoring board at the administration building. Petitioner's Exhibit No. 10, p. 2. Under the Board's agreement with Sonitrol, Sonitrol undertook "[e]quipment installation, testing and training within ninety (90) days after receipt of purchase order," Petitioner's Exhibit No. 1O, p 4, but witnesses testified that, after physical installation was accomplished, and the contractor had tested the system, it was the School Board, not Sonitrol, who was "to go out and train the operators, deliver the code cards." (T.I. 157) Although programmed and "on line," a system might not be operational if, for example, conduit ... has not been installed ..." (T.II. 168) The School Board was responsible for installation of a sufficient number of telephone jacks. Sonitrol agreed to maintain the systems for a monthly fee "for twelve (12) months from date or completion of installation and operating condition (including training and testing.) Petitioner's Exhibit No. 10, p. 2. The agreement called for preventive maintenance at least quarterly, and specified that "system failure due to normal wear or telephone failure is covered under your service contract." Petitioner's exhibit No. 10, p. 4. Prior to January 1987, the School Board did not keep records of what preventive maintenance Sonitrol performed. When Mr. Heard oversaw Sonitrol's installation of alarm systems, he and the principal or head custodian of the school involved would walk the school to see if the equipment was in and installed as it was supposed to be, that it was all there; and we would test it for them. When Mr. Gallagher called me and said, "We've got school number so-and-so on-line. We're going to test it for a week," they would before we actually put it on-line. And we would test it down in the monitoring room, and then they'd fine tune it and get the noisy areas out and so forth. And at the end of a week or ten days, it would be on-line at that point, then we started paying for maintenance ... ... they put it on-line, and we'd monitor it. They'd have people down there during that night and listen to it. And if there was a noise problem with it, then they'd do what they called fine-tune it. They'd go out there and try to locate what the noise was. They night have to relocate a mike a little further away from the heater or something of this nature Heard deposition, pp. 56, 57. Before December of 1984, Mr. Heard told the clerical staff "whenever a school was put on-line." Carlyle deposition, p. 47. In some instances Sonitrol began billing for maintenance for systems even before they were operational. As far as the evidence showed, those systems were "on line" before billing for their maintenance began and, in fact, required maintenance. If the monitor learned of a problem with a system after it had become operational, she notified Sonitrol and made an entry in a log book to that effect. Sonitrol made a monthly report of maintenance it performed. After Mr. Davis became General Director of Security, significant delays attended the transition from "on-line" status to "operational" status. Charges incurred for maintenance of systems before they become operational aggregated more than $13,000 for the period between September 1, 1985 and March 31, 1987. Especially without the contract in evidence, however, the proof does not establish that these moneys constituted an overpayment to Sonitrol for maintenance. But, even if these moneys were not overpayments to Sonitrol, they nevertheless may be said to represent part of the cost of the delays in rendering systems operational after Sonitrol had completed its work in installing them. The School Board also lost the protection operable alarm systems would have afforded after their physical installation but before they became operational, although the evidence established no burglary losses attributable to the delays. As General Director of Security, it was respondent Davis' responsibility to see that "on line" systems became operational as promptly as practical. In December of 1986, Mr. Davis left off overseeing installation personally and turned this task back over to Mr. Heard. At that time, 40 some systems were "ready to be completed and ready to go on line that needed to be put on-line." Heard deposition, p. 62. Of these, "about 16 or 17 ... were ready ... had things to be done to them before they could be put on- line." Id. Seven or eight systems had been installed, at least partially, for 18 months or longer but were not operational. Forest and Paxon high schools each lacked a phone jack that was needed and "there was some conduit that had to be run on one of the systems in order to complete the installation of it." - (T. 63) The System at Normandy Village Elementary School had been in place since May of 1986, but had been struck by lightning, and needed to be reprogrammed in December of 1986, when Mr. Heard inspected. The system at Stillwell Junior High School also needed to be reprogrammed. As far as the evidence shows, no burglaries occurred at any of these seven or eight schools while their systems were not operational. The School Board paid invoices aggregating $470 "for phone line problems, replacing batteries,... [and] for service calls when no problems were found." Petitioner's Exhibit No. 10, p. 4. Whether these charges were proper under the contract between Sonitrol and the School Board is not clear from the evidence. The contract was not offered in evidence, although excerpts are quoted in Petitioner's Exhibit No. 10. Sonitrol sometimes received payment for equipment before it was installed. In these instances, the School Board lost the use of various sums for varying periods. The evidence does not establish what these sums or how long these time periods were. A NEW BOSS When he first began, Mr. Davis called a meeting with the investigators in which he told them that Mr. Heard would continue to supervise them and that nothing would change, in that regard. This was the last meeting in which all the investigators were invited to participate. Ms. Hancock, who had worked for Mr. Heard for ten years, had grown used to the way Mr. Heard did things and felt very loyal to him. She was upset to an extent, when Mr. Davis took charge of the security staff, although she became his secretary. She was also offended at his apparent lack of confidence in her, and chagrined that he sent work to typists elsewhere in the building. She believed these typists avoided her, because he did. Heated arguments between Mr. Davis and Messrs. Dickinson and Tawes proved distracting, and Ms. Hancock took umbrage at some of Mr. Davis' profanity, although his language "improved over time. (T.45) On two or more occasions, Mr. Davis yelled at someone in the office in the presence of other employees. Heard deposition, P. 40. He "hollered" at Mr. Dixon after discovering that the latter failed to apprise him of a teacher's arrest. Once Mr. Davis came to the investigator's office door and started yelling, "Goddamn you son of a bitches. If you aren't