Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
The Issue Whether Respondent should be dismissed from her position as a Media Specialist or otherwise disciplined for alleged violation of Section 231.09, and 231.36(6), F.S., as set forth in the Petition dated June 13, 1983. This proceeding arises from a Petition filed by William T. McFatter, Superintendent of Schools for the Broward County School System, on June 13, 1983, that seeks to dismiss Respondent, Antionette Pauline, a media specialist in the public schools of Broward County, Florida. In five (5) Counts, the Petition alleges as follows: That on May 4, 1983, the Respondent grabbed Steven Richardson, a fifth grade student at Nob Hill Elementary School, by the arm and forcibly pushed said student against or into a classroom door approximately three (3) times, which action constitutes misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on May 4, 1983, the Respondent took Steven Richardson's media center pass and pulled on the front of teacher Verda Farrow's blouse in the presence of said student and forcibly jammed the pass down the inside front of the teacher's blouse, which action constitutes misconduct in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on February 16, 1983, the Respondent was directed to cease from verbally attacking teachers, and that she again verbally attacked Verda Farrow on May 4, 1983, which action constitutes gross insubordination and/or willful neglect of duty in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That during the 1981-1982 school year, the Respondent had several other encounters with faculty and students at Sunrise Middle School and that during the school year 1982-1983, the Respondent had several encounters with the faculty at Nob Hill Elementary School, the result of which would make it difficult, if not impossible, for Respondent to recover and be an effective librarian, which actions constitute misconduct in office and/or willful neglect of duty and/or incompetency, in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; and That the Respondent has violated the Code of Ethics by failing to practice her teaching profession with the highest ethical standards by failing to protect the student, Steven Richardson, from unnecessary embarrassment or disparagement, by failing to protect the student from conditions harmful to learning and/or safety, and/or by making false or malicious statements about her colleagues, which actions constitute misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules and School Board policies. Respondent denied the allegations in the Petition and requested an Administrative Hearing. Thereafter, eighteen (18) witnesses were called by the Petitioner, five (5) witnesses were called by Respondent, and forty (40) exhibits were offered into evidence. The deposition testimony of Ernest M. Roberts was accepted as a late-filed exhibit. Further, ruling on the admissibility of the polygraph examination conducted upon Respondent was deferred. The testimony of the polygraph examiner, his chart, and rebuttal testimony were offered by proffer, subject to a continuing objection as to its admissibility, without stipulation, in an Administrative Hearing. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
Findings Of Fact The Respondent, was employed by the Broward County School Board commencing with the school year 1960-61. She was originally employed as a librarian in an elementary school and, thereafter, held several positions, including Media Specialist (librarian) with the Broward County Migrant Program and the State Department of Education, Florida Migratory Section. She presently holds a Master's Degree in library science which she received in July of 1975. In 1977, the Respondent obtained a position at Dillard High School and was promoted to the position of Head Media Specialist. At the conclusion of the school year 1980-81, the Respondent was administratively transferred by the Area Superintendent to Sunrise Middle School, where she remained as a media specialist for that school year, when she was again administratively transferred by the Area Superintendent to Nob Hill Elementary School for the school year 1982-83. Following the incident which occurred on May 4, 1983, Respondent was transferred to the staff of the Director of Learning Resources of the Broward County School System for the remainder of school year 1982-83. Thereafter Respondent was suspended pending the results of this hearing. During her tenure at Dillard High School, the Respondent incurred several problems with the staff and the principal wherein complaints were received from teachers who were not utilizing the media center, and from students who felt they were being treated unfairly. The Respondent had a problem interacting and communicating with white people and as a result, became ineffective. When Amos Bonner, the principal at Dillard High School, concluded that Respondent's effectiveness had been impaired, he brought the matter to the attention of the Area Superintendent, William Dandy. Consequently, the Respondent was administratively transferred to Sunrise Middle School. During the school year 1981-82, while assigned to Sunrise Middle School, the Respondent incurred similar problems with the faculty and students at that school. Her principal, Nick Gancitano, found her to be defensive, negative, and communicated with the faculty, students and administration in a negative way. Students were not using the library, and there was a dramatic decrease in the number of books being circulated from the previous year. As the problem seemed to get progressively worse, throughout the year, her principal concluded that her overall effectiveness as a Media Specialist was impaired. Principal Gancitano, who was charged with the responsibility for evaluating the performance of the Respondent in accordance with her job description, concluded that the Respondent lacked the "ability to work with principals, teachers and other appropriate educational leaders in order to design learning experiences and to recommend educational media suited to specific instructional objectives, and to stimulate effective utilization of media" and, further, lacked the "ability to inspire and gain the respect of staff and students." Michael Galbreath and James Rupp, fellow teachers at Sunrise Middle School, related incidents where children were crying out of frustration and upset with the experiences that they encountered in the library. It reached the point that Mr. Galbreath would not take his classes to the library. Instead, he would sneak into the library or would purchase books from his own financial resources, for classroom use, so the children would not have to enter the library. Mr. Galbreath testified that the Respondent's attitude was belligerent and intimidating, and that other classroom teachers had also refused to take their children to the library. He concluded that the Respondent's effectiveness as a Media Specialist was impaired and that, as a direct result of her severe problems in dealing with people, the Respondent was incompetent. Mr. Rupp testified that the Respondent was "standoffish" and that she didn't really want to relate to everyone that was at the school. He was also aware that children were not utilizing the library facility towards the end of the year and he concluded that her effectiveness as a Media Specialist was "null and void." During the school year 1981-82, these complaints were brought to the attention of the Area Superintendent, William Dandy, who requested an investigation. He had received complaints from parents and from teachers concerning the Respondent. Because of her inability to discharge her required duties at Sunrise Middle School, at the conclusion of school year 1981-82, Respondent was again administratively transferred this time to Nob Hill Elementary School. While at Nob Hill Elementary School during school year 1982-83, Respondent again involved herself in altercations with other faculty members. Susan Reynolds, a fellow teacher at Nob Hill Elementary School, testified that Respondent threatened to "choke her" and that as a result of the comment, she was intimidated and afraid of the Respondent. She called this to the attention of Ernest Roberts, the Principal at Nob Hill. The Respondent also had a confrontation with Verda Farrow, which resulted in Mr. Roberts directing the Respondent to cease from verbally attacking and accusing teachers of "talking about you" and "spying on you." On May 4, 1983, Steven Richardson, then a fifth grade student of Verda Farrow's went to the library with a pass to check a bibliography. The Respondent was reading to a kindergarten class and for no justifiable reason she determined that Steven Richardson's attempt to gain her attention was disruptive. She took Steven Richardson to the office and discovered that Mr. Roberts was out of the building. Thereafter, she took the student to Verda Farrow's classroom to discuss the matter with her. During the conversation that ensued outside the classroom door, the Respondent grabbed Steven Richardson by the arm and attempted to push him into the door approximately three times. Respondent also grabbed Mrs. Farrow by the dress, pulled her dress loose, and stuffed the library pass down the front of Mrs. Farrow's dress. This incident was witnessed by Steven Richardson and several of the students in the classroom at the time, three of whom testified at the Hearing. Following the incident on May 4, 1983, a Police Report was filed, and school security conducted an investigation of the alleged incident. Faculty members, upon becoming aware of the incident, boycotted the library and several parents, who became aware of the incident, wrote unsolicited letters requesting that their children not be sent to the library. Arthur Rose, President of the Nob Hill Elementary School P.T.O. Advisory Committee, became aware of the situation and received phone calls at his office and his home from parents who were concerned regarding their children. Mr. Rose believes that he and the parents with whom he spoke had concluded that Respondent's effectiveness as a Media Specialist had been impaired. The parents were desirous of having the Respondent removed from the school and they feared for the safety of their children. Following the investigation by school security, the Respondent was transferred on a temporary basis to the staff of the Director of Learning Resources by Benjamin F. Stephenson, Associate Superintendent for Personnel. This was not an existing position. The Respondent denied ever touching Steven Richardson. The Respondent admits that the position of Media Specialist, or librarian, is in some respects more difficult than the position of a classroom teacher, in that a classroom teacher is only responsible for dealing or communicating with one class of students, while a Media Specialist must effectively communicate with three or four hundred children a day. The Respondent also agrees that a librarian must have good communication skills among faculty members. To corroborate the Respondent's contention that she did not grab Steven Richardson and push him into the door, the Respondent submitted to a private polygraph examination conducted by Robert Rios, who concluded that the Respondent did not attempt deception when asked whether she grabbed Steven Richardson by the arm and pushed him into the door on May 5, 1983. He concluded that the reliability of this polygraph examination should have at least equal weight to eyewitness testimony. In rebuttal to the proffered testimony of Mr. Rios, his polygraph examination chart and findings were reviewed by Carl Lloyd, investigator and polygraph examiner for the State Attorney's Office in Broward County, Florida, and the individual under whom Mr. Rios served an internship. Mr. Lord had previously supervised Mr. Rios in conducting twenty or thirty polygraph examinations, and has reviewed his charts in one hundred fifty to three hundred cases. Mr. Lord concluded, based upon the pre-test and test procedures utilized, that the validity of the test conducted upon Respondent was less than fifty (50%) percent. Mr. Lord further testified that in the State of Florida, polygraph examinations are only admissible in Court upon stipulation of both parties. The purpose of the stipulation is to ensure that the subject is testable, that there is a testable issue, and that the pre-test and test procedures utilized result in conclusive and reliable findings.
Recommendation It is recommended that the Respondent be dismissed from employment by the School Board of Broward County. DONE and ORDERED this 31st day of January, 1985 in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1985 COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Ronald W. Houchins, Esquire 3075 W. Oakland Park Boulevard Suite 103 Fort Lauderdale, Florida 33311 William T. McFatter Superintendent of Schools Broward County School System 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
The Issue The issue in these cases is whether amendments to the Broward County Comprehensive Plan are "in compliance" as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Economic Development Council of Broward, Inc. (hereinafter referred to as "EDC") is a not-for-profit corporation organized and existing under the laws of Florida. EDC's principal place of business is 1263 East Las Olas Boulevard, Fort Lauderdale, Broward County, Florida. The Florida Home Builders Association (hereinafter referred to as "FHBA") is a not-for-profit corporation organized and existing under the laws of Florida. FHBA's principal place of business is 210 East Park Avenue, Tallahassee, Leon County, Florida. The Building Industry Association of South Florida (hereinafter referred to as "BIASF") is a not-for-profit corporation organized and existing under the laws of Florida. BIASF's principal place of business is 15225 Northwest 77th Avenue, Miami Lakes, Dade County, Florida. The Florida Association of Realtors (hereinafter referred to as "FAR") is a not-for-profit corporation organized and existing under the laws of Florida. FAR's principal place of business is 7025 Augusta National Drive, Orlando, Orange County, Florida. The Department of Community Affairs (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). The Broward County Board of County Commissioners (hereinafter referred to as the "Broward County Commission"), is the governing body of Broward County, Florida. Broward County is a political subdivision of the State of Florida. The Broward County Commission is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. The School Board of Broward County (hereinafter referred to as the "School Board") is the governing body of the school district of Broward County. Section 4(a), Article IX of the Constitution of the State of Florida. The School Board is charged with responsibility to "operate, control and supervise all free public schools" within Broward County. Section 4(b), Article IX of the Constitution of the State of Florida. Standing. EDC was formed in 1979 to represent the interests of residential land developers in Broward County. EDC is active in representing the interests of its members before governmental bodies in the southeastern region of Florida, including Broward County. FHBA represents approximately 16,000 members statewide. BIASF represents approximately 900 members from several counties. FAR represents approximately 63,750 members statewide. The subject matter of the plan amendments at issue in these cases is within the general scope of interest and activity of Petitioners. Petitioners submitted oral and written comments, recommendations, and objections to Broward County throughout the adoption process of the plan amendments at issue in these cases. The parties stipulated, and the facts support a finding, that Petitioners have standing to institute these proceedings. The evidence also supports a finding that the School Board has standing to participate in these proceedings. The School Board was involved in the preparation of the plan amendments at issue in these cases, and the amendments directly impact the manner in which funds for the construction of educational facilities are raised. The Charter of Broward County Florida. Broward County enacted the Charter of Broward County Florida (hereinafter referred to as the "Charter"), granting Broward County final authority over land use planning in Broward County and all municipalities located therein. The Charter establishes requirements and standards that municipalities located in Broward County must follow for land use planning and development approval. All municipal land use plans must be approved and certified by the Broward County Planning Council (hereinafter referred to as the "Planning Council") and the Broward County Commission. The Planning Council has been designated as a "local planning agency" by the Broward County Commission. The Charter was adopted November 5, 1974. The Charter was effective January 1, 1975. Section 6.05, Article VI of the Charter requires that municipal land use plans must be in "substantial conformity" with the Broward County Land Use Plan. To the extent that a municipality does not adopt a land use plan, the Broward County Land Use Plan applies in that municipality. Section 6.04, Article VI of the Charter provides that Broward County ordinances dealing with land use planning prevail over municipal ordinances. As a result of a 1976 referendum, Section 6.12, Article VI of the Charter was amended to grant Broward County authority over platting of lands throughout Broward County. It also grants Broward County authority to implement a countywide growth management system, including a concurrency management system. School Board Authority. Chapter 230, Florida Statutes, provides for the creation of school districts throughout Florida and their regulation by school boards. Among other things, school boards are vested with the responsibility and authority for the operation and administration of all public schools within their respective school districts. Section 230.23, Florida Statutes, grants the following powers, among others, to school boards: ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS.--Adopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district, as follows: Schools and attendance areas.--After considering recommendations of the superintendent, to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools and to approve the area from which children are to attend each such school. . . . . (j) Cooperate with other agencies in joint projects. Adopt plans for cooperating with school boards of other districts in this state or in adjoining states or with other governmental agencies . . . for such joint projects or activities as may be authorized by regulations of the state board. . . . . SCHOOL PLANT.--Approve plans for locating, planning, constructing, sanitating, insuring, maintaining, protecting, and condemning school property as prescribed in chapter 235 . . . . FINANCE.