The Issue The issue is whether Respondent's preliminary decision to negotiate a contract with Intervenor to provide construction manager at risk services for renovations at two elementary schools is contrary to statutes, rules, policies, or the request for qualifications, in violation of Section 120.57(3)(f), Florida Statutes (2009).
Findings Of Fact Respondent Martin County School Board ("Respondent" or "the School Board") operates the public school system established in Martin County, Florida, pursuant to Section 1001.30, Florida Statutes. In 2002, the School Board began using "construction managers at risk" ("CMR") who bid to negotiate contracts for construction projects. If contract negotiations are successful, the CMR assumes the responsibility for scheduling and coordination in pre-construction planning and during construction, including soliciting bids from subcontractors. The CMR is responsible for the successful, timely, and economical completion of a project. See § 255.103, Fla. Stat. In May 2009, the School Board hired a Director of Facilities who proposed new ranking criteria for CMR services. The School Board approved the criteria at its meeting on July 28, 2009. On October 1, 2009, the School Board issued Request for Qualifications No. 080351-0-2009 (“the RFQ”), for CMR services for renovations to some of the buildings at two public elementary schools, Pinewood and Crystal Lake. The scope of the renovations included approximately 60,000 square feet at Pinewood with an estimated construction cost of $2,975,000, and 80,000 square feet at Crystal Lake with an estimated construction cost of $3,725,000. Twelve firms, including Urban Building Systems, Inc., ("Petitioner" or "Urban") and Pirtle Construction Company, Inc., ("Intervenor" or "Pirtle") submitted timely responses to the RFQ. The RFQ included “Instructions to Proposers” which, in relevant part, described the process as follows: The process is outlined in School Board Rule 6330. School Board rules are available on- line at www.sbmc.org/schoolboard/board- rules.php. Step 1 - SHORT LISTING. Following receipt of the proposals, the District’s Professional Services Advisory Committee (PSAC) shall meet to review and analyze the proposals for the purpose of reducing the number of applicants qualifying for interviews with the PSAC to no more than six (6). The PSAC shall be comprised of one (1) administrator from the Facilities Department, one (1) administrator from the Finance Department, one (1) administrator from the Operations Department, one (1) member designated by the Superintendent, one Board member and one (1) representative from the community. The Director of Facilities will serve as chairperson. If the District receives six (6) or fewer proposals, all applicants will be granted interviews with the PSAC. The following criteria and point values will be used by the PSAC to determine eligibility for interview: Letter of Interest (office address on letterhead to help determine “location” points) Professional Qualification Statement (PQS) Points 0 0 Minority Business Certification 0-5 4.. Company History and Structure – documenting capabilities and past record of performance 1-5 Location 1-5 Previous Work for MCSD 1-5 Letter of Intent from a surety company indicating the applicant’s bond ability for this project. The surety shall acknowledge that the firm may be bonded for each phase of 10 the project, with a potential maximum construction cost of $8,646,860. The surety company must be licensed to do business in Florida and must have a Best Rating of “A”. Qualification and Experience of Personnel – documenting capabilities, ability and adequacy of personnel 1-10 Current Work Load 1-10 Related projects similar in scope or amount completed by the applicant, with particular emphasis on school projects. 1-10 Project Management Systems 1-10 Scheduling Systems 1-10 Cost Control Systems 1-10 Litigation, major disputes, contract defaults and liens in the last five years. Note: see criteria score sheets attached: Exhibit B – Short List for Interviews Exhibit C – Recommended Rank Order Up to six (6) firms with the highest ratings will be interviewed by the PSAC. Step 2 - PROFESSIONAL SERVICES ADVISORY COMMITTEE. The PSAC will reduce the number of qualified applicants to three, and submit a recommended order of preference of these applicants to the Superintendent and School Board. The PSAC’s recommended order of preference is advisory only, and is not binding on the School Board. The PSAC shall apply the following criteria and point values to determine a number rating and recommended rank order: Proposed Minority Business Involvement in Project 0-5 Progressive use of technology 0-5 Volume of work previously awarded to each firm by the district with the object of effecting am (sic) equitable distribution of contracts among qualified firms 0-5 Recent, current and projected workloads 0-5 Past Record and Performance 0-5 Experience with and Plans to promote local subcontractor participation 0-5 Participation in, and promotion of, post-secondary vocational programs 0-5 Warranty Services 0-5 Project approach and methods – Understanding of Project 0-10 Project Schedule and Scheduling tools – Applicants willingness to meet time requirements 0-10 Cost Control & Value Engineering Techniques – Applicants willingness to meet budget requirements 0-10 Quality Control Techniques 0-10 Safety Program 0-10 Ability of Professional Personnel Applicants will be allowed a total of 45 minutes for the interview with the PSAC. 0-10 Suggested: 20 minutes for presentation 15 minutes for questions 10 minutes for closing comments Step 3 – PRESENTATIONS. The School Board may, in its sole discretion, invite one or more of the three finalists to interview with the School Board prior to the final ranking by the School Board. Step 4 – FINAL RANKING. The School Board will evaluate qualifications of the three finalists, which evaluation shall include consideration of the written materials submitted by the applicants, performance data on file with the District, written materials submitted by other firms or individuals, and the recommendation of the PSAC. Although the Board shall consider the recommendation of the PSAC, such recommendation shall not be binding on the Board, and the Board retains the authority to re-rank the three finalists. At the conclusion of its evaluation, the Board shall adopt an order of preference for the three finalists it deems the most highly qualified to perform the required services. In addition to the criteria set forth in the RFQ, School Board Rule 6330 IV.A. required the Professional Services Advisory Committee ("PSAC") to "evaluate . . . performance data on file." That evaluation was not done because the School Board failed to maintain any performance data. There is no evidence that scoring and ranking was affected by the lack of performance data. The ("PSAC") met on November 12, 2009, for the “Short Listing” and decided to invite six firms, with the highest number of points, to make presentations to the PSAC. The firms and their corresponding Step 1 points were as follows: Firm Step 1 Points 1. Morganti 543 2. Pirtle 541 3. Suffolk 531 4. Urban 526 5. Klewin 510 6. Weitz 510 When the PSAC met on November 23, 2009, to reduce the number of qualified applicants to three and to determine the order of preference, the rankings were as follows: Firm Step 2 Points 1. Pirtle 436 2. Klewin 424 3. Urban 424 4. Morganti 423 5. Suffolk 421 6. Weitz 400 The PSAC meeting on November 12, 2009, was not advertised as a public meeting in violation of the "Sunshine Law." The three highest ranking firms from Step 2, Pirtle, Klewin and Urban, made their presentations at a workshop on December 15, 2009, to the following School Board members: Lorie Shekailo, Chair; Susan Hershey, Vice Chair; David L. Anderson; Maura Barry-Sorenson; and Laurie Gaylord. After the workshop, the School Board convened a regularly scheduled meeting on the same evening, and voted to rank Pirtle first, Urban second, and Klewin third. Pirtle was ranked number one by four School Board Members, Ms. Shekailo, Ms. Hershey, Dr. Anderson, and Ms. Gaylord. Urban was ranked number one by one member, Ms. Barry-Sorenson. On February 11, 2010, Urban filed a Notice of Protest and, on February 19, 2010, a Formal Protest of the School Board’s intent to negotiate a contract with Pirtle. After the School Board and Urban were unable to resolve the issues informally, Urban filed an Amended Protest on March 2, 2010. Step 1 - Short Listing In Step 1, Urban challenged the points awarded for minority business certification, location, and letters of intent for bonding ability. Urban also challenged the fact that firms that had done the most work for the School Board were favored with higher scores in Step 1 in apparent conflict with the statutes, rules, and policies that promote an equitable distribution of work. There was no disagreement that Urban is a certified minority business enterprise ("MBE"), and that Pirtle is not. The RFQ criterion for Step 1 is "minority business certification" with "0-5" points available. Urban urges that scores should be either 0 or 5 points, because a firm either is or is not an MBE. To meet the MBE procurement goal of Section 287.042, Florida Statutes, the RFQ authorized that use of the CMR format in effect on March 1, 2005, but the PSAC used the format developed in 2009. When it met, the PSAC members used guidelines allowing it to award 5 points to a certified minority business, and to award 3 to 4 points if the business had a minority partner. As a result, each of the six members of the PSAC gave Urban 5 points and gave Pirtle 3 points. If Urban is correct, then its score for Step 1 would have remained 526, but Pirtle's would have been 541 minus 18 or 523. Because all other firms, except Urban and West,2 including all of those selected in Step 1, would have had the same 18-point reduction in their scores, the firms that moved on to Step 2 would have been the same. Urban's claim that Pirtle would have been eliminated from consideration based on a change in the MBE scoring is not supported by the record.3 Urban's interpretation of the MBE scoring is not supported by other provisions of the RFQ and is contradicted by its claim to be entitled to additional points for its bonding ability. The letter of intent for bonding ability at a specific amount from an A-rated surety is also something that a firm either does or does not have, but there is no choice or range of points available for that criterion. The RFQ provides for 10 points if a firm has the letter and there is no range, so without the letter a firm presumably would have gotten no points. Five members of the PSAC gave both Pirtle and Urban 10 points for having the letters of intent from an A-rated surety company indicating the applicant's bonding ability. One person gave Pirtle 10 points but gave Urban 5 points. Assuming, as previously noted, that the criterion called for either no points or 10 points, then Urban would have finished Step 1 with 5 additional points, or a total of 531, tied with Suffolk for third place.4 The criterion for location, which offered a range of 1-5 points in the RFQ, was more specifically refined for the PSAC as follows: 5 points for a Martin County business; 4 points for the Tri-County area; 3 points for Dade, Broward, Orlando, etc. Every member of the PSAC gave Urban, headquartered in Palm City, Martin County, 5 points. Pirtle, headquartered in Palm Beach County, received five scores of 4s and one 3. Urban's claim that Pirtle is located in Broward County and had only recently opened an office in Palm Beach County is not supported by the evidence. Pirtle recently moved from one office in Palm Beach County to another office that is also in Palm Beach County. Pirtle was entitled to an additional point for location from one PSAC member. Step 2 - PSAC In Step 2, the PSAC narrowed the list to 3 firms. Urban argued that scores from Step 1 should have been carried over to Step 2. That position is not supported by the terms of the RFQ, which authorized differences in criteria for Step 2 with no methodology for incorporating Step 1 scores. Urban challenged, in Step 2 (and again in Step 4 below), the scoring for "volume of work previously awarded to each firm by the district with the object of effecting an equitable distribution of contracts among qualified firms." Unlike Step 1 scoring, in Steps 2, 3, and 4, the qualified firms that have done the least work for the School Board should be favored. Since the School Board began using CMR contracts in 2002, there have been three different CMRs for three projects at high schools, three different CMRs for four projects at middle schools, and six different CMRs for six projects at elementary schools. In the PSAC's evaluation of the volume of work previously done, Urban received a score of 5 for having done less work than Pirtle, which received a score of 4. Urban maintained that Pirtle should have received zeros from the five PSAC members and would have been eliminated in Step 2, with a score of 416 instead of 436. At the time of the RFQ review, the School Board had five ongoing CMR contracts with five different firms. Pirtle was one of the five. The Chair of the PSAC explained that under the ranking system, a zero should have been reserved for any firm that had two ongoing or pending CMR contracts. Differentiating between firms with one contract and those with more than one contract, is reasonable. The parties stipulated that from late 2003 or early 2004 through December 15, 2009, Pirtle has been awarded a CMR contract three times for total construction costs of $71,063,746. Urban was awarded one CMR contract for $7,841,814 in construction costs. It is impossible to conclude from total construction costs alone that Pirtle should have been further penalized based on the volume of past and current work. One CMR for Pirtle, to construct Anderson Middle School in 2005, accounted for $33,446,609, or over 47 percent of Pirtle's total CMR projects. Urban has never built a school from start to finish and did not respond to the Anderson RFQ. Pirtle has had a total of seven contracts or amended contracts, as compared to Urban's one. Before the project at issue in this case, Urban and Pirtle had only competed for the same CMR project once, the Pinewood/Seawind RFQ, and Urban was selected. That RFQ provided for "services necessary for the development and phased construction of an additional classroom at Pinewood Elementary, Seawind Elementary and possibly additional classrooms at other elementary schools in the future." The RFQ also advised that "[P]hases may or may not be consecutive. Additional phases may be added by amendment to the CMR pending successful performance and availability of funds." The challenged CMR proposal in this case includes renovations not invited to enter into a contract amendment for this project. Pirtle's seven contracts or amended contracts included four phases of construction at Martin County High under one CMR contract awarded in 2006. The language in the Martin County High School RFQ providing for subsequent phases was identical to that in the Pinewood/Seawind RFQ. Unlike Urban, Pirtle has been the CMR for all phases at Martin County High, including the cafeteria, the music building, and utilities, for total construction costs of $18,502,726, or another 26 percent of Pirtle's total. Urban maintains that each of these, as a matter of law, should be considered separately in assessing the volume of work previously awarded to Pirtle, further reducing its score. Urban also maintains that the School Board uses "phases" in a manner that violates its governing statutes and rules. Urban claimed that "the School Board's definition of project is contrary to statute" because Section "287.055 defines project as a "fixed capital outlay activity", not several fixed capital outlay activities." In fact, the definition in Section 287.055(2)(f), Florida Statutes, is as follows: "Project" means that fixed capital outlay study or planning activity described in the public notice of the state or a state agency under paragraph (3)(a). A project may include: A grouping of minor construction, rehabilitation, or renovation activities. A grouping of substantially similar construction, rehabilitation, or renovation activities. Urban also cited as support for its position the State Requirements for Educational Facilities (SREF), as incorporated in Florida Administrative Code Rule 6A-2.0010, and School Board Rule 6330. The School Board Rule, with minor variations, tracks the language of Section 287.055(2)(f), Florida Statutes. The SREF definition is as follows: (71) Project. A project can be one or more of the following: Architectural/Engineering Project. Project in which an architect or engineer translates specific educational requirements into drawings and specifications. Construction Project. The process in which a contractor uses plans and specifications to assemble materials, erect a building or structure, or physically modify real property. (Emphasis added.) Based on the language in the statute and rules, and the differences in the past experience of Pirtle and Urban, it is not possible to reach a factual conclusion that the PSAC erred in its consideration of Pirtle's volume of work. Step 3. Presentations The School Board exercised its discretion to invite the three finalists to make presentations. In a letter dated December 7, 2009, Urban was notified that it was one of three finalist and would be given 30 minutes "to address the fourteen items noted in the RFQ and should reflect emphasis to items with the greatest weight." Urban was notified, in a letter dated December 9, 2009, that the time for the presentation had been reduced to twenty minutes and that "[t]he presentation should be structured to briefly address the fourteen items noted in the RFQ with emphasis on your firm's capabilities and project conditions." Rather than "briefly address[ing] the fourteen items" as instructed, Urban spent an inordinate amount of its time having company representatives introduce themselves and giving the details of the phasing of one of the projects. Urban, therefore, was unable to complete its presentation. When given an opportunity during questioning to offer more information, Urban said its warranty was "forever" although its written material mentioned a 12-month walk through. One School Board member described the comment as "flippant." By contrast, when Pirtle's attention was called to its representative's apparently mistaken statement that its warranty was 25 months, although their written material showed 24 months, Pirtle's Vice President quickly said it would stand by the 25- month statement. In response to an inquiry concerning apprenticeships, Urban mentioned hiring students and having had one go on to attend the Rinker School at the University of Florida. By contrast, during its presentation, Pirtle noted that 50 percent of the subcontractors on its last project have apprenticeship programs. The criteria for Step 3, as indicated in the letters to the three presenters, were the 14 items listed in the RFQ. Step 4. Final Ranking Urban alleged that it was prejudiced by the actions of the School Board because Step 2 scores were not carried forward to Steps 3 and 4. Step 2 scores were the basis for the selection of firms competing in Steps 3 and 4. As noted, the School Board members used Step 2 criteria to evaluate the PowerPoint presentations in Step 3 and for final ranking in Step 4. School Board Members differed in how far back they considered "recent" work ranging from "over the years" to two to five years. There is no specific criteria that would dictate a certain period of time. There is no doubt, however, that they were aware of what each firm had done. In their presentations to Respondent, both Petitioner and Intervenor touted their success in performing previous projects for the Respondent and others, and listed the projects. Petitioner listed 11 hard bid projects and one CMR project, emphasizing that it was awarded in 2002. Intervenor listed six projects, both hard bids and CMRs from 1995 through 2005, including Martin County High School. Foremost in the mind of Ms. Barry-Sorenson, who ranked Urban number one, were Urban's MBE certification and that it was a local firm. In addition to these criteria, other School Board Members mentioned the following: business reputation, professionalism, ability to interact with school staff, sophistication of the approach and presentation, explanation and understanding of the project, depth of qualified personnel, in- house technology staff, mention of the Jessica Lundsford Act, or the general thinking that one firm was more qualified than the other. These factors were not improperly considered. School Board Rule 6330 provides, in relevant part, that the School Board may consider the following: E. The evaluation process for professional services shall include, but not be limited to, capabilities; adequacy of personnel; past record; experience . . . Campaign Contributions Pirtle was awarded its first of its three CMR contracts in late 2003 or early 2004, to renovate Hobe Sound Elementary School. Subsequently, Pirtle or its representatives made two $500 contributions in 2004 and two $500 contributions in 2008 to Dr. Anderson; one $500 contribution in 2006 to Ms. Gaylord; two $500 contributions in 2008 to Ms. Hershey. Pirtle also solicited contributions for Dr. Anderson from its subcontractors, but the record does not indicate the amount of contributions received as a result. Pirtle has given no contributions to Ms. Shekailo who, along with Dr. Anderson, Ms. Gaylord, and Ms. Hershey, ranked Pirtle number one, or to Ms. Barry-Sorenson, who ranked Urban number one. Pirtle has also given no contributions to Ms. Barry-Sorrenson who ranked Urban number one. Of the last five CMR projects prior to this one, Dr. Anderson ranked five different firms number one, including Pirtle and Urban once each. On the same projects, Ms. Gaylord ranked Pirtle number one twice, and Urban and two other firms number one once. Ms. Hershey and Ms. Shekailo did not rank either Pirtle or Urban number one among competitors for the five CMR projects prior to this one. There is no evidence of a pattern of favoring Pirtle over Urban for reasons other than the criteria established by statutes, rules, policies, and the RFQ.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order rejecting Urban's protest. DONE AND ENTERED this 23rd day of August, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 23rd day of August, 2010.