happy here, transfer your asses out of here." He was just ranting and raving. Tawes deposition, p. 27. Once he upset Ms. Hampton by shaking a telephone message "in front of ... [her] face," Carlyle deposition, p. 33, rebuking her, although without raising his voice, in the presence of others, for failing to take down a caller's telephone number. SHOP TALK At least until December of 1986, Respondent Davis daily employed "all of the normal vulgarity type words" (T. 61) including "fuck quite regularly, God damn" (T. 60) and "son of a bitch." Id. Ms. Hancock does not believe in taking "the Lord's name in vain" (T. 41) and does not think "fucking, any of those type words ... should be said around a lady." (T. 42) Mr. Davis' language also displeased Ms. Carlyle and Ms. Hampton, Carlyle deposition; Heard deposition, p. 17, but nobody ever spoke to Mr. Davis about it, as far as the record shows. He did not actually swear at the clerical staff as far as the evidence shows. PERSONNEL CHANGES After working for Mr. Davis for more than two years, Ms. Hancock applied for a transfer in February of 1987. He first learned of her intention to leave when she told him she had secured another position. At no time did Ms. Hancock ever voice any complaint to Mr. Davis about working conditions. When Mr. Davis started, the security department had two vacancies. One had existed for about a decade, and the other for more than a year before Mr. Davis began, having arisen when an investigator retired. Both remained unfilled at the time the present charges were made. The perennially vacant position was kept on the books at the direction of senior administrators as a means of enhancing the department's budget. Robert C. Dickinson, a law enforcement officer, had been "assigned to School Board Security" (T. 59) for six years then Mr. Davis began working there. He, too, stayed on another two years, but he did not leave voluntarily. Sheriff McMillan transferred him to patrol duty in response to Mr. Davis' request made both by telephone and in writing on December 17, 1986, that he do so. In his letter of that date to the sheriff, Mr. Davis explained the basis for the request: On December 15, I proceeded to the public parking lot at the intersection of Southside Boulevard and Baymeadows Road, where I parked in order to observe the entrance to the Jacksonville Country Day School. At approximately 7:52 a.m., I observed Detective Dickinson, stopped southbound on Southside Boulevard, at the traffic light. He had a passenger in the right front seat that I must presume was his daughter, whom I have heard him say attends Jacksonville County Day School. He made a left turn into the school grounds. At about 7:54 a.m, he exited the school driveway, turning north onto Southside Boulevard. Again, on December 16, 1986, I waited in the same location. At 8:01 a.m., I observed Detective Dickinson turning into the school grounds from Southside Boulevard, again with the same young female passenger. He exited the school driveway at 8:03 a.m., again turning north on Southside Boulevard. On both days I observed Detective Dickinson he was operating a 1985 Ford Crown Victoria, 4 door sedan, color white, bearing Florida tag 307-EUS, vehicle 6019, his assigned unit for School Security. Naturally, the observations are of great concern to me, since he is supposed to be in a duty status at 7:3O a.m, and was supposed to be checking various Duval County school buses for safe driving, equipment and student conduct, while the buses are on the roadway. Further I was quite dismayed to see the two "Activity Reports" submitted by Detective Dickinson - for the dates of December 15 and 16, 1983. These reports indicate he was checking buses from 7:30 a.m. to 8:15 a.m., on December 15, 1986, and from 7:30 a.m. to 8:20 a.m., on December 16, 1986, when in fact he was using a vehicle of the Duval County School Board to transport his daughter to her private school. The fact that he included such erroneous information on an official document gives me cause to doubt his veracity and I do not feel he is the type of individual that should be assigned to the School Security Department. Copies of the "Activity Reports" are attached. In addition on December 17, 1986, I was in the office when I observed Detective Dickinson walking out of the door. I asked him where he was going. He responded "To the cafeteria. I asked what he was doing in the office and he replied "paperwork." I also inquired as to his whereabouts earlier in the morning and he responded "Why checking buses like I always do." I then requested that he go to his desk and do the "paperwork" instead of the cafeteria. He walked to his desk and I went into my office. Shortly, I heard him slam the telephone into the cradle, I asked him what the noise was about and he said it was the phone and he had slammed it down because he was unable to reach his party. I then cautioned him against such rough treatment of the equipment He immediately put his hand, palm out, toward me as if to warn me away, and he sarcastically commented that I had started the whole thing by making comments during a recent School Board meeting that "they" were not cooperating. I told Detective Dickinson that we were not talking about that, but about his rough treatment of the telephone, He responded "0kay, you got it. Whatever you want. I regard this last incident as a poor reflection upon an experienced law enforcement officer. His conduct and demeanor was antagonistic, rude, and unprofessional. Coupled with his actions on December 15 and 16, 1986, I have concluded that Detective Dickinson is not the type of person that should be representing the School Security Department or working with the student and staff population of the public schools. I would appreciate your removing him immediately and replacing him as soon as possible. Mr. Davis had decided to lie in wait across the street from the Jacksonville Country Day School after a neighbor told him the child regularly arrived in a school board vehicle. At hearing Mr. Davis testified that Officer Dickinson's "work was not in question," (T. :11.132) characterizing much of it as "an outstanding and excellent job." Id. According to Mr. Davis, Officer Dickinson is intelligent and well-spoken. Officer Dickinson's testimony that he did in fact follow school buses as he drove his daughter to school on December 15 and 16, 1986, was credible and credited. The transfer was accomplished while Officer Dickinson was away on vacation. He learned about it from his brother who had read of it in the newspaper. With respect to the personal use of school board vehicles, respondent testified that he was "sure that every one of those investigators, including our people who work at night as security officers, have probably used the car to accomplish a personal errand or something of a personal nature." (T. 134) He himself had driven a school board car to his dentist's office and to a barber shop during the work day. With respect to