--Take steps to assure children adequate educational facilities through the financial procedure authorized in chapters 236 and 237 . . . . Other pertinent statutory provisions governing school boards include Chapter 235, Florida Statutes (planning and construction of educational facilities), Chapter 236, Florida Statutes (Finance and Taxation by School Districts), and Chapter 237, Florida Statutes (Financial Accounts and Expenditures for Public Schools). Public Schools Concurrency. Section 163.3177(10)(h), Florida Statutes (Supp. 1996), provides the following with regard to "concurrency" provisions of comprehensive growth management plans adopted pursuant to the Act: (h) It is the intent of the Legislature that public facilities and services needed to support development shall be available concurrent with the impacts of such development in accordance with s. 163.3180. In meeting this intent, public facility and service availability shall be deemed sufficient if the public facilities and services for a development are phased, or the development is phased, so that the public facilities and those related services which are deemed necessary by the local government to operate the facilities necessitated by that development are available concurrent with the impacts of the development. . . . The terms "public facilities" are defined in Section 163.3164(24), Florida Statutes (1995), to mean "major capital improvements, including, but not limited to . . . educational . . . ." Despite the Legislative intent with regard to concurrency set out in Section 163.3177(10)(h), Florida Statutes, concurrency is not required for all public facilities and services. Section 163.3180(1)(a), Florida Statutes (Supp. 1996), sets out the circumstances under which "concurrency" is mandatory: (1)(a) Roads, sanitary sewer, solid waste, drainage, potable water, parks and recreation, and mass transit, where applicable, are the only public facilities and services subject to the concurrency requirement on a statewide basis. Additional public facilities and services may not be made subject to concurrency on a statewide basis without appropriate study and approval by the Legislature; however, any local government may extend the concurrency requirement so that it applies to additional public facilities within its jurisdiction. Pursuant to the foregoing provisions of the Act, local governments are not required to provide in their comprehensive plans that educational public facilities (hereinafter referred to as "Public Schools") needed to support development must be made available concurrent with the impacts of such development. Local governments may, however, elect to include such a requirement in their plans. Any local government that elects to require concurrency for Public Schools must do so pursuant to the provisions of Section 163.3180, Florida Statutes. Section 163.3177(10)(h), Florida Statutes. In particular, Section 163.3180(1)(b), Florida Statutes, requires that local governments that elect to require concurrency for Public Schools must first conduct a study (hereinafter referred to as the "Study"): If a local government elects to extend the concurrency requirement to public schools, it should first conduct a study to determine how the requirement would be met and shared by all affected parties. The local government shall provide an opportunity for full participation in this study by the school board. . . . Once the Study is completed, Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts a plan amendment providing for Public Schools concurrency must comply with the following: Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan. Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. and 2. Broward County's Comprehensive Plan. Broward County has adopted a comprehensive plan (hereinafter referred to as the "Plan") which has been found "in compliance" as defined in the Act. The Plan consists of, among other things, a future land use element (hereinafter referred to as the "Land Use Plan"), a capital improvements element (hereinafter referred to as the "Capital Improvements Element"), and an intergovernmental coordination element (hereinafter referred to as the "Intergovernmental Coordination Element"). Joint Exhibit 17 and EDC Exhibit 21. Broward County has implemented a county-wide concurrency management system for traffic and regional parks through the Land Use Plan. See Policies 08.06.03 and 11.01.01 of the Land Use Plan. Until the adoption of the amendments which are the subject of these proceedings, Broward County had not extended concurrency requirements to Public Schools. Broward County's Decision to Require Public Schools Concurrency; The Broward County Study. Broward County amended the Plan in 1993 to authorize a Study. Broward County added Policy 08.07.03. to the Land Use Plan authorizing preparation of a Study: Broward County, in coordination with the School Board of Broward County, shall prepare a study, to be completed by the end of 1993 and updated no later than annually, addressing long range planning of public elementary and secondary school sites and facilities necessary to meet the demands of Broward County's projected population and to determine if public elementary and secondary schools concurrency requirements shall be met and shared by all affected parties in accordance with Chapter 163.3180 of the Florida Statutes. The School Board agreed to participate with Broward County in the preparation of the Study. No formal agreement dealing with the Study was entered into between the School Board and Broward County. No such agreement is, however, required by Section 163.3180(1)(b), Florida Statutes, or any other provision of the Act. All that is required is that the "local government" conduct the study and allow participation by the local school board. On November 19, 1993, the Broward County Public School Concurrency Study (hereinafter referred to as the "Broward County Study") was issued. The cover of the Broward County Study is stamped "Draft." No further modifications, however, were made to the Broward County Study marked Draft. The Broward County Study was prepared jointly by Broward County's Department of Strategic Planning and Growth Management, the County Attorney's Office, the Planning Council, and the School Board's Property Management Department. Broward County afforded the School Board full opportunity to participate in the preparation of the Broward County Study. At the time that the Broward County Study was completed, the Broward County Commission had not officially voted to adopt Public Schools concurrency. The Broward County Study did not include a recommendation as to whether the Broward County Commission should adopt Public Schools concurrency. Why a specific recommendation was not included, and what the Broward County Study does include, was summarized in the Introduction to the Broward County Study: . . . . The first chapter of the study presents and analyzes the steps and procedures necessary to implement a concurrency requirement and concurrency management system for public schools. . . . Also addressed is the question of when in the development process the test for concurrency would be met including which development permits would be affected. Finally, this chapter analyzes the feasibility of establishing a county-wide concurrency management system for public schools within Broward County. The second chapter reviews and evaluates potential level of service (LOS) standards for public schools. Alternative methods for determining school capacity, [sic] are identified and analyzed. Several options for applying a LOS, ranging from a school by school application to a county-wide systems approach, are evaluated. Potential ways development could address or mitigate school LOS deficiencies are identified. Maps showing the possible impacts of implementing public school concurrency are included in the Appendix. The final chapter reviews the legal implications of a concurrency requirement. . . . This study does not include a recommendation as to whether or not Broward County should pursue a concurrency requirement for public schools. There are numerous policy issues which must be addressed prior to such a decision being made. Rather, the study attempts to identify the most feasible method for implementing a concurrency requirement for public schools in Broward County. The study also evaluates the likely impacts of a concurrency requirement on future development within the County. The study provides the School Board of Broward County and Broward County Commission with the information needed to make an informed decision regarding public school concurrency. A Summary of Findings is included on pages 3 through 6 of the Broward County Study. The Broward County Study met the requirements of Section 163.3180(1)(b), Florida Statutes. Broward County's Local Planning Agencies. Section 163.3174, Florida Statutes, requires that all local governments designate a "local planning agency." The local planning agency, which may be the governing body of the local government, is charged with the responsibility for preparing comprehensive plans and plan amendments under the Act. The local planning agency is required to conduct public hearings after giving notice and to make recommendations to the local government. The Broward County Commission has designated by ordinance two bodies to act as the local planning agency for Broward County: (a) the Planning Council; and (b) the Broward County Department of Strategic Planning and Growth Management (hereinafter referred to as "Planning Department"). The Planning Council is an entity established by the Charter. The Planning Council has been designated in Sections 5-115 and 5-116 of the Broward County Code as the local planning agency for the Land Use Element and the Plan's Future Land Use Map. The Planning Council is also charged with the duty and responsibility to certify whether comprehensive plans of Broward County municipalities are at least as restrictive as the Land Use Plan. The Land Use Plan applies to incorporated and unincorporated areas of Broward County. The Planning Council is responsible for the publication of all notices for public hearings which relate to the amendment of the Land Use Plan or the Plan's Future Land Use Map. The Planning Department is the local planning agency for all elements of the Plan applicable to the unincorporated areas of Broward County. In particular, the Planning Department serves as the local planning agency for purposes of the Capital Improvements Element and the Intergovernmental Coordination Element, among others. On June 22, 1994 and June 28, 1994, Broward County and the School Board entered into an Interlocal Agreement titled "Agreement Between Broward County and the School Board of Broward County, Florida, for the Preparation and Implementation of a Public School Element" (hereinafter referred to as the "Element Preparation Agreement"). Pursuant to the Element Preparation Agreement, the Broward County Commission designated the School Board as the local planning agency for purposes of preparing a countywide Public School Facilities Element. The School Board agreed to the designation. On July 11, 1994, the Broward County Commission adopted Ordinance 95-31, amending the Charter of Broward County to provide that the School Board would act as the local planning agency for the Public School Facilities Element. The School Board had not been designated as a local planning agency at the time the Broward County Study was conducted. Nor was the Broward County Study modified after the School Board was designated as the local planning agency. The School Board's Preparation of the Public School Facilities Element and Related Amendments. The School Board, as a local planning agency, conducted a public workshop on Public Schools concurrency, after public notice, on July 19, 1995. On August 14, 1995, a second workshop was held. At this workshop, School Board staff presented a draft of the Public School Facilities Element to the Broward County League of Cities Technical Advisory Committee. A third workshop to consider the draft element was conducted on August 16, 1995. Public notice of this workshop was given. On October 2, 1995, School Board staff conducted a retreat to consider the draft element. The Five Year Capital Outlay Plan was also considered at the retreat. A second retreat was held on October 31, 1995. On November 14, 1995, the School Board, in its capacity as a local planning agency, conducted a local planning agency public hearing to consider the adoption of a Public School Facilities Element. The School Board adopted Resolution 96-20, transmitting a draft of a Public School Facilities Element to the Broward County Commission and recommending its adoption. The draft element consisted of two volumes: (a) Volume I, "Components for Adoption"; and (b) Volume II, "Supporting Documents." Included in the Public School Facilities Element was a Financially Feasible Public School Capital Facilities Program. On November 21, 1995, the School Board adopted its Five Year Capital Outlay Plan (1995-96 to 1999-00). This plan was identical to the Financially Feasible Public School Capital Facilities Program included in the Public School Facilities Element. The School Board also adopted Resolution 96-19 at its November 14, 1995, local planning agency meeting. This resolution transmitted proposed amendments to the Land Use Plan to the Planning Council. The amendments related to the Public School Facilities Element. The School Board recommended that the Planning Council recommend to the Broward County Commission that it adopt the amendments to the Land Use Plan. The Planning Council's Consideration of Proposed Broward County Land Use Plan Amendments. On March 28, 1996, the Planning Council conducted a duly noticed public hearing at which it considered the amendments to the Land Use Plan proposed by the School Board. After modification by the Planning Council, the amendments proposed by the School Board were transmitted to the Broward County Commission. The amendments were recommended for approval by the Broward County Commission. The amendments included an amendment to Policy 08.07.02 of the Land Use Plan, and the addition of new Policies 08.07.08 through 08.07.13 to the Land Use Plan. All of these amendments related to Public Schools concurrency and are described in more detail, infra. Broward County Commission's Review of the Proposed Amendments and Its Decision to Transmit the Proposed Amendments to the Department. The Broward County Commission provided notice of a public hearing on the proposed Public Schools concurrency amendments to be held on May 1, 1996. At the hearing, the Broward County Commission voted to transmit the Public School Facilities Element recommended by the School Board and the amendments to the Land Use Plan recommended by the Planning Council to the Department for review pursuant to the Act. The proposed amendments were transmitted to the Department on May 10, 1996. The Department's Review of the Proposed Public Concurrency Amendments. On July 9, 1996, representatives of the School Board met with Department representatives charged with responsibility for review of the proposed amendments. The School Board representatives were advised by Department personnel that the Public School Capital Facilities Program included in the Public School Facilities Element was required by the Act to be included in the Capital Improvements Element of the Plan. On July 19, 1996, the Department, having reviewed the proposed amendments, issued its Objections, Recommendations and Comments Report (hereinafter referred to as the "ORC"). The ORC was transmitted to the Broward County Commission by cover letter dated July 19, 1996. The Department raised the following objections in the ORC: The failure to include the Financially Feasible Public School Capital Facilities Program in the Capital Improvements Element; The failure to enter into an Interlocal Agreement with the School Board; The absence of certain policies pertaining to the time- frame in which new facilities would be required to be in place to serve new development when mitigation is proposed; The existence of certain internal inconsistencies in goals, objectives, and policies of the proposed element; and The existence of certain inconsistencies with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida. The Department recommended in the ORC that the financially feasible Public School Capital Facilities Program be included in the Capital Improvements Element of the Plan. The Department sent a supplemental letter to Broward County on the same date that it transmitted the ORC. The letter was intended by the Department to supplement the ORC by suggesting that the proposed amendments failed to amend the Intergovernmental Coordination Element of the Plan, consistent with Section 163.3177(6)(h)2, Florida Statutes. The July 19, 1996, supplemental letter was sent as a result of comments concerning the ORC made to the Department by Mr. Thomas Pelham. Broward County's Adoption of the Amendments. Section 6.05 of the Charter provides that the Planning Council "may propose amendments to the County Land Use Plan at any time after consideration at two public hearings." The Planning Council had conducted one public hearing. Therefore, it was required pursuant to the Charter to conduct a second public hearing. On August 22, 1996, the Planning Council, in its role as a local planning agency, held a duly noticed public hearing on the proposed amendments to the Land Use Plan. This second meeting was not required by the Act. On September 11, 1996, the Broward County Commission held a duly noticed public hearing. This meeting was required by Section 163.3184(7), Florida Statutes, and was conducted consistent with the requirements of Section 163.3184(15), Florida Statutes. During this public hearing Ordinance 96-30 was promulgated, approving, among other things, a Public School Facilities Element; amendments to the Land Use Plan; amendments to the Capital Improvements Element; and amendments to the Intergovernmental Coordination Element (hereinafter referred to jointly as the "Amendments"). On the same date the Amendments were adopted, Broward County and the School Board entered into an Interlocal Agreement Between Broward County and the School Board of Broward County, Florida, for the Implementation of the Public School Facilities Element (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement was executed in response to the Department's supplement to the ORC suggesting that the requirements of Section 163.3177(6)(h)2, Florida Statutes, had not be complied with. On September 18, 1996, the Planning Council transmitted the Amendments, a response to the ORC, and the Interlocal Agreement to the Department. The Planning Department did not conduct any public hearings to consider the amendments to the Intergovernmental Coordination Element or the Capital Improvements Element adopted on September 11, 1996, by the Broward County Commission in response to the ORC. The substance of the amendments to the Intergovernmental Coordination Element and the Capital Improvements Element suggested by the Department was considered at public hearings prior to transmittal of the proposed amendments and the adoption of the Amendments. The substance of the amendments was approved and recommended to the Broward County Commission, was adopted by the Broward County Commission, and was ultimately reviewed by the Department. Throughout the process, the Planning Department was fully aware of the nature of the proposed amendments and the Amendments. Even though the Planning Department relied heavily on the School Board's review of the Financially Feasible Public School Capital Facilities Program, the evidence failed to prove that the Planning Department would not have relied upon the School Board's expertise even it if the Planning Department had conducted a separate local planning agency hearing. The amendments to the Capital Improvements Element and the Intergovernmental Coordination Element adopted in response to the ORC were not reviewed by the South Florida Regional Planning Council or any other agency. Nor was a separate ORC issued by the Department following a review of those amendments pursuant to Section 163.3184, Florida Statutes. The Department's First Notice of Intent and Challenges Thereto. On October 24, 1996, the Department issued a Statement of Intent finding the Amendments not in compliance. This determination was based upon the Department's conclusion that the Interlocal Agreement was defective. The basis for the Department's determination is explained, infra. The Department recommended that the defect be corrected by deleting paragraph 3.7a from the Interlocal Agreement. On November 5, 1996, and November 14, 1996, the Broward County Commission and the School Board respectively amended the Interlocal Agreement by deleting paragraph 3.7a of the Interlocal Agreement in an effort to bring the Amendments into compliance. On November 11, 1996, before the amended Interlocal Agreement could be transmitted to the Department, the Department's Notice of Intent finding the Amendments not in compliance was published. On December 2, 1996, twenty-one days