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated August 22, 2002, and in the Notice of Specific Charges filed October 12, 2002, and, if so, whether dismissal from employment is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002). At the times material to this proceeding, Mr. Starr was employed by the School Board as a social studies teacher at Lake Stevens. After receiving a degree in political science from Loyola University, Mr. Starr enrolled in the social studies education program at Florida International University. Mr. Starr completed this program in the summer of 1998 and applied for a teaching position with the Miami-Dade County public school system. He was hired as a substitute teacher and placed in a substitute teacher pool so that he worked at various schools, and he also taught in the Adult Education Program at North Miami Senior High School. Dr. Alvin Brennan became the principal of Lake Stevens in January 2000. In or around November 2000, he hired Mr. Starr to teach social studies at Lake Stevens. At the times material to this proceeding, Arnold Montgomery was the assistant principal at Lake Stevens who, among other duties, supervised the social studies program, observed teachers' classroom performance, and acted as a resource person regarding curriculum, instructional, and academic issues at the school. In a Teacher Assessment and Development System Post- Observation Report dated January 18, 2001, Dina Carretta, an assistant principal at Lake Stevens, rated Mr. Starr acceptable in all six categories of the Teacher Assessment and Development System evaluation instrument. Mr. Starr's failure to keep a standard grade book. In early November 2001, Dr. Brennan learned that the State Department of Education intended to include Lake Stevens in a Full-Time Equivalency audit. The grade books of the teachers at Lake Stevens were to be reviewed as part of the audit to ensure that Lake Stevens accurately reported its full- time equivalents to the district so that the State could ultimately determine the accuracy of the number of full-time equivalents reported by the various school districts to the State. On or about November 2, 2001, Dr. Brennan instructed all of the teachers at the school to turn over their grade books to him for review so that he could prepare for the audit. It is one of the responsibilities of a teacher to maintain a grade book that contains the attendance record and grades for each student in his or her classes. Mr. Starr did not submit a grade book to Dr. Brennan in response to this instruction, and Dr. Brennan called Mr. Starr to his office and directed him to turn over his grade book. Mr. Starr told Dr. Brennan that he was experimenting with a computerized grade book and that only he could understand it.2 Dr. Brennan explained to Mr. Starr that each teacher is required to keep complete and accurate grade books because funding is dependent on the number of students attending a school and because grade books are official documents that must be produced to parents who ask about their children's grades and attendance. Mr. Starr still did not provide his grade book to Dr. Brennan as instructed. During roughly this same timeframe, Mr. Montgomery began preparations for an observation of Mr. Starr's classroom performance in accordance with the Professional Assessment and Comprehensive Evaluation System ("PACES"), which is a tool for evaluating teachers that came into use in the Miami-Dade County public school system in or about 1999. Mr. Montgomery intended to conduct an observation of Mr. Starr's classroom in late November 2001, and, in accordance with procedure, Mr. Montgomery scheduled a pre-observation conference with Mr. Starr for November 19, 2001. In the notice of the pre-observation conference, Mr. Montgomery asked Mr. Starr to bring his grade book, lesson plans, and three student folders to the conference. Mr. Starr did not attend the pre-observation conference and did not provide the materials that Mr. Montgomery had requested. Mr. Montgomery followed up with Mr. Starr and asked him again to provide the requested documents; Mr. Starr responded that he would provide the documents, including the grade book, at a later time. Mr. Starr did not provide his grade book to Mr. Montgomery prior to or at the November 26, 2001, observation. Dr. Brennan held a Conference-for-the-Record with Mr. Starr on December 7, 2001, to discuss Mr. Starr's failure to comply with Dr. Brennan's directive to provide him with a proper grade book; Ms. Carretta was also in attendance. It is noted in the Summary of the Conference-for-the-Record, dated December 13, 2001, that Mr. Starr was asked whether the United Teachers of Dade represented him, and he responded that he was not a member of the union. In the Summary of the Conference-for-the-Record, Dr. Brennan recorded that the purpose of the conference was to discuss Mr. Starr's non-compliance with School Board Rule 6Gx13- 4-1.21 and with administrative directives requiring that he properly maintain a grade book. Dr. Brennan explained to Mr. Starr during the conference the importance of maintaining a grade book to record daily attendance and grades for his students and advised him that one of his responsibilities as a teacher was to maintain a proper grade book. At the December 7, 2001, Conference-for-the-Record, Dr. Brennan advised Mr. Starr that, although there were authorized computer grade book programs, the program with which Mr. Starr was experimenting was not authorized. Dr. Brennan directed Mr. Starr not to use any computerized or computer- assisted grade books without first obtaining Dr. Brennan's approval and instructed him to ask Arnold Montgomery, an assistant principal at Lake Stevens, to help him set up and maintain a standard grade book. Mr. Starr did not believe that he was required to get Dr. Brennan's approval for the use of a computer grade book "right off the bat."3 In his view, the rules provided that Dr. Brennan had the authority to demand that he not use a computer grade book but that the School Board allowed computer grade books in general. Mr. Starr continued to use his computerized "grade book," and he did not provide a grade book to Dr. Brennan or to Mr. Montgomery during the 2001-2002 school year, despite being instructed to do so on numerous occasions.4 At some point, Mr. Starr provided Dr. Brennan with sheets of paper that Mr. Starr identified as his computerized grade book, but Dr. Brennan was unable to understand the documents that Mr. Starr presented to him. Mr. Starr's failure to adhere to Lake Stevens' discipline plan. Currently, and at the times pertinent to this proceeding, Lake Stevens has in place a discipline plan developed by the school's Discipline Committee pursuant to which teachers are required to go through five steps before taking the sixth step of requesting administrative action with respect to students who presented discipline problems. This six-step discipline plan has the approval of the teachers and administrators at Lake Stevens. Pursuant to the plan, the teachers at Lake Stevens are grouped into teams of six teachers, who work in collaboration in carrying out each step of the six-step discipline plan. It is Dr. Brennan's responsibility to ensure that the six-step discipline plan is implemented. The main elements of the six-step discipline plan are as follows: When a student misbehaves in a teacher's classroom, the teacher first initiates a discussion about the student at the daily team meeting to determine whether any other teachers on the team have a problem with that student. If necessary, the team moves to the second step, which requires that the team conduct a conference with the parent(s) of the student. If the problem still is not resolved, the third step is initiated and the student is required to confer with a school counselor. The fourth step in the six-step plan requires that the student meet with both the school counselor and the team. The fifth step is a parent/student conference with the school counselor and the team. If the problem has not been resolved after these five steps have been completed, the team then moves to the sixth step and the teacher is permitted to complete a referral sending the student to a school administrator for intervention.5 The referral must be routed through the team leader. Once the team leader approves a referral, the team leader meets with the administrator for the particular grade-level, and they decide the appropriate punishment for the student. If a teacher refers a student for administrative action before the first five steps in the plan are completed, the team leader sends the referral back to the teacher with instructions to follow the appropriate procedure. According to Mr. Starr, there was chaos in his classroom by December 2001. Prior to this time, he had spoken with Dr. Brennan about the problems he was having maintaining discipline, and Dr. Brennan told him he needed to learn to handle the problems himself. Dr. Brennan insisted that Mr. Starr strictly adhere to the six-step discipline plan, and Dr. Brennan refused to provide direct assistance to Mr. Starr even though Mr. Starr repeatedly requested his assistance. In Dr. Brennan's view, it is the teacher's responsibility to manage the learning environment, and it is not the responsibility of the principal to help the teachers maintain discipline in their classrooms. To this end, Dr. Brennan encouraged Mr. Starr to work with the team of teachers on his grade level on a daily basis for assistance in managing his classroom. In addition, Dr. Brennan directed Mr. Starr to discuss techniques for classroom management with the members of a Professional Growth Team that was appointed in December 2001 to assist Mr. Starr and with Mr. Montgomery, who was available to assist Mr. Starr. Mr. Starr resisted all efforts to assist him in managing his classroom. Mr. Starr absolutely refused to adhere to the six-step discipline plan during the entire 2001-2002 school year and repeatedly prepared referrals and sent students to the administrative offices without having completed even the first step of the six-step plan. Mr. Starr did not attend team meetings and isolated himself from the team. Because of his refusal to work with his team, it was very difficult for anyone to help Mr. Starr deal with students that he considered disruptive and defiant. Mr. Starr refused to adhere to the six-step discipline plan because he disagrees with the philosophy of the plan; he believes that misbehavior must be addressed with immediate consequences and that, because it took days to complete the five steps required before a referral could be made, the plan reinforced his students' perceptions that there were no consequences to defiance and disruption in his classroom.6 Mr. Montgomery had numerous conferences with Mr. Starr about his failure to follow the six-step discipline plan, specifically about his not following the first five steps in the plan, but, rather, going directly to the sixth step and referring misbehaving students to Dr. Brennan's office. Mr. Starr told Mr. Montgomery periodically throughout the 2001- 2002 school year that the six-step discipline plan did not work for him and that he was not going to follow the plan. Mr. Starr described the conditions in his classroom in a memorandum to Dr. Brennan dated March 5, 2002: The situation in my classroom has become dangerous and untenable due to rampant student defiance. Students no longer obey what the instructor directs them to do, and they are no longer in compliance with any class rules. Lesson objectives are not being met due to the chaos, and there is a potential that student[s] may be injured. Mr. Starr referred in his memorandum to a number of "management referrals" that he contended had not been processed by the administration, and he attributed the chaos in his classroom to "administrative neglect." Mr. Starr concludes his memorandum by stating: "The weakness in my management is due to lack of administrative support because of inadequate follow-up." Mr. Starr sent copies of this memorandum to the district office, the regional superintendent and the district superintendent of schools.7 Dr. Brennan responded to Mr. Starr's memorandum by discussing the situation in Mr. Starr's classroom with the administrator handling discipline matters for the sixth grade;8 during the discussion, Dr. Brennan "question[ed] the validity of the statements that Mr. Starr was making in his letter."9 Dr. Brennan then referred Mr. Starr to the leader of his team and to the grade-level administrator for the sixth grade for a review of the six-step discipline plan. Dr. Brennan also instructed Mr. Starr to work with his team on discipline problems. Dr. Brennan found it very difficult to assist Mr. Starr, however, because, in Dr. Brennan's view, Mr. Starr resisted all of the administration's efforts to help him with the discipline problems in his classroom and refused to implement the six-step discipline plan. In addition, many of the students identified by Mr. Starr as discipline problems were not causing problems for any of the other teachers on Mr. Starr's team. Mr. Starr's refusal to complete prescriptive activities. Mr. Starr was in his second year of an annual contract during the 2001-2002 school year and was, therefore, considered a new teacher subject to two formal PACES observations each year. Whenever a PACES observation is scheduled, the teacher is notified at least a week in advance, and a pre-observation conference is scheduled. The teacher is told to bring to the pre-observation conference his or her grade book, lesson plans, and other materials for review so that everything will be in order at the time of the observation, and the teacher and the administrator who is to conduct the observation discuss the observation procedures. Currently, and at the times material to this proceeding, new teachers at Lake Stevens are given a "free" observation, if necessary, in addition to the two required formal observations. The purpose of the free observation is to allow the administrator observing the teacher to identify the teacher's deficiencies, to discuss the deficiencies with the teacher, and to provide the teacher with assistance to remedy the deficiencies prior to the formal observation. A teacher who has deficiencies in the first observation is given a week or more to work on correcting any deficiencies before an official observation is conducted. Mr. Montgomery scheduled a PACES observation of Mr. Starr's classroom performance for November 26, 2001. In preparation for this observation, Mr. Montgomery scheduled a pre-observation conference for November 19, 2002, and he directed Mr. Starr to bring with him to the meeting his grade book, his lesson plans, and three student folders. As noted above in paragraph 10, Mr. Starr did not attend the conference, and he did not produce any of the materials requested by Mr. Montgomery. Mr. Montgomery, therefore, did not have an opportunity to review these items prior to the observation. Mr. Montgomery determined during the PACES observation on November 26, 2001, that Mr. Starr's classroom performance was deficient in a number of the components of the PACES evaluation instrument. Mr. Montgomery attributed these deficiencies in large part to Mr. Starr's failure to have a lesson plan prepared for his classes and to his inability to manage his classroom. Had Mr. Starr's classroom performance been acceptable during the November 26, 2001, observation, that observation would have been considered his formal PACES observation. Mr. Starr's classroom performance had serious deficiencies, however, and the November 26, 2001, observation was treated as a "free" observation. Mr. Montgomery met with Mr. Starr after the November 26, 2001, observation, discussed the deficiencies in his classroom performance, and instructed him to provide the grade book, lesson plans, and student folders that Mr. Montgomery had previously requested before the formal PACES observation of his classroom performance. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on December 3, 2001, after having given Mr. Starr one week's notice. Mr. Starr again failed to provide his grade book, lesson plans, or student folders, and Mr. Montgomery found his classroom performance deficient in five out of the seven PACES domains: Mr. Montgomery found that Mr. Starr was deficient in planning for teaching and learning; managing the learning environment; enabling thinking; classroom-based assessment of learning; and professional responsibility.10 On or about December 13, 2001, Mr. Montgomery and Dr. Brennan conferred with Mr. Starr to discuss his December 3, 2001, observation. Mr. Starr was provided with a copy of the observation and was told to work with a Professional Growth Team for assistance in correcting the deficiencies in his classroom performance. He was also directed to work with a buddy, a peer, and a master teacher to learn how to set up a grade book and to learn what must be included in a lesson plan. A Professional Growth Team consists of two teachers, one selected by the teacher and one selected by Dr. Brennan. Mr. Starr selected Ms. Davis and Dr. Brennan selected Ms. Scriven-Husband as members of the Professional Growth Team.11 Dr. Brennan gave Ms. Davis and Ms. Scriven-Husband a general outline of Mr. Starr's deficiencies and advised them of the areas in which they were to work with Mr. Starr. The work of the Professional Growth Team was done under the supervision of Dr. Brennan, and he was advised that Mr. Starr was not completing the tasks given him by the Professional Growth Team. One of the items Mr. Starr was to produce for the Professional Growth Team was a long-range plan. Dr. Brennan wanted Mr. Starr to produce a long-range plan so the Professional Growth Team could determine whether he knew how to plan a lesson. Dr. Brennan was advised that Mr. Starr did not provide such a plan to the Professional Growth Team. When Dr. Brennan questioned Mr. Starr about the plan, Mr. Starr replied that he intended to prepare it over the Christmas holidays. Dr. Brennan told him to provide the plan by the end of the day; Mr. Starr did not do so. Mr. Montgomery scheduled an informal observation of Mr. Starr's classroom performance on or about February 8, 2002. Mr. Montgomery had spoken periodically with members of Mr. Starr's Professional Growth Team between the December 3, 2001, and February 8, 2002, observations and had been advised that Mr. Starr had not provided the Professional Growth Team with his grade book, lesson plans, or student folders and that Mr. Starr had not sought the team's assistance in correcting the deficiencies identified in the December 3, 2001, observation. Mr. Montgomery again instructed Mr. Starr to provide his grade book, lesson plans, and student folders prior to the February 2002 observation. In response to this instruction, Mr. Starr advised Mr. Montgomery that he used an electronic grade book and that his lesson plans were on his Palm Pilot because he felt that he had more flexibility using these tools than trying to work with written documents. Mr. Montgomery told Mr. Starr to provide hard copies of the lesson plans and the grade book, as required by the Miami-Dade County public school system procedures; Mr. Starr did not provide the requested documents to Mr. Montgomery. Mr. Montgomery observed numerous deficiencies in Mr. Starr's classroom performance during the February 8, 2002, observation, and Mr. Montgomery discussed the results of the observation with Dr. Brennan. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on March 1, 2002. Again, Mr. Montgomery noted a number of deficiencies in Mr. Starr's classroom performance, specifically in seven components of Domain I, Planning for Teaching and Learning; eight components of Domain II, Managing the Learning Environment; two components of Domain V, Enabling Thinking; and one component of Domain VI, Classroom-Based Assessment of Learning. Dr. Brennan discussed the results of the March 1, 2002, observation with Carnel White, the Region Superintendent for Lake Stevens, who instructed Dr. Brennan to proceed to develop a Professional Improvement Plan.12 Dr. Brennan was, by this time, certain that Mr. Starr was not going to correct the deficiencies in his classroom performance, since the deficiencies noted in the March 1, 2002, observation were the same deficiencies noted in previous observations. Mr. Starr met with Dr. Brennan and Mr. Montgomery in a Conference-for-the-Record on March 15, 2002, to discuss the results of the March 1, 2002, observation.13 An extensive Professional Improvement Plan was developed for Mr. Starr during the Conference-for-the-Record: Mr. Starr was required to complete course work for Domains I, II, V, and VI; he was required to discuss with the Professional Growth Team 17 assigned readings and to submit written summaries of these readings to Dr. Brennan for his approval; and he was required to discuss with Dr. Brennan and identify for him techniques and strategies for 14 components in which he was deficient, to apply the new techniques and strategies, and to maintain and submit to Dr. Brennan logs charting the successes and failures in his application of these new classroom techniques and strategies. All of the courses and plan activities in the Professional Improvement Plan were to be completed by April 9, 2002.14 Mr. Starr was advised at the March 15, 2002, Conference-for-the-Record that he should speak to Mr. Montgomery if he had any concerns about the Professional Improvement Plan. Mr. Starr did not complete the plan activities set forth in the Professional Improvement Plan by the April 9, 2002, deadline. On April 9, 2002, Dr. Brennan called Mr. Starr to the office to ask him to submit the written plan activities required by the Professional Improvement Plan; although Mr. Starr presented himself at the main office, he refused to go into Dr. Brennan's office to meet with him. According to Dr. Brennan, Mr. Starr also advised him at this time that he did not intend to comply with any further administrative directives. On April 10, 2001, after conferring with Dr. Brennan, Mr. White placed Mr. Starr in an alternate work assignment at his residence, pending a district-level Conference-for-the- Record requested by Mr. White. The district-level Conference- for-the-Record was held at the Office of Professional Responsibilities on April 12, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan; his insubordination; his violation of Rule 6B-1.001, Florida Administrative Code; and his future employment status with the School Board. The April 12, 2002, Conference-for-the-Record was conducted by Barbara Moss, District Director of the Office of Professional Standards, and Ms. Moss prepared a Summary of the Conference-for-the-Record dated May 3, 2002. In the summary, Ms. Moss noted that, prior to the conference, Mr. Starr asked to bring an attorney to the Conference-for-the-Record and to tape the proceedings and that he was told that attorneys and tape recordings were not permitted. Ms. Moss also noted that Mr. Starr accused Dr. Brennan of harassing him and that she discussed with Mr. Starr the procedure for reporting harassment and gave him an Equal Employment Opportunity packet. Ms. Moss further noted that Mr. Starr stated that he wanted to file a grievance against Dr. Brennan and that she explained the procedure for filing a grievance and gave him a copy of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade, which contained the formal union grievance procedure. Mr. Starr was not, however, a union member and did not have access to this procedure. Mr. Starr's failure to comply with the plan activities specified in the Professional Improvement Plan dated March 15, 2002, was discussed at the April 12, 2002, Conference-for-the- Record. It is reported in the summary that Mr. Starr stated that he believed the evaluation process was designed to make him fail and that there was a conspiracy against him. According to the Summary of the Conference-for-the- Record, Mr. Starr confirmed during the conference that he had told Dr. Brennan that he wouldn’t comply with Dr. Brennan's directives, explaining that he defied Dr. Brennan because Mr. Starr perceived that Dr. Brennan was abusive and belligerent in his dealings with him. The summary also reflects that Mr. Starr's failure to provide Dr. Brennan with a student grade book and with attendance records was specifically discussed at the Conference-for-the-Record. The summary of the April 12, 2002, Conference-for-the- Record reflects that Mr. Starr was issued the following directives: He was directed to comply with all administrative directives; to complete all Professional Improvement Plan activities and to submit them to Dr. Brennan by the end of the workday on April 15, 2002; to maintain a grade book, a record of students' attendance, and lesson plans; and to implement Lake Stevens' discipline plan to effect classroom management. Mr. Starr was also told to submit to Dr. Brennan by April 15, 2002, an updated grade book and student attendance records. Finally, Mr. Starr was advised that he could return to Lake Stevens and resume his teaching duties on April 15, 2002. Mr. Starr indicated at the conclusion of the April 12, 2002, Conference-for-the-Record that he would comply with the directives. Finally, Mr. Starr requested at the April 12, 2002, district-level Conference-for-the-Record that Mr. White order Dr. Brennan to relieve him of the sixth period class, stating, according to the summary, that he was not capable of teaching six periods. Mr. White instructed Dr. Brennan to assign the sixth period to another teacher, which Dr. Brennan did.15 When Dr. Brennan did not receive Mr. Starr's completed Professional Improvement Plan activities by April 15, 2002, he extended the deadline to April 16, 2002. Mr. Starr did not provide the materials on April 16, 2002, and Dr. Brennan summoned Mr. Starr to his office.16 According to Dr. Brennan, Mr. Starr was disruptive when he arrived at the administrative offices in response to Dr. Brennan's summons on April 16, 2002. Mr. Starr announced in the main office, in front of several members of the school staff, that he was not going into Dr. Brennan's office, and he told Dr. Brennan not to summon him to Dr. Brennan's office again.17 Dr. Brennan telephoned Ms. Moss on April 16, 2002, after this incident, and advised her that Mr. Starr "had been blatant in his insubordination" and that either Mr. Starr would have to leave the Lake Stevens campus or he, Dr. Brennan, would leave.18 On April 17, 2002, Dr. Brennan conducted a PACES observation of Mr. Starr for his annual evaluation. The Observation Form for Annual Evaluation indicates that Dr. Brennan observed Mr. Starr's classroom performance from "12:30 to 12:50."19 Mr. Starr again failed to have a lesson plan, and Dr. Brennan found that Mr. Starr was deficient in every component of the six PACES domains evaluated. The evaluation form reflects that a post-observation meeting was held on April 19, 2002, at which time Mr. Starr signed the evaluation form and wrote on the form that he did not agree with the evaluation. On April 18, 2002, Dr. Brennan issued a notice advising Mr. Starr that a Conference-for-the-Record had been scheduled for April 22, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan, gross insubordination, violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and violation of School Board Rule 6Gx13-4A-1.21. According to the Summary of the Conference-for-the- Record, the conference was held in Mr. Starr's absence because of "his refusal to comply with an administrative directive." Dr. Brennan referred in the summary to Mr. Starr's "refusal to report to the principal's office" and categorized the refusal as insubordination and conduct unacceptable for a School Board employee. Assistant Principal Dina Carretta was the only person other than Dr. Brennan attending the Conference-for-the-Record. During the April 22, 2002, Conference-for-the-Record, Dr. Brennan prepared a Professional Improvement Plan for PACES Domain VII, Professional Responsibilities, having found Mr. Starr deficient in that domain, because he failed to comply with the March 15, 2002, Professional Improvement Plan; failed to submit by the required date the activities set out in the Professional Improvement Plan; and failed to comply with "district and school site requirements regarding grade book and student's attendance records." Mr. White again placed Mr. Starr on alternate work assignment at his residence, effective April 24, 2002. Ms. Moss included in the Summary of the Conference-for-the-Record held April 12, 2002, which she prepared on May 3, 2002, a notation that, on or about April 24, 2002, she spoke with Mr. Starr and advised him that he could resign his position if he did not wish to comply with administrative directives and the Professional Improvement Plan activities. According to the notation in the summary, Mr. Starr again affirmed that he would comply with the directives and the plan activities. After she prepared the summary of the April 12, 2002, Conference-for-the-Record, Ms. Moss submitted it to the School Board's attorneys for review because Dr. Brennan and Mr. White had recommended that Mr. Starr's employment with the Miami-Dade County public school system be terminated. The bases for the termination recommendation included gross insubordination, violation of School Board rules, and violation of the Code of Ethics of the Education Profession. In July 2002, after it was decided that a recommendation would be made to the School Board that Mr. Starr be terminated as a teacher with the Miami-Dade County public school system, Ms. Moss met with Mr. Starr to advise him of the recommendation; she also gave Mr. Starr another opportunity to resign his position, which he refused. Summary. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Starr repeatedly refused to comply with directives and instructions from Dr. Brennan and Mr. Montgomery that were reasonable and within the scope of their authority and that, in at least one instance, Mr. Starr openly and publicly defied an order given by Dr. Brennan. Mr. Starr freely admits that there was a serious lack of discipline among the students in his classroom and that the problems were so severe that he was unable to teach and the students were unable to learn. Mr. Starr also admits that he defied Dr. Brennan in almost everything that Dr. Brennan directed him to do and that he was repeatedly insubordinate towards Dr. Brennan. Although Mr. Starr's defiance of Dr. Brennan's directives consisted, for the most part, of a stubborn refusal to do as Dr. Brennan directed, Mr. Starr did cause a public disturbance in the main office by refusing to enter the principal's office when summoned on April 16, 2002, thereby openly defying Dr. Brennan's authority to summon Mr. Starr to his office. Mr. Starr's refusal to comply with reasonable administrative directives and his blatant defiance of Dr. Brennan reflected discredit on Mr. Starr as a teacher. The evidence is also sufficient to establish with the requisite degree of certainty that, from December 2001, until he was removed from the classroom on April 24, 2002, Mr. Starr did not make any effort to work with Mr. Montgomery or with his Professional Growth Team to improve his teaching and class management deficiencies, nor did he make any effort to complete the activities set forth in the Professional Improvement Plan that were designed to assist him in achieving professional growth. Mr. Starr's failure to strive for professional growth by working to correct the deficiencies identified in Mr. Montgomery's December 3, 2001, and March 1, 2002, observations negatively affected his ability to teach his students. Mr. Starr refuses to accept responsibility for the lack of discipline in his classroom. Rather, he faults Dr. Brennan for failing to help him impose discipline on those students who were misbehaving and defying Mr. Starr's authority. According to Mr. Starr, the six-step discipline plan did not work, and, once the students realized that there were no consequences if they behaved badly, it was impossible for him to manage the students in his classes. Mr. Starr also believes that, if Dr. Brennan cared about Mr. Starr's professional development, Dr. Brennan would have "developed a specific strategy of corrective action for students that were defiant" towards him.20 Mr. Starr considers his defiance of and insubordination towards Dr. Brennan "principled," and he believes that he had "no other reasonable recourse" but was forced by Dr. Brennan to defy Dr. Brennan's administrative directives.21 Additionally, Mr. Starr justifies his refusal to complete the Professional Improvement Plan activities, to keep a standard grade book, to adhere to the six-step discipline plan, and to prepare lesson plans on the grounds that Dr. Brennan behaved towards him in an abusive and belligerent manner and attempted to set him up for termination. It may well be, as Mr. Starr contends, that Dr. Brennan began losing patience with Mr. Starr, as the 2001-2002 school year progressed; it may well be that Dr. Brennan's manner towards Mr. Starr became increasingly abrupt; and it may well be that Dr. Brennan could have provided Mr. Starr with more assistance than he was willing to provide. Whatever Dr. Brennan's failings as Mr. Starr's principal, however, Mr. Starr was not justified in defying Dr. Brennan, in refusing to obey Dr. Brennan's directives, and in generally behaving in a manner inappropriate for a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Finding that Stephen J. Starr, Jr., violated School Board Rule 6Gx13-4A-1.21 and committed gross insubordination and misconduct in office; Sustaining his suspension; and, Terminating his employment as a teacher with the Miami-Dade County public school system. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of July, 2018.