his tonsorial outing, he testified, [M]y hair grows on the school board time and I don't feel remiss in getting it cut once in a while on school board time," (T. 135) although more recently he had opted for Saturday afternoon haircuts. By Thomas Nathan Tawes' count, "Mr. Davis ... used harsh profanity towards," Tawes deposition, p. 9, Mr. Tawes on four occasions. In January of 1985, Mr. Tawes, a school board investigator, ran a red light and caused a traffic accident. The following day Mr. Davis informed him that he had received a report that Mr. Tawes was "drinking prior to the accident and...high on drugs," Heard deposition, p. 11, and said "I'm going to have to investigate it. We've got a complaint." And [Tawes] said, "I would like for Captain Heard to be in here, sir. " [Davis] said, "No. I'm your goddamn supervisor." [Tawes] said, "Sir, I would like for Captain Heard to be in here." [Davis] said, "You son of a bitch, I'm your goddamn supervisor." [Tawes] said, "Sir, I would like for Captain Heard to be in here." [Davis] said, "Well, then, goddammit, go get him." Tawes deposition, p. 11. Mr. Tawes felt he had a right, under a collective bargaining agreement, for his immediate supervisor to be present. In June of 1985, Mr. Tawes found a note on his desk from Mr. Davis, directing him "to go to a Class 3 hearing," id. p. 18, involving a case of alleged sexual battery at Sandalwood High. Mr. Tawes went to Mr. Davis' office and objected to attending, saying he had been excused from such hearings before. In the course of their conversation, Mr. Davis used "goddamn" and "son of a bitch." Tawes deposition, p. 19. Mr. Tawes left Mr. Davis' office and refused to return, even when Mr. Davis said, "goddamn, I'm sorry. Now, get back in my goddamn office." Tawes deposition, p. 20. As Mr. "Tawes stormed out of the office without Mr. Davis' permission," Heard deposition, p. 51, Mr. Heard entered the suite of offices. Mr. Davis told Mr. Heard what had transpired. At Mr. Heard's urging, Mr. Tawes apologized. Heard deposition, pp. 49-50. Sometime before Christmas of 1985, Mr. Davis swore at Officer Tawes again, in discussing delays Mr. Tawes had encountered in trying to secure an interview with a bus contractor. At an unspecified time during the 1985-1986 school year, Officer Tawes brought Mr. Davis an investigatory report. While he stood in the doorway of Mr. Davis' office, Mr. Davis swore at him and said, Just go have a seat in your damn office." Tawes deposition, p. 28. In December of 1986, at Mr. Davis' request, Officer Tawes was transferred back to the Jacksonville Sheriff's Office. He gave neither Tawes nor Dickinson any counselling or advance notice of their transfers. Office morale reached its nadir in the wake of these transfers. SCHOOL FIRE On November 26, 1986, Robert E. Lee High School caught fire. Fire alarms failed to sound, and nobody at the central monitoring station heard sounds of fire or detected other evidence of fire, even though the fire did "several million dollars worth of damage." (T. I. 159) As one result, the school board hired a former Sonitrol employee, Barrett Miller, to investigate "implementation of the Reston report, the Sonitrol contract and Underwriters' Laboratory standard as it applied to the public school installations." (T. I. 112, 127) The Reston report, Respondent's Exhibit No. 5, entitled "School Security Needs Assessment" came into existence "a couple of years before," Heard deposition, p. 52, Mr. Davis began as director of security, but only came to his attention some time in early 1985 after he had begun. Among numerous other recommendations, the Reston report recommended that: The incident reporting system and several other security files should be automated so that better information is available for feedback to schools and facility planners, as well as for security tactics (e.g., movement of alarms); ... Respondent's Exhibit No. 5, p. 22. Although Mr. Davis learned of the report in a conversation with Superintendent Sang, neither Mr. Sang nor anybody else directed him to implement any of the report's recommendations.. When he originally read the automation recommendation, Mr. Davis "didn't know enough ... about the incident reporting system to know whether ... [automation] was justified ..." (T. 37, 38) In January or February of 1987, however, having decided that it was justified, he "requested and received a budget allocation for the acquisition of data base hardware" (T. II. 28) for the purpose. In late 1986, he had discovered problems with manual compilation of the incident reports. On or about October 10, 1986, Ms. Carlyle furnished Mr. Davis a memorandum she had drafted, styled, "SECURITY DEPARTMENT ACTIVITY REPORT FOR 1985/1986 SCHOOL YEAR," Respondent's Exhibit No. 2, purporting to summarize losses the School Board had sustained from vandalism, theft and arson that year and offsetting recoveries. In fits and snatches, over the course of a month or six weeks, Mr. Davis checked this draft against incident reports in the office files, the supposed source of the information compiled in the draft. Discovering apparent discrepancies, Mr. Davis mentioned the matter to Superintendent Sang, who directed David E. Wilson, Assistant Superintendent in charge of finance, to cause an audit of the incident reports to be performed to test the draft report's accuracy. The audit confirmed Mr. Davis' suspicions. In order to produce an accurate report, Mr. Davis turned all of the incident reports over to Mr. Wilson's staff, who entered the data into a computer and generated a report dated January 30, 1987, which the School Board received. The Board had never set a deadline for submission of these reports. In previous years it had been submitted as late as October after the school year ended. (T. II. p. 22) WASTING TIME He assigned Mr. Heard supervision of "officers on their day-to-day investigation." Heard deposition, p. 23. Mr. Heard also "check[ed] employee application records or criminal records for school employees that had been arrested," id., until he received a memorandum dated December 30, 1985, which "restricted [him] to the office.." Id. The memorandum stated Effective immediately, you will no longer conduct the record checks for criminal charages or dispositions ... Your duty post is in the security offices in the School Board Administration Building. Should you believe it necessary to leave the building on official business, you should discuss the need with me for approval. Respondent's Exhibit No. 2 to the Heard deposition. Supervising investigators in the field from his office was "second best," Heard deposition, p. 27, Mr. Heard felt, but he saw the investigators at the end of the work day and took telephone calls from them during the day. On more than ten occasions while the December 30, 1985 directive was in force, students or others came on school grounds with firearms. Mr. Heard felt he should have been on the scene personally, but he never sought approval to go. Even so, Mr. Heard "c[ould]n't say that it caused any specific loss to the schools," Id., p. 29, his being required to supervise from the office. But that was not enough to keep him busy. He found himself spending up to five hours a work day unproductively, reading the newspaper, talking to the clerical staff, and so forth. This idleness was particularly unfortunate in light of the alarm systems that required attention. Mr. Heard was ill part of this time. He missed 50 some working days between January and October of 1986.