The Issue Whether Petitioner has cause to terminate Respondent's continuing contract of employment as a classroom teacher.
Findings Of Fact The School Board of Palm Beach County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Palm Beach County. Section 4(b), Article IX, Florida Constitution. Petitioner has been authorized to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in Chapter 230, Florida Statutes. Respondent has been employed by the School Board as a classroom English teacher pursuant to a continuing contract since 1965. At all times pertinent to this proceeding Respondent taught high school English at BRCHS. On October 25, 1999, the then-serving Superintendent of Schools reassigned Respondent to an administrative position in the Division of Personnel Services, effective October 26, 1999. Respondent has not taught in the Palm Beach School District since his reassignment. The Classroom Teachers Association (CTA) is a union that represents members of the Palm Beach County School District’s instructional staff. Respondent has been a member of the CTA at all times pertinent to this proceeding. Section 231.29(1), Florida Statutes, requires each school district to establish procedures for assessing the performance of duties and responsibilities of certain employees, including classroom teachers with continuing contracts. The Florida Department of Education (DOE) must approve each school district's personnel assessment system. The School Board has adopted a personnel assessment system, described below, that has been approved by DOE. As required by Florida law, School District administrators evaluate the work performance of teachers at least once a year. The Classroom Teachers Assessment System (CTAS), the assessment system used by the Palm Beach County School District, requires that prior to any evaluation, a qualified administrator observe the teacher’s classroom performance for a minimum of twenty minutes, recording any noted strengths and identifying weaknesses that should be remediated. An observation may be recorded in a narrative form or in a summative form. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in 16 skill areas. The rating for each skill area is a score of two for an acceptable area or a one for an area of concern (an area of deficiency). At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows: INSTRUCTIONAL PROCESS Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal PROFESSIONAL PROFICIENCIES Establishes an Appropriate Classroom Climate Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instructional Needs Demonstrates Effective Written Communication Skills Develops and Maintains an Accurate Record Keeping System PROFESSIONAL RESPONSIBILITIES Demonstrates a Commitment to Growth Demonstrates Self Control Demonstrates Effective Working Relationship with Coworkers Demonstrates Effective Working Relationship with Parents Adheres to and Enforces School Policies Performs Duties as Assigned by the School Administration The Handbook provides criteria that explain each one of these categories on the evaluation form. Teachers who receive an unsatisfactory performance evaluation are placed on a 30-day school-site assistance plan. If the teacher’s performance has not sufficiently improved by the end of the 30 days, the teacher is thereafter placed on a 90-day district-level assistance plan. Prior to the end of the 90-day period, the teacher’s performance in the classroom is evaluated again. If that teaching performance is still rated unsatisfactory, the teacher can be recommended for dismissal. This process applies to both Professional Service Contract (PSC) teachers and Continuing Contract (CC) teachers. The CTAS has been incorporated by reference into the collective bargaining agreement (CBA) between the School District and the CTA. 1/ Article II, Section M of the CBA is titled Discipline of Employees (Progressive Discipline) and provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . Diane Harris became the principal of BRCHS in August 1997, taking over for Norman Shearin. Prior to her appointment, Ms. Harris served as an administrator in the Area Office and was assigned to the instructional support team. Pursuant to her duties under the CTAS, Ms. Harris observed one of Respondent’s classes on October 23, 1997. She observed what she considered to be several areas of deficient performance. Ms. Harris subsequently met with Respondent to address these concerns and make suggestions on how he could improve his teaching performance. Respondent was not receptive to her comments. Respondent’s final evaluation for the 1997-98 school year was rated satisfactory overall. Ms. Harris testified, credibly, that she rated all the teachers that year as being satisfactory because she wanted to observe all teachers during her first year as principal so she could formulate a plan for the following year. The concerns noted during her October observation of the Respondent were never made a part of his final evaluation for 1997-98. Ms. Harris rated Respondent's performance as being satisfactory despite the fact that she was aware that Respondent’s review for the prior year (under Dr. Shearin) had been unsatisfactory. Every year, the BRCHS English Department takes students on a field trip to the Caldwell Theater to view a theatrical production. On November 4, 1998, Respondent’s first period English class was scheduled to go on that field trip. That morning, however, several of his students appeared at the school’s front office and complained to Ms. Harris that Respondent would not allow the entire class to go on the field trip because some students had thrown “spit wads” during class. Rather than punish the students who were responsible, Respondent inappropriately punished the whole class. Because half of the English Department was going on the field trip that day and half the next day (November 5, 1998), Ms. Harris arranged for Respondent’s students to go on the field trip on November 5, 1998. She was unable to meet with Respondent on November 4, 1998 because, when she went to look for him to inquire about his actions, he had already left on the bus with other students to go to the theater. When Ms. Harris was finally able to speak to Respondent either that day or the following day, Respondent accused her of preempting his absolute authority over his class. On November 6, 1998, Ms. Harris issued a memorandum to Respondent outlining her concerns about the field trip incident. In that memorandum, Ms. Harris also noted that she was concerned about the frequent number of disciplinary referrals for assistance from the deans Respondent would make on a daily basis. As a result of those concerns, Ms. Harris provided Respondent with a handout from the CTAS listing the performance criteria for Management of Student Conduct, which included implementing a discipline plan. Ms. Harris specifically directed Respondent to prepare such a written discipline plan and provide it to her by November 9, 1998. On November 17, 1998, Respondent provided to Ms. Harris a copy of a one-page typed document outlining eight rules of conduct which he handed out at the beginning of each school year to his students. On the copy provided to Ms. Harris, the Respondent noted that he also followed the student/teacher handbook. Attached to the document was a copy of a page from an outdated student/teacher handbook. On several occasions Ms. Harris informed Respondent that his discipline plan was inadequate. Thereafter, Ms. Harris consulted with Ms. Stafford, an assistant principal of BRCHS, and obtained a number of documents from the School District’s Professional Standards Office to aid Respondent in properly preparing a discipline plan. By memorandum dated December 18, 1998, Ms. Harris directed Respondent to provide her with a discipline plan by January 8, 1999. When a student is removed from a classroom as the result of misbehavior, he or she is sent to a supervised study area called the opportunity room. On November 24, 1998, Ms. Harris met with Respondent regarding the large volume of referrals he was issuing, which resulted in the students being referred to the opportunity room. At mid-year, Respondent had issued approximately 70 to 75 such referrals. By the end of the school year, Respondent had issued 146 such referrals. In addition to the number of referrals, Ms. Harris received complaints from parents that two particular students were being regularly referred to the opportunity room, that these two students received failing grades, that they were not given progress reports, and that their work was misplaced. Ms. Harris also received a complaint from a student that Respondent had sent the student to the opportunity room without giving the student a way to make up class work. Respondent requested another meeting and offered to justify the referrals he had made, but the meeting was never held. 2/ On December 4, 1998, Ms. Harris made an informal observation of Respondent’s first period class. Ms. Harris observed that the classroom setting was chaotic, students ignored Respondent, and there was no flow or continuity of instruction. All teachers are required to turn in weekly lesson plans reflecting objectives, materials, assessment tools, and activities. In January 1999, Respondent turned in lesson plans for the second term of English 10 and 11. His plans for English 11 were merely a duplicate of his plans for English 10. Subsequently, Ms. Harris repeatedly instructed Respondent to turn in appropriate lesson plans for English 11. Despite those clear instructions from Ms. Harris, Respondent did not turn in appropriate lesson plans for English 11. Ms. Harris decided to give Respondent a mid-year evaluation. The evidence presented by Petitioner established that Ms. Harris was justified in determining that a mid-year evaluation was appropriate. 3/ Ms. Harris assigned Dr. Robert Murley, an assistant principal at BRCHS, to perform a summative observation of Respondent on February 2, 1999. On the day Dr. Murley observed Respondent, Respondent was approximately five minutes late to class. At one point during the observation, Dr. Murley observed that more than half the class was not engaged in learning. The students were either talking or sleeping, or staring off into space, or looking out the window. Dr. Murley further observed Respondent talking above the class rather than getting them to pay attention. Dr. Murley observed the class for over an hour in the hope that things would get better, but they did not. During the 75 minutes that Dr. Murley observed Respondent’s class, he noted 42 times where the students were engaged in misconduct, with Respondent failing to address the misconduct in 12 instances. Respondent’s lessons failed to include meaningful learning and motivational techniques. Overall, Dr. Murley felt that there was very little learning going on and that Respondent was having a lot of difficulty keeping the class aware of what he was trying to teach them and trying to keep them engaged. On February 5, 1999, Dr. Murley met and reviewed his observations with Respondent. Respondent listened to some of the suggestions but not all of them. Respondent did not contest any of Dr. Murley’s observations on the summative form at that time. Subsequently, Dr. Murley attended a meeting with Respondent, his union representative, Ms. Harris, and Ms. Stafford. At that subsequent conference, Respondent resisted all suggestions and criticized Dr. Murley’s observations. As a result of Dr. Murley’s observation and Ms. Harris’ other concerns, Ms. Harris gave Respondent an unsatisfactory rating on the mid-year evaluation. On February 22, 1999, Ms. Harris met with Respondent and gave him the evaluation; Respondent signed the evaluation under protest. Respondent accused Ms. Harris and Ms. Stafford of “obsessive misanthropy.” This can only be construed as an attack on their professionalism and an accusation that they were biased against male professionals. On March 3, 1999, another conference was held, at which time Respondent presented his written rebuttal 4/ disputing each of Ms. Harris’ concerns from the February 22nd meeting. Respondent was not receptive to any suggestions, and the meeting itself was adversarial. By memorandum dated March 8, 1999, Ms. Harris notified Respondent that he was being placed on a 30-day school-site assistance plan, and that failure to improve his performance could result in further action. A copy of the written assistance plan was provided to Respondent at that time. Respondent was also provided with copies of letters and reports from students in Respondent’s classes regarding the climate in the classroom and Respondent’s evaluation of students. On March 10, 1999, Ms. Harris met with Respondent, together with Dr. Jeanne Burdsall, Director of Professional Standards, and Diane Curcio-Greaves, a specialist from the Professional Standards Department, regarding the school-site assistance plan. Dr. Burdsall and Ms. Curcio-Greaves developed a checklist for the 30-day plan. As part of the plan, Respondent was to observe another teacher’s class, turn in a discipline plan by March 22, 1999, and work with a Peer Assistance and Review (“PAR”) Consulting Teacher. Respondent and his union representative consented to his referral for PAR assistance. Follow-up meetings to review progress under the plan were scheduled for approximately every ten days. On or about March 15, 1999, Respondent provided a written response to Ms. Harris, contesting the charges against him. On March 17, 1999, Ms. Curcio-Greaves arranged for Respondent to observe a class at Atlantic High School. During that observation, Ms. Curcio-Greaves pointed out to Respondent certain teaching behaviors that she considered effective. Two areas were focused upon: management of student conduct and instructional organization and development. Respondent could have benefited from observing that class, but he resisted the efforts of Ms. Curcio-Greaves to help him improve his performance. On March 16, 1999, as part of the on-site school assistance plan, Virginia McGrath, a member of the Area Office’s Instructional Support Team and a certified CTAS evaluator, observed one of Respondent’s classes for approximately one hour and noted several areas for improvement. Specifically, she observed that Respondent did not review the assignment with the class, and