after publication of the Department's Notice of Intent, EDC filed a Petition to Intervene with the Division of Administrative Hearings. The Petition to Intervene was filed in an effort to intervene in any case that the Department had initiated against Broward County as a result of the Department's determination that the Amendments were not in compliance. On December 6, 1996, the petition was also filed with the Department. The Department's Second Notice of Intent and Challenges Thereto. On November 18, 1996, the amended Interlocal Agreement was transmitted by Broward County to the Department. On November 24, 1996, the Department issued a second Notice of Intent finding the Amendments to be in compliance. On November 27, 1996, FHBA, BIASF, and FAR filed a Petition for Administrative Hearing with the Department. The petition was "directed to the [second Notice of Intent] to find the amendment in compliance with statutory requirements." It was asserted, however, that the petition should be considered as filed pursuant to Section 163.3184(10), Florida Statutes, in light of the fact that it had been filed within twenty-one days of the publication of the first Notice of Intent. On December 13, 1996, EDC filed a Petition for Administrative Hearing and Motion to Convert or Alternatively Quash or Dismiss Proceedings with the Department of Community Affairs. This petition was filed in response to the second Notice of Intent. The petition and motion were filed by the Department with the Division of Administrative Hearings on December 31, 1996. EDC's petition was designated Case Number 96- 6138GM. The petition and an amended petition filed by FHBA, BIASF, and FAR were filed by the Department, after efforts to mediate a settlement had failed, with the Division of Administrative Hearings on April 21, 1997. The petition was designated Case Number 97-1875GM. Case Number 96-6183GM and Case Number 97-1875GM were consolidated on April 29, 1997. The School Board intervened in Case Number 96-6183GM on February 5, 1997. The School Board intervened in Case Number 97-1875GM on April 29, 1997. Statutory Criteria for Public Schools Concurrency. The Legislature has established two general criteria which must be complied with if a local government decides to impose Public Schools concurrency: The establishment of a "level of service" (hereinafter referred to as "LOS") for Public Schools; and Satisfaction of certain intergovernmental coordination requirements. Section 163.3180(1)(b), Florida Statutes (Supp. 1996), establishes the two criteria which must be met: Adopt level-of-service standards for public schools with the agreement of the school board. Public school level-of-service standards shall be adopted as part of the capital improvements element in the local government comprehensive plan, which shall contain a financially feasible public school capital facilities program established in conjunction with the school board that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan. Satisfy the requirement for intergovernmental coordination set forth in s. 163.3177(6)(h)1. And 2. The Amendments. In pertinent part, Broward County adopted the following amendments to the Plan: The Land Use Plan was amended by revising and adding policies to Objective 08.07.00; A Public School Facilities Element was added to the Plan; The Capital Improvements Element was revised by the addition of a new policy to Objective 7 of the Capital Improvements Element; and The Intergovernmental Coordination Element was revised by the addition of a new policy to Objective 1 of the Intergovernmental Coordination Element. The Public School Facilities Element. The Amendments include a new Public School Facilities Element of the Plan. This element includes four new goals. Objectives and polices for each goal are also adopted. The following are the four new goals of the Public School Facilities Element: Goal 1 01.00.00 Maximize cooperation and coordination between The School Board of Broward County, Florida . . ., the Broward County Board of County Commissioners . . ., Broward County's local government entities, and others to effectively plan for public elementary and secondary school facilities to meet the current and future need of Broward County's public school population. . . . . Goal 2 02.00.00 Manage and utilize prudently funds from the existing and future sources for school facilities and investigate and identify innovative funding mechanisms to meet the existing and expanding need for future Broward County public school facilities. . . . . Goal 3 03.00.00 Develop policies to promote ethnic and cultural diversity within the student population. . . . . Goal 4 04.00.00 Ensure that public school facilities will be available for current and future public school students when needed in accordance with the School Board's financially feasible Public School Capital Facilities Program and adopted level of service standard. To the extent relevant to this proceeding, the objectives and policies of the Public School Facilities Element are discussed in more detail, infra. The Adoption of Public School Concurrency. Newly enacted Objective 04.01.00 of the Public School Facilities Element specifically requires that the framework for implementation of county-wide Public Schools concurrency will be adopted as part of the land development regulations: The School Board and Broward County shall adopt the necessary goals, objectives, and policies to provide the framework for implementation of a county wide concurrency management system to be contained within the Broward County Land Development Code. Additionally, a number of new objectives and policies concerning the county-wide Public Schools concurrency program adopted by the Broward County Commission were included in the Public School Facilities Element: Policies The School Board and Broward County shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County. The School Board's adopted financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. The School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to achieve the adopted level of service standards. Objective Adopt a concurrency management system within the Broward County Land Development Code for county wide implementation of public school concurrency to ensure that the necessary public school facilities are available concurrent with the impact of proposed residential development to meet adopted level of service standards in accordance with the School Board's financially feasible Public School Facilities Program. Policies The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board. Public school concurrency determination for proposed residential development shall be conducted during the Broward County plat review process. The school capacity measure used to determine implementation of the public school concurrency provisions, for residential development(s) applying for public school concurrency approval, shall only include student capacities from existing public schools and anticipated capacities from projects funded in the School Board's annually adopted Capital Budget. Portables and portable schools are considered temporary measures and capacity from the School Board's Nineteen New School Plan (revised) shall be first used to meet the existing student station deficit. The projected student impact of any proposed residential development under consideration will be determined by using the Broward County adopted student generation rates contained within the Broward County Land Development Code. If the adopted level of service standards cannot be met, the developer will be permitted to mitigate such impacts through School Board approved public school concurrency mitigation alternatives provided for in the Broward County Land Development Code. These mitigation alternatives will ensure that public school capacity will be available at the time the impacts of the development occur and benefit the development providing for mitigation measures. These mitigation alternatives will include, but not be limited to, the following, the use of which must be approved by the School Board prior to County Commission action on the development approval: construction of classroom space equal to the anticipated future student impact, less paid impact fees, or participation in a School Board approved program (i.e. Pembroke Pines Special Assessment District) for the provision school facilities, or other School Board approved mitigation alternatives which may be provided for in the Code. The Plan includes a transportation concurrency management system which has been in existence since 1989. The Public Schools concurrency system adopted in the Amendments is very similar to that system. As required by Rule 9J-5.0055, Florida Administrative Code, the goals, objectives, and policies adopted in the Amendments provide many meaningful and predictable standards for development. The goals, objectives, and policies establish a county-wide LOS, adopt a capital facilities program, establish the geographic area which are served by Public Schools, establish which Public Schools will be considered in determining whether the adopted LOS has been met, adopt by reference student generation rates, provide that Public School concurrency will be imposed at plat review, and establish mitigation standards. While there is no guarantee that a particular developer will be able to meet Public Schools concurrency, a developer will know that his or her project will be subject to concurrency review at plat review, and no further concurrency review will take place thereafter. There are a number of matters which are not sufficiently described or provided for in the Public School Facilities Element. They are discussed, infra. Most, if not all, of the deficiencies are caused in large part by the unique and distinct duties and responsibilities of the Broward County Commission and the School Board. Because of those duties and responsibilities, the Broward County Commission has attempted to adopt a practical means of imposing Public Schools concurrency. The Act, however, does not allow the provisions applicable to Public Schools concurrency to be adhered to only if it is practical. Petitioners have attacked a number of the objectives and policies adopted as part of the Public School Facilities Element. In particular, Petitioners have challenged Policies 04.01.02, 04.02.03, 04.02.04, 04.02.05, 04.03.01, and 04.03.07(f) of the Public School Facilities Element. Petitioners have also challenged Objective 05.03.00 of the Public School Facilities Element. Policy 04.01.02 of the Public School Facilities Element does not specifically state which version of the School Board's Capital Facilities Program is being incorporated, when the program will be changed, how changes will be made, or when changes will be effective. These details are, however, apparent, from the language of the policy and the law governing Capital Facilities Programs. Policy 04.02.03 of the Public School Facilities Element does not include a specific definition of the terms "anticipated capacity." Based upon the use of the term "capacity" in describing the LOS standards adopted for Public Schools concurrency, it is apparent what is intended by these terms. Policy 04.02.03 of the Public School Facilities Element references and incorporates information which is part of the School Board's capital budget. There is no requirement specifically included in the Plan that the adoption of the School Board's capital budget be subject to public participation or Department compliance review. Policy 04.02.04 of the Public School Facilities Element does not specify the edition or date of the "student generation rates" referenced therein. Student generation rates are, however, technical standards, based upon surveys, and will be contained within Broward County's Land Development Regulations. They will be subject to public hearing. The rates are used in a manner which is similar to references for transportation concurrency in the Plan to highway capacity methodologies endorsed by the County Metropolitan Planning Organization. Policy 04.02.05 of the Public School Facilities Element establishes mitigation standards where a proposed development will impact a school that is not meeting the adopted county-wide LOS standard for that school. The policy specifically identifies mitigation alternatives which are intended to ensure that school capacity will be available at the time the impacts of development occur. While the mitigation standards all relate to actions which a developer may be required to take and not other remedies, they are sufficiently described. The Amendments include the following objective and policies governing the implementation of Public Schools concurrency by municipalities or Broward County at site plan review: Objective Subsequent to adoption of the Broward County Public School Facilities Element, municipalities within Broward County and the unincorporated area may only implement a public school concurrency management system, which will be effective at the time of municipal and unincorporated area site plan review, in accordance with established criteria and as specified in an interlocal agreement between the local government and the School Board. Policies The School Board shall consider approval of a municipal or unincorporated area concurrency management system at site plan review if the following criteria are met: The critical nature of public school overcrowding in the schools that serve the municipality exceeds that in other parts of the county; and A substantial number of residential units remain to be developed within already approved plats and/or there are a substantial number of potentially unbuilt residential units in unplatted vacant land within the municipality or the unincorporated areas which would require the construction of new public schools or classrooms within existing public schools; and/or The municipality or unincorporated area is proposing other innovative measures to address the provision of student stations. Municipalities or the unincorporated area that elect to implement a public school concurrency determination at site plan review must adhere to the following criteria: Pubic school(s) affected must be physically located within the jurisdictional boundaries of the municipality or the unincorporated area or have 50% or more of their student membership residing in the municipality or the unincorporated area. The level of service standard implemented must be the level of service standard adopted by the School Board. The concurrency service districts must be the effective service districts contained in the adopted Broward County Comprehensive Plan, Public School Facilities Element. A formal coordination mechanism with the School Board must be included in the interlocal agreement. The property has not undergone a concurrency determination for public schools at platting by Broward County. Such other criteria as the School Board may deem necessary and appropriate. To the extent that the "established criteria" and criteria established in the "interlocal agreement" are determined in this Recommended Order to be inconsistent with the Act, so too is Objective 04.03.00 of the Public School Facilities Element. There are several terms used in Policy 04.03.01 of the Public School Facilities Element that are not defined. Those terms, to the extent that they require further explanation or definition than is provided in the Amendments can, however, be provided in the Land Development Regulations. Policy 04.03.02(f) of the Public School Facilities Element provides for the consideration of "other criteria." No definition of “other criteria” is included in the Public School Facilities Element or any other part of the Amendments. The Policy also allows the School Board, as opposed to the Broward County Commission, to decide what constitutes "other criteria" outside of the Plan and the Act. Amendments to the Land Use Plan. The Amendments include textual amendments to the Land Use Plan. In particular, Policy 08.07.02 was amended and new Policies 08.07.08 through 08.07.13 were added to the Land Use Plan. All of these modifications to the Land Use Plan pertain to Public Schools concurrency. Newly adopted Policy 08.07.11 of the Land Use Plan provides for the implementation of Public Schools concurrency: Broward County shall adopt a county wide [sic] concurrency management system for public schools to be implemented at the time of Broward County plat review consistent with the Broward County Comprehensive Plan, Public School Facilities Element, the School Board adopted level of service standards, and the financially feasible Public School Capital Facilities Program. Like the Public School Facilities Element, Policy 08.07.11 of the Land Use Plan contemplates that many details of the concurrency management system for Public Schools will be adopted outside the Plan. Those details are to be adopted in land development regulations promulgated by the Broward County Commission at public hearing. The Capital Improvements Element. 1137. Section 163.3180(1)(b), Florida Statutes, requires that any local government that adopts Public Schools concurrency must establish LOS standards for Public Schools and adopt a "financially feasible public school capital facilities program . . . that will provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan." The LOS standards and the capital facilities program must be included in the capital improvements element of the local government's comprehensive plan. The LOS standards and the capital facilities program are required to be adopted with the agreement of the school board. Broward County attempted to meet the requirements of Section 163.3180(1)(b), Florida Statutes, by adding a new Policy 29 to Objective 7 of the Capital Improvements Element of the Plan: The School Board's adopted financially feasible Public School Capital Facilities Program and the Level of Service Standards delineated in Figure PS-20 of the Public School Facilities Element are adopted into the Broward County Capital Improvements Element by reference. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. The LOS Standards Adopted by Broward County. Establishing a LOS is a basic land-use planning concept. A LOS standard is defined in Rule 9J-5.003(65), Florida Administrative Code, as: an indicator of the extent or degree of service provided by, or proposed to be provided by a facility based on and related to the operational characteristics of the facility. Level of service shall indicate the capacity per unit of demand for each public facility. Pursuant to the Implementation Agreement, the School Board agreed to include a "[d]iscussion and determination of a level of service for public schools including an analysis of the impact and feasibility of making public schools a public facility subject to review for concurrency" in the Public School Facilities Element. The School Board determined the appropriate LOS standards, recommended them to the Broward County Commission, and the Broward County Commission adopted the LOS standards as part of the Public School Facilities Element. The LOS standards were included in PS-20 of the Public School Facilities Element. PS-20 was adopted through Policy 04.01.01 of the Public School Facilities Element. The adopted LOS standards were incorporated by reference through the adoption of Policy 29 of the Capital Improvements Element. In determining what LOS to recommend, the School Board considered a number of methods of measuring the Public Schools which would be necessary to meet the increase in students caused by development and growth in Broward County. Ultimately, the School Board decided to apply a utilization factor to the capacity of each individual public school in Broward County as determined by the Florida Inventory of Schoolhouses (hereinafter referred to as the "FISH Capacity"). FISH Capacity is the capacity of every individual public school in Florida as annually determined by the Department of Education. The School Board decided to adopt three LOS standards: one LOS standard each for elementary, middle, and high schools. For each type of school, a "Desired Performance Level"; an "Effective Performance Level"; and a "Critical School Level," Levels A, B, and C, respectively, were developed. For example, for an elementary school, the Level A, Desired Performance Level, LOS standard established in the Public School Facilities Element, is a "[u]tilization factor of less than or equal to 1.3." This means that, if a particular elementary school is determined to have a FISH capacity of 900 students, its Level A LOS, or Desired Performance Level, is 1,170 students or less (900 X 1.3 = 1,170). Level A LOS is described in the Supporting Documents for the Amendments as "the membership to FISH capacity that results in a utilization factor below which the school can function effectively without straining core facilities and other school resources." Level B LOS, the Effective Performance Level, is described in the Supporting Documents as one where the following occurs: overcrowding at a school becomes problematic and requires the addition of many portable classrooms; core facilities are stretched beyond a comfortable and normal working status . . . ; every available room is utilized for classroom space; and art and music programs at elementary schools may have to "float" or not have an assigned classroom. The severity of over crowding depends upon the ability to locate portable classrooms and the space available on site. Play fields and athletic areas may start to be affected. . . . Level C LOS, the Critical School Level, is described in the Supporting Documents as follows: When this level occurs, lunches are scheduled shortly after breakfast, many portables are on site, all rooms are utilized for classes including offices, conference rooms and resource rooms. In elementary school, the music, art and science programs "float" and in middle and high schools, many teachers move from room to room using classrooms that are not in use by the assigned teacher. Play fields or athletic fields are usually the location of portable classrooms and consequently cannot be fully utilized. In general, the core facilities are servicing many more students than they were designed for and students may experience delays or the inability to use certain aspects of the facility when they normally would. . . . The School Board recommended that the Broward County Commission adopt Level B LOS as the county-wide LOS for elementary, middle, and high schools. The Broward County Commission accepted the School Board's recommendation and adopted Policy 04.01.01 of the Public School Facilities Element: The School Board and Broward County shall adopt level of service standard B, delineated in Figure PS-20, Public School Facilities Element, as the county wide level of service standard for public school facilities in Broward County. Level B LOS is consistent with, and Level C LOS is nearly identical to, the standards for overcrowded schools adopted by the School Board in 1994 as School Board Policy 5000 (hereinafter referred to as "Policy 5000"). Pursuant to Policy 5000, if a school's capacity reaches a Level C LOS, a special review process is undertaken to develop student enrollment options such as double sessions, year-round education programming, attendance zone boundary changes, and other alternatives. Policy 5000 is not, however, a part of the Plan. Nor is it subject to the Act. Level B LOS is not a "high" standard. Nor is it one that the School Board would ultimately desire. It is, however, an adequate LOS. Level B LOS for Elementary Schools Level B LOS for elementary schools is defined as "[u]tilization factor greater than 1.3 and less than Level C." The Level C LOS for elementary schools is defined as "[u]tilization factor of 1.75 or greater or exceeds 1200 students (1400 for elementary schools with a capacity in excess of 900 students)." Applying the elementary school Level B LOS, to an elementary school with a FISH capacity of 900 students, the elementary school will be considered to have achieved LOS B if the number of students at the school is: Equal to or greater than its FISH Capacity (900) x 1.3 = 1170 but is less than FISH Capacity (900) x 1.75 = 1,575 or a maximum of 1200 students For an elementary school with a FISH capacity of more than 900 students, whether the school will be considered to have achieved LOS B is determined in the same manner, except that the maximum number of students is 1400 students instead of 1200. Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of 900 or less students can be expressed mathematically as follows: (FISH Capacity x 1.75) - 1 [Maximum of 1200] Pursuant to the adopted Level B LOS, the maximum capacity for an elementary school with a FISH Capacity of more than 900 students can be expressed mathematically as follows: (FISH Capacity x 1.75) - 1 (Maximum of 1400] Level B LOS for Middle Schools Level B LOS for middle schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for middle schools is defined as "[u]tilization factor of 1.4 or greater or exceeds 1700 students (2000 for middle schools with a capacity in excess of 1700 students)." Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of 1700 or less students can be expressed mathematically as follows: (FISH Capacity x 1.4) - 1 [Maximum of 1700] Pursuant to the adopted Level B LOS, the maximum capacity for a middle school with a FISH Capacity of more than 1700 students can be expressed mathematically as follows: (FISH Capacity x 1.4) - 1 (Maximum of 2000]. Level B LOS for High Schools Level B LOS for high schools is defined as "[u]tilization factor greater than 1.2 and less than Level C." The Level C LOS for high schools is defined as "[u]tilization factor of 1.2 or greater or exceeds 2500 students (3200 for high schools with a capacity in excess of 2500 students)." Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of 2500 or less students can be expressed mathematically as follows: (FISH Capacity x 1.5) - 1 [Maximum of 2500] Pursuant to the adopted Level B LOS, the maximum capacity for a high school with a FISH Capacity of more than 2500 students can be expressed mathematically as follows: (FISH Capacity x 1.5) - 1 (Maximum of 3200]. The Addition of FISH Capacity May Not Increase a School's Level of Service Pursuant to the adopted LOS standards, the addition of FISH capacity to a particular school in Broward County may not result in any increase in that school's ability to meet Level B LOS. This is true of elementary, middle, and high schools. This result is caused by the adoption in the Level B LOS standard of the maximum capacity in the Level C LOS standards. For elementary schools, elementary schools with a FISH capacity of between 686 and 899, an increase in FISH capacity will have no impact on its LOS. This phenomena can be illustrated by an example provided in Petitioners' proposed order at proposed finding of fact 47: For example, assume hypothetical Elementary School "A" has a FISH capacity of 749. The LOS B capacity of Elementary School "A" is 1200 because 749 x 1.75 = 1311 and, thus, exceeds the absolute maximum of 1200 students for an elementary school with a FISH capacity of 900 students or less. Adding ten seats of FISH capacity to Elementary School "A" results in no change in the LOS B capacity of that school because 759 x 1.75 - 1328 and, thus, it still exceeds 1200 students without reaching the 900 capacity that would increase the maximum LOS B capacity to 1400 students. More than 151 seats of FISH capacity would have to be added to hypothetical Elementary School "A" before a single seat of LOS B capacity would be added. Moreover, no LOS B capacity can ever be added to elementary schools with FISH capacity in excess of 900 students since 900 x 1.75 = 1575 and the absolute maximum LOS B capacity of elementary schools with a FISH capacity in excess of 900 students is 1400. A similar example of this phenomena applied to middle schools is described in proposed finding of fact 48 of Petitioners' proposed order. The phenomena also applies to high schools. The Public Schools Concurrency Service Areas. In order to determine the impact of a proposed development on existing LOS standards of Public Schools, it must be determined what Public Schools will be considered to be impacted by the proposed development. To make this determination, a concurrency service area must be established. The Broward County Commission determined that the concurrency service area for Public Schools should be each school's student attendance area established by the School Board pursuant to Section 230.23(4), Florida Statutes. The geographic service area for purposes of Public Schools concurrency (hereinafter referred to as the "Service District"), adopted by the Broward County Commission is described in Policy 04.02.01 of the Public School Facilities Element: The service districts for public school concurrency determination and implementation shall be the School Board's effective school boundary areas and assigned usage for each school, as adopted annually by the School Board. Section 230.23(4), Florida Statutes, requires that the School Board annually approve student attendance areas for the upcoming school year. Students are generally assigned to a school within the attendance area in which the student lives. It is these annually approved student attendance areas that were adopted by the Broward County Commission as the Service Districts for Public School concurrency. Although student attendance areas for the 1994-95 and 1995-96 school years were included in the Supporting Documents for the Amendments, no Service Districts for future years to which Public Schools concurrency is imposed by the Amendments were adopted. Nor do the Amendments contemplate or require the inclusion of Service Districts adopted in the future to be included as part of the Plan. The Amendments also fail to provide goals, objectives, or policies that control how Service Districts are to be established. Decisions concerning the establishment of Service Districts are left in the sole discretion of the School Board. The manner in which Service Districts are drawn by the School Board will not impact a particular school's LOS. It will, however, have a direct impact on the determination of whether a particular school is meeting its established LOS standard. Therefore, if a Service District is drawn in such a way that a particular school is not achieving the applicable Level B LOS, a proposed development in the Service District of that school will be negatively impacted. Due to the fact that Service Districts are not included in the Amendments, but are for the School Board to determine annually through its determination of attendance areas, it is not possible to determine specifically which individual schools will exceed Level B LOS beyond the most immediate school year. As a result, a Service District in which a proposed development is to be located may be below Level B LOS in one year, but due to a change in the Service District, may meet Level B LOS in other years. Thus, whether a proposed development will be required to meet Public Schools concurrency will vary from year to year based upon events outside the Plan. Although school attendance is projected by the School Board five years into the future, the factors which the School Board must consider in drawing attendance areas in Broward County are varied and do not promote accurate projections of Service Districts for future years. Factors which the School Board considers each year include immigration patterns, weather events, and the type and location of housing production. Issues related to desegregation, enrollment capping, double sessions, multi- track year-round education programs, flexible scheduling, busing, individual student transfers, magnet schools, variable grade- mixed schools, special centers, and charter schools also impact how attendance areas are drawn. It is apparent from Policy 5000 that one important consideration in the designating of attendance areas is the physical capacity of each school. The Level C LOS standards set out in the Amendments is also reflected in Policy 5000. The School Board is, therefore, committed to a consideration of school capacity in establishing attendance areas. School attendance area decisions are also based upon a number of other policies established in Policy 5000. Policy 5000 sets out guidelines for the establishing of attendance areas, including maintaining neighborhood elementary schools, the continual over-utilization or under-utilization of particular facilities, and the racial and ethnic backgrounds of students. The School Board must consider and weigh several competing goals when establishing attendance areas. Therefore, those competing goals may outweigh any effort the School Board may otherwise have been able to make to avoid drawing an attendance area in such a way that a Service District in which there are schools not meeting Level B LOS is created. Construction of new school facilities also affects how attendance areas are established. In 1995 the School Board made 92 boundary changes, partly as a result of a change in desegregation requirements imposed by the courts. The School Board's annual determination of attendance areas is made at School Board public meetings, after public notice. Obviously, the determination of attendance areas is a function for the School Board to fulfill. It is not a function which the School Board wishes to relinquish, even if it could. It can also be assumed that the School Board will consider school capacity in drawing attendance areas. The determination of attendance areas and, thus, the determination of Service Districts pursuant to the Public School Facilities Element, is not, however, subject to review pursuant to the Act. It is, therefore, a factor which directly impacts Public Schools concurrency decisions that is determined outside of the provisions of the Act. The Amendments simply fail to include any guidance as to how Service Districts are to be drawn. The decision is left to the School Board. The Plan fails to establish guidelines for how the School Board will draw the Service Districts. Public School Capital Facilities Program. In order to ensure implementation of the adopted LOS standards, Section 163.3180(1)(b)1, Florida Statutes, requires the adoption of a "financially feasible public school capital facilities program" (hereinafter referred to as the "Capital Facilities Program"). The Capital Facilities Program must be adopted as part of the Capital Improvements Element. The Capital Facilities Program is required to "provide educational facilities at an adequate level of service necessary to implement the adopted local government comprehensive plan." Finally, the Capital Improvements Program must be established "in conjunction with" the school board. The Implementation Agreement provided that the School Board would prepare the required Capital Facilities Program. The School Board did so and transmitted the program to the Broward County Commission, along with a draft of the Public School Facilities Element, on November 14, 1995. The draft Capital Facilities Program was for the fiscal years 1995-96 through 1999-00. The Broward County Commission reviewed and accepted the draft Capital Facilities Program. The Capital Facilities Program prepared and recommended by the School Board was adopted by the Broward County Commission as part of the Capital Improvements Element by the addition of Policy 29 to Objective 7. Rather than being specifically included in the Capital Improvements Element, the Capital Facilities Program was adopted by reference. The Capital Facilities Program was also adopted by reference in Policy 04.01.02 of the Public School Facilities Element of the Plan: The School Board's adopted financially feasible Public School Capital Facilities Program is adopted into the Capital Improvements Element of the Broward County Comprehensive Plan by reference, and in the event of a natural disaster, the School Board may suspend the financially feasible Public School Capital Facilities Program as necessary. Changes to the Public School Capital Facilities Program will be submitted to the Florida Department of Community Affairs as part of the Broward County Comprehensive Plan amendment process. Policy 04.01.03 of the Public School Facilities Element provides that the "School Board will annually revise and adopt a capital budget consistent with the financially feasible Public School Capital Facilities Program to adopt the level of service standards." At the time of its adoption, the Capital Facilities Program consisted of three figures: Figures PS-16, PS-17, and PS-18. These figures are titled "Estimated Revenue Fiscal Years 1996/2000"; "Tentative Appropriations Fiscal Years 1996/2000"; and "New School Funding Schedule Fiscal Years 1995-1996 through 1999-00." The Capital Facilities Program was subsequently adopted by the School Board on November 21, 1995, as part of a five-year capital outlay plan for the School Board's 1995-96 through 1999-00 fiscal years. The School Board's fiscal year runs from July 1 to June 30. Adopting a five-year capital outlay plan during the first fiscal year of the plan is consistent with Chapter 230, Florida Statutes, and prior School Board practice. At the time the Capital Facilities Program was adopted as part of the Amendments, the School Board had not adopted the five-year capital outlay plan for the period 1996-97 through 2000-01. Therefore, the Broward County Commission adopted the Capital Facilities Program for the period 1995-96 through 1999- 00. As a consequence of the fact that the program was adopted after the start of the 1996-97 fiscal year, the first full year of the Capital Facilities Program is the fiscal year 1997-98 and the Capital Facilities Program only contains three full fiscal years. Financial Feasibility. Revenues for the Capital Facilities Program are projected to come form several sources. Those sources were determined pursuant to professionally accepted school budgeting practices. The Capital Facilities Program revenue projections are based, in part, on the use of the maximum property millage available under the law for school capital needs. Estimates of revenue are based upon conservative, historical data, and other reasonably available information. Comparing projected revenues with projected expenditures, the Capital Facilities Program is financially feasible from a school budgeting perspective. The projected revenues are consistent with Chapter 9J-5, Florida Administrative Code, to the extent that they are revenues that will come from assured sources of revenue. Section 163.3180(1)(b)1, Florida Statutes, however, requires that the Capital Facilities Program include reasonable financial projections which will ensure that the Public Schools will be provided at the adopted LOS standards of the Public School Facilities Element. Thus, the Capital Facilities Program must project revenues (from assured sources) and expenditures which will result in the accomplishment of the Public School Facilities Element. The primary goal of the Public School Facilities Element is stated in Goal 4. That goal is to "[e]nsure that public school facilities will be available for current and future public school students when needed in accordance with the [Capital Facilities Program] and the adopted [LOS]." Based upon this goal, the Capital Facilities Program is required to include projections as to how "current and future" students will be provided Public Schools at Level B LOS. Through the fifth school year of the Capital Facilities Program, 1999-00, it is projected that there will be an additional 42,611 students in Broward County. In addition to the increase in students through the 1999-00 school year, prior to the commencement of the planning period, 1995-96, a number of schools in Broward County were already operating at below Level B LOS. During 1994 and 1995 there were a number of schools in Broward County that were not at Level B LOS. Tables III-1(A) and III-1(B) of the Supporting Documents. Every September the School Board surveys enrollment at all schools on the twentieth day after the first day of the school year. The results of the survey are