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED; That the School Board reject the Superintendent's nomination of the Respondent Richard M. Davis as General Director of Security. DONE and ENTERED this 27th day of January, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of January, 1988. COPIES FURNISHED: James L. Harrison, Esquire Steven E. Rohan, Esquire Gail A. Stafford, Esquire Office of the General Counsel 1300 City Hall Jacksonville, Florida 32202 Lamar Winegeart, III, Esquire Mahoney, Adams, Milam, Surface & Grimsley, P.A. Post Office. Box 4099 Jacksonville, Florida 32201 Herb A. Sang Superintendent of Schools Duval County Public Schools 1731 Prudential Drive Jacksonville, Florida 32207
The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 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 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
The Issue The issues to be decided are whether Respondent committed the acts alleged in the Administrative Complaint; and whether those acts provide just cause for termination of his teaching contract?
Findings Of Fact From July 1, 2000, to the present, Respondent has held Florida Teachers Certificate number 83970. From 2000-2004, he taught at Highlands Middle School, and from 2004 until May 2007, he taught at Darnell Cookman Middle School. Because of the allegations giving rise to these proceedings, Respondent is not teaching in the Duval County School System at this time. John Williams is the Director of Professional Standards for the District and has held that position since 2002. In that capacity, he coordinates the handling of disciplinary investigations and actions relating to professional staff for the Duval County School District. In January 2004, Respondent was teaching at Highlands Middle School. While assigned to that location, a female student accused him of inappropriate sexual contact on two different occasions. Upon receipt of the complaint, and consistent with District policy, Respondent was removed from the classroom and assigned to Bull's Bay, the District's Consolidated Services Center, from February 17, 2004, to April 30, 2004. However, he elected to use vacation time for part of this period, and worked at the facility for the other part. At the end of the investigation, it was determined that there was insufficient evidence to prove or disprove the allegations, and Respondent was so notified on April 6, 2004. Although not immediately returned to the classroom, at the principal's request, Respondent returned to teach at Highlands Middle School before being transferred to Darnell Cookman. John Williams had little to do with the investigation of Respondent. He met with him, either in person or telephonically, to discuss the assignment to Bull's Bay. He also notified Respondent of the results of the investigation and, at the request of the School Board, arranged for an Independent Psychiatric Evaluation to be performed in April 2004 in order to determine fitness for duty before Respondent returned to the classroom.1/ Mr. Williams had little or no other contact with Respondent. However, to Respondent, apparently Mr. Williams represented the School District's actions against him. After Respondent was transferred to Darnell Cookman Middle School, he developed an attendance problem. On February 20, 2007, Kelly Coker-Daniel, the principal at Darnell Cookman, sent Respondent a memorandum that included the following: Please be advised by way of this correspondence that your attendance is at a less than satisfactory level. Your continued rate of absences is having a deleterious impact on the quality and continuity of the education program you are to provide. Since 11/3/2006, you have been absent 20 days on Leave With Out Pay. 6 of these absences have occurred on either a Monday or a Friday. At this time I am advising you that your continued absenteeism will result in a recommendation for disciplinary action. F.S. 1012.61, Sick Leave, provides for the requiring of a certificate of illness from a licensed physician or from the county health officer. Be advised that from this point forward, for all future absences, you are directed to bring a statement from your attending physician identifying the date of treatment, the nature of your illness and the prognosis for future problems as it would impact your attendance. Additionally, as of 11/3/06, you have exhausted your available balance of sick leave. F.S. 1012.67, Absence without leave, states, "Any district Board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the School Board. Your failure or refusal to follow the procedures identified above will result in a recommendation for disciplinary action up to and including termination of your teaching contract. According to Ms. Coker-Daniel, no further warning was warranted and no request for disciplinary action was ever made. John Williams had no knowledge of or involvement in Respondent's attendance issues. Beginning in August 2006 and until May 1, 2007, Respondent was a patient of Beth Wombaugh, a mental health counselor licensed pursuant to Chapter 491, Florida Statutes. He consulted with Ms. Wombaugh to deal with a variety of issues, including post-traumatic stress disorder, stemming in part from the trauma of the accusation in 2004. Respondent was referred to Ms. Wombaugh by Dr. Raul Soto Acosta. When he began his patient relationship with Ms. Wombaugh on August 2, 2006, Respondent was asked to sign an information form entitled "Privacy of Information Policies" that described those circumstances under which patient information could be disclosed. The form included the following information: It is my policy not to release any information about a client without a signed release of information except in certain emergency situations or exceptions in which the client information can be disclosed to others without written consent. Some of these situations are noted below, and there may be other provisions provided by legal requirements. Duty to Warn and Protect When a client discloses intentions or a plan to harm another person or persons, the health care professional is required to warn the intended victim and report this information to legal authorities. In cases in which the client discloses or implies a plan for suicide, the health care professional is required to notify legal authorities and make reasonable attempts to notify the family of the client. I must and will abide by this requirement. Public Safety Health records