that the students did not seem to understand the material being covered. Further, Respondent would not answer the questions of students who were unclear about the materials and/or the assignment and allowed too much down time. Ms. McGrath did not observe any actual teaching by Respondent during this observation. On March 18, 1999, Ms. Harris conducted a school-wide training session regarding the new CTAS evaluation system, which had been negotiated by the School District and the CTA and approved by DOE. Respondent attended the training. On March 19, 1999, pursuant to the terms of the on- site school assistance program, Ms. Harris again met with Ms. Curcio-Greaves and Respondent to review his progress under the on-site plan. During the meeting, Respondent complained that he should not be involved in the observation process, and he was not receptive to Ms. Curcio-Greaves’ observations. Instead, Respondent was critical of the teachers he observed and opined that Atlantic High School was a bad school overall. Pursuant to Respondent’s request at that meeting, Ms. Harris scheduled a follow-up meeting for March 23, 1999, to further discuss Respondent’s evaluation. On April 9, 1999, a follow-up meeting was held to review Respondent’s progress under the school assistance program. By this time, Respondent had still not provided the required classroom management plan; rather, he had only turned in a copy of the rule book. At the meeting, Respondent was informed of a professional standards workshop on presentation of subject matter and planning, to take place on April 27, 1999. As part of the school assistance plan, Respondent attended that workshop. Also pursuant to the school assistance plan, the PAR panel granted, on April 15, 1999, Respondent’s request for inclusion in the program, and assigned a PAR Consulting Teacher. On April 15, 1999, Dr. Burdsall attended an evaluation meeting with Respondent, Ms. Harris, and Mr. Matulaitis. During the meeting, Respondent stated that the principal was unprofessional, and commented that one particular student and that student’s father were “not too bright.” Respondent also stated (referring to Dr. Burdsall and Ms. Harris) that, “The ladies are unable to handle this, you live in a fluffy world,” and responded to a question by Dr. Burdsall with “no, my love, no.” Respondent was insulting to Ms. Harris and Dr. Burdsall and resisted the remedial assistance being provided to him. On April 16, 1999, pursuant to the CTA CBA, Ms. Harris notified Respondent that she would be observing his class during the week of April 19-23, 1999. Subsequently, Ms. Harris conducted the observation of Respondent’s classroom on April 22, 1999, and prepared a narrative report of her observations. Based upon her observations, Ms. Harris concluded that Respondent still did not have adequate control of his classroom environment and was exhibiting the same deficiencies as she had noted in the February 1999 evaluation. By memorandum dated April 26, 1999, Ms. Harris informed Respondent of her observations and, on April 30, 1999, personally met with him to discuss the matter further. Respondent did not agree with the assessment. Ms. Harris provided to Respondent a follow-up memorandum on May 5, 1999. By memorandum dated April 23, 1999, Mr. Matulaitis requested that the completion date for the school-site assistance plan be extended, as some items had not yet been completed. Upon review of the matter, Ms. Harris noted that most items had been completed without any noticeable improvement by Respondent. Specifically, Ms. Harris had still not received the discipline plan she had requested back in November, nor had Respondent provided to her revised lesson plans. Further, none of the observations of his classes showed any change in strategies in the classroom. In addition, Respondent became more adversarial and abusive at each follow-up meeting and consistently resisted suggestions. Ms. Harris denied Mr. Matulaitis’ request to extend the completion date for the school-site assistance plan. Dr. Mary Gray, a professor at Florida Atlantic University, is an expert in teacher evaluation who works with the school district as a consultant in teacher evaluation cases. Dr. Gray met Respondent on April 27, 1999, when he attended a workshop she conducted on planning for instruction and presentation of subject matter (including classroom management and questioning techniques) as part of his remediation program. Dr. Gray testified that Respondent appeared resistant to participating in the workshop. On May 4, 1999, Ms. Harris notified Respondent that she would provide transportation for him to go to another school and observe another teacher’s classroom as part of his remediation plan. Ms. Harris further informed Respondent that she would provide a substitute teacher for his classes that day. On that same date, Respondent signed the notification under protest and asked for the trip to be rescheduled. On May 5th and 6th, however, Respondent was absent from work. On May 6, 1999, Ms. Harris notified Respondent that his May 5, 1999, meeting to observe an ESOL (English for Speakers of Other Languages) teacher had been rescheduled for May 10, 1999, due to Respondent’s absence on May 5th. This was one of the last open items remaining on Respondent’s school-site assistance plan. By letter dated May 6, 1999, Ms. Harris requested then Superintendent of Schools, Dr. Joan P. Kowal, to place Respondent on a 90-day performance probation, because Respondent had completed the school-site assistance plan without making any improvement in the noted areas of deficiency. On May 11, 1999, Respondent received his year-end CTAS evaluation. The evaluation noted the same deficiencies as had been noted on the February evaluation. The evaluation rated Respondent as unsatisfactory overall, and noted that a 90-day district-level assistance plan would be implemented. By letter dated May 12, 1999, Superintendent Kowal formally advised Respondent that he had been placed on 90-day performance probation and that he would receive a Professional Development Plan (the district plan) to support remediation of the deficiencies. Also on May 13, 1999, Ms. Harris provided to Respondent copies of letters from students and one parent regarding the climate in Respondent’s classroom and Respondent’s failure to appropriately evaluate student needs. Ms. Harris testified that the student concerns were addressed in the form of a petition, and that she had never received such a document for any other teacher at BRCHS. Ms. Harris referred Respondent to specific sections in the school-site assistance plan for suggestions on improvement strategies in the noted areas of concern. On that same day, Ms. Harris also requested that Superintendent Kowal revise the district plan to delete the seventh area of concern (working relationships with parents) as a result of the disposition of a grievance Respondent had filed about his evaluation. Ms. Harris had been told by her supervisor that it would be more beneficial for Respondent to concentrate on the other six areas, which more directly affected Respondent’s instructional activities. Respondent’s May 1999 evaluation was also changed accordingly. On May 14, 1999, the ESOL teacher assigned to meet with Respondent pursuant to the school-site assistance plan reported to Ms. Harris that Respondent had been resistant to the ESOL teacher’s suggestions as to the use of ESOL strategies. At a meeting on May 19, 1999, Respondent was officially placed on a 90-day district plan and notified of his right to a deficiency hearing -- which he requested. At that meeting, a checklist for the district plan was developed. Everyone agreed to the plan and agreed that it complied with the CTA CBA. Neither Respondent nor the CTA objected to the fact that Respondent had been placed on the 30-day and 90-day programs. The deficiency hearing to review the 90-day district plan was conducted with Cheryl Alligood serving as the hearing officer. The hearing was held before Ms. Alligood, the principal, the union representative, and the teacher. The purpose of a deficiency hearing is for the union representative to come with the teacher and the principal to review what concerns there may have been and whether sufficient assistance is being provided to the teacher by the district plan. Respondent, who was represented by counsel at the deficiency hearing, asserted that his performance was not deficient and that Ms. Harris was “out to get him.” Subsequently, Ms. Alligood found sufficient reason to continue Respondent on the district plan. Respondent received notice of that determination on July 6, 1999. Pursuant to Respondent’s agreement, Dr. Burdsall arranged for Respondent to observe a Dwyer Award recipient or nominee. A Dwyer Award is given for excellence in teaching. Respondent did not keep his appointment that had been set up by Dr. Burdsall. The observation was rescheduled, but again, the Respondent did not show up. Respondent also failed to attend a workshop set up by the PAR teachers specifically for the purpose of helping him remediate his particular teaching deficiencies. Dr. Burdsall offered Respondent the opportunity to attend a different workshop. Again, he did not attend. During the 1998- 99 school year, several remedial workshops were recommended to Respondent to assist in his professional development that he did not take advantage of. On May 27, 1999 (about a week before the end of the school year), Dr. Gray observed Respondent’s teaching performance in the classroom, at which time she noted he was deficient in several areas. The most critical deficiency Dr. Gray noted was that Respondent was not performing at the minimal teaching level. Based on her observations, Dr. Gray did not consider Respondent to be a competent teacher. Following the observation, Dr. Gray met with Respondent to review the results of her observation and to offer constructive criticism. Respondent was defensive and clearly resented being involved in the observation/remediation process. Respondent angrily voiced that resentment to Dr. Gray. Respondent subsequently provided Ms. Harris with a written response to Dr. Gray’s observations, disagreeing with each one. Respondent’s district plan extended through the summer. Dr. Burdsall met with Respondent following the summer break and determined that Respondent had not done anything over the summer to try to help his remediation process. At the August 13, 1999, meeting, Dr. Burdsall, Ms. Harris, and Mr. Matulaitis agreed it would be beneficial for Respondent to attend a couple of workshops on management of student conduct and instructional strategies. In addition, it was decided that the PAR teacher would continue for the 1999-2000 school year. Dr. Burdsall testified that the meeting was unlike any other assistance review meetings she has had because of the adversarial, abusive attitudes of Respondent and his union representative. Dr. Burdsall was under the impression that Respondent was never going to remediate. On August 26, 1999, pursuant to the 90-day district plan, Tcherina Duncombe, a specialist in the Professional Standards Office, conducted an hour-long observation of Respondent’s classroom and prepared a narrative report of her observations. Ms. Duncombe determined that Respondent needed improvement in the same areas that had been of concern during the prior school year, including management of student conduct, instructional organization and development, and establishing an appropriate classroom climate. Ms. Duncombe observed that Respondent’s instruction that day was not organized and was ineffectual, and that his directions were unclear. Further, Respondent failed to discipline some students for talking in class and making inappropriate comments, but then would discipline others in an inappropriate manner. Ms. Duncombe subsequently discussed her findings and suggested improvement strategies with Respondent, but he did not appear to be receptive. During the one-hour review session Ms. Duncombe had with Respondent, Respondent spent most of the time making negative comments about the district plan and Ms. Harris. Based upon the information contained in the narrative, Ms. Harris determined that Respondent had not made any improvement in his classroom teaching performance. On September 9, 1999, Respondent provided a written response to Ms. Duncombe’s observations, taking issue with each point made by Ms. Duncombe. On September 18, 1999, Respondent was notified via certified mail that a second observation would take place during the week of September 21, 1999, by Ms. McGrath, as part of the district plan. At the same time, Respondent was informed that a previously scheduled meeting had been reset to September 21, 1999. Ms. McGrath conducted her second observation of Respondent on September 22, 1999. Again, Ms. McGrath did not observe any actual teaching, and Respondent again failed to review materials with the students and clarify any confusing assignments. Ms. McGrath also observed students talking in class (including the utterance of a couple obscenities) and passing notes. In addition, Respondent was inconsistent with requests for bathroom leaves. Further, Respondent had not implemented any of Ms. McGrath’s recommendations from the previous observation (there was no defined lesson and Respondent was not meeting the needs of all his students). After the second observation, Ms. McGrath was concerned about Respondent’s competency as a teacher. Based upon the information contained in Ms. McGrath’s summary of her observation, Ms. Harris determined that Respondent still had not made any improvement in his classroom teaching performance. Dr. Burdsall was present during a September 21, 1999, district plan meeting wherein the evaluations of Ms. Duncombe and Dr. Gray were reviewed. Respondent insulted Dr. Burdsall again. Dr. Burdsall testified that she had never had a teacher become abusive when she was trying to provide assistance. Rather than walk out of the meeting, Dr. Burdsall continued to try and provide assistance to Respondent. Despite Respondent’s attitude, Dr. Burdsall continued to make efforts to assist Respondent and get him to see other teachers. On October 4, 1999, Ms. Harris received a letter from a student concerning Respondent’s teaching methods. Ms. Harris testified that the complaints in the letter were