The Issue Whether the award of a contract for Request for Proposal 031-MDW-1121 Fiber WAN Lakeland E-rate by Respondent, the School Board of Polk County, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The School Board operates the public school system established for the School District of Polk County, Florida. See § 1001.30, Fla. Stat. The School Board is an authorized governmental entity allowed to contract for commodities or services using a competitive solicitation process. See §§ 1001.41(4), 1001.32(2), and 1010.04(2), Fla. Stat., and Fla. Admin. Code R. 6A-1.012(1)(e). The solicitation at the center of this protest is 031-MDW-1121, Fiber WAN Lakeland E-rate (the "RFP"). The Department published the RFP on December 2, 2020.4 The School Board initiated this competitive procurement seeking a contract for leased fiber to deliver wide area network ("WAN") communication services throughout the School District (the "WAN Services Contract"). The winning vendor's network design will directly connect the School District's main office building to approximately 65 school locations in and around Lakeland, Florida. Background Information: A WAN network provides dedicated broadband connectivity for computer networks that are geographically dispersed. For the RFP, the School Board contemplates a WAN network that delivers network resources, connectivity, and services to the various School Board facilities. WAN networks are designed using "highways" of crystal fiber optic cable. The fiber optic cables, which consist of strands smaller than a human 3 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). 4 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. hair, are fitted within a sheath. Sheaths are encapsulated by buffer tubes. Typically, 12 strands of fiber cable run through a buffer tube. The RFP: RFP Section 3.1 informed vendors that the School Board was seeking one of three options for its network infrastructure. These options included: 1) leased "lit" fiber, 2) leased "dark" fiber, or 3) leased "dark" fiber (IRU).5 Although the School Board intended to select only one "solution" for the WAN Services Contract, the RFP invited interested vendors to "propose one, two, or all three options" for the School Board's consideration. The School Board purposefully provided vendors the flexibility to design and engineer a product the vendors believed was the best fit for the School District. As stated in RFP Section 3.1, "[t]he District is not advocating or mandating any preconceived network design or construction route and leaves this decision up to the proposer to present their best solution while recognizing the cited termination locations." The School Board presented Denise Whitaker to discuss the RFP, as well as the process and procedures the School Board followed to evaluate the proposals. Ms. Whitaker served as the School Board's Purchasing Agent responsible for the RFP. In her role, Ms. Whitaker, together with a team, developed, drafted, and prepared the RFP documents and forms. Commenting on RFP Section 3.1, Ms. Whitaker relayed that the School Board was open to any of three scenarios for the WAN services. Ms. Whitaker (and later Rob Oyler) explained that: "Lit" fiber, as referenced in RFP Section 4.1, is a fiber network that is ready-made to transmit computer signals. To send data, an optical transceiver module is attached to an end point of the fiber cable, which shoots a laser through one or more of the crystal fiber strands. When activated, this 5 IRU is an acronym for Indefeasible Right of Use, which means an exclusive lease to use a telecommunications network. laser "lights" the fiber, and the fiber strand is immediately ready to send data and information. "Dark" fiber, as referenced in RFP Section 4.2, like "lit" fiber, is a WAN network that is ready to transmit data. However, once the network is constructed, the fiber is left dormant. In other words, the vendor will not activate the laser at the end point of the fiber cable. Instead, the customer (the School Board) will light the fiber using its own transceiver module. Leased Dark fiber (IRU), as referenced in RFP Section 4.3, is essentially a communications network built, owned, and operated by the vendor. To lease a dark fiber IRU, the customer (the School Board) would purchase the right to use a certain amount of network capacity for a specified number of years. Ms. Whitaker testified that the leased "lit" fiber option (the proposal the School Board eventually selected) required vendors to propose a price quote for an initial 60-month contract period, as well as five additional 60- month renewal terms, for a total of 360 months (30 years). As stated in RFP Section 4.1: Price quotes are requested for services provided on a month-to-month basis, as well as 60 month term of service with up to five additional 60 month renewal options. Ms. Whitaker explained that during the initial 60-month contract, the winning vendor was expected to construct, install, and then maintain a "lit" fiber network for the School Board's exclusive use. The School Board would then lease the "lit" fiber network from the vendor for the length of the contract. Thereafter, per RFP Sections 4.1 and 8.2, the School Board and the winning vendor could agree to renew the WAN Services Contract for up to five additional 60-month periods. Ms. Whitaker further stated that each vendor had to agree not to increase its pricing during the 360-month (30-year) total contract length. In other words, the Monthly Recurring Costs that each vendor quoted for the initial contract term would remain the same through each and every contract renewal period.6 Ms. Whitaker further stated that the School Board intended to apply for federal funding through the Federal Communication Commission's ("FCC") E-rate program to cover up to 90 percent of the cost of the fiber network.7 See RFP Sections 1.1 and 3.1 and Appendices G and H. RFP Section 4 specifically stated that "[t]he District will follow the purchasing policies of the School Board of Polk County, Florida and requirements and procedures of the FCC's E-rate program as administered by the Universal Service Administrative Company to be eligible for all available funding." Therefore, the School Board intended to use information contained within the winning proposal to apply for E-rate funding and obtain an E-rate funding commitment through the Universal Service Administrative Company ("USAC"). Obtaining E-rate funds would mean that the School Board would not have to bear the full price of the WAN Services Contract. Five vendors timely responded to the RFP. Zayo presented a proposal for the leased "lit" fiber option. WANRack submitted proposals for both leased "lit" fiber and leased "dark" fiber. The School Board also received proposals from Southern Light (leased "dark" fiber and dark fiber (IRU)); 6 Ms. Whitaker testified that the School Board landed on a 30-year procurement term for all three options as a way to establish an equal standard by which to compare and score the three different network designs ("lit," "dark," or dark IRU). This 30-year "apples-to-apples" comparison created a fairer analysis of the best network solution among the proposals. For the leased "lit" fiber option, as stated above, vendors were to submit a Financial Proposal Worksheet listing prices for a 360-month length of service. For the leased "dark" fiber option, vendors were to offer a price for an initial 120-month/10-year term of service with up to ten additional 24-month renewal options. For the leased dark fiber (IRU) option, vendors were to quote a 20-year indefeasible right of use price with up to five additional 24-month renewal options. 7 The FCC E-rate program provides funding through federal subsidies to schools for computer networks, internet access, and telecommunications systems. As explained by Mr. Oyler, the FCC created the E-rate program to provide financial support for public services. Mr. Oyler detailed that the E-rate program is funded by a universal tax on telecommunication devices. Summit (leased "lit" fiber (three options), leased "dark" fiber (three options), and hybrid "dark" fiber (three options)); and Frontier Communications (leased "lit" fiber). To score the proposals, the School Board selected three individuals to serve on an evaluation committee. The evaluation committee consisted of School Board employees Joseph "Sid" Lee, Curtis Hodnett, and Michael Chiavuzzi (collectively referred to as the "Evaluators"). Once the Evaluators were selected, Ms. Whitaker became their "facilitator." Ms. Whitaker explained that she was responsible for guiding the Evaluators through the scoring process. She was also charged with ensuring that the Evaluators followed all applicable procurement policies and procedures. Prior to scoring the proposals, Ms. Whitaker provided each Evaluator with the School Board's Request For Proposal (RFP) Evaluator's Guide (the "Evaluator's Guide"). The Evaluator's Guide explained that, "the evaluation committee members are responsible for reading and evaluating all responses for their completeness and quality of content. … Committee members meet together to discuss the proposals and determine if they missed anything during their initial review." The Evaluator's Guide further instructed each Evaluator to "exercise [their] independent judgment" and to not be "dependent on anyone else's judgment, wishes, or demands." Each Evaluator was to be free from "any influences from within the committee." Each Evaluator also signed a Conflict of Interest and Non-Disclosure Statement in which they certified that "no other relationship with or bias towards any offeror exists which will prevent me from evaluating any proposal solely on its merits." After Ms. Whitaker received the vendors' proposals, she read through them to ensure that the proposals were complete and adequately responded to the RFP. She then distributed them to the Evaluators for their individual review and scoring. RFP Section 6.2 established the RFP's evaluation criteria. The Evaluators were to score and rank vendors' proposals on a scale of 100 points. The specific award criteria and corresponding point values were set out as follows: Evaluation Criteria Maximum Possible Points Experience, Qualifications, and References ("Experience") 15 Methodology 20 E-rate eligible recurring and one-time Cost of Services ("E-rate Eligible Cost")8 25 E-rate ineligible recurring and one- time Cost of Services9 15 Demonstrated scalability of technology through pricing for higher tiered bandwidths ("Scalability") 10 Overall ability to meet the district needs ("Overall Ability") 15 Total Points 100 Under RFP Section 6.3, the Evaluators awarded points by placing a vendor's response to a specific criterion into a certain category. Based on the category assigned, a multiplier was applied to calculate the score. The categories which an Evaluator could assign were: Excellent (with a score multiplier of 1.0); Very Good (with a score multiplier of 0.8); Good (with a score multiplier of 0.6); Fair (with a score multiplier of 0.4); 8 RFP Section 6.2 emphasized that the E-rate Eligible Cost was the highest weighted factor. 9 No points were awarded to any vendor for the E-rate ineligible cost of services category because no vendor identified an E-rate ineligible cost in its proposal. Poor (with a score multiplier of 0.2); Unacceptable (with a score multiplier of 0.0). For example, if an Evaluator deemed a vendor's Methodology to be "Excellent," the Evaluator applied a score multiplier of 1.0 to the total points available for that subsection (20 points) to calculate the total points the vendor would receive for that evaluation criterion, i.e., 1.0 x 20 equals 20 total points. If an Evaluator determined that a vendor's Methodology was "Very Good," then the Evaluator applied a score multiplier of 0.8 to the total points available to reach the score awarded, i.e., 0.8 x 20 equals 16 total points. After the Evaluators completed their reviews, each Evaluator's score was added together to produce a final score for each proposal. The proposal receiving the highest point total would be designated the highest ranked proposal. After the Evaluators received the proposals, they met for two public meetings during which they reviewed, discussed, and scored all proposals. The first meeting took place on January 13, 2021. Initially, Ms. Whitaker instructed the Evaluators on the RFP's evaluation criteria and process. She also handed each Evaluator an Evaluation Criteria Sheet, which they were instructed to reference and use when scoring the proposals. Over the course of the first meeting, the Evaluators and Ms. Whitaker reviewed each proposal to determine whether the vendors properly responded to the RFP's requirements. They also discussed the merits of the different proposals. After several hours of discourse, however, the Evaluators realized that they could not complete their scoring in a single session. Therefore, the Evaluators agreed to schedule another meeting. The Evaluators reconvened for the second public meeting on January 20, 2021. During this meeting, the Evaluators determined that Zayo, WANRack, and Summit all submitted responsive proposals. The proposals from Southern Light and Frontier Communications, on the other hand, were nonresponsive. The Evaluators found that Southern Light failed to list a third customer reference per RFP Section 5.3, and Frontier Communications only provided a proposal for the first five years of service. Thereafter, the Evaluators finished their reviews, awarded their points (electronically), and turned their completed Evaluation Criteria Sheets into Ms. Whitaker. The Evaluators scored the proposals of Zayo and WANRack as follows: Mr. Lee: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Lee: Zayo: 76 points WANRack: 81 points Mr. Chiavuzzi: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Chiavuzzi: Zayo: 76 points WANRack: 81 points Mr. Hodnett: Experience (15 points): Zayo: 15 points WANRack: 15 points Methodology (20 points): Zayo: 16 points WANRack: 20 points E-Rate Eligible Cost (25 points): Zayo: 25 points WANRack: 21 points Scalability (10 points): Zayo: 8 points WANRack: 10 points Overall Ability (15 points): Zayo: 12 points WANRack: 15 points Total Points Awarded by Mr. Hodnett: Zayo: 76 points WANRack: 81 points At the final hearing, each Evaluator testified how they approached the review process and awarded points, as follows: Joseph "Sid" Lee: Mr. Lee works for the School Board as a Senior Manager in charge of electronic equipment repair and support. In his job, Mr. Lee manages all computer repairs and telecommunication support for the School Board. Mr. Lee commented that, in addition to serving as an Evaluator on the RFP, he also participated on the team that helped develop the RFP's specifications with Ms. Whitaker. Mr. Lee represented that the three Evaluation team members were School Board employees with computer networking responsibilities and were the most experienced employees in the RFP's subject matter. Mr. Lee testified that after he was selected as an Evaluator, Ms. Whitaker gave him a copy of the Evaluator's Guide, which he "skimmed" through. He also recalled that Ms. Whitaker provided him approximately seven proposals, which he read. In formulating his scores, Mr. Lee described the evaluation as the combination of a joint and individual effort amongst the Evaluators. First, the three Evaluators walked through each proposal and discussed the merits and deficiencies of the various sections. They then, individually, awarded points as appropriate. When awarding points, Mr. Lee testified that he applied the point values and procedures laid out in RFP Sections 6.2 and 6.3. Mr. Lee asserted that he used the same analysis and evaluation process for each proposal. He further stated that all his rankings and scores were based solely on his evaluations of the various proposals during the two January meetings. He asserted that he had no discussions outside of the two public meetings with any person regarding his review. Regarding his score for E-Rate Eligible Cost, Mr. Lee explained that the School Board's Purchasing Department (Ms. Whitaker) actually calculated the E-rate Eligible Cost score, not the Evaluation Team. Mr. Lee understood that Ms. Whitaker determined that Zayo's proposal should receive the top description of "Excellent" for the maximum 25 points. Mr. Lee relayed that Ms. Whitaker found that WANRack's proposal should be assigned the score of "Very Good," which equaled 21 points. Mr. Lee testified that Ms. Whitaker provided him the scores (25/21 points), which he then inserted into his score sheet. Mr. Lee further conveyed that he is familiar with and has worked on School Board E-rate projects. Mr. Lee was aware that E-rate funds are granted by the FCC to help schools pay for computer services, including the fiber network the School Board seeks through this RFP. Mr. Lee testified that the School Board hopes that the E-rate program will cover 90 percent of the WAN Services Contract cost. Mr. Lee also recalled a discussion during the January 20, 2021, meeting when the Evaluators debated the possibility that the E-rate program might have an issue awarding funds for Zayo's proposed network. Mr. Lee understood that Zayo's network design might contain "redundancies," the cost of which would not be covered by E-rate. (Mr. Lee testified that WANRack's proposed methodology did not raise this concern.) Consequently, Zayo's proposed network configuration might not qualify for E-rate funding. For the Methodology criterion, Mr. Lee awarded WANRack with an "Excellent" (the maximum 20 points) based on its proposed network design. He gave Zayo's network a "Very Good" for 16 points. Mr. Lee explained that he had no concerns with the efficacy of WANRack's proposed "point-to-point" or "hub and spoke" network. Based on his discussion with the other Evaluators during their January meetings, he believed that WANRack's solution would mesh well with the School Board's existing network and equipment. The School Board would not be required to change or modify anything to accommodate WANRack's network design. On the other hand, Mr. Lee described what he believed to be a flaw in Zayo's "Ring Topology" design. Mr. Lee believed that Zayo's network was susceptible to multiple points of failure. Mr. Lee explained that a "ring" network is devised to connect sites in an aggregated ring before funneling into the School District central office. Therefore, a single failure along a fiber cable line could affect multiple locations. WANRack, on the other hand, proposed a central hub to be installed at the School District's office building. WANRack would then build a point-to-point connection directly from the hub to each of the 65 separate school sites. Mr. Lee stated that the advantage of WANRack's network solution is that a point-to-point design only exposes the network to a single point failure along the fiber cable between two points. In other words, one failure within the network would only affect one school destination as opposed to multiple sites. In addition, Mr. Lee believed that Zayo's "ring" topology would lead to additional costs for the School Board. Mr. Lee noted his concern on his Evaluation Criteria Sheet where he wrote, "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Mr. Lee explained that he wrote this comment during the January 20, 2021, meeting after a discussion with the other Evaluators regarding the possibility that the School Board might have to purchase extra equipment to accommodate Zayo's design. Mr. Lee understood that this supplemental equipment could include additional rack space or power sources. Mr. Lee testified that the possibility that Zayo's proposal would cause the School Board additional costs led to his decision to categorize Zayo's Methodology as "Very Good," instead of "Excellent." For Scalability, Mr. Lee awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" for 8 points. Mr. Lee explained that RFP Section 4.1 required each leased "lit" fiber proposal to be scalable to 100Gbps (gigabits per second), without limitation, at the same cost as 1GB/sec. The Scalability category contemplated the School Board's need to increase bandwidth and internet speed in the future. Mr. Lee testified that he based his score for Scalability on his overall discussion with other Evaluators. He understood that WANRack's proposed network design provided fiber dedicated to the School Board's use with no additional cost to the School Board. For Overall Ability, Mr. Lee awarded WANRack with an "Excellent" (the maximum 15 points), and Zayo with a "Very Good" for 12 points. Mr. Lee testified that in scoring this criterion, he contemplated that WANRack's proposed network would not require the School Board to make any infrastructure changes. As a final point, during his testimony, Zayo sharply examined Mr. Lee regarding one specific comment WANRack included in its proposal. The RFP Section 5.3 required each vendor to "provide three (3) references from current or recent customers (preferably Florida K-20) with projects equivalent to the size of The District or larger." WANRack, in its response, identified four referral projects. One of these projects was a current contract with "Polk County-FL." For the point of contact for this project, WANRack identified Mr. Lee, followed by his phone number and email address (sid.lee@polk- fl.net). Upon questioning, Mr. Lee disclosed that he is familiar with WANRack based on his past working relationship with the company on the "Polk County-FL" WAN contract. Mr. Lee explained that in 2020, he served as an evaluator for the School Board's RFP 032-MDW-0220, entitled Ethernet Service Bartow Sites E-rate (the "Bartow Contract"). WANRack won that RFP and currently provides the requested services to the School Board. Mr. Lee testified that, from September 2020 through May 2021, he regularly received biweekly status updates from WANRack's contract manager regarding WANRack's progress on the Bartow Contract. Despite this regular interaction, however, Mr. Lee urged that none of his communications with WANRack representatives involved the WAN Services Contract. He further testified that he never spoke to WANRack during the RFP scoring process. Neither did WANRack ever attempt to exert any influence or pressure on him regarding his evaluation of its proposal for the WAN Services Contact. Finally, Mr. Lee declared that WANRack never