may be released for the public interest and safety for public health activities, judicial and administrative hearings, law enforcement purposes, serious threats to public safety, essential government functions, military, and when complying with worker's compensation laws. Respondent signed the form below the statement, "I understand the limits of confidentiality, privacy policies, my rights, and their meanings and ramifications." He also signed a Release of Information Form on November 19, 2007, indicating that his entire record, except progress notes, could be used for "Other," for which it was specified "court evidence purposes." Sometime in November 2006, Respondent called Mr. Wombaugh and expressed anger related to John Williams. At that time, Ms. Wombaugh encouraged him to contract with her for safety. In other words, she encouraged him to agree not to do anything to harm Mr. Williams, and if he had any further thoughts of harming Mr. Williams, he was to call her. If he could not get in touch with her, he was to call 9-1-1 and seek help. Respondent agreed to do so and came to see Ms. Wombaugh, at which time he was able to calm down and look at things differently. He again contracted for safety and the issue of anger against Mr. Williams seemed to be resolved. Sometime in April 2007, however, Respondent was injured in a car accident. As a result, he was experiencing significant discomfort. On May 1, 2007, he attended a session with Ms. Wombaugh and appeared to be in pain, to the extent that he was required to lay down on her couch during his counseling session. Ms. Wombaugh encouraged him to take some time off and deal with his injuries. Respondent explained that he could not take any additional leave, because he had already taken more than his employment contract allowed. Ms. Wombaugh suggested he speak to the principal about the issue, given his level of pain. She testified that Respondent told her that because he was in violation of his contract, they could fire him, and if he got fired, he was going to kill Mr. Williams. Ms. Wombaugh tried to discuss the consequences of doing so, and asked him to commit to not harming Mr. Williams several times during the session, but he refused. According to Ms. Wombaugh, his response was, "Contract with you not to -- not to harm the guy who messed up my life? No." Ms. Wombaugh also advised him that she would have to report this threat, which would most likely result in his losing his job, and he stated, "You got to do what you got to do." With respect to the consequences of making a threat to Mr. Williams, Ms. Wombaugh also testified as follows: Q. Well would you just address that aspect of it for me as -- just tell us once more what you told him was going to happen -- A. Uh-huh. Q. --if he did not go ahead and agree to contract with you or agree with you? A. I told him that I would have to call the police. I told him that -- you know, that even if Mr. Williams down the line is murdered, that they'll always suspect him because that'll be on file and that he would most certainly lose his job; because I couldn't imagine that the school board would continue to allow him to teach at that school, having made the threat. Q. And at least up to that point, nobody had heard about the threat, to your knowledge, except you; right? A. Correct. Q. I asked him again, you know, "There's no way that I can get you to commit?" And he said, "No. And I -- and he said, "Well, its in your hands." And I said, "You know, Tom, it’s really not in my hands; it’s in your hands, if you would just, you know, just commit to safety." And he refused. And I asked him to take care of himself and he left our session. (Transcript at 73-74). Respondent's appointment with Ms. Wombaugh began at 4:00 p.m., and lasted a little over an hour. She had another appointment immediately after Respondent's. After the conclusion of her appointments for the day, at approximately 7:45 p.m., she finished her notes from the sessions, and then received a call from Respondent because he had forgotten to pay for his counseling session. She told him he could pay the next time. She did not broach the subject of contracting for safety during the phone call because he had stated several times already that he would not do so. After speaking with Respondent, Ms. Wombaugh attempted to contact John Williams at the Duval County School District, but given the time of day, the offices were closed. She considered the threat against Mr. Williams to be a conditional threat, i.e., a threat of action that would occur only if Respondent was fired. Because it was after school hours and he could not be fired that day, she did not consider it to be an "imminent" threat or the basis for Baker Act proceedings. However, she considered the threat to be serious and testified that Respondent indicated he had the means to carry out the threat. When she could not reach Mr. Williams by telephone, Ms. Wombaugh called the Jacksonville Sheriff's Office, who referred her to the School District Police. She spoke with Lieutenant Burton later that evening and to a member of the Jacksonville Sheriff's Office the next day. Mr. Williams was notified of the threat at about one o'clock in the morning and advised not to go to work the next day. Mr. Williams ultimately elected to attend work, and was provided an armed escort. The School District has taken measures to insure that access to Mr. Williams' office area is restricted. Respondent was arrested on May 2, 2007, in connection with the threat against Mr. Williams, and charged with corruption by threat of a public servant, in violation of Section 838.021(1)(a), Florida Statutes, a felony. Information regarding the threat and the arrest was carried on the local news and the local newspaper. The School District's Office of Human Resources received a number of phone calls and e-mails regarding the matter, which was widely discussed. Ultimately, on December 23, 2008, the charge against Respondent was reduced to a charge of threatening physical harm to the person or property of another, in violation of Section 614.120, Jacksonville Municipal Code. On February 11, 2009, Respondent entered a Deferred Prosecution Agreement wherein prosecution was deferred for a period of twelve months conditioned on Respondent's refraining from violating any criminal law; notifying the State Attorney's office of any change of address; and Respondent's agreement not to have any direct or indirect contact with John Williams, with the exception of work or employment related contact. Contrary to Respondent's assertions, the Deferred Prosecution Agreement did not dismiss the charges against him upon its execution. Respondent categorically denies ever threatening John Williams. He claims that he was unhappy with Ms. Wombaugh's counseling and was upset with her because he felt he knew more about post-traumatic stress disorder than she did, and felt he was making no progress. Respondent claims that during the counseling session on May 1, Ms. Wombaugh made a comment to the effect that he needed to learn to get past the events that occurred in 2004, and that he told her how frustrated he was. He thought he hurt her feelings, but said that there were no raised voices, and he could not think of any real motive for her to claim he threatened Mr. Williams. His testimony at trial, which is not credited, differs from his reported response at the time he was arrested, when he said that he lost his temper during the session but did not remember making a threat to kill Mr. Williams.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent has violated Sections 1012.795(1)(f) and (i), Florida Statutes, and Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(5)(d); that such violations provide just cause for termination pursuant to Section 1012.33(1), Florida Statutes; and terminating Respondent's contract with the School District. DONE AND ENTERED this 29th day of July, 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 29th day of July, 2009.