consistent with the same pattern of deficiencies exhibited by Respondent on other occasions. Ms. Harris provided copies of the letter to Respondent and, on October 7, 1999, scheduled a brief meeting with him to discuss the letter. The meeting was held on October 8, 1999. At the meeting, Respondent was also given a copy of an observation summary conducted by Dr. Penny Beers, the curriculum specialist for the School Board's language arts program, discussed infra. Further, Ms. Harris notified Respondent that she would be observing his classroom the week of October 11, 1999. On October 5, 1999, Respondent, through his counsel, filed a Petition for Writ of Prohibition in the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. In that action, Respondent sought the issuance of a writ of prohibition directing the School Board to cease the 90-day district-level remediation program and restraining the School Board from treating Respondent as a PSC teacher. Respondent argued that, as a CC teacher under Section 231.36, Florida Statutes, he could only be dismissed for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Respondent further argued that the 90-day district plan could not be applied to CC teachers. By order dated November 1, 1999, following oral argument on the issue, the Circuit Court denied Respondent’s Petition. On October 6, 1999, Dr. Beers conducted an observation of Respondent’s classroom as part of the district plan. Although Dr. Beers made several commendations in her observation summary, she made even more recommendations for improvement. Based upon her one-hour observation, Dr. Beers felt that Respondent had not demonstrated his competence as a teacher because she saw very little instructional time used during that one-hour period. Specifically, Respondent engaged the students in actual instruction for only ten minutes of the one-hour period. She also noted that Respondent was inconsistent in his meting out of discipline and was not very aware of what the students were doing (which was referred to as lacking “with-it- ness”). Dr. Beers wrote up a summary of her observation in narrative form, and included commendations as well as recommendations for improvement. From those recommendations, Ms. Harris determined that Respondent had still not made any progress toward remediating his teaching deficiencies. Ms. Harris observed Respondent’s class on October 12, 1999, and prepared a narrative summary. Respondent’s classroom performance at that time was consistent with previous observations. Ms. Harris did not note any improvement. On October 15, 1999, Ms. Harris prepared an evaluation for Respondent, rating his performance as being unsatisfactory. The unsatisfactory evaluation was based on Respondent’s failure to remediate any of the previously noted six areas of concern and his lack of effort in that regard. Ms. Harris also notified Superintendent Kowal that, although Respondent was provided 90 days of assistance, his performance deficiencies had not been corrected to a sufficient degree to warrant a satisfactory evaluation. Dr. Kowal in turn notified Respondent that she would recommend to the School Board Respondent’s dismissal effective 15 days from the November 4, 1999, School Board meeting. At the end of the 1996-97 school year, Respondent erroneously recorded that all but one student in a class had failed the final examination. The incorrect grades appeared on the final report cards for the 1996-97 school year. On September 17, 1997, a pre-disciplinary hearing was held to determine whether further action should be taken. At that pre- disciplinary hearing, it was established that the failing grades were the result of Respondent's record-keeping errors and that no further action would be taken against him after Respondent changed the erroneous grades. Respondent repeatedly failed to maintain adequate records of grades, made errors in reporting grades, and misplaced students' work. Count II alleged that Respondent refused to submit the end-of-year checklist prior to summer break for the 1998/99 school year. The evidence failed to establish that allegation. Count II also alleged that Respondent falsified a disciplinary referral by indicating on the referral record that he had spoken to the student's parent when, in fact, he had not done so. Respondent admitted that he had not spoken directly with the parent, but he testified, credibly, that he had left a message on the parent's answering machine and did not intend to mislead anyone by the referral record. Count II alleged that Respondent meted out inappropriate, unwarranted, and unequal punishment to students, and that he used grades and denial of make-up work opportunities as methods of punishment. Respondent meted out inappropriate, unwarranted, and unequal punishment to students. Petitioner did not establish that Respondent used grades and denial of make-up work opportunities as methods of punishment. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan. In explaining to the arbitrator who heard one of his grievances, Respondent testified that he did not do a discipline because he did not do "diddly" tasks. The remaining allegations of insubordination or willful neglect of duty set forth in Count III were not established by Petitioner. Petitioner established that each observation of Respondent's performance at issue in this proceeding was pursuant to and consistent with its established evaluation process. Each person who formally observed Respondent's classroom performance was appropriately trained and objectively reported their observations, which were factually based. Petitioner further established that each performance evaluation at issue in this proceeding was pursuant to and consistent with its established evaluation process. The various findings of unsatisfactory performance were justified by documented observations as required by the evaluation process. The 90-day district plan provided Respondent with appropriate assistance to help him correct his teaching deficiencies. Petitioner clearly established that Respondent repeatedly resisted efforts to help him. Respondent failed to remediate his deficiencies. This failure should be attributed more to a negative attitude than a lack of ability. At the March 29, 2000, School Board meeting, the Superintendent of Schools submitted a written recommendation that Respondent be dismissed from his CC teaching position with the School District at the end of the 1999-2000 school year, effective May 31, 2000. Respondent and his attorney were given an opportunity to be heard regarding the Superintendent’s recommendation. The School Board voted in favor of the Superintendent's recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order terminate Respondent’s continuing contract of employment effective at the end of the 1999-2000 school year. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Undisputed Findings of Facts The Respondent is a Food and Nutrition Assistant I with the Hernando County School District (District). Respondent worked at Springstead High School (SHS). She was responsible, among other things, for preparing the meals for the nearby charter school, Gulf Coast Academy, and for transporting those meals to the school once they were prepared. Respondent used a District van to transport meals from SHS to Gulf Coast Academy. On November 22, 2010, Respondent prepared the meals for Gulf Coast Academy and before leaving on her delivery run informed her supervisor, Elizabeth Rios, that the delivery van needed fueling. Ms. Rios advised the Respondent she should fuel the van after her delivery and to ask the “lady” for help if needed. Respondent made her delivery to the charter school and before returning to SHS, stopped at the maintenance complex to fuel the van as discussed with Ms. Rios. Respondent attempted to fuel the van at a gas pump but discovered she could not do so without a “blue key” which was needed to run the pump. Respondent left the pump to get assistance but did not remove the hose before pulling away. As a result, the hose broke away from the pump and was left hanging onto the side of the van. Respondent returned to the pump and reattached the hose to the pump. Respondent then called her supervisor, Ms. Rios. Respondent stated Ms. Rios told her to see Lori Drenth, Director of Food and Nutrition Services, about getting a blue key. Ms. Rios stated that Respondent told her the “lady” who could help with the fueling was on lunch so she would have to wait for her to get back to get help. She furthermore stated that when asked if everything was “OK,” Respondent advised that “someone” had broken the pump. She said nothing to Ms. Rios about her involvement in breaking the hose. Respondent next went to Lori Drenth’s office in the building adjacent to the maintenance building to see about getting help. Ms. Drenth phoned Christine Harvey in Maintenance for assistance. Ms. Harvey was not available, so Ms. Drenth left a phone message. She then called a secretary in Maintenance who advised that Ms. Harvey was likely at lunch with Stephanie Wood, Ms. Harvey's backup. Ms. Drenth then advised Respondent she would simply have to go back to Maintenance and find Ms. Harvey or Ms. Wood. Respondent said nothing to Ms. Drenth about the fact that she broke the pump by pulling the hose off with the van. Respondent returned to the pump, entered the maintenance building, and eventually located Ms. Harvey and Ms. Wood who had by that time returned from lunch. Respondent and Ms. Wood proceeded to attempt to fuel the van. Ms. Wood showed Respondent how to use the “blue” and “white” keys to turn the pump on, and then handed Respondent the hose so that she could fuel the van. When Respondent attempted to place the fuel hose in the van, the hose detached from the pump which caused gasoline to spill on the ground and on Ms. Wood's hands. Ms. Wood immediately shut the pump off and then called Ms. Harvey. Ms. Wood stepped away from the pump to make the call as she was concerned about causing a spark around the spilled fuel. Respondent did not say anything to Ms. Wood or Ms. Harvey about the pump being broken or that she had pulled the hose off with the van. Rather, Respondent told Ms. Wood that the hose was like that when she got there. When confronted the next morning by Ms. Rios about the broken hose at the maintenance fuel pump, Respondent finally admitted that she broke off the hose with the van. The pump cost $142.00 to repair. A review of the matter was conducted by the Food Services Department and the Safe Driver Committee pursuant to the Board approved Safe Driver Plan. Respondent acknowledged receipt and/or review of the Safe Driver Plan on August 23, 2010, as part of the Annual Procedures Review required of all employees. The Safe Driver Committee met on November 30, 2010, and December 14, 2010, and found Respondent in violation of Safe Driver Plan Section #35 - failure to obey any other driving law, regulation, or District procedure. The Committee also noted in its written report that Respondent "was not as truthful (about the incident) as she could have been." On or about December 17, 2010, the matter was referred to the District office for further review. Respondent was offered an opportunity for a pre- determination meeting to discuss the incident. The meeting was scheduled for January 6, 2011. Respondent received a copy of a letter dated January 4, 2011, from Heather Martin, Executive Director of Business, inviting her to the conference. She signed for receipt of same on January 4, 2011. The letter included copies of the documentation collected as part of the District’s investigation. The pre-determination meeting was held on January 6, 2011. Respondent was in attendance. Based upon the evidence obtained during the investigation/review of the matter and Respondent’s statements during the pre-determination meeting, the Superintendent determined that there was probable cause to discipline the Respondent and that he would recommend Respondent's termination to the School Board. The Superintendent advised Respondent of his determination and recommendation through his designee, Heather Martin, via her letter to the Respondent dated January 10, 2011. Additional Findings of Fact There is no question that Respondent made a series of mistakes on November 22, 2010. According to Respondent's testimony at hearing she failed to report the incident at the fuel pump because she was scared and she panicked. There is no evidence in this record to suggest that Respondent intentionally damaged District property or engaged in a premeditated plan of dishonesty. The most serious aspect of Respondent's behavior on November 22, 2010, was the potential danger she exposed other District employees to at the fueling station by not disclosing the broken hose. Again, although this was a serious omission, by all appearances it was the product of Respondent's panic rather than of deliberate thought. Other than Respondent's lapse of judgment on the day of the incident, all indications are that Respondent has been a dependable, loyal, and competent employee. Dating from April 2005, Respondent's job evaluation forms reflect satisfactory performance of her duties, an "accident free" history, and a willingness and desire to help other employees. There are food service positions at SHS that do not require employees to drive vehicles.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order: Reinstating Respondent to her position as a food service employee with the restriction she not be required or permitted to drive School Board vehicles at any time in the future; days; Suspending Respondent without pay for a period of 60 Requiring Respondent to reimburse the School Board the $142.00 cost for the repair of the fuel pump. DONE AND ENTERED this 26th day of August, 2011, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2011. COPIES FURNISHED: J. Paul Carland, II, Esquire School Board of Broward County 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Bryan Blavatt, Superintendent of Schools 919 North Broad Street Brooksville, Florida 34601 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Petitioner should enter into a new professional service contract with Respondent and whether Respondent's employment with Petitioner should be terminated, due to Respondent's failure to correct his teaching deficiencies.