produced on a Twentieth Day Membership Report. For 1994, the report indicated there were 34 schools that were below Level B LOS. Table III- 1(A). This amounted to a total deficit of 5,449 student stations out of a total school population of 198,690 students. The results of the survey for 1995 indicated that there were 26 schools that were below Level B LOS. Table III- 1(B). This amounted to a total deficit of 4,007 student stations out of a total school population of 207,345 students. The Service Districts in which the overcrowded schools for 1994 and 1995 were located are shown on FHBA Exhibits 6A-C. The Service Districts with overcrowded schools make up the majority of the geographic area of Broward County. On an aggregate, county-wide basis, there was an excess of 32,689 student stations in 1995. The total excess stations do not take into consideration the three types of schools (elementary, middle, and high). Excess capacity on an aggregate, county-wide basis, should continue to exists through 1999-00. It is projected in the Capital Facilities Program that the School Board will increase student stations by constructing additional new schools and making renovations, additions, and replacements to existing schools. The funding of new schools is set out on Figure PS-18 of the Supporting Documents. Funding of $220 million in capitalized cost for construction of twenty-two new schools is projected. It is projected that the total increase in the number of student stations as a result of new schools will be 29,014 stations. The total increase in student stations projected as a result of modifications to existing schools will be 2,132 elementary school stations and 1,079 middle school stations. The total projected new stations is 32,225 stations. Some of the new schools to be constructed, however, will not be available for use by the end of the five-year period of the Capital Facilities Program. They will not be available until 2002-03. Without those schools, the total new student stations from new schools will be 19,227 stations. Combined with the new stations from modifications to existing schools results in the addition of a total of 22,438 stations. If all of the 32,225 new stations are considered plus the excess capacity on an aggregate, county-wide basis (32,689 stations or more), there MAY be sufficient Public Schools available in Broward County to meet current and future student need for facilities. The Capital Facilities Program adopted by the Broward County Commission does not, however, ensure that there WILL be sufficient capacity. The Capital Facilities Program does not specifically provide that aggregate, county-wide excess capacity is to be utilized to meet current or future need for student stations necessary to achieve Level B LOS. Nor do the Amendments require that aggregate, county-wide excess capacity must be utilized to reduce current or future student station need. That decision is left totally to the discretion of the School Board, which must consider many factors in establishing student enrollment districts. While it is true that the School Board "may" modify Service Districts to redistribute student populations, and is even required by Policy 5000 to take into consideration overcrowding, the School Board is not required to do so. Therefore, there is no assurance that excess capacity which may exist will be available. The lack of any requirement that excess capacity must be used to reduce overcrowding is of greater significance when the fact that the School Board has not used excess county-wide capacity in past years to eliminate overcrowded schools is taken into account. Additionally, the existence of an aggregate, county- wide excess does not mean that deficits can be eliminated due to the fact that the LOS standards are applied to three different types of schools: elementary, middle, and high. Therefore, if the aggregate excess capacity consists of all high school stations, the School Board may not be able to eliminate a deficit at an elementary or middle school. While it is true that the School Board has the flexibility to modify school attendance at the different type schools by reconfiguring the grades considered to be elementary, middle and/or high school, or through other measures, nothing in the Capital Facilities Program or the Amendments as a whole ensure that the School Board will do so. The Capital Facilities Program fails to provide projections that will ensure that Level B LOS is met during the program period. The program does not provide for sufficient new stations to meet the need of future increases in students and to provide for how existing deficiencies will be eliminated. The Supporting Documents do provide some information concerning the reduction of existing overcrowded schools. Table III-15 of the Supporting Documents. Table III-15 lists the 34 schools that were overcrowded in 1994. Columns titled "New School Relief" and "Estimated Year Open" are printed next to the list of overcrowded schools. For six of the overcrowded schools the New School Relief listed is "to be determined." Therefore, according to the Supporting Documents, there is not yet a plan for how to eliminate the deficit in the LOS for at least 6 of the schools which were overcrowded in 1994. The reduction in overcrowded schools in 1995 does not alleviate this problem. The 1995 list contains five more overcrowded schools for which no specific remedy is provided because they were not on the 1994 list. Additionally, how “New School Relief” will impact LOS standards at the overcrowded schools is in no way explained in the Table or the Amendments. Intergovernmental Coordination. The second criterion specified in the Act for imposing Public Schools concurrency which a local government must meet is to satisfy the requirements of Section 163.3177(6)(h)1 and 2, Florida Statutes (Supp. 1996). The evidence failed to prove that the Amendments do not satisfy the requirements of Section 163.3177(6)(h)1, Florida Statutes. At issue in these cases is whether the Amendments satisfy the requirements of Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996): 2. The intergovernmental coordination element shall further state principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the plans of school boards . . . providing facilities and services but not having regulatory authority over the use of land. In addition, the intergovernmental coordination element shall describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency . . . . Within 1 year of adopting their intergovernmental coordination elements, each county, all the municipalities within that county, the district school board, and any unit of local government service provider in that county shall establish by interlocal or other formal agreement executed by all affected entities, the joint processes described in this subparagraph consistent with their adopted intergovernmental coordination elements. Broward County's Intergovernmental Coordination Element is included in Volume 2 of the Plan, beginning at page 15-1. The following objectives and policies, which existed before the adoption of the Amendments, are pertinent to these cases: Objective 15.1. Coordinate the Broward County Comprehensive Plan with the plans of the School Board of Broward County as well as other units of local government providing services to the Unincorporated Area but not having regulatory authority over the use of land. 3(b)(1) Policy 15.1.1. The Department of Strategic Planning and Growth Management shall continue to utilize the Broward County League of Cities Technical Advisory Committee (TAC) to coordinate planning activities mandated by the various elements of the Comprehensive Plan with local governments, the School Board of Broward County, and other governmental units providing services but not having regulatory authority over the use of land. 3(c)(1) The Board of County Commissioners adopted Ordinance 76-4 creating Chapter 5. Article VII, "Area Planning Council," Broward County Code of Ordinances, Section 5-118, "Technical advisory committee." The membership of the TAC consists of the 28 municipalities, the School Board of Broward County, the Broward County Planning Council, and the Broward County Board of County Commissioners. The Broward County League of Cities provides the staff services to the TAC. . . . . Objective 15.2. Utilize coordinating mechanisms to ensure that proposed developments and their potential impacts on adjacent local governments, the School Board of Broward County, the Region, and the State are addressed. 3(b)(2) . . . . Policy 15.2.2. The Development Management Division shall continue to rely upon the Development Review Committee, established pursuant to Chapter 5. Article IX, "Broward County Land Development Code," Broward County Code of Ordinances, to provide a technical review of the future impact of a proposed plat (county-wide) or site plan (Unincorporated Area) on the facilities and services provided by the local government within which it is located as well as those of adjacent local governments, if any. 3(c)(d) . . . . Policy 15.2.5. The Comprehensive and Neighborhood Planning Division shall, during the five-year evaluation and appraisal report preparation process, seek the input of the School Board of Broward County and local governments whose borders are adjacent to the Unincorporated Area regarding changes which may be considered to promote compatibility of land uses and ensure the availability of public facilities and services. 3(c)(7) . . . . Policy 15.2.7. The Department of Strategic Planning and Growth Management, in its capacity as Local Planning Agency, shall coordinate its planning activities with the 28 municipalities, the School Board of Broward County, Port Everglades Authority, and several independent special districts, including all those agencies required to submit public facilities reports to Broward County pursuant to Chapter 189, Florida Statutes. 3(c)(1) The foregoing provisions establish intergovernmental coordination requirements and the procedures to carry out those requirements. At the time the provisions were created Public Schools concurrency was not required by the Plan. Therefore, the foregoing provisions do not specifically "describe joint processes for collaborative planning and decisionmaking on population projections and public school siting, the location and extension of public facilities subject to concurrency" (hereinafter referred to as the "Joint Processes for Collaborative Planning and Decisionmaking") as required by Section 163.3177(6)(h)2, Florida Statutes, directly relating to Public Schools concurrency. In addition to the provisions of the Intergovernmental Coordination Element, there are a number of policies included in the Land Use Plan which establish intergovernmental coordination requirements and the procedures to carry out those requirements. Those polices include Policies 08.07.01 through 08.07.06 of the Land Use Plan. They are hereby incorporated by reference into this Recommended Order. Although Policies 08.07.01 through 08.07.06 deal with intergovernmental coordination, they are not a part of the Intergovernmental Coordination Element. More importantly, they do not specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency. When originally transmitted to the Department for its initial review, the Amendments did not include an amendment to the Intergovernmental Coordination Element. The Amendments did include amendments to the Land Use Plan concerning intergovernmental coordination. See Policies 08.07.02, and 08.07.08 through 08.01.12 of the Land Use Plan. The Public School Facilities Element also include provisions providing for intergovernmental coordination. See Goal 1.00.00, Objectives 01.01.00, 01.01.01, 01.01.02, and 01.02.00; and Policies 01.02.01 through 01.02.03, 01.02.05, 03.01.01, and 03.03.03 of the Public School Facilities Element. The amendments to the Land Use Plan and the provisions of the Public School Facilities Element do not, however, specifically "describe" the Joint Processes for Collaborative Planning and Decisionmaking directly relating to Public Schools concurrency. The Department's second letter of July 19, 1996, to the Broward County Commission amended the ORC to object to the Amendments for failing to "satisfy the requirements for intergovernmental coordination set forth in s. 163.3177(6)(h)2, F.S." This objection was based upon the fact that the existing provisions of the Intergovernmental Coordination Element of the Plan and the Land Use Plan, as amended, did not contain a "description of the processes for collaborative planning and decision making on population projections and public school siting" required by Section 163.3177(6)(h)2, Florida Statutes (Supp. 1996). In response to the Department’s objection to the lack of compliance with Section 163.3177(6)(h)2, Florida Statutes, the Broward County Commission adopted the following new policy as part of the Intergovernmental Coordination Element: Policy 3: Broward County shall establish by interlocal agreement with the Broward County School Board joint processes for collaborative planning and decision making on population projections and public school siting consistent with Chapter 163.3177(6)(h)2 F.S., Chapter 235 F.S., the Public School Facilities Element of the Broward County Comprehensive Plan and Policy 08.07.06 of the Broward County Land Use Plan. The effect of Policy 3 is simply to provide that the Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, will be included in an interlocal agreement and not the Intergovernmental Coordination Element. The new policy also suggests that the Joint Processes for Collaborative Planning and Decisionmaking are not already included in the Plan, as argued by Respondents and the School Board. Otherwise, why provide that they will be adopted elsewhere? Broward County and the School Board entered into an interlocal agreement on September 16, 1996 (hereinafter referred to as the "Interlocal Agreement"). The Interlocal Agreement specifically describes the manner in which population projections will be obtained and the processes for public school siting. The Interlocal Agreement does not, however, constitute a part of the Intergovernmental Coordination Element or any other part of the Plan. Newly adopted Policy 3 also contemplates that the interlocal agreement contemplated therein will be entered into between Broward County and the School Board. It does not contemplate that the approximately twenty-eight municipalities located within Broward County will also be parties to the interlocal agreement. This interpretation of Policy 3 is supported by the Interlocal Agreement actually entered into. Only Broward County and the School Board are parties to the agreement. AA. The Interlocal Agreement. At the time that the Amendments were first transmitted to the Department for review, no interlocal agreement had been entered into. The ORC included the following objection to the Amendments concerning the lack of an interlocal agreement: 2. Objection: The School Board and Broward County have not entered into an interlocal agreement which addresses joint processes for collaborative planning and decision making on population projections and public school siting, the location and extension of public facilities subject to concurrency, and siting facilities subject to concurrency. . . . The Department recommended that such an interlocal agreement be entered into in order for the Amendments to be found "in compliance." In response to the Department's objection, the Interlocal Agreement was entered into on September 11, 1996. The Interlocal Agreement was, however, determined by the Department to be defective. Therefore, the Department concluded that the Amendments were not "in compliance." In particular, the Department found the that Amendments were not in compliance because of paragraph 3.7 a. of the Interlocal Agreement: AGREEMENT TO HAVE NO IMPACT ON SCHOOL BOARD OBLIGATIONS AND DUTIES The implementation of this Agreement shall in no way obligate the SCHOOL BOARD nor infringe upon the SCHOOL BOARD'S constitutional duties or other requirements which are mandated by law. This includes, but is not limited to: setting public school boundary maps; selecting and acquiring public school sites; planning, designing, and constructing public school facilities; designing educational curriculum; developing procedures and requirements for public school building operations; setting personnel policies; making hiring decisions; setting the level of service standards for public school facilities; and approving the public school capital facilities program. The Department informed Broward County of its determination that the Interlocal Agreement was defective by letter dated October 24, 1996. The Department explained that its determination was based upon the Department's conclusion that paragraph 3.7 a. allows the School Board to unilaterally amend or terminate the Public School Facilities Element. In addition, Condition 3.7 a. implies that the School Board does not have to implement school concurrency. Section 163.3177(6)(h)2, Florida Statutes (F.S.), specifically requires an interlocal agreement between the County and School Board which establishes joint processes for collaborative planning and decision making on population projections and public school siting as well as the location and extension of public facilities subject to concurrency. Condition 3.7 a., which states that the School Board can unilaterally set the level of service standards and approve the public school capital facilities program and that the School Board does not have to commit to school concurrency implementation, is not consistent with Section 163.3177(6)(h)2, F.S. . . . The Department recommended that Broward County and the School Board "delete this condition from the Interlocal Agreement" in order to bring the Amendments into compliance. In response to the Department's October 24, 1996, letter, Broward County and the School Board amended the Interlocal Agreement on November 14, 1996, to delete paragraph 3.7 a. The Interlocal Agreement continues to provide, however, that the agreement may be "terminated by the unilateral action of any one of the parties to the Agreement" after giving notice and an opportunity for the other party to be publicly heard on the decision to terminate the agreement. Paragraph 3.2 of the Interlocal Agreement. The Department did not object to this provision. The Joint Processes for Collaborative Planning and Decisionmaking required by Section 163.3177(6)(h)2, Florida Statutes, are included in the Interlocal Agreement. The Interlocal Agreement is not, however, a part of the Intergovernmental Coordination Element or any other element of the Plan. Additionally, even if the Interlocal Agreement were incorporated into the Intergovernmental Coordination Element by reference, either party may terminate the Interlocal Agreement pursuant to paragraph 3.2 of the Interlocal Agreement without plan amendment review pursuant to the Act. BB. Data and Analysis. The data and analysis in support of the Amendments prepared by the Broward County Commission and School Board is contained in the Supporting Documents, Volume II of the Public School Facilities Element. The data and analysis relied upon in adopting the Amendments suffer from the same general deficiencies as the Amendments themselves. Petitioners have offered a number of findings of fact demonstrating areas where deficits in reaching LOS standards may result through the school year 1999-00. Those findings of fact are correct, but unnecessary to this determination. Those findings of fact only support the ultimate finding of this Recommended Order that the Capital Facilities Program does not demonstrate that the LOS standards adopted by the Broward County Commission will be achieved. CC. Consistency with the State Comprehensive Plan and the Strategic Regional Policy Plan for South Florida. Petitioners failed to present any evidence concerning the consistency of the Amendments with the state comprehensive plan set out in Chapter 187, Florida Statutes. The South Florida Regional Planning Council found the Amendments to be consistent with the "Strategic Regional Policy Plan for South Florida." Petitioners failed to present any evidence concerning the consistency of the Amendments with the Strategic Regional Policy Plan for South Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs find, consistent with this Recommended Order, the Amendments not in compliance and submit the matter to the Administration Commission for the entry of a Final Order. DONE AND ENTERED this 8th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1997. COPIES FURNISHED: Mark D. Solov, Esquire Sterns, Weaver, Miller, Weissler, Alhadeff, and Sitterson, P.A. Museum Tower, Suite 2400 150 West Flagler Street Miami, Florida 33130 John W. Little, III, Esquire Jonathan Sjostrom, Esquire Jacob D. Varn, Esquire Steel, Hector, and Davis, LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 David L. Jordan, Deputy General Counsel Kathleen R. Fowler, Assistant General Counsel Stephanie G. Kruer, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 John J. Copelan, Jr., County Attorney Sharon Cruz, Esquire, Assistant County Attorney Lisa Zima Bosch, Assistant County Attorney Broward County 115 South Andrews Avenue, Suite 423 Ft. Lauderdale, Florida 33301 Nancy Stroud, Esquire Susan Trevarthen, Esquire Burke, Weaver, and Prell 1900 Glades Road, Suite 350 Boca Raton, Florida 33431 James F. Murley, Secretary Department of Community Affairs Suite 1000 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On April 17, 2009, the Department published its Notice of Intent to find the public schools interlocal agreement entered into by Hernando County, Brooksville, and Hernando County School Board, DCA docket no. 27-01, consistent with the minimum requirements of Sections 163.31777(2) and (3), Florida Statutes. On May 21, 2009, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded Brooksville Quarry LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number 09-2833GM. FINAL ORDER No. DCA09-GM-288 On August 10, 2009, Brooksville Quarry, LLC, filed a Notice of Voluntary Dismissal without Prejudice. There are no other Petitioners in this case, and the time has expired for the filing of new petitions for hearing. Therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that *[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT. OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-288 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this 1” say of J ngs , 2009. Paula Ford gency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda Loomis Shelley, Esquire Karen Brodeen, Esquire Jacob D. Varn, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, FL 32302 John P. Carland, II, Esquire Hernando County School Board 919 N Broad Street Brooksville, Florida 34601-2397 Geoffrey Kirk, Esquire Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 FINAL ORDER No. DCA09-GM-288