The Issue Petitioner Florida Education Association (FEA) filed a Petition to require Respondent Department of Education (DOE) to initiate rule-making and has challenged the validity of two documents issued by DOE, alleging that they are unpromulgated rules. The challenged documents are a January 22, 2001, memorandum to District Management Information System Coordinators and District Assessment Coordinators and a March 23, 2001, memorandum to District School Superintendents, regarding "Responsible Instructor--Reading, Writing, and Mathematics."
Findings Of Fact Petitioner FEA is an employee association representing over 100,000 Florida educators for collective bargaining, representation in administrative and legal proceedings, professional development, and political activity. Its standing to bring this challenge was stipulated. Two DOE memoranda are challenged herein as unpromulgated rules. It was stipulated that the memoranda were, in fact, disseminated to the recipients indicated on them. Their content is not at issue and is recited in Findings of Fact 23-25, infra. Petitioner's witnesses believe that teacher evaluations and compensation ultimately will be tied to student performance. A law is already in place providing for the award of bonuses to "outstanding" teachers, and efforts to implement evaluation of teachers based on student performance are underway in some school districts. Petitioner's witnesses have concluded that the challenged memoranda establish statewide criteria for identifying the "responsible instructor" for teacher (or educator) assessment, credit, and/or monetary rewards, and that the use of the "responsible instructor's" social security numbers will be subject to abuse of confidentiality. Petitioner's witnesses were unaware of rulemaking activities associated with amending Rule 6A-1.0014, Florida Administrative Code, in the year 2000 and were unfamiliar with the Rule itself. The Rule itself has not been challenged in this proceeding. The Commissioner of Education is charged with maintaining an integrated information system for educational management. Section 229.555(2), Florida Statutes. This is called the Comprehensive Management Information System. The system must collect data from school districts to determine student, school, and district performance, and to support management decisions at the departmental, district, and school levels. The Commissioner of Education's responsibilities include providing operational definitions for the proposed system (Section 229.555(2)(a)2., Florida Statutes), determining information and data elements required for management decisions (Section 229.555(2)(a)3., Florida Statutes) and developing standardized terminology and procedures. (Section 229.555(2)(a)4., Florida Statutes). Section 229.57, Florida Statutes, establishes the purpose, scope, and criteria of assessing student performance, and school and district accountability. The State Board of Education is authorized to adopt rules to administer the provisions of both laws. Sections 229.555(3) and 229.57, Florida Statutes. DOE's Bureau of Education, Information, and Accountability Services maintains the database established by Section 229.555, Florida Statutes. DOE has promulgated administrative rules to implement Section 229.555, Florida Statutes, which rules have been officially recognized for this proceeding. There is no DOE rule which, in and of itself, refers to "responsible instructor" or "responsible instructor data element." Those terms also are not specifically used anywhere in the Florida Statutes. Section 229.57(11)(e)1., Florida Statutes, was amended, effective upon becoming law in June 1999 (see Section 7, Session Law 99-398), to read: The statistical system shall use measures of student learning, such as the FCAT, to determine teacher, school and school district statistical distributions, which distributions: Shall be determined using available data from the FCAT, and other data collection as deemed appropriate by the Department of Education, to measure the differences in student prior year achievement against the current year achievement or lack thereof, such that the "effects" of instruction to a student by a teacher, school, and school district may be estimated on a per-student and constant basis. DOE considered that amendment to be a legislative directive to DOE to measure the "effects" of instruction by a teacher, school, and district, using data from the Florida Comprehensive Assessment Test (FCAT) "and other data collection as deemed appropriate by the Department of Education." Upon that basis, DOE set out to determine what method to use to collect the data. After considering various alternatives, DOE selected the "responsible instructor" approach. DOE held workshops and solicited input to determine the appropriate method of implementing the requirements of Section 229.57(11)(e)1., Florida Statutes. Three methodologies were considered: Using existing Management Information System components which were not adequate to meet the new statutory language; doing laborious surveys on the day each FCAT was administered, which surveys would be accurate only for that single day; or using the responsible instructor element. Ultimately, the responsible instructor element was selected by Lavan Dukes and Thomas Fisher after talking to District Management Information System officials and testing officials and key staff members. Lavan Dukes is DOE's Bureau Chief for Education, Information, and Accountability Services. Thomas Fisher is Administrator of DOE's Assessment and Evaluation Section. The "responsible instructor element" was first applicable to the 2000-2001 school year. The "responsible instructor element" was first included within the Comprehensive Management Information System in April 2000, effective July 2000. It provides a four-page form for reporting and the following instructions: Submit only for Survey Period 2 for all students in grades 3-10 to identify teacher primarily