Findings Of Fact John Kent (Respondent) was employed with the Palm Beach County School Board (Petitioner) as a social studies teacher since 1980 at Palm Beach Lakes High School (PBL High) and its predecessor school, Twin Lakes High School (TL High). During his employment with Petitioner, Respondent held a professional service contract. Respondent has been a teacher for over 30 years, having taught in both the Illinois and Florida school systems. In the latter part of 1996, concerns regarding Respondent's performance, as a teacher, were first raised in Petitioner's school system. Prior to that time, his teaching performance was evaluated as being satisfactory. From 1992 to 1996, PBL High's principal, Nat Collins, evaluated Respondent's teaching performance as satisfactory, with no record of incidents. Principal Collins is a certified Florida Performance Measurement System (FPMS) observer. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Collins had specifically praised Respondent's planning abilities and lesson delivery skills in three evaluations. Principal Collins' last evaluation of Respondent was in May 1996, in which he specifically praised Respondent for Respondent's lesson delivery skills. In August 1996, PBL High was assigned a new assistant principal, Thomas Carroll. Assistant Principal Carroll notified the teaching staff at PBL High in his first faculty meeting in August 1996 that he would be performing more critical observations of them. Assistant Principal Carroll is a certified FPMS observer. Principal Collins considered Assistant Principal Carroll's remark to be of poor judgment and chastised Assistant Principal Carroll for making such a comment. For the 1996-97 and 1997-98 school years, the assessment instrument used by Petitioner to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. A satisfactory evaluation of a teacher was one in which the teacher received a rating of 28 or above, out of a maximum of 32, or of 5 concerns or less. School-site improvement efforts may accompany a rating in which one concern is noted. During the 1996-97 and 1997-98 school years, the CTAS required a teacher at PBL High, whose performance was rated unsatisfactory at the end of the school year, to be placed in a District-Level Professional Development Plan (District-Level Plan) during the entire following year of improvement. If the teacher failed to sufficiently improve during the subsequent year, as determined by the principal, the teacher would be dismissed. During the 1996-97 school year, Respondent received a CTAS mid-year evaluation dated December 9, 1996. He received a score of 27 and was rated as unsatisfactory, with five concerns, also referred to as deficiencies. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Demonstrates Ability to Plan Effectively; and Demonstrates Ability to Evaluate Instructional Needs. Subsequently, during the same school year, on April 16, 1997, a CTAS annual evaluation of Respondent was conducted. Respondent received a score of 28 and was rated as satisfactory on the annual evaluation. Four areas of concern were listed: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. During the 1996-97 school year, Respondent was not pleased with Assistant Principal Carroll's assessment of his teaching performances as inadequate. Respondent expressed his displeasure to Principal Collins regarding Assistant Principal Carroll's assessments. During the 1997-98 school year, on November 21, 1997, Assistant Principal Carroll observed Respondent. He determined that Respondent failed to teach any concepts during the class period. Subsequently, Principal Collins conducted a CTAS mid- year evaluation of Respondent on December 4, 1997. Assistant Principal Carroll provided input to Principal Collins regarding Respondent's mid-year evaluation. Respondent received a score of 30 and was rated satisfactory, with two concerns being listed. The concerns were Instructional Organization and Development; and Presentation of Subject Matter. Principal Collins was concerned that Respondent's last annual evaluation, which was performed on April 16, 1997, identified four concerns. As a result, on December 4, 1997, a School-Site Assistance Plan (School-Site Plan) was developed for Respondent. The School-Site Plan included professional standards seminars. Assistant Principal Carroll notified Respondent that the Peer Assistance and Review (PAR) Program was also available to provide assistance. The PAR Program is a master teacher assistance program. Both the Palm Beach County Classroom Teachers Association (Union) and Petitioner developed the PAR Program to assist teachers with the correction of deficiencies. As Respondent had raised concerns regarding Assistant Principal Carroll's observations of him, Principal Collins requested that an outside observer from Petitioner's district school staff observe Respondent. By memo dated February 27, 1998, Principal Collins noticed Respondent of the observation by the outside observer. The outside observation was to take place on March 10, 1998. As a result of the satisfactory mid-year evaluation, Respondent could not understand why he was being observed again and, this time, by an outside observer. In March 1998, Respondent expressed his concern in a memo to Principal Collins regarding the observation by the outside observer. Prior to the observation, Respondent's wife learned that Respondent was going to be evaluated by one of Petitioner's district staff persons. By letter dated March 4, 1998, to the General Counsel of the Florida Department of Education (DOE), Respondent's wife made allegations of ethical violations by Assistant Principal Carroll, regarding Respondent's observations, and requested an ethics inquiry by DOE. She copied the letter to Petitioner's chief personnel officer (Dr. Joanne Kaiser); Principal Collins; one of Petitioner's members; Petitioner's superintendent; and the Union's Executive Director. On March 9, 1998, Principal Collins completed a CTAS annual evaluation of Respondent. Respondent received a score of 29 and was rated satisfactory, with three concerns being noted. The concerns listed were Management of Student Conduct; Instructional Organization and Development; and Presentation of Subject Matter. Principal Collins did not recommend placement of Respondent in a District-Level Professional Development Plan. On March 10, 1998, Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards, observed Respondent. She developed both the instructional and non-instructional evaluation and assistance plans. Dr. Burdsall's duties include monitoring the evaluation system. She is a certified FPMS observer. Dr. Burdsall had no knowledge of Respondent's prior evaluations. She noted six areas of deficiencies or concerns in Respondent's teaching and provided him with recommendations for improvement. The deficiencies were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Classroom Climate; and Planning. Dr. Burdsall determined that Respondent had conducted an ineffective lesson. On April 21, 1998, Respondent experienced a classroom management problem. Unidentified students in Respondent's classroom had covered his clothing with ketchup. Dr. Burdsall met with Respondent subsequent to the observation. She discussed the observation with Respondent and provided him with suggestions for improvement, employing a behavior management system and teaching a lesson. Dr. Burdsall urged Respondent to become involved in the PAR program. The Union filed a grievance challenging Respondent's observation of March 10, 1998. The grievance was denied at Step II of the process and was not pursued any further. Respondent was entitled to request a deficiency hearing and he did so. A deficiency hearing was held and Respondent's deficiencies were reviewed with him. On May 18, 1998, Patricia Kaupe, Petitioner's Instructional Support Team Member, Area 3 Administration, observed Respondent. Her duties include observing and assisting teachers with teaching performance deficiencies. Ms. Kaupe is a certified FPMS observer. She determined that Respondent had an ineffective lesson. Ms. Kaupe met with Respondent subsequent to the observation and provided him with feedback regarding more effective teaching practices. She concluded that Respondent was an incompetent teacher. At his discretion, on May 29, 1998, Principal Collins completed a second CTAS annual evaluation of Respondent. Assistant Principal Carroll provided input and expressed his concern that classroom management remained a concern and that Respondent continued to need improvement in that area. Principal Collins considered input by Assistant Principal Carroll, prior observations, including the observations of Dr. Burdsall, and the ketchup incident in April 1998. Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies were Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. Principal Collins had further concerns regarding the safety of students and of Respondent and regarding the instruction level being provided by Respondent. This second CTAS annual evaluation, which rated Respondent unsatisfactory, was less than "6 weeks prior to the end of the postschool conference period." 4/ Respondent had requested a transfer and on July 17, 1998, he met with Petitioner's chief personnel officer, Dr. Joanne Kaiser. Those in attendance included Principal Collins, Assistant Principal Carroll, and Respondent's union representative. Respondent's request for transfer was denied in that Dr. Kaiser determined that Respondent's main concern was Assistant Principal Carroll, which concern was resolved; that Respondent's needs could be met at PBL High; and that Respondent was not on a District Plan as statutorily required. The granting or denial of the transfer was within the complete discretion of Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion in denying the transfer. In addition to Respondent's transfer request, the discussion at the meeting on July 17, 1998, included Respondent's concern regarding Assistant Principal Carroll's being on Respondent's review team. Principal Collins recommended and it was agreed that Assistant Principal Marjorie Lesser would replace Assistant Principal Carroll. It was further agreed that Respondent would be placed on a 30-day School-Site Plan at the upcoming Fall term of school. Assistant Principal Lesser developed a 30-day School- Site Assistance Plan for Respondent. She met with Respondent on August 31, 1998, and reviewed the plan with him. Respondent's union representative did not attend the meeting and his presence was not a requirement. The focus of the School-Site Plan was to address Respondent's six teaching deficiencies listed on Respondent's CTAS annual evaluation of May 29, 1998, and to structure activities to assist him, which included reading materials; viewing professional development video tapes, regarding the deficient teaching domains; observing other teachers; being assisted by peer teachers; having other professionals observe his teaching; and meeting with Respondent and providing feedback on his teaching behaviors. Additionally, Assistant Principal Lesser arranged several seminars and workshops for Respondent. Respondent was also recommended for the PAR Program but he declined. On September 1, 1998, Assistant Principal Lesser observed Respondent. She is a certified FPMS observer. During the observation, Assistant Principal Lesser observed Respondent's efforts in complying with her suggestions; however, he was not successful. Assistant Principal Lesser determined that Respondent's teaching was ineffective and six deficiencies or concerns were identified. The deficiencies were as follows: Domain 3--inadequate directions provided to the students; Domain 3--too many students off-task; Domains 3 and 5--students sent mixed communication message; Domain 5--used a monotone voice; and Domain 2--a lack of consistency in management of student conduct. Periodically, during the implementation of the School- Site Plan, Assistant Principal Lesser met with Respondent, his union representative, and Principal Collins to review Respondent's progress and to discuss continuing concerns and the direction needed to be taken between meetings. The contents of each meeting were recorded and signed off by everyone. At no time did Respondent or