consulted him about using his name as the point of contact for the Bartow Contract. He had no knowledge of WANRack's decision to reference him in its proposal for the WAN Services Contract, nor did he approve it. Michael Chiavuzzi: Mr. Chiavuzzi currently works for the School Board as a Senior Manager of Network Operations. In this role, he oversees all network operations between the School District and the different school locations including connectivity, data storage, and security issues. Similar to Mr. Lee, Mr. Chiavuzzi served on the team that helped develop the RFP with Ms. Whitaker. After Mr. Chiavuzzi was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as access to electronic versions of all proposals. Prior to scoring, Mr. Chiavuzzi read through the Evaluator's Guide and all of the proposals. As with Mr. Lee, Mr. Chiavuzzi recounted meeting with the other Evaluators and Ms. Whitaker for two public meetings. During the first meeting on January 13, 2021, Mr. Chiavuzzi testified that the Evaluation Team reviewed all the proposals to ensure that they contained the required forms and information. During the second meeting on January 20, 2021, the Evaluators awarded their scores. Echoing Mr. Lee, Mr. Chiavuzzi expressed that during the meetings, the Evaluators walked through each proposal and jointly examined how the different vendors met the evaluation criteria. They also discussed any concerns they had with any of the proposals. Mr. Chiavuzzi recalled that the Evaluators specifically addressed whether a proposal imposed additional costs upon the School Board for equipment that might be needed to support a particular network design. Mr. Chiavuzzi further relayed that the Evaluators explicitly compared and contrasted the benefits of WANRack's point-to-point network as opposed to Zayo's "ring" topology. The Evaluation Team also weighed the advantages and disadvantages of WANRack's aerial network design versus Zayo's intent to construct an entirely underground network. When scoring the proposals, Mr. Chiavuzzi testified that he applied the scoring matrix and procedures laid out in RFP Sections 6.2 and 6.3. He further voiced that he looked at the information in each proposal, as well as that vendor's references and prior projects. Regarding WANRack and Zayo, Mr. Chiavuzzi commented that both vendors were very experienced, and presented good references and qualifications. As to the Methodology category, Mr. Chiavuzzi awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). To reach this score, Mr. Chiavuzzi explained that he looked at the proposed network solution each vendor offered the School Board. Mr. Chiavuzzi testified that he believed that WANRack's point-to-point network was superior to Zayo's "ring" network. He concluded that WANRack's design, which would run through aerial cables, was easier to maintain, modify, and repair, as well as presented fewer points of failure. Conversely, Mr. Chiavuzzi determined that Zayo's methodology contained more potential points of failure. Mr. Chiavuzzi repeated Mr. Lee's comment that the Purchasing Department (Ms. Whitaker) scored the E-rate Eligible Cost criterion. Mr. Chiavuzzi was under the impression that Ms. Whitaker calculated the scores based on a formula included in the RFP. However, he was not aware of the actual computations. For Scalability, Mr. Chiavuzzi awarded WANRack's proposal with an "Excellent" (the maximum 10 points), and Zayo's proposal with a "Very Good" (8 points). Mr. Chiavuzzi based his score on the fact that WANRack proposed extra fiber cables and optic modules for the School Board's future use. On the other hand, Mr. Chiavuzzi determined that Zayo's network might not accommodate future build-out. This limitation would force the School Board to expend additional costs to support Zayo's efforts to increase the bandwidth of its system. For Overall Ability, Mr. Chiavuzzi awarded WANRack with "Excellent" (the maximum 15 points), and Zayo with "Very Good" (12 points). Mr. Chiavuzzi's score was a cumulation of the various factors he previously identified including his conclusion that WANRack's point-to-point network design offered a more attainable and reasonable solution to the WAN Services Contract with less potential points of failure, as well as the fact that WANRack's design included multiple strands of fiber and extra modules for the School Board's future needs. Zayo's proposed network, in contrast, did not dedicate as much fiber for the School Board's use and contained multiple points of failure. Finally, Mr. Chiavuzzi asserted that his rankings and scores were based solely on his personal evaluation and independent judgment. Mr. Chiavuzzi expressed that he considered all relevant criteria and factors described in the RFP, and was not influenced by any vendor. Finally, Mr. Chiavuzzi stated that, when scoring, he looked for the best vendor for the School Board, and he formulated his scores in good faith. Curtis Hodnett: Mr. Hodnett currently works for the School Board as a Senior Wide Area Network Engineer. In this job, Mr. Hodnett manages the network connections between the School District's main offices and the different school sites. As with Mr. Lee and Mr. Chiavuzzi, Mr. Hodnett served on the team that helped develop the RFP with Ms. Whitaker. Mr. Chiavuzzi is his supervisor. After Mr. Hodnett was selected as an Evaluator, Ms. Whitaker provided him with a copy of the Evaluator's Guide, as well as an electronic version of all the proposals (which he downloaded). Mr. Hodnett testified that he read through the Evaluator's Guide and all of the proposals prior to scoring. Mr. Hodnett also confirmed that the Evaluators met for two public meetings during which they reviewed and scored the proposals. Mr. Hodnett recalled that when the first meeting on January 13, 2021, ran late, the Evaluators decided to schedule a second meeting to complete their review. When scoring the proposals, Mr. Hodnett testified that he applied the scoring procedures established in RFP Sections 6.2 and 6.3. For Methodology, Mr. Hodnett awarded WANRack with an "Excellent" (20 points) and Zayo with a "Very Good" (16 points). Explaining his specific scores, Mr. Hodnett testified that he believed that WANRack's "super simple" network configuration would enable data traffic to be more easily routed across the network. He also found that WANRack's proposal provided all essential support equipment, including an additional power source, if necessary. Conversely, Mr. Hodnett believed that the School Board would need to provide additional equipment and power to support Zayo's network design, which would result in added costs to the School District over the life of the contract. Mr. Hodnett also found WANRack's point-to-point/hub-and-spoke design superior to Zayo's "ring" topology. Mr. Hodnett explained that, as electronic data is transmitted through the different sites located along a "ring" network, the system's bandwidth can be diluted. A point-to-point network, however, avoids this problem. Mr. Hodnett also appreciated the fact that WANRack's design not only provided two "lit" fiber strands for the School Board's immediate use, but also included 10 additional strands of fiber for future "build-out" purposes (12 total fiber strands). Zayo, however, only offered two fiber strands as part of its proposal. Regarding the School Board's desire to use E-rate funding, Mr. Hodnett was aware that the School Board intended to fund up to 90 percent of the WAN Services Contract with E-rate funds. Mr. Hodnett further relayed that, to be eligible for E-rate funds, he understood that the project's construction must be completed within one year from the request for E-rate support. For Scalability, in awarding WANRack's proposal an "Excellent" (10 points), and Zayo's proposal a "Very Good" (8 points), Mr. Hodnett explained that the ability of Zayo's proposed solution to scale up to higher bandwidths was limited by the shared network design, which included only two strands of fiber cable. WANRack's design, on the other hand, would enable more data and information traffic to be routed through District offices. Mr. Hodnett again referred to the fact that WANRack's design included two "lit" fiber strands, as well as ten additional strands for future use. For Overall Ability, Mr. Hodnett awarded WANRack an "Excellent" (15 points), and Zayo a "Very Good" (12 points). Mr. Hodnett explained that the Methodology and Scalability of WANRack's proposal offered a "better fit" for the School Board. Mr. Hodnett also believed that WANRack's proposed network would allow the School Board to more easily control the WAN network. Conversely, Mr. Hodnett reduced Zayo's "overall" score due to lingering questions regarding the amount of data that Zayo's network could route to the District sites through the "ring" design. In addition, Mr. Hodnett wondered whether the redundancies in Zayo's design would negatively impact the School Board's request for E-rate funding. Finally, Mr. Hodnett was concerned that the School Board would have to provide additional costs, manpower, and resources to ensure that Zayo's network got up and running. With their proposals, per RFP Section 5, each vendor submitted a "Financial Proposal Worksheet." (A blank Financial Proposal Worksheet was included with the RFP at Attachment 2.) The Financial Proposal Worksheet required the vendors to complete a cost spreadsheet for the initial 60-month contract term, together with a separate cost spreadsheet for each of the five 60-month options. To score the E-rate Eligible Cost criterion, Ms. Whitaker prepared a Cost Summary of the E-rate Eligible Cost for each proposal. Ms. Whitaker used the price evaluation procedure set forth in RFP Section 6.3, Calculation of the cost, which stated: Points for the cost shall be determined by summing the total cost at 100GB for all sites in the proposal for all options. Distribution of points for evaluation of cost will be calculated using the following formula: lowest proposed cost/proposer's cost x total point value = proposer's points. Using this formula, the vendor with the lowest total cost would receive 100 percent of the possible points. Ms. Whitaker's Cost Summary revealed that Zayo's proposed price for leased "lit" fiber ($10,239,494.99) was the lowest price submitted of all bidders.10 Therefore, based on the price formula, Zayo's proposal received the maximum 25 points. WANRack's price ($12,467,196.36) was the second lowest price for leased "lit" fiber. Accordingly, WANRack's proposal received the second highest score (21 points). After all Evaluators completed their scoring, Ms. Whitaker tabulated the total scores for each proposal to determine the vendors' final scores. WANRack's proposal for its leased "lit" fiber option received the highest ranking with a score of 81. Zayo's leased "lit" fiber proposal received the second highest ranking with a score of 76. On January 27, 2021, Ms. Whitaker posted a Notice of Recommended Award (the "Notice of Award"). The Notice of Award reported that, at a School Board meeting to be held on February 23, 2021, a recommended bid award would be made to "WANRack Holdings, LLC," for WANRack's Leased Lit Fiber Services Option. On February 23, 2021, the School Board unanimously voted to approve the recommendation to award the WAN Services Contract to WANRack. 10 Zayo, in its proposal, quoted a total price of $10,239,494.99. It appears that throughout this matter, the parties rounded this figure up to $10,239,495.00. Both numbers were used interchangeably at the final hearing, as well as in this Recommended Order. On March 10, 2021, Ms. Whitaker wrote a letter to WANRack stating: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. The contract between the parties consists of RFP 031-MDW-1121 and all requirements, attachments, worksheets, appendices, addenda and WANRack's proposal signed December 29, 2020 and submitted. This constitutes the complete agreement between the proposer and the District. An additional agreement is not required. The initial contract period will begin on or about July 1, 2021. On March 11, 2021, the School Board initiated its request for E-rate funding for the WAN Services Contract. The School Board prepared and submitted two FCC Form 471 applications to USAC regarding its contract with WANRack. Zayo's Protest: In its protest, Zayo contends that the manner in which the Evaluators reviewed, then scored, the proposals was arbitrary or capricious, clearly erroneous, or contrary to the RFP specifications. Zayo further argues that the evaluation committee members awarded WANRack's proposal points to which it was not entitled. In addition, Zayo maintains that WANRack's proposal violates E-rate requirements and is therefore nonresponsive. As a result, WANRack improperly received the highest point total and was undeservedly awarded the WAN Services Contract. To support its allegations, Zayo presented the testimony of Matt Mulcahy. Mr. Mulcahy is the Solutions Engineering Director for Zayo. In this role, Mr. Mulcahy supervises Zayo's sales engineers, who support Zayo's sales teams. He also designs Zayo's WAN networks, including Zayo's proposed "ring" topology design for this RFP. Regarding the Methodology behind Zayo's proposal, Mr. Mulcahy explained that the network that Zayo designed for the School Board would consist of 100 percent underground cable. Mr. Mulcahy stated that, conversely, WANRack intends to route 75 percent its network fiber through aerial installation. Mr. Mulcahy asserted that, in Florida, Zayo's design provides a far better protected and reliable WAN infrastructure because buried cables are substantially more resistant to hurricanes and tropical storms. Mr. Mulcahy conceded, however, that aerial installations are less expensive to maintain and repair because of the ease of access. Mr. Mulcahy also commented that Zayo's network solution offers superior "fault tolerance." Mr. Mulcahy explained that WANRack's proposal includes many more miles of fiber than Zayo's design. Mr. Mulcahy declared that the larger amount of fiber cable increases the risk of failure along the network. And, any point of failure would cause a loss of service to a network's end point. Mr. Mulcahy surmised that the Evaluators may not have understood the significance of fault points. As to the points awarded to Zayo for Scalability, Mr. Mulcahy confirmed that Zayo's network design only dedicated two fiber strands to transmit data throughout the School District. However, Mr. Mulcahy advanced that the RFP did not require vendors to offer a certain number of fibers for the School Board's use. Instead, the RFP charged vendors to present a solution that offered an initial bandwidth of 10Gbps that could be "scaled" up to 100Gbps. Mr. Mulcahy explained that, in essence, the RFP sought network designs that included the capability of increased bandwidth, which would accommodate the School Board's "future business ventures." Based on this directive, Mr. Mulcahy asserted that Zayo's proposal roundly meets the RFP's Scalability criterion because it is fully scalable to a bandwidth of 100Gbps using only two fibers. Therefore, he firmly disagreed with any Evaluator's comments or scores critical of the number of fiber strands Zayo built into its proposed network infrastructure. Further, Mr. Mulcahy testified that, in practice, Zayo's network designs routinely pull 12 strands into a building as is the industry practice. Regarding the Evaluators' concerns with additional costs necessary to support Zayo's proposal, Mr. Mulcahy conceded that Zayo's network design would require the School Board to purchase supporting equipment. Mr. Mulcahy contemplated that Zayo's proposed network would cost the School Board approximately $6,000 to $12,000 to install laser optics/pluggable modules at the 65 school sites within the District. On the other hand, Mr. Mulcahy rejected the supposition that the School Board would need to purchase a supplemental power source to augment Zayo's design. Plus, the RFP represented that the School Board would provide any necessary power to support the WAN network. See RFP Addendum 2, Question 6. Mr. Mulcahy added that he believed that WANRack's network will also require the School Board to purchase pluggable modules and switches. He surmised that the School Board would spend $5,000 to $10,000 to purchase equipment to accommodate WANRack's point-to-point design, as well as install a pluggable port and a more sophisticated switch at the District's hub site. WANRack introduced Rob Oyler to discuss the details of its proposal for the WAN Services Contract. Mr. Oyler founded WANRack and currently serves as the company's Chief Executive Officer. In this role, Mr. Oyler oversees all aspects of WANRack's business operations. Mr. Oyler stated that he started WANRack with a focus on school systems similar to the School Board. He relayed that all schools need internet access and technological services. WANRack provides this support through the construction of private fiber networks. Mr. Oyler testified that WANRack proposed a point-to-point network solution for the School Board. Mr. Oyler explained that this type of design contemplates an exclusive, "private highway" of fiber cable and equipment. WANRack would establish a central hub site at the District's headquarters. Network cables would then run directly from the hub to the separate District buildings. Mr. Oyler asserted that WANRack offered the School Board a "turnkey" solution. In other words, WANRack would "light" the fiber cable so that the network would be ready for the immediate flow of data as soon as the School Board accessed it. Mr. Oyler added that WANRack would be prepared to modify or supplement its design should the School Board elect to increase the available bandwidth or add more technology. However, WANRack will not charge the School Board any additional cost for this future work. Mr. Oyler confirmed that WANRack intends to route the majority of the School Board's network via aerial installation. Mr. Oyler anticipated that WANRack would construct approximately 111 miles of fiber cable to connect the 65 school locations. Mr. Oyler acknowledged that this aerial network will be more exposed to points of failure due to tropical storms and hurricanes than underground cables. However, Mr. Oyler countered that in the event of a failure or outage, aerial cable is much more accessible for repairs or replacement. With the above background information and testimony, Zayo presented a number of arguments asserting that the School Board's recommended award to WANRack must be rejected. Each specific challenge, along with the School Board's response, is analyzed as follows. The Evaluation Committee Failed to Follow the Mandatory Requirements of the RFP and School Board Policy in Scoring the Proposals: Zayo asserts that the Evaluators' comments on their Evaluation Criteria Sheets, as well as the consensus nature of the scoring, show that the Evaluators failed to follow the RFP requirements. Specifically, Zayo argues that the Evaluators incorrectly determined that Zayo's bid would result in a large overall increased cost to the School Board. Zayo argues that the Evaluators misunderstood both the proposal specifications, as well as how to appropriately apply the evaluation criteria to the proposals. As a result, the Evaluators improperly deducted points from Zayo's proposal. Consequently, the evaluation, scoring, and ranking were based on factual inaccuracies and were conducted unreasonably. To support its claim, Zayo points to the comment Mr. Lee wrote on his Evaluation Criteria Sheet that "Zayo would require additional equipment for the installation which would cause the district a large overall increase in cost." Zayo asserts that Mr. Mulcahy established that this statement is demonstrably not true. Instead, the information in Zayo's proposal made it clear that all equipment and infrastructure necessary to support its network solution would not require the School Board to purchase any additional equipment. Neither would it result in additional costs above Zayo's quoted price. As a result, Zayo argues that no rational basis exists for the Evaluators to have deducted Zayo's scores for the categories of Experience, Methodology, Scalability, and Overall Ability based on the assumption that the School Board would incur additional costs if it selected Zayo's proposed network. Consequently, the Evaluators' scores were arbitrarily or capriciously derived, which provided WANRack's proposal an unfair competitive advantage. School Board Position: The School Board asserts that the testimony shows that the Evaluators carefully and completely considered all the criteria enumerated in RFP Section 6.2 when formulating their scores. Thereafter, in the Evaluators' neutral and objective judgment, WANRack's proposed network design was superior to Zayo's design. Accordingly, the Evaluators concluded WANRack's proposal best served the interests of the School Board. Finding: The evidence supports the School Board's argument that the Evaluators' concerns regarding the possibility that Zayo's proposal would result in additional costs to the School Board was not arbitrarily or irrationally derived or gave WANRack an unfair advantage. At the final hearing, all three Evaluators credibly testified that they fairly and reasonably reviewed and considered each proposal. The Evaluators voiced logical and rational explanations as to how they analyzed, and then scored, each proposal. They further provided good faith and factually based reasons why they believed that WANRack offered the most cost-effective service and presented the most advantageous network solution for the School Board. (Furthermore, Mr. Mulcahy openly confirmed that Zayo's network design would cost the School Board an additional $6,000 to $12,000 in supporting equipment.) Finally, the Evaluators persuasively testified that they measured each vendor's proposal against the same criteria and held every proposal to the same scoring standard. Accordingly, Zayo's argument on this point is rejected. The Evaluators Erred Because WANRack's Proposal is not Demonstratively Better than Zayo's Proposal: Zayo asserted that WANRack's proposed network was not demonstrably better than its own proposal. Presented through the testimony of Mr. Mulcahy, Zayo contended that the Evaluators' scores for Zayo's proposal were "misguided." Mr. Mulcahy commented that the Evaluators did not appear