responsible for instructing the student in reading, writing end mathematics. Report Social Security Numbers for instructors in each of the categories, reading, writing and mathematics. ELEMENTARY SELF-CONTAINED: Social Security Numbers of teachers of students in elementary self-contained classes may be reported in all three responsible instructor categories. MIDDLE AND HIGH SCHOOL LANGUAGE ARTS: unless a student has separate reading and writing classes, the language arts teacher would be reported for both the reading and writing category. KEY FIELDS: the key fields for this format are item numbers 1, 4, 5, 6, and 7. If a key field needs to be changed, the record must be deleted and resubmitted as an add. (Joint Exhibit 4) As such, the "responsible instructor element" became part of a voluminous publication entitled 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). (Joint Exhibit 3). Rule 6A-1.0014, Florida Administrative Code, prescribes data collection on an annual basis. The Rule was initially adopted in 1987. It has been amended 13 times between December 21, 1987, and October 17, 2000. Among other things, Rule 6A-1.0014, Florida Administrative Code, now incorporates, by reference, 2000-2001 Automated Student Information System, Volume 1 ("The Manual"). The collection of the "responsible instructor element" is contained for the first time in that publication as an automated student reporting format. Rule 6A-1.0014, Florida Administrative Code, cites as its legislative authority only Sections 228.093(3)(d), 229.555(2), 229.565.(3), and 229.781, Florida Statutes, and does not expressly purport to implement Section 229.57, Florida Statutes. Rule 6A-1.09422, pertaining to the creation, administration, and security of the FCAT, and Rule 6A-1.09981, involving implementation of Florida's system of school improvement and accountability do name Section 229.57, Florida Statutes. The evidence further shows that after the data element was included in the Rule, revised in October 2000, DOE staff conducted workshops around the state to explain and clarify changes in DOE's database requirements. Only after receiving input at its instructional workshops did DOE circulate the two memoranda at issue herein. On January 22, 2001, DOE promulgated a memorandum from Lavan Dukes and Thomas Fisher to District Management Information System Coordinators and District Assessment Coordinators throughout Florida. The memorandum's stated subject was "Responsible Instructor Data Element," and it states: Previously, you were given instructions by the Department's Education Information and Accountability Services Bureau relative to a new data element called "Responsible Instructor-Reading, Writing and Mathematics." The inclusion of this data element is related to the Department of Education's efforts to build a value-added accountability system in accordance with Section 229.57, F.S. We have received a number of inquiries concerning how districts should define and collect the requested data. This memorandum is being distributed to assist districts into [sic] submitting accurate and valid information about the "responsible instructor." The intent of the data element is to link each individual student to the person(s) primarily responsible for providing instruction in reading, writing and mathematics. While the concept is clear, in practice there may be more than one instructor identified. [T]he [sic] student at the high school level may be taking two mathematics courses, or the student may not be enrolled at the moment in either an English or mathematics course. This means that decisions about how to define and identify the "responsible instructor" must reside with the district and school staff. We are unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur. We have received a number of specific questions that can be used to illustrate the principles that may be followed, and these are discussed in the attachment to this memorandum. Review of these examples should be of assistance to you in completing the data request. We recognize that there are other situations that will arise that have not been addressed in the attachment. Hopefully you will be able to make your local decisions within the framework established in this memorandum. After you have completed the data collection activities and have had time to think about the process, please send a note to either of us with your suggestions for improvements in the future. Thanks for your assistance. (Emphasis supplied). Attached to the foregoing memorandum was a document entitled "Questions and Answers About the Responsible Instructor Data Element": Q: Should the district inspect the student's course/class schedule to determine who the responsible instructor is? Should this be tied to a particular date? A: Each district must determine whether it will collect the data from original sources through the use of a paper form or if it will analyze existing computer files to extract the information. In either case, the data collection activity is associated with Survey 3. The "responsible instructor" will be either the person currently delivering the instruction or the person who most recently provided the instruction. The latter would be illustrated by a student who took a mathematics course in the fall semester but was not registered in a mathematics course at the time of the Survey 3. Q: In a block schedule school, a student might not currently be enrolled in either an English or mathematics course at the time of Survey 3. He/she may have taken such courses in a previous block. How should the data be returned? See previous question. The task is to identify the teacher most recently delivering instruction to the student in the specified subject area. This may well be a teacher who taught English or mathematics in the previous round of the "block schedule." Q: How should one respond if the student actually is enrolled in two English or math courses at the time of Survey 3? A: The decision must be made at the local level as to whether there is a single person who is primarily responsible for instruction in reading, writing, or mathematics. One way to handle the situation would be for one teacher's name to be entered but to understand that this person's name represents the work of two teachers. This principle could be followed in situations where the student is in a team teaching classroom. If this approach is used, backup information must be retained at the local level to interpret any future data analyses that may be disseminated. Q. If a student is not currently enrolled in a reading, writing or mathematics course how should the data element be defined? It is difficult to imagine a situation in which a student would not be receiving instruction in these areas, but if it happens, the data element should be zero filled. Q: Is the Department requesting one record per student? A: Yes. Q: Can the Department specify what course numbers to use from the MIS data fields? A: No. This is a local