his union representative raise a concern as to the timing or the appropriateness of the School-Site Plan. On September 16, 1998, Ms. Kaupe observed Respondent again. She determined that Respondent had failed to teach any concepts and concluded that his lesson was ineffective. Ms. Kaupe offered Respondent suggested strategies for improvement. On October 12, 1998, Assistant Principal Lesser again observed Respondent. She determined that Respondent's teaching was ineffective and that the same six deficiencies remained. Assistant Principal Lesser provided recommendations for improvement to Respondent. Safety concerns arose regarding Respondent's management of student conduct in his classroom because problems erupted into incidents involving students. To ensure safety in Respondent's classroom, Principal Collins implemented a physical change in Respondent's classroom. Principal Collins directed the removal of the light switch in Respondent's classroom, so that it could not be manually turned on and off, and the placement of a device which required a key to turn the light on and off. To further ensure safety in Respondent's classroom, not for behavior management or teaching, Principal Collins placed a teacher's aide in Respondent's classroom at the recommendation of Dr. Kaiser. In October 1998, Principal Collins' concern for safety heightened after a student was injured in Respondent's classroom. After the incident, Dr. Kaiser met with Principal Collins and others, regarding the student injury, and recommended the placement of a teacher's aide in Respondent's classroom for safety reasons, not for behavior management of the students, which was Respondent's responsibility, or for teaching of the students. On November 3, 1998, which was near the end of the 30- day School-Site Plan, Principal Collins observed Respondent. Principal Collins determined that a sufficient number of deficiencies were not corrected but remained. The deficiencies were as follows: Domain 1--Planning; Domain 2--off-track behavior; Domain 3--instructional organization; and Domain 5-- communication verbal and nonverbal. Principal Collins provided recommendations for improvement to Respondent. Respondent agreed, after encouragement, to participate in the PAR Program and to have a PAR teacher. Principal Collins referred Respondent to the PAR Program. At the end of the 30-day School-Site Plan, Respondent was given a CTAS mid-year evaluation by Principal Collins on November 10, 1998. Principal Collins considered the observation that he conducted on November 3, 1998, and Respondent's past observations on September 1, 1998, September 16, 1998, and October 12, 1998. 5/ Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. Principal Collins recommended the placement of Respondent on a 90-day District Level Professional Development Plan (District Plan). The purpose of the 90-day District Plan was to assist in the remediation of the deficiencies. On November 16, 1988, Dr. Jeanne Burdsall met with Respondent and his union representative to review the 90-day District Plan. The meeting was also attended by Principal Collins and Assistant Principal Lesser. Neither Respondent nor his union representative raised an objection to the applicability of the 90-day District Plan to Respondent. At that meeting, among other things, Respondent's union representative requested a transfer of Respondent and a deficiency hearing. Petitioner's Superintendent noticed Respondent that he was being placed on a 90-day District Plan. Respondent's 90-day District Plan was the first teacher assistance District Plan implemented by Petitioner under the change in Florida Law which Petitioner interpreted as now requiring 90 days of assistance. As interpreted by Petitioner, the 90-day District Plan was effective beginning the 1997-98 school year. The 90-day District Plan consisted of an additional 30-day School-Site Plan followed by the now statutorily required 90 days of assistance. Under the new and revised 90-day District Plan, a new evaluation instrument was used, which required only three teaching deficiencies versus the five teaching deficiencies that were required under the former District Plan. For Respondent's 90-day District Plan, a decision was made to continue evaluating Respondent using the prior instrument requiring five deficiencies. The prior District Plan was not a part of the Union contract. However, the new 90-day District Plan, requiring a 30 plus 90-day assistance plan, was adopted by the Union and incorporated by reference in the Collective Bargaining Contract in Spring 1999. The Union and Petitioner worked for several years developing the new 30 plus 90-day assistance plan. Respondent's 90-day District Plan consisted of workshops, professional observations and feedback from the observers, peer teaching observations and school sites visits, and special assistance with planning. Periodic assistance and progress meetings were also held, which included the attendance of Principal Collins, Respondent, Respondent's union representative, and Dr. Burdsall or one of her staff members. The content of those meetings were recorded and signed-off on. On December 4, 1998, Dr. Lisa Troute, Petitioner's instructional specialist, Professional Standards, observed Respondent. Dr. Troute is a PAR teacher and is a certified FPMS observer. She determined, among other things, that Respondent had failed to develop any concepts. Dr. Troute concluded that Respondent's lesson was ineffective. She provided Respondent with recommendations regarding the six deficiencies. Dr. Troute returned to Respondent's classroom on December 15, 1998, and did not notice that any of her recommendations had been followed by Respondent. On December 10, 1998, Dr. Burdsall observed Respondent. As to the six deficiencies, she provided Respondent with the same teaching strategies for improvement that she had provided at her observation of March 10, 1998. Dr. Burdsall determined that Respondent failed to teach anything relative to the lesson and that his student management remained a problem. She concluded that Respondent's teaching was ineffective and that he was an incompetent teacher. A meeting regarding Respondent's 90-day District Plan was held on December 10, 1998. Persons in attendance included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. In January 1999, Dr. Kaiser held a meeting with Respondent and his union representative to address Respondent's request for a transfer. Dr. Kaiser held the meeting in January 1999, because she wanted a 90-day District Plan in place before considering the request. Granting the transfer was in Dr. Kaiser's sole discretion. She considered Respondent's, as well as the district's, concerns in making her decision. Dr. Kaiser denied Respondent's request. She determined that PBL High had taken sufficient precautions to assure the safety of Respondent and his students and that, even though vacancies existed at other schools in social studies, Respondent's remaining at PBL High would serve the best interest of everyone concerned. By letter dated January 15, 1999, Respondent was noticed of the denial. Respondent was placed on a 30 plus 90-day School-Site and District Plan. The statutory provision in effect at the time, as interpreted by Petitioner, only required 90 days of assistance. An adjustment in the 90-day timeline was made due to a hurricane make-up day in February. The timeline was changed to March 11, 1999. On January 14, 1999, Steve Byrne, Petitioner's program planner for social studies, multi-cultural students, and students who speak languages other than English (ESOL), observed Respondent. He is a certified FPMS observer. Respondent had requested that a content teacher observe him to assist him with content and teaching strategies; and Mr. Byrne's observation was for the purpose of content and teaching strategies. Mr. Byrne determined that Respondent had failed to teach any concepts and concluded that Respondent's lesson was ineffective. He met with Respondent and provided Respondent with feedback and strategies for improvement, including suggesting the use of cooperative learning as a more effective strategy. A deficiency hearing was held. A determination was made that sufficient evidence was present to warrant Respondent being placed on a 90-day District Plan to correct the deficiencies. On January 20, 1999, Dr. Mary Gray, assistant professor at Florida Atlantic University, observed Respondent. Since around 1982, she has trained trainers in the FPMS. Dr. Gray is a certified FPMS observer. For several years for PBL High, she observed teachers on District Plans and diagnosed teaching problems. When Dr. Gray observed Respondent, she observed, among other things, serious management problems and nothing meaningful being taught. Dr. Gray provided Respondent with improvement strategies. She concluded that Respondent's lesson was ineffective and that Respondent was incompetent as a teacher. Dr. Gray reviewed Respondent's School-Site Plan, other observations, and the 90-day District Plan. She determined that a pattern existed which demonstrated a lack of teaching concepts, inability to manage student conduct, and off-task behavior. Dr. Gray concluded that Respondent was an incompetent teacher. On January 28, 1999, Ms. Kaupe observed Respondent again. She completed an anecdotal observation, as there was no interaction between Respondent and his students. Ms. Kaupe determined, among other things, that Respondent had failed to teach any concepts and that students were off-task. She concluded that Respondent's teaching was ineffective. Ms. Kaupe provided Respondent with feedback and information regarding more effective teaching strategies. On February 10, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his Union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. On February 24, 1999, Principal Collins observed Respondent. The six deficiencies were addressed, and recommendations were made; the six deficiencies remained. Student misconduct remained a problem. On March 11, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. Principal Collins conducted a CTAS annual evaluation of Respondent on March 12, 1999, at the conclusion of the 90-day District Plan. In preparing the evaluation, Principal Collins considered the following observations: December 4, 1998, observation by Dr. Troute; December 10, 1998, observation by Dr. Burdsall; January 14, 1999, observation by Mr. Byrne; January 20, 1999, observation by Dr. Gray; January 28, 1999, observation by Ms. Kaupe; and February 24, 1999, observation by Principal Collins, himself. 