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue Whether just cause exists to reprimand and suspend Respondent, Thomas Caggiano, for five days without pay from his position as a teacher with Petitioner, the School Board of Duval County (School Board),1 for the reasons set forth in the March 26, 2021, correspondence from the School Board, which contained an April 6, 2021, Amended Step III Progressive Discipline Petition.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise free public schools within Duval County Public Schools. See Art. IX, § 4(b), Fla. Const.; § 1012.33(1)(a), Fla. Stat. The School Board and Mr. Caggiano executed a professional service contract, as defined in section 1012.33, Florida Statutes, and he has been employed by the School Board since 1994. The School Board has renewed this professional services contract on an annual basis. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education rules, and the Collective Bargaining Agreement (CBA) between Duval Teachers United and the School Board. The CBA relevant to this matter was effective from 2017 through 2020.2 Mr. Caggiano’s Employment at SHS Mr. Caggiano had been a math teacher at SHS for numerous years, including the time period relevant to the allegations of the Amended Step III Progressive Discipline correspondence. He currently remains employed by the School Board, but is currently not a math teacher at SHS. During his career with the School Board, Mr. Caggiano received positive employment evaluations. Prior to the allegations at issue, the School Board had never disciplined Mr. Caggiano. During the 2019/2020 school year, Mr. Caggiano taught Algebra II. During his career at SHS, he also taught geometry, trigonometry, analytic geometry, calculus, and statistics. He also taught college-level classes for Embry-Riddle Aeronautical University during this time. As a teacher at SHS and an employee of the School Board, Mr. Caggiano received numerous and various training materials and updates concerning governing policies and procedures, electronically (via email). 2 The CBA entered into evidence, without objection, and which was unexecuted, states on its cover page that it is effective from 2017 through 2020. However, the same document, in Article XV, section C, states that it is effective from July 1, 2014, through June 30, 2017. As the Amended Step III Progressive Discipline letter references the 2017-2020 CBA, and as no party objected to the CBA that the undersigned accepted into evidence, the undersigned has treated the CBA entered into evidence as the CBA that was in effect during the allegations concerning Mr. Caggiano. Many of these materials were provided to Mr. Caggiano prior to faculty and staff training, which occurred in the weeks leading up to the start of the school year. Among the various materials provided to Mr. Caggiano (and other faculty) was a handout entitled “Ethics and Professionalism,” provided by Duval County Public Schools’ Office of Equity and Inclusion/Professional Standards. SHS also provided Mr. Caggiano (and other faculty) a link to its handbook, which contained policies, laws, and rules that govern Mr. Caggiano. The “Ethics and Professionalism” training materials contained a section on social media, and stated: Please ensure that personal social media accounts are set to private. Do not accept friend requests from students or their parents, and use discretion when inviting colleagues to your pages. Please ensure that your social media posts are respectful and do not possess profane, insensitive, or offensive language or images. As a reminder, you may not post photographs or identifying language about your students. It is a violation of FERPA. In the Acceptable Use Policy (2.1.11), it states “Employees must maintain professional boundaries between themselves and students. Employees will not solicit or engage in inappropriate communications with students verbally, in writing, or electronically regardless of the age of the student. Employees will not engage in any direct electronic communications with students, parents, supervisors, or co-workers whether by e-mail, instant messaging, or other digital media that will adversely affect the employee’s ability to perform his or her job.” Here are some best practices to follow: You are the adult, the teacher, the professional. You are not their friend. You are in violation of the Code of Ethics if you post disparaging comments about your colleagues, administration, and/or the Superintendent. Do not post material that is illegal, sexually explicit, obscene, derogatory, related to alcohol or drug use, or in violation of copyright laws. Do not access social networking sites from your school computer or during work time. Be cautious about photos posted online. Students and parents could view them! Any information posted to, or communicated through, a social networking site shall not bring disfavor, embarrassment or condemnation to the student, employee or school district. Mr. Caggiano (and other faculty) further received materials and training related to the School Board’s Non-Discrimination Policy (Board Policy 10.10), which states: Duval County Public Schools (DCPS) believes that education should be provided in an atmosphere where differences are understood and appreciated, and where all persons are treated fairly and with respect, and where all persons are free from discrimination, harassment and threats of violence or abuse. School board policy explicitly states, “No person shall, on the basis of a person’s actual or perceived identity with regard to race, color, religion, gender or gender identity, age, marital status, disability, sexual orientation, political or religious beliefs, national or ethnic origin, veteran status, or any other distinguishing physical or personality characteristics, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity on in any employment conditions or practices conducted by this School District, except as provided by law.” Previous Incident Involving Transgender Student J.N.S. J.N.S., a student at SHS, is a female transgender student and has identified as female at least since the 2018-2019 school year, her freshman year. In the summer before her sophomore year, after receiving her class assignments for the new academic year, J.N.S. sent an email to all of her new teachers, including Mr. Caggiano. The August 5, 2019, email, sent at 9:21 p.m., stated: I will be in your class during the 2019-2020 school year, and I would like to let you know that I am a Male-to-Female Transgender student who would like to go by the name [J.N.S.] as well as female pronouns in your class. I am sending this email before the actual school year starts so that there is plenty of time to change it on the roll before then if possible. Thank you very much for carrying out my request, I can’t wait to attend your class this year. That same evening, Mr. Caggiano responded to J.N.S.’s email: I will call you by any reasonable name you like, but the pronouns are not a negotiable thing for me. I will NOT refer to you with female pronouns. If this is not acceptable for you change classes. J.N.S. testified that most of her remaining teachers responded to this email in a positive fashion, agreeing to her request. J.N.S. also testified that she posted her email interaction with Mr. Caggiano on one of her social media platforms. On August 6, 2019, during the faculty pre-planning period before classes started, SHS held a mandatory training session presented by Dr. Wells as part of the Duval County Public Schools’ “All In: Ally for All” program. As part of this training, Dr. Wells presented various Duval County Public Schools policies that included the treatment of transgender students, including that transgender students had a right to be called by names that they chose. Principal Hatcher also attended this training, and stated that all students had a right to be called by their requested names, including pronouns. A sign-in sheet reflected that Mr. Caggiano attended this training session, although Mr. Caggiano testified that he did not recall attending. On August 7, 2019, J.N.S. contacted the SHS school counselor, Ms. Solliday, to request a transfer out of Mr. Caggiano’s class. After conferring with SHS Assistant Principal Motley, Ms. Solliday transferred J.N.S. to a different class with a different teacher. J.N.S. never attended Mr. Caggiano’s class, was never his student during the 2019-2020 school year, and has never been a student in Mr. Caggiano’s class. On August 12, 2019, Principal Hatcher met with Mr. Caggiano regarding his email response to J.N.S. and to counsel him regarding Duval County Public Schools’ policies for addressing students. Principal Hatcher informed Mr. Caggiano that he should use whatever name or pronoun a student asks to be called. Mr. Caggiano testified that he told Principal Hatcher he would stop using all pronouns, and refer to a student by the name requested. Although the School Board devoted a significant amount of time and effort at the final hearing to this incident involving Mr. Caggiano’s response to J.N.S.’s email request, this incident is not part of the Amended Step III Progressive Discipline correspondence that is the subject of the instant action. Dr. Hatcher counselled Mr. Caggiano on this issue. The undersigned heard testimony of various students, faculty, administrators, and even a school psychologist concerning this incident, which the undersigned finds provides background to the issues included in the Amended Step III Progressive Discipline correspondence; however, this particular incident does not form the basis for the proposed discipline in the instant proceeding. Mr. Caggiano’s Use of Facebook Mr. Caggiano testified that he decided to set up a Facebook account sometime in 2008, to catch up with old friends. He testified that his daughter, Arielle, actually set up the account, and told him that his account’s settings were “private.” Thereafter, Mr. Caggiano stated that he posted and commented on posts of his Facebook “friends,” and because he believed his settings were “private,” he believed that only those “friends” could see those posts and comments. He testified that “[a]ll my posts were either political commentary, social commentary, or adult humor.” Mr. Caggiano did not accept any of his students as Facebook “friends,” but did have a few fellow SHS teachers as Facebook “friends.” He testified that he did not think anybody from SHS would be able to see his Facebook posts, aside from the fellow SHS teacher “friends.” Additionally, at some point in the past, Mr. Caggiano set up a separate Facebook account, called “AP Caggiano,” for students in an advanced placement class to post questions or comments concerning a class. Mr. Caggiano testified that he had not used that particular Facebook account in some time. Mr. Caggiano also testified that he never accessed his Facebook account at SHS or during his normal work hours. Mr. Stika, who was a forensic examiner in the Information Technologies department of Duval County Public Schools, testified that Mr. Caggiano did not use his school- issued laptop to access Facebook during the time period relevant to the instant matter. Amended Step III Progressive Discipline On May 19, 2020, the Duval County Public Schools Office of Equity and Inclusion/Professional Standards received an email concerning Mr. Caggiano’s Facebook postings. On May 21, 2020, the Florida Times Union published a story concerning Mr. Caggiano’s Facebook postings and comments. The May 19, 2021, email, and the May 21, 2020, newspaper article, caused an investigation into Mr. Caggiano’s Facebook posts and comments, conducted primarily by Mr. Johnson. Mr. Johnson interviewed parents, students, former students, Principal Hatcher, Mr. Stika, and Mr. Caggiano, as part of this investigation. His findings form the basis for the Amended Step III Progressive Discipline correspondence. As alleged in the Amended Step III Progressive Discipline correspondence, the complainant provided screenshots of Mr. Caggiano’s Facebook postings. Mr. Johnson’s investigation discovered a Facebook account in the name of “Thomas Caggiano,” who was listed as a Duval County Public School teacher. Mr. Caggiano admitted that the Facebook account referenced in the Amended Step III Progressive Discipline correspondence was his personal Facebook account, which his daughter initially set up. As reflected in the Amended Step III Progressive Discipline correspondence, the investigation revealed Mr. Caggiano, commencing on or about January 2020, admitted to 27 various Facebook posts, reposts, or comments. The Amended Step III Progressive Discipline correspondence specifically alleges that “some of your posts and/or comments were as follows[,]” and then lists seven specific posts, reposts, or comments from Mr. Caggiano’s personal Facebook account.3 At the final hearing, the undersigned heard testimony and considered evidence of Mr. Caggiano’s Facebook posts, reposts, or comments, including Mr. Caggiano’s testimony, and finds that Mr. Caggiano’s Facebook account reflects the following posts and reposts—which could be considered “memes,” which can be defined as amusing or interesting pictures, videos, etc., that are 3 The School Board introduced into evidence other Facebook posts, reposts, or comments attributed to Mr. Caggiano, and questioned numerous witnesses about this “other” Facebook activity. The undersigned has only considered the allegations contained in the Amended Step III Progressive Discipline correspondence in determining whether the School Board has just cause to discipline Mr. Caggiano. spread widely through the internet or social media—or comments to memes or articles, that were made, or reposted, by Mr. Caggiano. These seven posts, reposts, or comments, which are the only posts, reports, or comments alleged in the Amended Step III Progressive Discipline, are: A repost from a Facebook entity called “Messenger of Liberty,” which states: “My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he’s been spit on, punched and had a bottle thrown at him! I’m curious to see what happens when he goes outside.”; A repost from an individual and an entity called “LIFT – LONG ISLANDERS FOR TRUMP,” which states: “Crazy but TRUE, If this girl sees a penis at a party it’s a crime … [with an accompanying photograph of a young woman], but if this girl sees a penis in the woman’s bathroom … it’s tolerance [with an accompanying photograph of a girl in a bathroom]. Vote Republican and put an end to the madness.”’ A post authored by Mr. Caggiano which states: “Dumb ass liberals are now organizing protest against the killing of the Iranian general (terrorist) who was responsible for many attacks against the USA. Amazing how TRUMP derangement syndrome can cause democraps, and the main stream media, to support our enemies.”; A repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…” The “screen grab” attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970’s (the exhibit copy is unclear), and Mr. Caggiano’s handwritten notes next to this exhibit states” “Bernie said this!”; A repost from a Facebook entity called “Maine Bikers,” which states: “Meanwhile at the ‘Bikers for Bernie’ rally…[,]” and which contains a picture of two nude men on a motorcycle; What appears to be an attempted repost by Mr. Caggiano, which Facebook apparently removed with the message “False information, Checked by independent fact-checkers,” but which also contains the following comments from Mr. Caggiano: “Teach this childish nasty bitch a lesson. Have her treasonous ass removed from office and put in jail.”; and A repost, dated August 19, 2020, from Mr. Caggiano, of an article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity.” The Amended Step III Progressive Discipline correspondence further alleges: Resulting from our Facebook postings, your school and district leadership were both impacted as they received several complaints and/or concerns from students, parents and constituents expressing their displeasure with your conduct as a Duval county teacher and the comments displayed within your Facebook account. Many parents also contacted the school and informed the principal that they would not want their children in your class for the 2021- 2021 school year. If this administrative action had not occurred, the public consequences would cause an equity issue for other teachers by redistributing your assigned students or assignment of replacement teachers. While you are certainly entitled to your First Amendment right to free speech, your actions are in direct contradiction to the District’s mission to “Provide educational excellence in every school, in every classroom, for every student, every day.” This is without regard to a student’s ethnicity, race, religious beliefs, gender orientation, political persuasion, or any other qualifier. In addition, the Principals of Professional Conduct of the Education Profession in Florida (Florida Administrative Code 6A-10.081), requires that an individual, “Take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.” As an educator you have a duty and/or a responsibility to maintain the respect of the community and your colleagues. You posted and/or shared inappropriate, derogatory, demeaning and inflammatory material and comments referencing sexual orientation, national origin, and domestic abuse on your public social media (Facebook) account. Your conduct was unethical, lacked integrity and violated Duval County School Board policy, as such, warrants corrective discipline. The Amended Step III Progressive Discipline correspondence alleges that Mr. Caggiano’s Facebook posts, reposts, and comments violated section 1006.147, Florida Statutes; Florida Administrative Code Rules; rules 6A-5.053 and 6A-10.081, and Duval County School Board Policies 6.80 and 10.10. It further alleges that, pursuant to article V, section 9, of the CBA, which concerns “potential harm to the physical or mental wellbeing of a student, or students, constitutes more severe acts of misconduct which warrant circumventing progressive disciplinary steps,” and imposed discipline of a written reprimand, five consecutive working days of suspension without pay, and a requirement that Mr. Caggiano complete a course in “Culture Diversity” by a certain date.4 Additional Facts Concerning Mr. Caggiano’s Facebook Account J.N.S. testified that at some point after her email interaction with Mr. Caggiano, she was “curious” and decided to access his Facebook account, 4 A review of the CBA in evidence shows that the provision of the CBA that addresses progressive discipline may be found in article V, section C, subsections 9 and 10. and saw numerous posts, including some of the posts that form the basis of the School Board’s proposed discipline. She stated that she was “appalled, but not surprised.” She also testified that the Florida Times Union reporter who authored the May 21, 2020, article about Mr. Caggiano reached out to her through social media concerning Mr. Caggiano. Ms. Schultz previously served as SHS Principal during the time period that Mr. Caggiano taught at SHS. She recalled seeing Mr. Caggiano’s posts that were “forwarded” to her, and she thereafter communicated directly with Mr. Caggiano. She stated that she asked Mr. Caggiano to remove his Facebook posts. In an email exchange between them, after Ms. Schultz informed Mr. Caggiano that she was able to access his Facebook account numerous times after he stated that he had changed his account settings to private, Mr. Caggiano wrote: Thank you for your email. I have had my daughter assist me in making my Facebook account settings “private,” and I have changed my account password. I am going through and removing a number of posts that were made by people that I do not know. I do not want to shut the entire account down, because I have a number of personal photos of my grandkids and me. Please confirm whether you are still able to see the Facebook “wall” for my account. I want to make sure the settings are properly adjusted so that only people whom I accept as “friends” can see what I post at this time. As you are aware, I have also received inquiries from the Duval County Public Schools Equity & Inclusion/Professional Standards supervisor …. In the emails, [he] provided me with a link to a Times- Union article by reporter Emily Bloch. [He] inquired whether I posted the items in question, on my Facebook account, as attributed by the writer of the article. I have reviewed the article. The article indicates that I am not obligated to respond to [his] inquiry. The article states that a “note from the Office of Equity and Inclusion and Professional Standards added that an inquiry ‘could take some time, as the office cannot compel anyone to meet or speak with us’,” and that I “did not directly reference a student of direct [my] posts at a student in [my] posts,” nor identify myself as a Duval County Public Schools teacher in my posts. Please confirm whether the article’s statement is accurate, as I prefer to only respond on this issue as I am obligated and as is otherwise necessary. For the record, I view Emily Bloch’s article as a well- timed political hit piece, full of inaccuracies, targeting me for my political views on issues of sexuality, to promote the latest version of the “need” for the City of Jacksonville Human Rights Ordinance (“HRO”), which was illegally passed back in 2017, and recently struck down by a Florida court. It is a transparent attempt to torpedo a good teacher’s career, to score political points. I hope the Duval County Schools will not countenance this reporter’s efforts to manufacture an issue to promote her political causes, especially where the public cannot come out to oppose the latest ordinance, because of Coronavirus. I treat all of my students with dignity and respect, and my classroom record speaks for itself. I will not lie to my students. I treat all of them with honesty and fairness. On the other hand, I make no secrets that when I am not acting in my official capacity as a Duval County Schools teacher, I do engage in robust political debate on political issues. I deny making any kind of “phobic” remarks or posts. A “phobia” is an irrational fear. Holding traditional views about the biological nature of sex (and need for sex-based privacy in bathrooms and lockers) is not a “phobia.” Disagreement with the political orthodoxy of the Left on matters of sexuality is not a “phobia.” Sharing my belief on my personal Facebook that there are only two genders that correspond with biological sex is not a “phobia.” Ms. Bloch may not like the way I make those points, and that is fine. Since I have been active on Facebook, I know I have shared various political memes on my personal Facebook wall, or commented in response to others’ postings. I do not instantly recall them all. Memes are often a good way of making pithy political statements, with a touch of humor. Sometimes “humor” is in the eye of the beholder, or is funny at the time. I’m sure I found certain memes funny or punchy at the time, and I have friends who did as well. I’m sure others may not find them funny, or may disagree with me, as is their right. I have not gone back through the last year’s worth of Facebook postings, and I am unable to verify some of Ms. Bloch’s attributed quotes. I can confirm that the account settings are now “private.” I stand by a number of statements Ms. Bloch attributes to me (or at least, I agree with the sentiments expressed, where they may have been posted by me or others). Others I do not. I will also note that at least one of the specifically quoted references in Ms. Bloch’s article was taken out of context, and she uses that out-of-context quote to suggest my remarks are “racist” or “xenophobic.” I’m neither. In fact, some of my beautiful grandchildren are “biracial” (for lack of a better term – there is only one “race”– the human race). But even having to make that note is offensive, and suggests bigotry and prejudice on the part of Ms. Bloch in leveling that charge against me. For the record, the “corona” or “covid” food reference was a political jab at President Trump’s references to the “CHINA” virus. Nothing more, nothing less. I trust that the Duval County Schools will continue to respect the rights of teachers to engage in robust political debate on Facebook, on matters of public concern (such as the political “transgenderism” movement – “Exhibit A” of which is the novel “lexicon” Ms. Bloch placed in her article, purporting to tell the public which terms are acceptable in the debate, and which are not). The First Amendment surrounds political speech with the highest level of protection, whether some people find the speech of others “offensive,” or wish to silence speakers with whom they disagree. Mr. Caggiano and his daughter, Arielle, testified that it was, and has been, Mr. Caggiano’s intention that his Facebook account settings be “private” so that only his “friends” could see them, and that after the May 21, 2020, Florida Times Union article, they both checked and saw that it was not set to private. Arielle then set Mr. Caggiano’s settings back to private. The School Board called numerous witnesses, including students and parents, who testified about accessing Mr. Caggiano’s Facebook account. None of the student witnesses (including J.N.S.) were students of Mr. Caggiano. Ms. Porak, a parent of students at SHS, testified that neither of her children had Mr. Caggiano for a teacher. The various student and teacher witnesses discussed a number of Mr. Caggiano’s Faceook posts, reposts, and comments, only some of which were contained in the Amended Step III Progressive Discipline correspondence. Impact of Mr. Caggiano’s Facebook Posts After the publishing of the May 21, 2020, Florida Times Union article, school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving numerous complaints. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano’s Facebook posts, some of which were included with Mr. Johnson’s investigative report. Some of these parents also testified at the final hearing concerning their complaints and feelings concerning Mr. Caggiano’s Facebook activity. These parents testified that they felt Mr. Caggiano’s Facebook posts were inappropriate for a teacher. Assistant Principal Motley testified that a total of four students (not including J.N.S.) requested and were transferred out of Mr. Caggiano’s classes during the Spring 2020 semester. Dr. Hatcher testified that after the Duval County Public Schools removed Mr. Caggiano from SHS, it took part of the Fall 2020/2021 semester to hire a full-time replacement teacher. During that semester, several substitute teachers taught what would have been Mr. Caggiano’s math classes before SHS hired a full time teacher. Ms. Brennan testified that Mr. Caggiano’s Facebook posts impacted J.N.S. negatively. Ms. Brennan did not perform a psychological assessment of J.N.S.; the School Board requested that Ms. Brennan provide emotional support to J.N.S. during her preparation as a witness in this matter in March 2021—more than a year after J.N.S. testified that she read Mr. Caggiano’s Facebook posts. Ms. Brennan testified that J.N.S. has experienced symptoms of depression. She also testified that J.N.S.— previously an A-B student her freshman year, and who had few absences her sophomore year—had approximately 345 separate class absences from school her junior year and was retained. Mr. Caggiano’s Explanation Mr. Caggiano admitted to having authored the Facebook posts, reposts, and comments that are contained in the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano testified that his daughter Arielle “did everything” in setting up his Facebook account, to ensure that his settings were private so that only people he accepted as “friends” could see his posts, reposts, and comments. He further stated that, for the approximately 10 years after establishing his Facebook account, he believed his settings were private. After learning in 2019/2020 that members of the public could view his Facebook account, he again asked Arielle to ensure that it was private. Mr. Caggiano believes his Facebook account was “hacked.” He testified that he believed it to be set to private, and after learning otherwise, “fixed” it. Then, he found it was “public” again. As there was no additional testimony or evidence concerning whether Mr. Caggiano’s Facebook account was hacked, the undersigned does not credit this explanation. Mr. Caggiano testified about the seven posts, reposts, or comments that are the subject of the Amended Step III Progressive Discipline correspondence and detailed in paragraph 29 above. Mr. Caggiano did not express any regret in making any of these Facebook posts, reposts, or comments. With respect to Mr. Caggiano’s repost from a Facebook entity called “Messenger of Liberty,” which states, in part, “My son is taking part in a social experiment[,]” Mr. Caggiano testified that “it’s funny. All my posts were either political commentary, social commentary, or adult humor. And that’s funny. Okay. So for somebody to look at that and not giggle at least, you know, I don’t think you know what funny is. That’s funny.” This particular repost states that, after his son wears a “Bernie” t-shirt, “[s]o far he’s been spit on, punched and had a bottle thrown at him.” Although Mr. Caggiano testified that he believed this to be “funny,” the undersigned finds that it also could be logically read to encourage violence against a child. With respect to Mr. Caggiano’s repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…[,]” and which attributes this quote to Bernie Sanders, sometime in the 1970’s (the exhibit copy is unclear), Mr. Caggiano testified that it was not his opinion, but that he was quoting Bernie Sanders, and that “people should know somebody who’s a sitting senator, twice presidential candidate, former mayor of New York City, has this sort of mentality.” On cross-examination, when asked if “women, teenage girls, could be offended by this post[,]” Mr. Caggiano testified, “I think everybody should be offended by this.” The undersigned finds that despite Mr. Caggiano’s belief that his post makes an important point about Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to women. Mr. Caggiano’s own testimony confirms this. The undersigned finds that the remaining posts, reposts, or comments, can be fairly characterized as political memes that, depending on the viewpoint of the reader, could be characterized as crude political commentary, passionate advocacy, or humor. While these postings, which are generally consistent with a conservative ideology, might not originate from more traditionally respected sources like the National Review or the opinion page of the Wall Street Journal, they are the type of abrasive political speech that one regularly finds in social media. In particular, with respect to Mr. Caggiano’s repost of the meme entitled “Crazy but TRUE,” and the article from an entity called “Lifesitenews.com,” with a headline that states, “Teen girls stage school walkout to protest boys in their bathroom who claim to be ‘girls’”; and to which Mr. Caggiano commented, “Love it! About time people stood up to this insanity[,]” the undersigned cannot find that these reposts, or Mr. Caggiano’s comments, are related to, or in retaliation to, his email interaction with J.N.S. concerning the use of pronouns, or his subsequent counselling on the subject. Mr. Caggiano testified of his concern about men using a women’s restroom which, while counter to the policy of the Duval County Public Schools, does not on its face appear to be the type of bullying, harassing, or retaliating prohibited in applicable laws, rules, and policies. Ultimate Findings of Fact Mr. Caggiano created seven posts, reposts, and comments to posts on his personal Facebook account, which are more fully described in paragraph 29 above. Mr. Caggiano contends that he never intended to share these posts, reposts, and comments publicly, and more specifically, to the SHS community. Mr. Caggiano contends that his Facebook account was hacked, which caused all of his Facebook activity to become public. The undersigned finds that Mr. Caggiano’s explanation is not credible, as he testified that he had several SHS teachers as “friends,” and as he did not check his Facebook settings for approximately 10 years, before the Duval County Public Schools, and the SHS community, became aware of the seven posts, reposts, and comments. The undersigned finds that Mr. Caggiano posted, reposted, and commented on Facebook on his personal account, and shared them in a manner that did not ensure that they remain private. Ultimately, Mr. Caggiano’s Facebook posts, reposts, and comments described in paragraph 29 made their way into the public sphere, and students, parents, Duval County Public Schools personnel, and the media viewed and became aware of them. The undersigned finds that two of the alleged posts, reposts, and comments—entitled “My son is taking part in an experiment,” and “MAN AND WOMAN”—warrant further findings that include violations of statutes, rules, and policies enunciated in the Amended Step III Progressive Discipline correspondence. The undersigned does not make such findings with respect to the remaining five posts, reposts, and comments contained in the Amended Step III Progressive discipline correspondence. Accordingly, the following ultimate findings of fact below apply only to the two posts previously mentioned. The two posts at issue concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped. Mr. Caggiano candidly admitted that the post concerning women was offensive. The undersigned finds that these particular posts violate some of the governing laws, rules, and policies alleged in the Amended Step III Progressive Discipline correspondence. Mr. Caggiano violated rule 6A-10.081(1)(b), because the School Board established, by a preponderance of the evidence, that he failed to exercise best professional judgment and integrity. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b). Mr. Caggiano violated rule 6A-10.081(1)(c), because the School Board established, by a preponderance of the evidence, that he failed to maintain the respect and confidence of his colleagues, students, and parents, and failed to sustain the highest degree of ethical conduct. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)1., because the School Board established, by a preponderance of the evidence, that he failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students’ mental and/or physical health and/or safety. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rules 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(a)5., because the School Board established, by a preponderance of the evidence, that he intentionally exposed students to unnecessary embarrassment or disparagement. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-10.081(2)(b)1., because the School Board established, by a preponderance of the evidence, that he failed to take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which he is affiliated. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Caggiano violated rule 6A-5.056(1), which concerns “immorality,” because the School Board established, by a preponderance of the evidence, that his actions constituted immorality, which is “conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.” Mr. Caggiano violated Duval County School Board Policy 10.10(IV)(A), because the School Board established, by a preponderance of the evidence, that he engaged in conduct that denigrates or shows hostility or aversion toward an individual because of his/her actual or perceived identity with regard to gender. The undersigned finds that the School Board did not establish, bya preponderance of the evidence, that Mr. Caggiano violated section 1006.147(2), which prohibits bullying and harassment. The undersigned finds that the School Board did not establish, by a preponderance of the evidence, that Mr. Caggiano violated rule 6A-10.081(2)(a)6. (“Shall not intentionally violate or deny a student’s legal rights.”), or rule 6A-10.081(2)(c)1. (“Shall maintain honestly in all professional dealings.”). The undersigned finds that the School Board did not establish other alleged violations of Duval County School Board Policy, including bullying or retaliation. The School Board established, with respect to the two aforementioned Facebook posts, that Mr. Caggiano’s conduct constituted “potential harm to the physical and mental wellbeing of a student, or students[,]” and “behavior that impairs the employee’s effectiveness in performing her/his duties, professionalism, and confidence in the eyes of the students and parents/guardians[,]” and thus, under article V, section C, subsections 9 and 10 of the CBA, it was not required to follow the steps of progressive discipline, and had just cause to reprimand (Step II) and suspend without pay (Step III) Mr. Caggiano, and require him to complete a course in Culture Diversity. However, because the undersigned finds that the School Board did not establish that the remaining Facebook posts violated governing laws, statutes, rules or polices, and because the undersigned further finds that the School Board did not establish that the posts constituted bullying or retaliation, the undersigned finds that a reduction in the proposed discipline is warranted.