decision related to how your data is organized and maintained. Q: What course numbers would be used for reporting "reading and writing?" A: In most instances the student will be receiving instruction in reading and writing through the English courses. At the elementary level, either a self-contained classroom or a team teaching situation would be encountered. The former would require identification of a single teacher whereas the latter would require a solution as described above in question number 3. A high school student could be taking English as well as a special course in Reading; however most students do not take a course titled "Reading." If a student is enrolled in two such courses, the decision of how to code it should be made at the local level. Q: Should the district code the courses in which the student is enrolled at the time of Survey 3 or courses the student may have taken earlier in the school year? A: The records should reflect the current courses except as discuss [sic] question number 1 above. Q: How would the district code a student who is taking a course in the Adult Evening School to make up the credit in the regular school program? A: No courses taken in the Adult Evening School should be coded. Q: How should districts report ESE students? A: Districts have a choice of either coding all students or coding only those students who are pursuing an instructional program leading to a regular high school diploma. If you code a student who does not actually take the FCAT there will be no match and no further analysis by the department for that student. Q: Should we code students for attending Juvenile Detention Centers? A: Yes. Q: Should we code the responsible instructors for students attending Charter Schools? A: Yes. On March 23, 2001, DOE promulgated a memorandum to District School Superintendents from Betty Coxe, Deputy Commissioner for Educational Programs. That memorandum's stated subject was "Clarification of Memorandum dated January 22, 2001- Responsible Instructor-Reading, Writing and Mathematics." It reads: The new data element "responsible instructor- reading, writing, and mathematics" that is being collected will never be used by the Florida Department of Education to evaluate individual teachers. This new data is being collect [sic] at the state level for two primary reasons: to provide information to the State which allows the determination of the success of teaching programs and to track state-level educational trends. School districts have the sole responsibility of conducting teacher evaluations. Florida has a number of teacher-related initiatives that clearly need this data for program evaluation purposes. These include, but are not limited to, programs associated with teacher preparation, alternative certification, and interstate licensure reciprocity. Information must be gathered on the relative success of these programs to guide state policy. Trends must be identified in order to promote a system of ongoing quality improvement. Furthermore state law (F.S. 231.29) says that test scores are just one criteria [sic] used by school districts for evaluating teachers. Other criteria that districts should use are maintaining classroom discipline, knowledge of subject matter, ability to plan and deliver instruction, etc. In other words, there are various other criteria besides test scores that should be taken into account before school districts can evaluate teachers. Please disseminate this information as widely as possible within your district. Your assistance is, as always, much appreciated. The January 22, 2001, memorandum does not direct the school districts to submit the data element in any particular way and does not impose sanctions for any school district's failure to comply with its contents. It does contain the interesting language, for purposes of the case at bar, that DOE is "unable to provide a complete list of rules to follow since we cannot imagine all the permutations that may occur." The document issued on March 23, 2001, does not provide any directives as to the method for designating the data element or impose any sanctions. At most, it suggests possible alternatives in reporting, with final decisions left up to the reporting agency. Indeed, if any sanctions exist with regard to the two memoranda, the sanctions are imposed by existing rules or statutes. These memoranda were intended to advise districts as to possible optional methods of reporting the new data element. If they had not been generated, school districts still would be required to file the new data element. In either case, schools and school districts (not DOE) make the ultimate determination of how to report the data element. Petitioner presented no evidence to demonstrate that the challenged memoranda impose any requirements or solicited any information not already specifically required by statute or rule. The concerns of Petitioner's members related in Finding of Fact 3 are speculative. To the extent that educator assessment, credit, and/or money awards are at issue, they would be affected, if at all, by their respective district's decisions at a different level and in a function(s) subsequent to DOE data collection. These memoranda do not impinge on independent evaluations, etc., by school districts. As to concerns over confidentiality of social security numbers, there was no evidence presented that the new data element does anything other than collect data on registered educators whose social security numbers are already known to the districts and DOE for retirement and certification purposes. No reason was demonstrated to suppose that a breach in the confidentiality of those social security numbers would occur as a result of the new data element or as a result of the challenged memoranda. There was anecdotal testimony to the effect that teachers have been placed in improper competition with one another due to these memoranda (allegedly unpromulgated rules) and that, as a result of this competition, apparently based on some teachers' speculation as to what the respective school districts may ultimately do with the data collected, those teachers are teaching reading at the expense of other subjects and/or are emphasizing reading about science and other technical subjects while eliminating more worthy "hands-on" projects and laboratory experiments of greater benefit to their students. Similar anecdotal testimony suggested that all teachers are now teaching so that their students read objective textual as opposed to "fun" or subjective material and so that their students are able to answer the type of questions posed on the FCAT, instead of gaining a broader range of knowledge. While these side- effects of certain teachers' perceptions of how their respective districts may use the data gathered and processed by DOE may demonstrate that the concept of accountability of teachers via the FCAT is either good or bad or valuable or not valuable, it fails to define the memoranda at issue as rules.