6/ Principal Collins determined that Respondent had not corrected the six deficiencies. These deficiencies were the same deficiencies that were present at the conclusion of the 30-day School-Site Plan. The deficiencies were in the areas of Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Communication: Verbal and Nonverbal; Presentation of Subject Matter; and Demonstrates an Ability to Plan Effectively. Principal Collins determined further that Respondent was an ineffective teacher and that Respondent's teaching did not meet minimum standards to obtain a satisfactory evaluation. Respondent received a score of 26 and was rated unsatisfactory. Principal Collins recommended to the Superintendent the termination of Respondent's employment with Petitioner. By letter dated March 23, 1999, Respondent was noticed by the Superintendent that she was going to recommend his suspension without pay, effective April 8, 1999, and termination, effective 15 days after Petitioner's scheduled meeting on April 7, 1999. Petitioner's professional development plan had several components, including a School-Site Plan, the PAR Program, and the 90-day District Plan. Respondent was provided all of the aforementioned three components. The evidence demonstrates that Respondent cooperated with Petitioner and attempted to comply with the recommendations and assistance provided by Petitioner even though his attempts were deemed unsuccessful by Petitioner to correct the deficiencies. Respondent is a diabetic and some of the assistance conflicted with his medically required living- routine. The evidence fails to demonstrate that Petitioner provided Respondent sufficient assistance to correct one of the deficiencies or concerns. Observers noted that one deficiency was that Respondent spoke in a monotone and lethargic manner. Respondent's speech is as described but such speech, as observed by the undersigned and supported by the evidence, is considered by the undersigned to be a part of Respondent's make-up, his nature and has been so apparently throughout his teaching career. The responsibility was upon Petitioner to assist Respondent in correcting his deficiencies. The evidence demonstrates that the assistance provided to correct this deficiency did little, if anything, to remedy Respondent's speech pattern. Petitioner did not ascertain as to whether Respondent's speech pattern was capable of being changed through avenues other than that provided by Petitioner, such as speech therapy, since peer observation was obviously not a remedy. Speech therapy was not even suggested by Petitioner as a remedy. Petitioner failed to provide Respondent sufficient assistance to correct his speaking in a monotone and lethargic manner. The evidence is insufficient to support a finding that PBL High has a significant discipline problem. The evidence demonstrates that Respondent has meticulously prepared lesson plans and that his lesson plans are satisfactory. The evidence also demonstrates that he becomes frustrated when he has to deviate from his lesson plans. The evidence demonstrates that Respondent is knowledgeable in the subject area of social studies. Respondent had requested two significant forms of assistance, which were denied. The first assistance Respondent requested was to have his PAR teacher model more effective teaching behaviors with his students using his course curriculum. According to Dr. Troute, Petitioner can make modeling services available upon request from principals at "D" and "F" rated schools, such as PBL High, to assist teachers experiencing performance problems at such schools. Principal Collins was unaware of the availability of modeling services and, as a result, Respondent's request was denied. The evidence fails to demonstrate that the denial was a detriment to Respondent's performance in correcting his deficiencies. The second assistance Respondent requested repeatedly was a voluntary transfer. The granting of Respondent's transfer requests was discretionary with Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion. The evidence fails to demonstrate that Principal Collins, Assistant Principal Carroll, Assistant Principal Lesser, any of Petitioner's administrative or management staff who observed Respondent, or any of the observers retaliated against Respondent. Furthermore, the evidence fails to demonstrate that any of the aforementioned persons retaliated against Respondent because of the letter written by Respondent's wife, dated March 4, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Refusing to uphold the suspension without pay and recommendation for termination. Reinstating John Kent with full backpay and lost benefits. DONE AND ENTERED this 2nd day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2000.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
The Issue Whether Petitioner’s substantial interests are affected by the decision of the Nassau County School Board (School Board) to eliminate her paraprofessional position, and whether the School Board’s decision to terminate her was lawful.
Findings Of Fact Based upon the stipulation of the parties, as recited in their Joint Pre-hearing Statement, and the Stipulated Record submitted by the parties, the following facts are found: Respondent was an educational support employee for Petitioner from the 1999-2000 school year through the 2017-2018 school year, during which time she received annual performance evaluations of satisfactory or higher. Her evaluation for the 2017-2018 school year, signed by her supervisor on April 6, 2018, recommended another evaluation in 12 months. Respondent’s position is covered by the Collective Bargaining Agreement Between the School Board of Nassau County, Florida, and the Nassau Educational Support Personnel Association (CBA), which provides in Article VII(C): “Upon completion of the probationary period as provided herein, and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause.” Respondent became a post-probationary employee in August 2000. Respondent worked as a paraprofessional assigned to the guidance department of West Nassau High School (WNHS) from at least the 2011-2012 school year through the 2017-2018 school year, not as an instructional paraprofessional. In April 2018, WNHS Principal Curtis Gaus met with Respondent and told her that her position would be phased out as of the end of the 2017-2018 school year. Principal Gaus did not state that Respondent’s position was being terminated for a reason stated in the CBA, nor that Respondent’s employment was being terminated due to districtwide layoffs made for financial reasons. Respondent was not given written notice that her employment was being terminated for reasons outlined in the CBA, nor was she terminated for any such reason. Respondent was not relieved of her duties at the end of the 2017-2018 school year as part of a reduction in the number of employees on a districtwide basis for financial reasons. Superintendent Burns has never recommended to Petitioner that Respondent be terminated for just cause or for any other reason, nor has Petitioner itself taken official action to terminate Petitioner’s employment. Petitioner did not file a petition to terminate Respondent’s employment, stating the specific reasons Respondent was being terminated, or otherwise comply with the requirements of Florida Administrative Code Rule 28-106.2015. Respondent did not pursue arbitration or file a grievance, as permitted under the CBA. Petitioner has not identified what specific provision of the CBA Respondent could identify to support a grievance, if filed. The parties stipulated to the existence of certain portions of the CBA, but did not provide context that informs the scope of some of the provisions cited. Of particular relevance to this proceeding are the provisions contained in Article IV (Grievance Procedure); Article V (Vacancies, Transfers and Reduction of Personnel); and Article VII (Discipline of Employee). The pertinent portions of each are quoted below, with those portions to which the parties stipulated designated by italics, and those provision determined by the undersigned to be particularly relevant designated by being underscored. Article IV provides, in pertinent part: ARTICLE IV – GRIEVANCE PROCEDURE GENERAL The purpose of this procedure is to secure, at the lowest possible administrative level, resolution of any dispute which may arise concerning the proper interpretation and application of this contract. Both parties agree that these procedures will be kept as informal and confidential as may be appropriate at any level of the procedure. 1. Time limits. The time limits as called for herein shall be considered the maximum time limits to be used for grievance processing. Extensions may be granted by mutual agreement at level one or two. Each party shall attempt to expedite grievance processing. * * * 4. Processing. Grievances not timely filed or processed to the next step by the grievant, shall be considered settled. Grievances not timely responded to shall permit processing to the next step. * * * 6. Requirements. a. A grievance shall be filed in a timely manner and shall be an alleged violation, misapplication, or misinterpretation of a specific article or section of this Agreement. . . . * * * Procedures * * * 4. Step III Step III (Mediation of Termination) a. If the subject of the grievance is termination as the result of unsatisfactory evaluation [See Article VII section F] and the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may, within ten (10) working days, notify the office of the Superintendent using the district’s grievance form, that s/he is requesting grievance mediation by the Federal Mediation and Conciliation Service (FMCS). * * * Restrictions and Limitations Evidence not produced in Step I or II by a party shall not be offered in mediation. The judgment of the evaluator leading to the rating shall not be mediated. However, the process may be subject to review. The mediator shall not have the power to recommend an addition to, subtraction from, or alteration of the terms of the agreement or to recommend the alteration of the evaluation results of the grievant. The mediator shall only have the authority to mediate the termination issue presented for mediation by the parties and shall not have the power or authority to create or alter the issue of the parties or the issue as perceived by each party. The employment of the grievant shall not be extended beyond the end of the contract year as the result of the time required for the grievance and mediation procedure. The final results of the mediation process shall be presented to the School Board for its final decision. The decision of the School Board shall be final unless appealed by the grievant to Step III B, Binding Arbitration. Step III b (Binding Arbitration) a. 1) If the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may within ten (10) working days notify the Superintendent using the District’s grievance form, that the grievance is being arbitrated. * * * e. Restrictions and Limitations of Arbitration Evidence not produced in Step I or II by a party shall not be offered in Arbitration. The Arbitrator shall not have the power to add to, subtract from, or alter the terms of the grievant. In the case of a termination grievance the arbitrator shall not have the power to extend employment beyond the term of the affected employment year for the grievant’s classification. (emphasis added). Article V of the CBA addresses Vacancies, Transfers and Reduction of Personnel. The relevant sections provide as follows: F. Reduction in Personnel Reduction in force shall take place when the Superintendent of Schools: Announces that a reduction in force is to take place. Determines and announces the type of reduction to take place as: System-wide Building-wide Departmentally Any combination of 1), 2), and 3) herein by title and/or position Notifies any employee or employees that an employee or group of employees is being dismissed under this provision. Finally, Article VII of the CBA addresses discipline of employees. It provides in pertinent part: A person employed after the effective date of this Agreement shall serve a probationary period of 365 calendar days. During such probationary period he/she serves at the pleasure of the Board and may be disciplined and/or terminated at the discretion of the Board without further recourse. Upon completion of the probationary period and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause. Provided that in lieu of termination and with the written consent of the employee, the employee may be returned to probationary status. The judgment of the evaluator in the performance appraisal of an employee shall not be subject to the grievance procedure of this Agreement. In the event a non-probationary employee is terminated as a result of unsatisfactory evaluation, such termination shall be subject to the grievance procedure of this Agreement. 1. The Board/Superintendent reserve the right to take disciplinary action, up to and including dismissal, against any employee based on the seriousness of the offense and the employee’s record. The CBA does not address non-renewal of year-to-year employees outside the context of discipline or a reduction in force announced by the Superintendent. Article XII of the CBA provides that the CBA “shall supersede any rules, regulations or practices of the Board which will be contrary to or inconsistent with the terms of this agreement.” It does not by its terms supersede any rights created by statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order reinstating Respondent to her prior status as a non-probationary educational support employee with back pay and all other lost benefits she would have received had she not been improperly terminated. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2019.
The Issue The issue is whether Petitioner has just cause to terminate Respondent, a noninstructional employee.