sufficiently knowledgeable in WAN network designs to adequately grade and rank the different network designs. He did not believe that the Evaluators gave Zayo's proposal proper consideration. While Mr. Mulcahy conceded that he was not aware of any evidence that the Evaluators acted dishonestly, illegally, or unethically, he maintained that the scores they awarded to Zayo's proposal were simply "wrong." Zayo presented examples of error based on Mr. Mulcahy's testimony: Methodology: Zayo asserts that the evidence does not support the Evaluator's collective characterization of WANRack's Methodology as Excellent, while labelling Zayo's proposal Very Good. Zayo claims that its Methodology is superior to WANRack's network design because, in Mr. Mulcahy's opinion, buried fiber cables are substantially more resilient to storms. In addition, the fact that Zayo presented the lowest bid "maximizes the cost-effectiveness" of its proposal. Consequently, the Evaluators' scores to the contrary are flawed. Scalability: Similar to Methodology, Zayo asserts that the fact that each Evaluator awarded WANRack an Excellent for Scalability while awarding Zayo a score of Very Good was unjustified. Zayo asserts that both its proposal and WANRack's proposal provided for maximum scalability without any additional costs to the School Board. Therefore, no justification existed to score Zayo's proposal lower than WANRack's proposal for an identical response to this criterion. School Board Position: The School Board highlighted that the RFP expressed no preference for a specific type of methodology. To the contrary, RFP Section 3.1 stated that the School Board would consider "traditional network designs (such as hub and spoke) or alternative proposals." Therefore, the fact that Zayo's underground cables might provide more protection from environmental hazards than aerial cables does not automatically mean that Zayo's proposal was "demonstrably" superior to WANRack's design. How the vendors proposed to construct their network cable "highway" was only one factor in the Evaluators' analysis of which proposal presented the best solution for the School Board. The School Board further contends that the evidence presented at the final hearing does not show that the Evaluators' conclusions regarding additional cost to the School Board were erroneous. Mr. Mulcahy plainly testified that the School Board would need to purchase additional equipment to support Zayo's network design. Finally, the School Board again asserts that the evidence establishes that the Evaluators neutrally and objectively determined that WANRack's proposed network design was superior to Zayo's design. The Evaluators' testimony at the final hearing shows that they considered all the criteria set forth in RFP Section 6.2 when formulating their scores. Thereafter, they individually concluded that WANRack's proposal best served the interests of the School Board. Finding: The School Board's position has merit. The evidence at the final hearing demonstrates that the Evaluators awarded points based on an honest exercise of their discretion. The Evaluators credibly testified that they fairly and in good faith considered the information presented in each proposal. During the final hearing, each Evaluator evinced a broad and comprehensive knowledge of the details of both Zayo and WANRack's proposed network designs, as well as the subject matter of the RFP. The Evaluators further provided logical and rational reasons why they believed that WANRack's proposal was superior to the other proposals, particularly Zayo's proposal. The evidence did not prove that the Evaluators' scores were based on unfair or irrational prejudice. Accordingly, Zayo's argument on this point is rejected. The Evaluators Failed to Exercise their Independent Judgment When Scoring the Proposals: Zayo charges that the Evaluators, when scoring the proposals, acted "in a concerted way" to reach a consensus score in favor of one particular proposal (WANRack's), instead of applying their independent judgment as required by the Evaluator's Guide. Consequently, the Evaluators acted arbitrarily or capriciously in awarding a winning score to WANRack. To support this allegation, Zayo points to the fact that the Evaluators' scores for the Zayo and WANRack proposals were identical in every evaluation criteria. Zayo was further troubled as to why Mr. Chiavuzzi's scoresheet was devoid of any written commentary or notes that would explain how or why he scored as he did. School Board Position: The School Board maintains that the Evaluators' testimony clearly established that they independently formulated their scores based on their individual assessment of the proposals. Further, while the Evaluator's Guide advised that the Evaluators "should record brief comments that lend insight as to why they awarded or failed to award points based on the established RFP evaluation criteria for a particular item," neither the Evaluator's Guide nor any other provision of the RFP mandated that the Evaluators must document their exact thoughts or analysis on their Evaluation Criteria Sheets. Finally, regarding "concerted" collaboration between the Evaluators, the Evaluator's Guide specifically advised: It's normal and acceptable for there to be debate, even passionate debate, within the evaluation committee about how well a proposal meets the established evaluation criteria. As an independent evaluator you may be swayed by the debate in making you judgment about how many points you wish to award, and that is okay. Therefore, the RFP scoring process explicitly contemplated a collaborative process amongst the Evaluators in formulating the points to award to each proposal, as long as the ultimate score was based on each Evaluators' independent assessment. Finding: The evidence and testimony at the final hearing supports the School Board's position. While the Evaluator's Guide stressed that the Evaluators should exercise their "independent judgment," the Evaluator's Guide also clearly indicated that the Evaluators could collectively develop their scores. The Evaluator's Guide prompted the Evaluators to ask questions to understand pertinent information, as well as engage in "passionate debate" regarding the merits of each proposal. Such was the case in this RFP. During their two public meetings, the Evaluators freely and openly discussed the details of the vendors' proposals. However, each Evaluator credibly testified that when the time came to score the proposals, they applied their honest and independent opinions to the information presented by each vendor, and awarded scores as appropriate. Accordingly, Zayo's argument on this point is rejected. WANRack's Proposal Creates the Appearance of Impropriety with One of the Evaluators: Zayo alleges that a relationship between one of the Evaluators and WANRack creates an appearance of impropriety in violation of the Evaluator's Guide. The Evaluator's Guide specifically directed that Evaluators: will not have contact with any of the proposers during the evaluation process except during interviews; and, conversely, [Evaluators] are not to be contracted by any of the proposers during or following the evaluation process prior to contract award. … It is always best to err on the side of avoiding even the appearance of impropriety in the evaluation process. Zayo points to WANRack's listing of Mr. Lee's name as a point of contact for one of its references in its proposal. School Board Position: The School Board argues that no evidence indicates that WANRack ever contacted or spoke to Mr. Lee regarding the WAN Services Contract. On the contrary, Mr. Lee provided credible testimony that he and WANRack never discussed the terms, conditions, or scoring of the proposals for this RFP. For her part, Ms. Whitaker was not alarmed at finding Mr. Lee's name listed as a project contact in WANRack's proposal. Ms. Whitaker did not believe that this single reference in WANRack's proposal caused a potential impropriety. She commented that nothing in WANRack's proposal indicated that Mr. Lee was anything more than a reference regarding another contract between WANRack and the School Board. Ms. Whitaker expressed that WANRack's proposal did not contain any information that Mr. Lee was involved in WANRack's current contract with the School Board in any direct or material capacity. On the contrary, the fact that WANRack disclosed its specific point of contact on the Bartow Contract showed that WANRack openly revealed its existing working relationship with the School Board. For his part, Mr. Lee steadfastly asserted that he never spoke to WANRack during the RFP process, and WANRack never attempted to exert any influence over him regarding his evaluation of the WAN Services Contact. Mr. Lee further maintained that he was unaware that WANRack listed his name as a reference, nor did he approve the same. Mr. Lee testified that he fairly and objectively evaluated every proposal, and he formulated his scores consistent with his understanding of the RFP specifications and based on the best interests of the School Board. Finding: The School Board (and Mr. Lee) presents the most effective argument on this point. At first blush, the fact that WANRack inserted Mr. Lee as its point of contact on a prior School Board project does raise questions as to the working relationship between Mr. Lee and WANRack. And, the School Board certainly desired to prevent any inappropriate communication or influence between the vendors and the Evaluators. However, the questions were all answered. There was no evidence of any inappropriate communication or influence. No evidence or testimony establishes that WANRack received any competitive advantage or favoritism based on Mr. Lee's previous dealings with WANRack on the Bartow Contract. Neither does any evidence demonstrate that WANRack was awarded the WAN Services Contract based on its prior relationship with Mr. Lee. Mr. Lee persuasively testified that the scores he gave to WANRack and Zayo were based solely on the information contained within the proposals, and not from any other source or from his prior interactions with WANRack. Accordingly, Zayo did not prove that the fact that WANRack listed Mr. Lee as a point of contact on another contract with the School Board actually gave WANRack's proposal an unfair competitive advantage or led to the School Board's selection of WANRack for the WAN Services Contract. Therefore, an insufficient basis in fact exists to overturn the School Board's intended award to WANRack on this issue. WANRack's Proposal is Nonresponsive in that it Violates the FCC's E-rate Program Rules: Zayo contends that WANRack's proposal is ineligible for award under the RFP because it included terms that violated E-rate funding rules. Therefore, awarding the WAN Services Contract to WANRack will jeopardize the School Board's ability to use federal funds to pay for the network services. Specifically, Zayo represents that, to be eligible for E-rate funding, the E-rate program requires all special construction charges for a network to be completed and the fiber "lit" (i.e., ready to provide service) within the same 12-month fiscal year as the funding request. Zayo contends that WANRack's proposal, however, includes a timeline that stretches beyond the required, 12-month E-rate funding year. To support this argument, Zayo points to an illustration within WANRack's proposal that portrays a construction timeline that starts on July 1, 2021, and ends on October 13, 2022. (Pet. Ex. 25, pg. 61) This graphic representation indicates that WANRack will need 15 months to completely construct its network before it is able to provide WAN services to the School Board. Zayo argues that because WANRack's proposal contemplates an upfront construction time of greater than one funding year, it violates the requirements of the E-rate program. Consequently, the School Board must reject WANRack's proposal as nonresponsive because WANRack's solution is ineligible for E-Rate support and cannot meet the RFP service requirements. School Board Position: Ms. Whitaker agreed with Zayo's point that the scoring of the vendors' Methodology included evaluating how the vendors' network solutions comply with the E-rate guidance. However, in responding to this specific assertion, the School Board and WANRack argue that the illustration included in WANRack's proposal is only an "example of a construction timeline." Mr. Oyler (as supported by the School Board) testified that WANRack fully intends to construct its network within E-rate time requirements and that its network design for the WAN Services Contract will qualify for E-rate funding. At the final hearing, Mr. Oyler insisted that the October 13, 2022, date on the sample timeline is merely a conservative point of reference. He urged that, at the time WANRack submitted its proposal, the exact date that E-rate would approve funding for the WAN Services Contract was unknown. Consequently, the dates WANRack included on its illustration are simply projections for planning purposes. Further, the School Board and WANRack witnesses represented that E-rate special construction rules allow construction of the fiber network to begin up to six months prior to the start of the funding year (July 1). In light of this provision, Mr. Oyler conveyed that WANRack fully intends to begin construction of its network several months prior to the start of the pertinent E-rate funding year. Finding: Based on the testimony adduced at the final hearing, the School Board (and WANRack) persuasively counter Zayo's argument that the School Board should have deemed WANRack's proposal nonresponsive based on the inclusion of a construction completion date of October 13, 2022. WANRack credibly explained how its proposed network design can be constructed to sufficiently qualify for E-rate funding. Accordingly, Zayo did not present sufficient evidence to prove that WANRack's proposal must be disqualified as noncompliant with E-rate rules or the RFP specifications. WANRack's Score for Methodology Must be Reduced Due to the Fact that WANRack Failed to Provide a NID Switch: Zayo asserts that WANRack's Methodology did not deserve the top award of Excellent (20 points) because WANRack's proposed network failed to incorporate a Network Interface Device ("NID") switch. To support this argument, Zayo points to several provisions in the RFP that indicate that the vendors' network designs must include a NID switch. These sections include RFP Addendum 2, Question 1, which describes the School Board's expectation that vendors will use an "endpoint NID (i.e. switch, router)" that is "scalable up to 100Gbps which will connect to the district/site routers." Mr. Mulcahy also highlighted the RFP's requirement that vendors must "provide prioritization of voice traffic dependent upon the District's Voice- over-IP ["VOIP"] specifications," which, according to him, would implicitly require a switch or router. See RFP Section 4.4. Mr. Mulcahy testified that without the proper switch, the lasers that transmit data over the network will not "light" the fiber optic cable. Zayo asserts that WANRack, however, indicated that it will use a GBIC/SFP (Gigabit Interface Converter/Small Form-factor Pluggable) module in its design, rather than a NID switch. (A GBIC/SFP device is a small fiber optic transceiver, about the size of a pack of gum, that interfaces with the network to convert optical and electrical signals.) Mr. Mulcahy asserted that WANRack's decision to use a GBIC/SFP module instead of a NID switch gives WANRack's proposal a competitive advantage because the NID switch component is an expense that either the vendor or the School Board will have to bear. School Board Position: Mr. Chiavuzzi, during his testimony, directly rejected Zayo's argument that the RFP mandated all proposed networks include a NID switch. On the contrary, Mr. Chiavuzzi declared that the School Board intentionally did not require the vendors to meet a specific routing configuration in their proposals. Instead, the School Board gave vendors the flexibility to offer a broad range of network solutions to meet the School Board's needs, whether those designs included a NID switch or not. See RFP Section 3.1. Similarly, Mr. Hodnett saw no reason to reduce his score for WANRack's Methodology due to the fact that it did not provide a NID switch. Mr. Hodnett further represented that he could perform any necessary VOIP prioritization himself without the assistance of the network provider. WANRack (through Mr. Oyler) confirmed that WANRack's proposed network design does not include a NID switch. However, Mr. Oyler asserted that the corresponding equipment WANRack intends to use (GBIC/SFP devices) is scalable up to 100Gbps, and, therefore, will adequately support the network services the RFP specifies, as well as any VOIP requirements. Finding: The evidence and testimony adduced at the final hearing does not support Zayo's argument that WANRack was required to present a network solution that included a NID switch. Therefore, Zayo did not meet its burden of proving that the Evaluators acted arbitrarily or irrationally by awarding WANRack's proposal an Excellent score for Methodology, or that WANRack received an unfair competitive advantage or benefit. The Notice of Recommended Bid Award is Void and Cannot Be Enforced: Zayo asserts that the Notice of Award is void and cannot serve as the basis for an award to WANRack. Specifically, Zayo argues that the Notice of Award recommended that the WAN Services Contract be awarded to the wrong corporate entity. To support this argument, Zayo denotes that "WANRack, LLC" submitted the proposal in response to the RFP. The Notice of Award, however, recommended the School Board award the bid to "WANRack Holdings, LLC." Zayo charges that the discrepancy in the name of the intended contract winner on the Notice of Award invalidates the award to WANRack, LLC. School Board Position: Initially, the School Board asserts that Ms. Whitaker's reference to "WANRack Holdings, LLC" instead of "WANRack, LLC" was a simple scrivener's error that did not affect the integrity or propriety of the procurement process. During her testimony, Ms. Whitaker explained that she fully intended to write WANRack's appropriate corporate name on the Notice of Award. She represented that insertion of the word "Holdings" after WANRack's name was her mistake. She offered that she was not aware of the legal significance between the two companies. Ms. Whitaker urged that none of the Evaluators or School Board staff was confused over which entity was being recommended for the WAN Services Contract – WANRack was clearly the top ranked vendor. The School Board also introduced a Memorandum from the School Board Superintendent, Jacqueline Byrd, dated February 8, 2021, which recorded that the contract "for procurement of Fiber WAN Services to 65 sites in the Lakeland area" was awarded to "WANRack, LLC." In addition, the School Board argues that, at most, Ms. Whitaker's inclusion of the extraneous word "Holdings" was a harmless error that should not affect the outcome of the award. To support this argument, the School Board points to RFP Section 7.21, which states that, "The District reserves the right to waive irregularities in the proposals." The School Board insists that Ms. Whitaker's mistake should be treated as a waivable irregularity. The School Board further asserts that the terms of the WAN Services Contract will be governed by the RFP together with all requirements, attachments, worksheets, addenda, as well as WANRack's proposal. The School Board contends that these documents clearly establish that the vendor selected for this project is "WANRack, LLC."11 The School Board maintains that no vendor (including Zayo) was prejudicially affected by the incorrect reference to "WANRack Holdings, LLC" on the Notice of Award. For his part, Mr. Oyler offered that WANRack Holdings, Inc., is the holding company for WANRack, LLC. Mr. Oyler, who serves as Chief Executive Officer of both corporations, explained that WANRack, LLC, submitted the proposal in response to the RFP, and WANRack, LLC, will be the company that enters the WAN Services Contract to provide the leased "lit" fiber services to the School Board. Finding: The School Board persuasively rebuts Zayo's argument that the School Board's incorrect recommendation to award the WAN Services Contract to "WANRack Holdings, LLC" should invalidate the results of this procurement. Ms. Whitaker's mistake on the Notice of Award was not material to the award of the WAN Services Contract to WANRack. Neither did the error provide WANRack a competitive advantage or benefit under the terms of the RFP. To summarize the findings in this matter, based on the evidence in the record, Zayo did not demonstrate, by a preponderance of the evidence, that the School Board's intended award of the WAN Services Contract to WANRack was clearly erroneous, contrary to competition, arbitrary, or capricious, or that it was contrary to the School Board's governing statutes, policies, rules, or the solicitation specifications. Each Evaluator credibly 11 For example, Ms. Whitaker's letter to WANRack, dated March 10, 2021, states: The School Board of Polk County, Florida, in regular session, on Tuesday, February 23, 2021 approved RFP 031-MDW-1121 Fiber WAN Lakeland E-rate recommended bid award to WANRack, LLC. In addition, Ms. Whitaker's "memo to file" letter, also dated March 10, 2021, states: The School Board of Polk County, Florida (PCSB) and WANRack, LLC agree the contract between the parties consists of the RFP (including addenda), and the successful proposal. testified that they fairly and objectively evaluated the information contained in WANRack's and Zayo's proposals. Further, the evidence demonstrates that WANRack's proposal complied with the RFP specifications, and WANRack is fully capable of providing the "lit" fiber services the School Board seeks through the WAN Services Contract. Finally, the evidence does not show, by a preponderance of the evidence, that Zayo was placed at a competitive disadvantage in this solicitation. Neither is there evidence that the School Board conducted this procurement in a manner that was contrary to its governing statutes, rules, or policies, or the provisions of the RFP. Accordingly, Zayo failed to meet its burden of proving that the School Board's intent to award this procurement to WANRack must be rejected.