Conclusions For Petitioner: Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street, Jacksonville, Florida 32202 For Respondent: Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the School Board of Duval County enter a final order that: (1) finds that Mr. Caggiano violated rule 6A- 5.056(1) and (2)(b); rule 6A-10.081(1)(b), (c), (2)(a)1., (2)(a)5., and (2)(b)1.; and Duval County School Board Policy 10.10(IV)(A) for two public Facebook posts or reposts associated with his Facebook account; (2) finds that Mr. Caggiano did not violate section 1006.147(2), rules 6A-10.081(2)(a)6. or 6A- 10.081(2)(c)1., or any remaining portions of Duval County School Board Policy 10.10(IV); (3) issues a written reprimand; (4) suspends Mr. Caggiano, without pay, for three days; and (5) requires Mr. Caggiano to complete a course in Culture Diversity. DONE AND ENTERED this 15th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S ROBERT J. TELFER III 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 15th day of November, 2021. Derrel Q. Chatmon, Esquire Office of General Counsel City of Jacksonville Suite 480 117 West Duval Street Jacksonville, Florida 32202 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Diana Greene, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8152 Kelly B. Mathis, Esquire Mathis Law Firm 3577 Cardinal Point Drive Jacksonville, Florida 32257 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended. whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.
Findings Of Fact The Respondent, through its compensatory education section, has the responsibility of administering the Title I program, as called for in the Elementary and Secondary Education Act of 1965, as amended, and for dispensing federal-funds to the various school districts throughout the state of Florida. Petitioner, Hillsborough County School Board, is a large urban school district of over 100,000 children. It has some 11,000 employees and 6,000 instructional employees. Employees are allocated on the formula of a per pupil basis, and numerous adjustments must be made after the fall opening of the schools because of major shifts of pupils over a summertime. Allocations, in order to comply with Title I, is a task which requires a great deal of attention, particularly in the fall of the school year. The following sequence of events are pertinent: The Hillsborough County Title I application for FY '75 was approved initially on the basis of the assurance which was signed by the District School Superintendent indicating that comparability existed in the Hillsborough County Title I schools and would continue to be maintained throughout the 1974-75 school year. A memorandum dated September 27, 1974, was signed by Halley B. Lewis, Jr., Administrator, Compensatory Education, and was circulated to all local school districts in Florida confirming that the U.S. Commissioner of Education was designating October 1, 1974, as the date for collecting data on which a comparability report for FY '75 would be based. On October 7 and 8, 1974, the Compensatory Education Section in the Florida Department of Education sponsored a statewide meeting of Title I, ESEA personnel in Orlando. One of the sessions was devoted to comparability. On November 7 and 8, 1974, the Compensatory Education Section of the Florida Department of Education called a meeting for District School Superintendents, Finance Officers, Federal Program Directors and ESEA, Title I Coordinators from the eleven (11) most populous counties in Florida at the request of one (1) or more District School Federal Program Directors. One- half of the program--which amounted to one-half day--was devoted to comparability as outlined in Section 116.26 of the regulations as promulgated in the Federal Register, Volume 38, Number 124, for Thursday, June 28, 1973. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT", the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." On November 27, 1974, a letter from the Hillsborough County School District, dated November 26, 1974, and an original comparability report were received by the Compensatory Education Section of the Florida Department of Education. On December 2, 1974, a letter from Hillsborough County School District dated November 27, 1974, and a revised comparability report were received by the Compensatory Education Section in the Florida Department of Education. A letter, dated December 5, 1974, was forwarded to the Hillsborough County School District by the Compensatory Education Section requesting the dates that the personnel authorized by the School Board on November 26, 1974, reported for work. The Hillsborough County School District, in a letter dated December 10, 1974, submitted to the Compensatory Education Section a partial report detailing the beginning employment dates of some of the personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. On December 13, 1974, Ralph D. Turlington, Commissioner of Education, Florida Department of Education, received a telegram from Robert B. wheeler, Acting Deputy Commissioner for School Systems, U.S. Office of Education: "This is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal audit. Your continued cooperation is appreciated." The Hillsborough County School District, in a letter dated December 17, 1974, submitted a final report to the Compensatory Education Section detailing the actual beginning employment dates of personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. The Director of the Elementary and Secondary Education Division in the Florida Department of Education notified the Hillsborough County School District that ESEA, Title I funds were being withheld from December 1 through December 16, 1974. A letter from the Compensatory Education Section was sent to the Hillsborough County School District on December 20, 1974, for the primary purpose of reaffirming the necessity to maintain comparability. The Compensatory Education Section of the Florida Department of Education, in a letter dated January 3, 1975, notified the Hillsborough County School District of accounting procedures to be followed for the period of suspension of ESEA, Title I funds from December 1, 1974 through December 16, 1974. The Hillsborough County School District sent a letter dated January 8, 1975, to Commissioner Ralph D. Turlington, Florida Department of Education, along with the documentation they used as a basis for requesting "a special hearing to appeal withholding ESEA, Title I funds for Hillsborough County schools from December 1, 1974 through December 16, 1974." On January 24, 1975, the Commissioner of the Florida Department of Education wrote the district school superintendent in Hillsborough County granting their request for a hearing to appeal the withholding of Title I, ESEA funds. Petitioner, Hillsborough County School Board, applied for and received Title I funds for the school year 1974-75. It became apparent from the memorandum marked "URGENT" from the Department of Education, dated November 20, 1974, that some reallocation was necessary. On November 26, 1974 the Hillsborough County School Board authorized additional positions budgeting funds for the positions and on November 22, 1974 filed its report choosing the option to hire additional people into the Title I schools rather than shifting personnel who were already working in the non-Title I schools. By letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 2 through December 16, 1974, for the reason that the additional personnel required were not hired and all did not report to work until December 16, 1974. Some $63,000 of additional local funds were required to hire the additional personnel. Funds withheld from Petitioner in excess of $153,000 are Involved in this hearing. Petitioner contends: That it acted in good faith. That the Board action on November 26, 1974, budgeting, approving and establishing the additional positions was compliance both with the federal statutes and regulations and with the requirements of the memorandum from Mr. W. J. Darden of the Department of Education dated November 20, 1974. Respondent contends: That comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year; That upon collection of the data on October 1, it is incumbent upon the school board not only to approve and establish the additional positions but also to see that the persons are hired and in place, on the job, on or before the filing of the report on December 1. The Respondent's position is that the last person necessary to achieve comparability was not in place on the job in Hillsborough County until December 16, 1974, and therefore it had no alternative but to withhold the funds during the period December 2, 1974 through and including December 16, 1974. The statute under consideration is 20 USCA Sec. 241(e): "(a) A local educational agency may receive grant under this subchapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish)--... (3) That ... (c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this subchapter: . . . Provided further, That each local educational agency receiving funds under this subchapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; ..." The regulation under consideration which was promulgated to implement the statute is 45 CFR 116.26, a part of which reads: "(a) A State educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payment of title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in schools serving attendance areas not designated as title I project areas. Such approval shall not be given unless the local educational agency also provided the assurances and the additional information required by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with 116.45." 116.26(c) "If any school serving a title I project areas is determined not to be comparable under this paragraph, no further payments of title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient addi- tional resources to title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance..." The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of August, 2009.
The Issue Whether the employment of Petitioner, Cornelius B. Frankliln, was improperly terminated by Respondent, The School Board of Seminole County, in the summer of 1988.
Findings Of Fact Petitioner, C.B. Franklin, began service with the School Board of Seminole County in the position of teacher in the 1951-52 academic year. In 1955, Petitioner was awarded a continuing contract of employment by Respondent in the position of teacher. Said continuing contract was in effect at all times relevant hereto. Petitioner was last employed by the School Board of Seminole County, Florida, as an Assistant Principal II at Sanford Middle School on an annual contract of employment, which terminated of June 10, 1989. During his employment at Sanford Middle School as an assistant principal from 1980 through 1988, Petitioner received satisfactory annual evaluations. In March, 1988, Owen McCarron, Assistant Superintendent, applied a "staffing formula" for each school in Seminole County. The staffing formula is not a school board rule but is a formula that the school board approves based upon student population to determine the number of teachers, secretaries, assistant principals, and others needed at each specific school. Mr. McCarron is responsible for the application of the formula. The application of the formula is not submitted to the school board for approval. Mr. McCarron made a mistake in the preparation of the staffing formula for 1988/89. The mistake made was that the number of assistant principals for Sanford Middle School would be reduced from two to one. Having been informed of a reduction, Dan Pelham, Principal, Sanford Middle School, determined that he would have to choose among the Assistant Principal II's employed and decided not to recommend the continued employment of Petitioner. Owen McCarron discovered the mistake and notified Dan Pelham, sometime in late March, 1989. However, Dan Pelham chose not to recommend the continued employment of Petitioner but rather to advertise the position as being vacant. When Mr. Pelham was notified the position was reinstated he considered it to be an "opportunity" to consider alternative persons for the position. Mr. Pelham's decision was based on Petitioner's performance as reflected by his annual evaluations and faculty input. Mr. Pelham held a conference with Petitioner on April 8, 1988, and Petitioner was advised that his contract as an assistant principal at Sanford Middle School would not be renewed for the school year 1988-89, because the School Board had reduced the number of assistant principal positions at Sanford Middle School from two (2) positions to one (1). Petitioner was offered a teaching position, under his continuing contract status, at Sanford Middle School as a peer counselor. The Respondent did not act to approve the reduction in positions, nor was the Respondent notified that Petitioner was not being recommended for reemployment. The School Board does not have a rule to govern how the decision is to be made upon a reduction in staff. At the time of the hearing and at all relevant times prior thereto, Petitioner held a valid Florida Department of Education certification in the teaching fields of health education, physical education and supervision and administration. On or about June 9, 1989, one day prior to the expiration of Petitioner's contract as Assistant Principal II, the Petitioner met with Dan Pelham and John Reichert, Director of Personnel. At that time, Petitioner was again advised by Mr. Pelham that he had not changed his decision not to renew Petitioner as an assistant principal, even though he had been advised that the position had been restored. The Petitioner was advised that he could apply for the vacant Assistant Principal II position but he would have to submit an application and a resume. The Petitioner responded that Dan Pelham was well aware of his qualifications, and that a copy of his resume was on file. At that time, Mr. Pelham offered Petitioner the peer counselor position, but salary was not discussed. Petitioner was given copies of documents containing the job information for the position of peer counselor. The position had not previously existed and had not been advertised. Petitioner was reassured that he had employment with the School Board as a teacher under his continuing contract status. At the same meeting, Mr. Reichert advised Petitioner to accept the teaching position, and at the same time apply for the assistant principal vacancy at Sanford Middle School. Petitioner applied for state retirement on June 27, 1988, and his retirement was accepted by the School Board of Seminole County thereafter, on July 13, 1988. Prior to the time Petitioner submitted his application for retirement, he was verbally offered a teaching position under his continuing contract status for the 1988-89 school year at Sanford Middle School. Petitioner is an experienced school administrator, holds a master's degree in [school] administration and supervision from Rollins College, in Winter Park, Florida. As a component of his master's degree requirement he had instruction in school law. Petitioner was aware that his employment as an assistant principal was on the basis of an annual contract of employment and that the position was not entitled to continuing contract status. Petitioner did not apply for the position of Assistant Principal II (secondary) at Sanford Middle School, after it was declared vacant and advertised (in the Spring of 1988), even though he was told that he would be considered for reappointment to the position if he did. Petitioner was aware that if he accepted the offered position of peer counselor his pay would resume in the Fall of 1988, along with all of the other teachers, and that he would be paid at the top of the teaching salary scale on the basis of his thirty (30) plus years of service. Petitioner did not respond, verbally or in writing, to the offered position of peer counselor subsequent to its offer and prior to his retirement. Mr. L. David Pelham, the principal of Sanford Middle School, was not obligated to reappoint Petitioner to the position of assistant principal, after June 10, 1988. However, Petitioner was entiled to a performance assessment prior to that date. Mr. Pelham recognized that Petitioner held continuing contract status and was entitled to be placed in a teaching position at Sanford Middle School for the 1988-89 school year and thereafter. Petitioner never discussed his decision to retire with Mr. Reichert or Mr. Pelham. Neither person had any communications with Petitioner after the June 9, 1988 meeting. Petitioner's annual contract of employment clearly put him on notice that neither he nor the school board owed the other any further contractual obligation after June 9, 1988 and that he had no expectancy of employment as an assistant principal after June 10, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the affirmative relief sought by the Petitioner should be DENIED. It is further RECOMMENDED that each party should bear their own costs and attorneys fees. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2007 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Findings of Fact Paragraphs 1 (1st three sentences), 2, 3, 4 (1st sentence), 5, 6, 7, 8, 10 (except the last 2 sentences) - Accepted in substance. Paragraphs 4 (2d sentence), 9,12 - Rejected as against the weight of the evidence. Paragraph 11 (except sentence 2)-Rejected as subservient. Respondents Findings of Fact Paragraph 1 through 26 - Accepted in substance. COPIES FURNISHED: Robert E. Hughes Superintendent of Schools c/o Seminole County School Board 1211 Melonville Avenue Sanford, Florida 32771 John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive Tallahassee, Florida 32308 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A. Post Office Box 1330 Sanford, Florida 32772-1330 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