Findings Of Fact Petitioner hired Respondent in December 2002 to provide clerical services at Sunset Elementary School, where she worked until she was suspended, as described below. Sunset Elementary School is a magnet school that receives more applications than it can accept. At all material times, Respondent was the sole magnet clerk, who handled the vast amount of paperwork through the recruitment/application process that runs annually from October 1 through January. These duties included ensuring that the paperwork was accurate and scheduling interviews with candidates. Under her 12-month contract, Respondent was required to perform her duties from 8:30 a.m. to 4:30 p.m. daily. A new principal arrived at Sunset Elementary School for the 2003-04 school year. Immediately, Respondent began having problems with attendance, arriving late or not at all. At first, the principal spoke with Respondent informally, reminding her of her duties and the importance that she arrive at work on time every day. When informal discussions failed to result in any improvement, the principal sent Respondent a memorandum dated September 24, 2003, identifying seven absences for various reasons and six tardies. The memorandum requires Respondent to provide advance notice of absences and a physician's note for absences due to illness. This intervention was ineffective. By memorandum dated April 16, 2004, the principal detailed 21 additional absences or tardies during the same school year since the prior memorandum. These absences included seven consecutive school days in April. As the principal testified, the main purpose of this memorandum was to learn if Respondent had quit. By memorandum dated July 21, 2004, the principal reprimanded Respondent for her excessive absences and tardies during the preceding school year. Respondent's attendance was not satisfactory the following school year. By memorandum dated April 14, 2005, the principal again reprimanded Respondent for repeated absences and tardies and failure to comply with the directives from the preceding school year. Since the memorandum of July 21, 2004, Respondent had been absent, tardy, or left early 43 times. In the six weeks since the April 14, 2005, reprimand, Respondent missed all or part of six days of work. By memorandum dated May 25, 2005, the principal reprimanded Respondent for gross insubordination due to the six absences or tardies since the April 14 memorandum. Again, Respondent failed to respond to these interventions. During the 2005-06 school year, she was absent 45 times, as advised by memorandum to her from the principal dated June 12, 2006. By memorandum dated June 13, 2006, from the principal, Respondent was again reprimanded for her absences and tardies during the preceding school year. On October 13 and 19, 2006, Respondent failed to appear at work without prior (or subsequent) authorization. Petitioner conducted a conference for the record on November 7, 2006, at which its representatives discussed with Respondent her noncompliance with attendance rules. By memorandum dated November 21, 2006, from the principal to an assistant superintendent, the principal recommended dismissal of Respondent for gross insubordination and unsatisfactory attendance. By letter dated December 20, 2006, the assistant superintendent informed Respondent of her intention to ask Petitioner, at its January 17, 2007, meeting, to suspend Respondent without pay and initiate dismissal proceedings against her, unless Respondent requested a hearing within 20 days. Respondent timely requested a hearing. Article XXI, Section 3.D of the applicable collective bargaining agreement applies to "educational support employees" and provides: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire Janeen R. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Amy Marie Utrera 1201 Southwest 124th Court, Unit C Miami, Florida 33184
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER 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 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Miami-Dade County School Board's failure to disqualify Magnum Construction Management Corporation from bidding on Project No. A0746 pursuant to paragraph G. of the General Requirements of the Request for Qualifications issued in connection with the project was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board The School Board is a duly constituted district school board charged with the duty of operating, controlling, and supervising all free public schools in Miami-Dade County, including, among many others, Westview Middle School (Westview) and Miami Coral Park Senior High School. The Westview Project Westview is currently undergoing expansion, remodeling, and renovation work (Westview Project). The project is almost complete. Blanca Bazan is a School Board employee who serves as project manager on School Board construction projects. At all times material to the instant cases, Ms. Bazan has been the Project Manager on the Westview Project. LIVS and Associates (LIVS), an architectural and engineering firm, has been the Project Architect/Engineer (or A/E of Record) on the Westview Project since October of 1997, when it entered into a written agreement (which is still in effect) to assume such responsibility in return for a "lump sum" payment, plus additional fees (LIVS Westview Agreement). Paragraph III.G. of the LIVS Westview Agreement describes the "basic services" LIVS is to provide during the "construction phase" of the project. It provides, in pertinent part, as follows: The following are to be performed by the A/E [LIVS], and shall in all cases be in accordance with the requirement of the contract documents: OBSERVATION a.) The A/E shall provide construction administration of the Contract for Construction as set forth in this AGREEMENT and in the General Conditions of the Contract for Construction unless otherwise provided in this AGREEMENT. The A/E shall visit the site at least weekly or as appropriate to the stage of construction or as otherwise directed by the BOARD to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. As part of the A/E's basic services, the A/E shall conduct 120 on-site observation visits. A/E shall provide a report to the PM [Project Manager] . . . . On the basis of on-site observations as the A/E, the A/E shall keep the BOARD and Contractor informed immediately in writing of the progress or lack of progress and quality of the Work, and shall endeavor to guard the BOARD against defects and deficiencies in the Work. The A/E shall at all times have access to the Work, wherever it is in preparation or progress. * * * b.) . . . . A/E will enforce the faithful performance of Contract and assure that the Work has been or is being performed in accordance with the Construction Documents. . . . A/E will provide written notice to BOARD if it observes or has reason to become aware of any defect or non- conformance with the Construction Documents. CONTRACTOR'S SUBMITTALS The A/E shall review and evaluate samples, schedules, shop drawings, and other submissions for conformance with the design requirements of the Project, applicable codes and ordinances. . . . The A/E shall also prepare in a timely manner change order items, including the proper documentation for DOE transmittal. . . . * * * 4. QUALITY CONTROL The A/E shall make a reasonable effort to evaluate materials and/or workmanship for conformance with Construction Documents, evaluate quality control testing reports, advise the Construction Contractor and the BOARD immediately of any unacceptable materials and workmanship the A/E may discover and [e]nsure that the Contractor take appropriate action to remedy unacceptable conditions. * * * CERTIFICATION OF PAYMENTS The A/E shall review the Contractor's notarized requisitions for payment, the schedule of values, subcontractor partial releases and the Project schedule. The A/E shall determine the amount which in the A/E's opinion should be paid to the Contractor and shall recommend for [the] BOARD'S approval certificates for payments in such amounts. These certificates will constitute a representation to the BOARD, based on site observations by all appropriate Designated Specialists for architectural and engineering disciplines and on the data comprising the application for payment, that the Work has progressed to the point indicated. By recommending a certificate for payment consistent with the contract documents, the A/E shall also represent to the Board that, to the best of the A/E's knowledge, information and professional judgment, the quality of work is in accordance with the Construction Contract Documents, unless the BOARD has been notified to the contrary in writing. Prior to issuing certification for payment, A/E shall review the status of Contractor's Construction Documents and Project schedule and verify that the documents and/or schedules are up-to-date and accurate to the extent visual observation of construction will disclose. A/E shall also confirm that after the first application for payment, each subsequent application shall be accompanied by subcontractor partial lien release fully accounting for subcontractor payments due for the previous application. If the Construction Documents and Project Schedule are not up-to-date and/or accurate, A/E shall include in its certification for payment a statement that the Construction Documents and/or Project Schedule are not up-to-date. In such event, BOARD may, a.) hold an additional ten (10)% of amount then due Contractor until A/E verifies that the Construction Documents and/or Project Schedule are up-to-date and accurate, b.) refuse to process the partial or final requisition for payment, or c.) pay Contractor. . . . The A/E's certification is a representation by A/E to Owner that all required items noted herein are submitted and proper and serves as a recommendation for payment only. The A/E shall make every reasonable effort to process the Contractor's requisition for payment in accordance with the timelines[] established in the General Conditions of the Construction Contract. . . . * * * SUBSTANTIAL COMPLETION The A/E, upon written notification by the Contractor that the Work is substantially complete and ready for substantial completion shall promptly conduct inspection to determine the date or dates of substantial completion for the work. . . . c) Not Substantially Complete If A/E determines that the Work has not achieved Substantial Completion, A/E will notify Contractor in writing of the deficiencies within ten (10) days of the Inspection. FINAL COMPLETION AND FINAL PAYMENT Upon receipt of written notice that the Work is ready for Final Inspection and Acceptance and upon receipt of a final Requisition for Payment, or at completion of the thirty (30) day punchlist period, whichever is earliest, A/E, its engineers and other consultants, BOARD and Contractor shall participate in a walk-through to inspect the Work. At the conclusion of the inspection, the Work shall be determined to be as follows: Finally Complete If it determined that the Work has achieved Final Completion, final payment shall be made in accordance with the Contract Documents. Not Finally Complete If it is determined that the Work has not achieved Final Completion, A/E shall prepare a Final Completion Punchlist and Final Completion shall be achieved in accordance with the Contract Documents and such other consequences as allowed by contract and at law shall be employed. . . . After all Final Inspection Punchlist items have been completed, A/E will recommend to BOARD acceptance of the Project and make recommendations regarding Contractor's final payment request. . . . Paragraph X.B. of the LIVS Westview Agreement provides as follows: If for any reason, the A/E is unable to perform the services under this contract, the BOARD reserves the right to either name or approve the A/E selected to complete the performance of this AGREEMENT. The BOARD reserves the absolute right to recommend a successor A/E or terminate the services of the A/E.[3] Paragraph XII. of the LIVS Westview Agreement provides that "[t]he BOARD may terminate this AGREEMENT, with or without cause, at any time upon thirty (30) days written notice to the A/E." With LIVS' assistance, a Project Manual for the Westview Project (Westview Manual) was prepared in anticipation of the letting of the Contract for Construction of the project through a competitive bidding process. Included in the Westview Manual were the General Conditions of the Contract for Construction. Subsections 3.1.1, 3.3.1, 3.3.2, and 3.3.3 of these General Conditions read as follows: 3.1.1 Contractor is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom a Contract has been made with the Board for the performance of the Work described in the Construction Documents. * * * Contractor shall supervise and direct the Work in a manner consistent with contemporary community standards. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Construction Documents give other specific instructions concerning these matters. Contractor shall be responsible to Board for acts and omissions of Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to A/E and Board for coordination and complete execution of the Work in accordance with the Construction Documents. 