Conclusions For Petitioner: Robert A. Shimberg, Esquire Trae S. Weingardt, Esquire Hill, Ward and Henderson, P.A., 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33601 1 Unless otherwise stated, all citations to the Florida Statutes are to the 2021 version. For Respondent: Jonathan Stidham, Esquire Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Warren Andrew Crawford, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Box 30 Bartow, Florida 33830 For Intervenors: Stephen R. Senn, Esquire Matthew J. Vaughn, Esquire Peterson & Myers, P.A. 225 East Lemon Street, Suite 300 Lakeland, Florida 33802
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order dismissing the protest of Zayo. It is further recommended that the School Board of Polk County award Request for Proposal 031-MDW-1121, Fiber WAN Lakeland E-rate to WANRack as set forth in the Notice of Award. DONE AND ENTERED this 17th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2021. Charles Wesley Bridges, General Counsel The School Board of Polk County, Florida Post Office Box 391 Bartow, Florida 33831 Trae S. Weingardt, Esquire Hill Ward Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Robert A. Shimberg, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Tampa, Florida 33602 Warren Andrew Crawford, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33830 Jeffrey Sullivan, Esquire Stidham & Stidham Post Office Box 510 Bartow, Florida 33831 Stephen R. Senn, Esquire Peterson & Myers, P.A. Suite 300 225 East Lemon Street Lakeland, Florida 33802 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jillian T. Spangler, Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 Frederick Heid, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 26th day of March, 2015.
The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 to suspend Respondent from his employment as a teacher for ten days without pay. 1 All references to chapter 120 are to the 2019 version. 2 All references to chapter 1012 are to the 2018 version, which was in effect at the time of the alleged misconduct at issue in this proceeding.
Findings Of Fact Based on the credible and persuasive competent substantial evidence in the record, the following Findings of Fact are made: The Parties Petitioner, Miami-Dade County School Board, is charged with the duty to operate, control, and supervise free public schools in Miami-Dade County pursuant to section 1001.32, Florida Statutes (2018), and article IX, section 4(b) of the Florida Constitution. Respondent has been employed by Petitioner as a teacher since 2000. He has been employed as an art teacher at E.W.F. Stirrup Elementary School ("Stirrup") for the last 18 years, including when he is alleged to have engaged in the conduct that has given rise to this proceeding. Respondent is certified in art, graphic design, and vocational education. Notice of Specific Charges The Notice of Specific Charges ("NSC"), which constitutes the administrative complaint in this proceeding, alleges two instances of conduct on Respondent's part as the grounds for the proposed disciplinary action. Specifically, the NSC alleges that on or about September 27, 2018, Respondent told a female 5th grade student words to the effect of "get out here; I do not want you here," and forcibly pushed her away with his hand. The NSC also alleges that Respondent used profanity, spoken in Spanish— specifically, the words "mierda"3 and "pinga"4?while covering a class of kindergarten students. The complaint alleges that two adults witnessed Respondent's use of these words.5 This incident is alleged to have occurred on or about December 5, 2018. Based on this alleged conduct, the NSC charges Respondent with misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Evidence Adduced at the Final Hearing The September 27, 2018 Incident 3 Translated into English, "mierda" means "shit." 4 Translated into English, "pinga," as used in the context pertinent to this proceeding, means "fuck." 5 As more fully discussed below, the NSC does not allege that Respondent's use of these words was directed at any students, or that any students saw or heard Respondent use these words. On September 27, 2018, S.D., a minor, was a student in Respondent's 5th grade art class. S.D. testified, credibly, that on that day, Respondent told her to "get out of his way," then pushed her away by placing his hands on her shoulders. She testified that Respondent's words and actions made her feel "embarrassed, or, like, weird." S.D. acknowledged that she had gone up to Respondent and tried to talk to him while he was talking to the president of the Parent Teacher Association ("PTA"). She tried to get hand sanitizer and Respondent said to her "not now, go away" because he was talking to the PTA president at that time. Respondent characterized S.D. as a child who "has a reputation for basically not obeying anything." He testified that when S.D. approached his desk, he was in a discussion with the PTA president, and he told S.D. to "get out of here" and "sit down." He did not recall touching her. He stated that from where he was standing, he doubted that he could have reached her to push her away, and that had he pushed her, she likely would have fallen. No other witnesses testified at the final hearing regarding this incident. The December 5, 2018 Incident On Wednesday, December 5, 2018, Respondent was assigned to cover another teacher's kindergarten class starting at 9:00 a.m., so that the teacher who regularly taught that class, Ms. Rivero, could attend an exceptional student education ("ESE") meeting regarding one of her students. For the 2018-2019 school year, Respondent was assigned a full day of planning each Wednesday. In addition, Respondent was assigned one hour of planning every other day of the school week, per the Miami-Dade School District ("District") policy of providing teachers a minimum of one hour of planning per day.6 6 Respondent was assigned a full day of planning on Wednesdays in the 2018-2019 school year. This was not a function of his having an extraordinary workload; rather, it was because on Wednesdays, the language arts classes were scheduled back-to-back and students were dismissed early, so that it was infeasible to schedule art classes on Wednesdays. As a result of this scheduling, Respondent enjoyed nearly four more hours of planning per week than the minimum planning time to which he was entitled under the District's planning policy. According to Smith-Moise, if a teacher's schedule provides more than an hour of planning per day, that teacher may be requested, from time to time, to use that additional planning time for involvement in other school activities, including covering other teachers' classes as necessary. The administration at Stirrup generally attempts to schedule substitute teachers to cover classes when a teacher is called away from his or her class; however, on December 5, 2018, another teacher's class already was being covered by a substitute teacher. Because Respondent had planning that entire day, he did not have classes, so was available to cover Rivero's class. The length of ESE meetings varies, depending on the type of ESE service being delivered and whether the students' parents agree with the school district regarding the ESE services proposed to be provided. This particular meeting was an initial ESE team staffing meeting; these types of meetings often are relatively long compared to other types of ESE meetings. Respondent covered Rivero's class on December 5, 2018, from approximately 8:35 a.m. until shortly after 1:00 p.m., when a substitute teacher was called to cover the class for the remainder of the ESE meeting. During the time he was covering Rivero's class, Respondent called the Stirrup administration office multiple times, and also called and sent text messages to a fellow teacher, Yvette Mestre, asking how long the ESE meeting would take and when it would be over. In response to Respondent's calls, Smith-Moise twice left the ESE meeting to speak to Respondent in Rivero's classroom. Both times, when she entered the classroom, she observed Respondent disengaged from the students and talking very loudly on his phone. Respondent made clear to Smith-Moise that he was very frustrated at having his planning time taken to cover Rivero's class when he had other responsibilities to attend to.7 7 Respondent testified that he had a great deal of work to do on a large mural project for his own classes that needed to be completed under a tight deadline. Shortly after the beginning of the school day on December 5, 2018, Smith- Moise had taken a student from Rivero's class to Mestre's classroom because the student was misbehaving in Rivero's classroom. A short time thereafter, Respondent began sending text messages to Mestre, asking when the ESE meeting was going to be over. Mestre, who was occupied with teaching her own class, responded that she did not know, and suggested that Respondent contact the administration office. Around 10:30 or 11:00 a.m., Respondent began calling Mestre, again asking about the length of the ESE meeting. Mestre testified that "he seemed upset because he had stuff that he wanted to plan." Mestre again responded that she did not know and suggested that Respondent contact the administration office. At some point, Mestre went to Rivero's classroom to retrieve a lunchbox for the student from Rivero's class whom she was supervising. When she entered the classroom, she observed Respondent on his phone. Respondent told Mestre that he was on the phone with his United Teachers of Dade ("UTD") representative and that he was upset at having to cover Rivero's class because it was his planning day. Mestre went to the administrative office and reported to Smith-Moise that Respondent was upset and needed assistance in Rivero's classroom. Smith-Moise directed Mestre to take Acevedo Molina, an office assistant, to the classroom so that she (Acevedo Molina) could assist Respondent. According to Mestre, when they entered the classroom, Respondent initially thought Acevedo Molina was going to take over supervision of the class; however, when Mestre informed him that Acevedo Molina was there to assist him but would not be taking over supervision of the class, Respondent became very irate, raised his voice, and used the words "mierda" and "pinga" in speaking to them.8 Acevedo Molina confirmed that Respondent used these words when he spoke to her and Mestre. Mestre and Acevedo Molina were, respectively, "shocked" and "surprised" at Respondent's use of these words. 8 Mestre testified that Respondent said, translated into English, "[t]he school doesn't understand the shit that I do," and "they don't give a fuck what I do in this school." Respondent testified that he does not recall having said those words when he spoke to Mestre and Acevedo Molina that day. There is conflicting evidence whether Respondent used those words inside the classroom, such that they were said within earshot of the students, or outside of the classroom, where the students would not be able to hear or see him use the words. Mestre and Acevedo Molina both testified that they had entered Rivero's classroom and were inside the classroom with Respondent when he used the words. Respondent claims that he had to have stepped outside of the classroom into the corridor to speak to Mestre and Acevedo Molina, because the door was locked and they would have been unable to open it and enter the classroom on their own. In any event, it is unnecessary to determine whether Respondent used these words in the classroom within the students' earshot, because the NSC only charges Respondent with having said "mierda" and "pinga" while "covering a class of kindergarten students for another teacher," and that Respondent's use of these words was "overheard by two adult witnesses." The NSC does not allege that Respondent directed the words toward any students or that any students saw or heard him use these words.9 No direct or persuasive circumstantial evidence was presented showing that any students saw or overheard Respondent use those words. Although Mestre and Acevedo Molina testified that Respondent was inside the classroom when he said the words, both testified that the words were not directed toward the students, and neither testified that any students heard or saw Respondent say those words. Thus, even if the evidence conclusively established that Respondent was inside the classroom when he said those words—which it does not—that does not prove that any students saw or heard Respondent use those words. To that point, Smith-Moise 9 Trevisani v. Dep't of Health, 908 So. 2d 1008, 1009 (Fla. 1st DCA 2005)(a respondent cannot be disciplined for offenses not factually alleged in the administrative complaint); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla 1st DCA 1996)(predicating disciplinary action on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act). See Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984)(administrative complaint seeking to impose discipline must state, with specificity, the acts giving rise to the complaint). testified that the school had not received any complaints about Respondent's use of those words from any of the students or their parents. The UTD Contract establishes a policy of imposing progressive discipline ("Progressive Discipline Policy") when "the Board deems it appropriate, and . . . the degree of discipline shall be reasonably related to the seriousness of the offense." Neither the Progressive Discipline Policy nor Petitioner's adopted policies articulate a disciplinary "scale" or penalty categories applicable to specific types of conduct. There is no competent substantial evidence in the record showing that Respondent previously has been subjected to disciplinary action by Petitioner. Petitioner did not present any competent substantial evidence establishing the factual basis for its proposal to suspend Respondent for ten days for the offenses charged in the NSC. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). Charged Conduct and Rule Violations The September 27, 2018 Incident Based on the foregoing, it is determined, as a matter of ultimate fact, that Respondent pushed S.D. on September 27, 2018. There was no justification for Respondent to place his hands on and push S.D., even if she interrupted him while he was speaking with another person. Respondent's conduct in pushing S.D. constituted misconduct in office, as defined in rule 6A-5.056(2). Specifically, Respondent's conduct did not comport with rule 6A-10.081(1)(a), which provides that his primary professional concern must be for the student, and requires him to exercise best professional judgment. In pushing S.D., he did not treat her as his primary professional concern, and he did not exercise best professional judgment. Additionally, Respondent's conduct did not comply with rule 6A-10.081(2)(a)1. or School Board Policies 3210 and 3210.01. Specifically, in pushing S.D., Respondent did not make a reasonable effort to protect her from conditions harmful to her mental and physical health and safety. Although S.D. was not physically injured, she was embarrassed by Respondent's conduct in pushing her. Respondent's conduct also did not comply with rule 6A-10.081(2)(a)5. or School Board Policies 3210 and 3210.01. Respondent's conduct in pushing S.D. was intentional and it exposed her to embarrassment. Because Respondent's conduct in pushing S.D. violated rules 6A- 10.081(1)(a)1. and (2)(a)1. and 5., and School Board Policies 3210 and 3210.01, it is found, as a matter of ultimate fact, that Respondent committed misconduct in office, pursuant to rule 6A-5.056(2). Pursuant to the UTD Progressive Discipline Policy, it is determined that Respondent's conduct in pushing S.D. was sufficiently serious to warrant suspending him without pay for five days. There was no justification for him having pushed her. Although S.D. was not physically injured as a result of Respondent's conduct, the potential existed for her to have been injured had she fallen, and, in any event, Respondent's intentional action subjected her to embarrassment. The December 5, 2018 Incident Based on the foregoing findings, it is determined, as a matter of ultimate fact, that Respondent used the words "mierda" and "pinga," which are profane words, when speaking to Mestre and Acevedo Molina on December 5, 2018. However, for the reasons discussed above, it is determined, as a matter of ultimate fact, that Respondent did not direct those words toward the students or that any students heard or saw him use those words.10 Respondent's use of profanity in speaking to Mestre and Acevedo Molina did not comport with rule 6A-10.081(1)(c). In using profanity toward his colleagues, Respondent did not strive to achieve and sustain the highest degree of ethical conduct. Mestre and Acevedo Molina both testified to the effect that they viewed his conduct as inappropriate in that professional setting. Respondent's use of those words when speaking to Mestre and Acevedo Molina did not comply with the requirement in School Board Policy 3210 to refrain from the use of profane or abusive language in the workplace. Respondent's use of those words when speaking with Mestre and Acevedo Molina also did not comply with the standard set forth in School Board Policy 3210.01, which requires the employee to show respect for other people. In sum, Respondent's conduct in saying "mierda" and "pinga" while speaking to Mestre and Acevedo Molina violated rules 6A-10.081(1)(c) and School Board policies 3210 and 3210.01. Accordingly, Respondent's conduct constituted misconduct in office under rule 6A-5.056(2). As discussed above, there is no competent substantial evidence establishing that Respondent has ever been subjected to discipline by Petitioner prior to this proceeding. Although Respondent's conduct in using profanity when speaking to two adult colleagues violates certain policies, in light of the UTD Progressive Discipline Policy, such violation is not sufficiently serious to warrant suspension without pay. Therefore, it is determined that, consistent with the concept of progressive 10 Further, as discussed above, the administrative complaint does not charge Respondent with using those words toward students or charge that any students saw or heard him use those words. discipline, Petitioner should issue a verbal reprimand to Respondent for his conduct in using profanity when speaking to his colleagues. Because Respondent was not charged with, and the evidence did not prove, that he directed profanity toward any students or that any students saw or heard him use profanity, Petitioner may not impose discipline on Respondent on that basis. Just Cause Based on the foregoing, it is determined, as a matter of ultimate fact, that just cause exists to suspend Respondent. Recommended Penalty Based on the foregoing, it is determined that Respondent should be suspended for five days without pay for having pushed S.D. Based on the foregoing, it is determined that Respondent should be issued a verbal reprimand for using profanity when speaking to Mestre and Acevedo Molina and Respondent should receive five days of back pay for the balance of the ten-day period for which Petitioner proposed to suspend him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, consistent with the foregoing, Petitioner enter a final order suspending Respondent from his employment as a teacher for five days without pay, issuing a verbal reprimand to Respondent, and awarding Respondent back pay for five days. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 1st day of June, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Carlos M. Sanjurjo Apartment 214 14907 Southwest 80th Street Miami, Florida 33193 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue The issue is whether the Education Practices Commission should impose a penalty or sanctions against Respondent’s teaching certificate pursuant to Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule 6B-1.006, based upon the allegations contained in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 602255, which encompasses Elementary Education and English to Speakers of Other Languages, which is valid through June 30, 2003. After beginning her teaching career working in its Reading Lab, Respondent began teaching a fourth-grade class at Ft. Pierce Elementary School. After a year in that position, she taught for approximately nine years at Bayshore Elementary School, also teaching fourth grade, then transferred to St. Lucie Elementary School, where she also taught a fourth-grade class her first year. St. Lucie Elementary School was a new school, which had opened in August, 1996. Respondent taught third grade during the 1998-1999 and 1999-2000 school years at St. Lucie Elementary School after being reassigned from her fourth-grade class. Dr. Jane Hartman is, and was, at all material times, principal of the school. Among her many duties, Dr. Hartman evaluates the instructional staff and attempts to be in the various classrooms frequently. Dr. Hartman provides feedback and support to her teachers in a variety of ways, including staff development days, written suggestions to teachers, and grade chair meetings. Teachers at St. Lucie Elementary School are given a copy of the school handbook, which is discussed at the beginning of each year. In the event Dr. Hartman receives a parent complaint, she first contacts the staff member to discuss the issues. Thereafter, Dr. Hartman arranges a face-to-face conference with the parent, administration, and the teacher, to ensure that everyone is “comfortable that the relationship has mended” so they can “move forward.” During Respondent’s first year at St. Lucie Elementary School, 1997-1998, Dr. Hartman received some complaints from parents concerning Respondent’s dealings with the parents of her students and with various classroom management issues. Dr. Hartman engaged in informal counseling with Respondent concerning these complaints, and observed some changes on Respondent’s part, although not enough. Dr. Hartman and other members of her administration frequently sent notes to Respondent concerning recommendations and criticisms about her classroom performance. Dr. Hartman reassigned Respondent to a third-grade class at the end of her first year teaching at St. Lucie Elementary School, believing that Respondent would have more success with a smaller number of students who, being younger, might be easier to teach. The average age of a fourth-grade student is nine years old. During her career as an educator, Dr. Hartman has both taught fourth graders and had the opportunity to observe fourth graders in the classroom. Fourth graders are normally at that age where they love their teacher; are able to read and write; are creative; and are ready to learn about their world. Dr. Hartman believed Respondent’s class to be an average class of students, a “sweet class in that they not only cared what was said to them personally,” but also, “what was said to their friend, what was said to someone who wasn’t as strong academically.” Respondent referred to many of the students in the class as having behavior problems. Ms. Drew, a music teacher at St. Lucie Elementary School, taught many of Respondent’s students the year they were in her class. Ms. Drew found these students not to be “bad,” but to be “children who had some bad experiences.” Ms. Drew “felt bad” for many of the students who were in Respondent’s class and agreed to teach a fifth-grade class the next year to help many of Respondent’s former fourth graders. Petitioner’s witnesses at hearing consisted primarily of students from Respondent’s fourth-grade class and their parents. The students complained that Respondent had belittled them in her class and made their fourth-grade year a miserable experience. The former students related comments having been made that they were “slow,” “stupid,” “babies,” “stupid idiots,” and that Respondent was “smarter and had more education than all your parents put together.” The students testified that Respondent yelled at them, “was mean,” told them to “shut up,” embarrassed them in front of the other students, and threatened to tape record them so that their parents could hear how much they misbehaved in class. One student was embarrassed in front of the class when Respondent insisted she call her mother on a speakerphone to address why she had not returned her paperwork and money for a candy sale. Another student reported to his mother that Respondent, an African-American herself, told him he was “acting like a stupid nigger.” Many of the students testified that, while they had previously enjoyed school, after being in Respondent’s class, their self-esteem had been shattered by Respondent’s behavior in class. St. Lucie Elementary School followed “Loving Discipline A to Z,” a guide for teachers to follow regarding discipline. Respondent failed to follow these guidelines. Respondent would punish the entire class for the actions of a few students by making them write sentences that, in some cases, were grammatically incorrect. Respondent would also punish the entire class for the actions of a few students by not allowing them to have recess or go to music or art classes outside the regular classroom. Respondent, for another form of punishment, would not choose “Lynx Leaders,” an award given to students who performed well. Respondent enforced inconsistent policies concerning use of the restroom. Although she testified that students could use the restroom whenever they needed as long as it was vacant, at times she refused to allow students to use the restroom, resulting in at least one student wetting his pants in class on more than one occasion and being ridiculed by other students in the class. The allegations by the students against Respondent were made at the time the students were in her class, both verbally to their parents and in writing to their parents and school officials, as well as in testimony at hearing, six years after they had been in Respondent’s fourth-grade class. Respondent’s disciplinary measures were too harsh for fourth graders. Assistant Principal Linda Applebee testified that Respondent had problems following directions. Respondent failed to participate in a bus evacuation drill in February of 1998, and failed to perform a required book check at the end of a nine-weeks' period, which resulted in the school not billing parents for missing books and therefore having to pay for books that were not returned. Dr. Hartman testified that “chaos” reigned in Respondent’s classroom, and that there had never been a teacher, either before or after Respondent, who had such difficulty maintaining classroom management. Dr. Hartman suggested that Respondent observe other classrooms where her students experienced physical education, art, or music, and did not experience the same disciplinary problems. Respondent never took Dr. Hartman’s suggestion. Respondent admitted to some chaos in her classroom when she described one day when a student was simulating a sex act on the floor while another one scribbled on her desk with a marker. Respondent blamed these problems on “poor parenting skills” rather than on her inability to control the classroom. Respondent had a policy of calling a student’s parents when a student refused to follow a warning to behave, but she failed to follow her own procedure. Dr. Hartman believed that Respondent did not follow school procedures and had difficulties with classroom management. Dr. Hartman repeatedly gave Respondent advice and support, but Respondent failed to change her behavior. For example, Dr. Hartman met with Respondent on September 7, 1998, to discuss the resources available at the school for dealing with classroom management. Dr. Hartman informed Respondent that 1) Level I infractions should be handled by the individual staff member involved, rather than immediately calling the front office, which Respondent often did; 2) Discussions about a student should not be held in front of the student or the class; 3) Students should be given supplies needed to participate in class; 4) Students need to be told what to do; 5) Students should be praised for doing what is expected; 6) Students should not be placed in the planning room for time out; and 7) Respondent should point out only positive behaviors of the students. Dr. Hartman explained that violations of these items as set forth in her letter dated September 7, 1998, would have a negative effect on her competence to perform as a teacher. Respondent refused to attend monthly faculty meetings on a regular basis. Further, when she did attend, Respondent often had to be called and reminded to attend, then arrived late and refused to sit with her team members, sometimes even typing at a computer during the meeting. Faculty meetings are important because they help the administration achieve its goals of having a school act with consistency and a common vision and purpose. Respondent sometimes failed to cooperate with parents and the administration in the scheduling and conducting of parent-teacher conferences. At least one family had to involve both Dr. Hartman and the School Board in order to hold a meeting with Respondent. Often, the meetings proceeded badly with Respondent taking little or no responsibility for the issues expressed by the parents. In January of 1998, an incident occurred involving Respondent at a basketball game in St. Lucie County between Lincoln Park Academy and its cross-town rival. Respondent’s daughter, along with one of her friends, was arrested at the game because they refused to listen to law enforcement officers who attempted to remove them from a confrontation with other students who had congregated outside the over-filled gym where the game was taking place. When Respondent arrived at the rowdy scene outside the basketball game, she began to argue with the two law enforcement officers who were arresting Respondent’s daughter and her friend. Respondent used racial epithets directed at the two officers and engaged in disorderly conduct. She called Officer Terry Miller, an African-American, an “Uncle Tom” which he took to mean an African-American person who takes the side of white people rather than people of his own color. She called Lieutenant David Trimm, who is white, a “cracker,” a racial slur used to describe a white person who is prejudiced against African-Americans. In addition to the racial epithets, Respondent attempted to incite the crowd by yelling about the Ku Klux Klan getting away with whatever they want, and that no arrests would have been made had the crowd been predominately white rather than African-American. Based upon Respondent’s actions, both Officer Miller and Lieutenant Trimm feared for their safety. Both officers had dealt with arrests of minors in the past and with their parents who become upset when they see their sons or daughters in handcuffs, but Respondent’s behavior was “totally different” from what they had experienced in the past. Officer Miller “was shocked” at Respondent’s behavior, especially in light of the fact that she was a teacher, and Lieutenant Trimm would have arrested her had he known at the time she was a teacher. Respondent’s behavior at the basketball game was unprofessional and so racially charged that a riot could have resulted from her actions. Dr. Hartman did not reprimand Respondent at the time of the incidents giving rise to this hearing because she believed Respondent could actually improve and change her behavior. After Respondent failed to take Dr. Hartman’s and Ms. Applebee’s advice, Dr. Hartman decided to change Respondent’s position so that she taught third-grade students, in hopes that “a little bit younger would soften her a bit.” Dr. Hartman’s reassignment of Respondent to a third- grade class for the following school year necessitated that her classroom be moved. Some of Respondent’s classroom items had been moved at the beginning of the 1999-2000 school year, and Respondent attempted to take compensatory leave at the start of the year, but failed to follow the proper procedures which included seeking prior permission from Dr. Hartman. Dr. Hartman called Respondent into her office to discuss Respondent’s failure to follow school policies concerning attendance and attitude at faculty meetings and unauthorized use of compensatory time. Respondent did not respond to Dr. Hartman’s questions, but handed her a letter of resignation, accompanied by an anonymous letter criticizing her teaching abilities that had been left in Respondent’s school mail slot. Respondent claims to have written the resignation letter the night before in response to the anonymous letter that she considered to be “harassment.” The substance of the letter, purportedly from a “very concerned parent,” was that Respondent “will always be remembered as a miserable, nasty, uncaring, cruel teacher that does not deserve to teach anyone, especially children.” Respondent further claims that she wrote the letter of resignation in an attempt to be transferred from St. Lucie Elementary to another school. Respondent is aware that, in order to be considered for a transfer to another school, she must first interview with that school and be offered a position. No other school had offered Respondent a position at the time she handed her resignation letter to Dr. Hartman. Therefore, Dr. Hartman could not have considered her request for a transfer. Initially, Dr. Hartman only read the first part of the resignation letter since, once she realized she was going to be without a teacher on the first day of school, she acted quickly to inform her assistant, Ms. Applebee, so that she could immediately seek a substitute to start the next morning. Once Ms. Applebee read the letter, she perceived it to be a threat to the safety of the students and faculty of St. Lucie Elementary School. Dr. Hartman did not read the entire letter until 6:00 p.m., on August 19, 1999, the first day of school because she was busy with all of the special challenges the first day of school presents every year. Once she read the letter, however, Dr. Hartman had “extreme concerns” about the following paragraph: After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I’ve been under your supervision. This included lack of administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude toward students, minorities, and me. These are conditions in [sic] which no one should be subjective [sic] in the workplace. In fact, it seems to almost define going postal. (Emphasis added) Dr. Hartman believed the “going postal” language meant that Respondent might come in and shoot people. Assistant Principal Applebee was concerned for their safety, after she read the letter. Ms. Jane Grinstead, Executive Director of School Operations for Zone 2, St. Lucie County School District, thought the letter constituted a threat. Even Respondent admitted that her husband warned her that “somebody might take your letter offensively,” yet she still gave it to Dr. Hartman. The letter came to Dr. Hartman at a time that was close to the shootings at Columbine High School in Colorado. Dr. Hartman was trained to be on alert for the type of traits that might be exhibited by a person who would do violence at a school. Those traits include antisocial behavior and failure to follow procedures, two traits exhibited by Respondent during her tenure at St. Lucie Elementary School. Further concern arose because this was a time when some United States Postal workers had assaulted, shot and killed their supervisors and some innocent bystanders. As a result of her concerns, Dr. Hartman contacted Ms. Grinstead who put her in touch with Dave Morris, head of security for the St. Lucie County School District. Mr. Morris arranged for a school resource officer to follow Dr. Hartman around the next school day, August 20, 1999. At the end of the day, Assistant School Superintendent, Russell Anderson, spoke with Respondent and informed her that if she wanted to resign, she must leave the school premises, and the resignation would be accepted at the next School Board meeting. During the meeting with Respondent, Mr. Anderson discussed her claims of harassment with her and offered her the chance to file a formal complaint for harassment against Dr. Hartman. Also, Respondent’s union representative, Ms. Clara Cook, informed her that she could file a formal complaint, yet Respondent declined to do so. Based upon his safety concerns, Mr. Anderson asked the school resource officer, Mr. McGee, to escort Respondent off campus. He then drafted a Notice of Temporary Duty Assignment which informed Respondent that she is “further prohibited from being on any school district property.” Respondent requested to rescind her resignation on August 23, 1999. On August 24, 1999, Respondent’s letter of resignation was rescinded and she was suspended without pay by the St. Lucie County School District. On October 6, 1999, Respondent was suspended without pay and notified that the St. Lucie County School District would recommend that she be terminated at the next School Board meeting based on her violation of School Board policies. After a hearing, Respondent was terminated by the St. Lucie County School District as a result of the contents of the resignation letter. As a result of the incidents culminating in her dismissal, Respondent’s effectiveness as a teacher has been called seriously into question. Dr. Hartman explained that an effective teacher is one who “cares about children, cares about their learning, knows how to communicate, [is] open to learning themselves at all times, [is] very caring, compassionate, willing to work with others, realizing the accountability and responsibility that we hold each day, celebrating. You have to be very intelligent because you’re constantly thinking on your feet, planning and preparing and organizing.” Assistant Principal Applebee believes that Respondent did not like the children she taught because she noticed Respondent was not always nice to them; she complained about them; and the children believed they had no one in the classroom who cared about them. Ms. Grinstead, a school district administrator with 35 years of experience, believes that an effective teacher is one who is 1) sensitive; 2) caring toward children; 3) communicates well with peers; 4) communicates well with parents and students; and 5) can give suggestions on ways the parents and the school can work together for the children. Other teachers at St. Lucie Elementary School “rallied to assist” Respondent’s class. Ms. Drew decided to teach fifth grade so she could teach the same students who had been in Respondent’s fourth-grade class. Dr. Hartman would not reemploy Respondent. Assistant Superintendent Anderson would not recommend Respondent for re-employment in the St. Lucie County School District based on the seriousness of the charges. Assistant Principal Applebee would never re-employ Respondent because she did not believe Respondent to be an effective teacher. Officer Miller believes that Respondent should not be reemployed as a teacher by the St. Lucie County School District. Each of Respondent’s former students and their parents does not believe that Respondent should be employed as a teacher anywhere. Respondent takes no responsibility for any of the allegations made against her. She believes that she did nothing wrong, but that the problems complained of by the administrative staff, law enforcement personnel, her former students, and their parents are the result of either discrimination, harassment, or manipulative children and their parents who refuse to take responsibility for their children’s behavior. Despite all the complaints lodged against Respondent by her former students and their parents, her former principal, assistant principal, school district administrators, and law enforcement officers, Respondent received satisfactory evaluations from Dr. Hartman for the period in question in this case. Respondent currently works for the Head Start program, caring for three- and four-year-old children. Before the Administrative Complaint was filed in this case, a substantially similar Administrative Complaint (the same except for the statutory citations which were renumbered by the Florida Legislature) was filed and scheduled for hearing before DOAH. The case proceeded to hearing and the prior Administrative Law Judge opened the record. Petitioner then attempted to amend the Administrative Complaint to correct statutory citations that had been renumbered by the Legislature. Respondent objected to Petitioner’s ore tenus motion to amend. When the Administrative Law Judge announced that he would not rule on the motion to amend at the hearing, Petitioner announced that it was voluntarily dismissing the Administrative Complaint without prejudice and would thereafter file a new complaint with the revised statute numbers. Respondent asserted at that time that she believed Petitioner’s voluntary dismissal would be dispositive of the claims and allegations in it; that she did not agree to a voluntary dismissal; and that she was prepared to proceed. Nonetheless, Petitioner voluntarily dismissed the Administrative Complaint, and DOAH entered an Order Closing File.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s teaching certificate be revoked for a period of 10 years, with reinstatement subject to the provisions of Subsection 1012.795(4)(b), Florida Statutes. DONE AND ENTERED this 11th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 11th day of June, 2004. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