3.3.3. Contractor shall not be relieved of obligations to perform the Work in accordance with the Construction Documents either by activities or duties of A/E in its administration of the Contract, or by tests, inspections or approvals required or performed by persons other than Contractor. In or around 1999, the Contract for Construction of the Westview Project was awarded by the School Board to J.V. Construction Corporation (J.V.). As required by law and the terms of the Contract for Construction, J.V. executed and delivered to the School Board a payment and performance bond issued by The Hartford Fire Insurance Company (Surety). J.V. subsequently defaulted and its right to proceed under the Contract for Construction was terminated by the School Board, which called upon the Surety to fulfill the Surety's obligations under the payment and performance bond it had issued. As a result, the Surety "essentially step[ped] into the shoes of [J.V.]" under the Contract for Construction.4 The Surety thereafter contracted with MCM to act as a "completion contractor" and complete the work J.V. had begun under the Contract for Construction. The School Board was not a party to this contractual arrangement. The Completion Contract into which the Surety and MCM entered (which has been in effect since October 25, 2001) provides, in pertinent part, as follows: THIS COMPLETION CONTRACT (the "Contract") is effective the 25th day of October 2001 by and between The Hartford Fire insurance Company (the "Surety") and Magnum Construction Management Corp. (the "Completion Contractor"). RECITALS WHEREAS, J.V. Construction Corp. (the "Former Contractor") and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA (the "Owner") entered into a contract (the "Original Contract") for the Former Contractor to furnish all labor and material and perform all work for the construction of an addition to the Westview Middle School Project No. A0670 (the "Project") in accordance with the terms and provisions of the Original Contract including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and Surety made, executed and delivered to the Owner a Performance Bond, Bond No. 21 BCS AE 8081, and Payment Bond, Bond No. 21 BCS AE 8081 (collectively, the "Bonds"), each in the penal sum of $6,678,000.00; WHEREAS, the Owner has terminated Former Contractor's right to proceed under the Original Contract, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Completion Contractor has submitted a proposal dated July 25, 2001, to the Surety to complete the Original Contract, and said proposal is incorporated herein . . . ; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises herein set forth, do contract and agree as follows: AGREEMENTS Contract Documents. The Contract to the Surety consists of the terms and provisions contained herein, including the proposal from MCM Construction to the Surety dated July 25, 2001, to complete the Original Contract . . . ; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The Completion Contractor hereby warrants that it has received and read all of the Contract Documents. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Former Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor. * * * Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the work of the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the original Contract (The "Work"). Time for the Performance of the Work. . . . . Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to achieve Substantial Completion as defined in the Original Contract in the time allowed by this Paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed against the Surety for the Work under the Original Contract after 713 days from the execution of this Agreement by both parties. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept Four Million, Seven Hundred Eighty Eight Thousand, Three Hundred ($4,788,300.00) Dollars (the "Price") as full compensation for the performance and completion of the Work as described in the Contract Documents. . . . * * * 9. Payment. As specified in the Original Contract, the Completion Contractor shall prepare, sign and submit to the Owner, on behalf of the Surety, a request for payment (the "Surety/Owner Requisition") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. The Surety/Owner Requisition shall be based on the Original Contract price of the Former Contractor. The amount of the Surety/Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within seven (7) days after the Surety receives payment from the Owner. If the Owner refuses to pay the Surety for any reason related to the Completion Contractor's performance, nonperformance, or in any way related to the Completion Contractor's actions, the Surety shall have no obligation to pay the Completion Contractor until the Owner pays the Surety. In this event, the Surety shall only be obligated to pay the Completion Contractor whatever amounts are received by the Surety within seven (7) days of the Surety's receipt of payment from the Owner. In the event Owner refuses to pay Surety for any reason NOT related to the actions of the Completion Contractor, or its Subcontractors, Surety shall make payment to completion contractor, for all work in place as of the date of the payment application, within the timeframe set forth in the Original Contract for payment to the Original Contractor from the Owner. * * * B. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (The "Surety/Completion Contractor Requisition") based upon the amount of the Completion Contractor's price to the Surety. The Surety/Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date (as the Surety/Owner Requisition.). The Surety shall pay the Completion Contractor for the Surety/Completion Contractor Requisition as specified in the immediately preceding paragraph. * * * Defects in Work. The Completion Contractor shall be responsible for any and all defects in the work performed or materials supplied by the Completion Contractor and/or any of the Completion Contractor's subcontractors or materialmen after the execution of this Agreement by both parties. Independent Contractor. Except as otherwise provided in this Contract and the Original Contract the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor, in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. * * * The Completion Contractor as the Surety's Representative on the Project. The Surety shall be represented at the Project by the Completion Contractor. Prior to the issuance of the Notice to Proceed, the Completion Contractor shall name, and the Surety shall specifically authorize in writing an individual with the Completion Contractor to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day to day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety . . . . * * * 17. Termination of Agreement. Termination for Convenience. This Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less than ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. . . . Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with or impede the work of others on the Project; or fail in the performance of any of its obligations under this Contract or under the Original Contract, and should the Completion Contractor fail within three (3) days after receipt of written notice from either the Owner or the Surety to remedy such default; . . . or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. . . . Following the execution of the Completion Contract, the Surety's attorney wrote a letter, dated November 7, 2001, to Ms. Bazan, which read as follows: The Hartford is in receipt of your letter dated November 2, 2001, and has requested that we respond on its behalf. In response to your specific questions, please be advised of the following: The Hartford's authorized representative on the project is: Mr. Fernando Munilla MCM Corp. 6201 S.W. 70th Street Second Floor Miami, Florida 33143 The Hartford has also authorized Mr. Fernando Munilla to prepare and process pay requisitions on the project. However, the Hartford will sign all pay requisitions submitted to the School Board. Payments from the School Board shall be made payable to the Hartford Fire Insurance Company and transmitted to The Hartford at the following address unless and until the School Board is notified in writing of a different address: The Hartford Fire and Insurance Company Hartford Plaza-T4 Hartford, Connecticut 06115 Attention: Robert Griffith, Esq. Bond Claims Mr. Fernando Munilla shall have, on behalf of The Hartford, the authority to negotiate and sign change orders for extra work requested or required by the School Board (hereinafter "Change Order") without The Hartford's prior written approval, provided that the Change Order does not exceed $10,000.00 and that MCM requests and is given additional time to perform the Change Order. If the Change Order does exceed $10,000.00, or if MCM requests additional time but no additional time is given to MCM to perform the Change Order, then The Hartford's written approval is required to negotiate the Change Order and the final Change Order must be signed by The Hartford and not Mr. Munilla. If the total of the approved Change Orders exceeds the sum of $50,000.00, then The Hartford, and not Mr. Munilla, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. Mr. Munilla has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract of any nature whatsoever without The Hartford's prior written approval. Mr. Munilla has no authority to negotiate on behalf of The Hartford on any disputes between MCM and The Hartford. I trust this letter answers all of your questions. Please do not hesitate to contact me should you require any additional information or clarification. Since the effective date of the Completion Contract, LIVS, acting pursuant to the LIVS Westview Agreement as the School Board's A/E of Record on the Westview Project, has been inspecting and evaluating the work performed by MCM under the Completion Contract and verifying that work for which payment is sought (through the submission of pay requisitions by MCM on behalf of the Surety) has been completed in accordance with the requirements of the Contract for Construction. If a pay requisition is approved by LIVS, it is then sent to Ms. Bazan for her review and approval. If everything is in order, Ms. Bazan signs the pay requisition and then "run[s] it through the chain of command." When all the necessary signatures are obtained, the School Board makes payment to the Surety, which, in turn, pays MCM under the terms of the Completion Contract. MCM does not have any contract with the School Board in connection with the Westview Project. The payment it receives for the work it does on the project comes from the Surety (with which it does have a contractual relationship), not from the School Board. The School Board considers the Surety to be the Westview Project "contractor" (as evidenced by MCM Exhibit 19, which is an excerpt of an October 30, 2002, printout listing School Board construction projects).5 In the Statement of Contractor's Qualification that MCM submitted to the School Board in 2002 to obtain its Certificate of Contractor Prequalification for "General Contractor [W]ork" (which certificate was effective July 10, 2002, until July 10, 2003, and authorized MCM "to have under contract with the [School] [B]oard at any one time a total dollar value of work in the amount of $100,000,000.000 and maximum dollar value of each individual project in the amount of $40,000,000.00"), MCM stated, among other things, the following under "Contracts in Progress": PROJECT NAME: WESTVIEW MIDDLE SCHOOL- REMODELING & RENOVATION OWNER: Miami-Dade County Public Schools, Blanca Bazan (305)995-4538 ARCHITECT: LIVS and Associates CONSTRUCTION COST: $4,788,300 START/COMPLETION: 10/01 to 10/03 DESCRIPTION OF PROJECT: Addition, renovation and remodeling of an existing middle school with very stringent phasing requirements and time frames. The project consists of three phases. The first phase is a new building with classrooms and a media center, as well as a new parking lot. The second phase consists of the renovation and remodeling of a one-story building with a courtyard, classrooms, locker rooms, band room, and shop class. The third phase is a two-story building with a parking lot, classrooms, auditorium and an immediate phasing that consists of remodeling a cafetorium during summer break. The remodeling and renovation includes: asbestos abatement, architectural, electrical and mechanical demolition. The Instant Project In or about July of 2002, the School Board issued a Request for Qualifications for Design-Build Firms for "State School 'MMM' 1600 Student Station Addition at: Miami Coral Park Senior High School (Project No. A-0746)" (RFQ). In a design-build project like the Instant Project (in contrast to the "traditional bid contract scenario"), the School Board enters into a single contract (with a design-build firm) for both the design and construction components of the project.6 In the Legal Advertisement that was part of the RFQ, the School Board announced that it "intend[ed] to pre-qualify three (3) to six (6) design-build firms to subsequently invite them to bid" on the Instant Project and further stated, in pertinent part, the following: Firms and companies desiring to participate in the design-build pre-qualification process shall submit an original qualification proposal and eight copies . . . . * * * If the applicant is a joint venture, an executed copy of the joint venture agreement must be submitted with the application. Percentages of participation of fees must be clearly stated for each joint venture partner. Only one submittal will be accepted per applicant, either as a single prime or as part of a joint venture. Firms or companies desiring to participate in this contract must have been pre- qualified by the Board, in accordance with Board rule for Pre-Qualification of Contractors for Educational Facilities Construction, prior to submitting their proposal for this advertisement. . . . The General Requirements portion of the RFQ provided, in pertinent part, as follows: In order to be considered, proposers must meet the following basic requirements: * * * A pre-proposal conference will be held . . . . Attendance is highly encouraged. This will be the only opportunity to present questions regarding the proposal. Written questions may be forwarded to Mr. Ivan M. Rodriguez, R. A., . . . and said questions will be answered at the pre-proposal conference. Questions and answers will be distributed to attendees. Proposers must be authorized to do business in the State of Florida and must possess all required registration, certification and licenses (including design and construction) in accordance with all applicable Florida Statues, ordinances, regulations, and/or Board Rules. A joint venture, including a joint venture composed of qualified business organizations, is itself a separate and distinct organization that must be qualified in accordance with Board Rules and Florida Statute 489.119(2)(c). Proposers must have been in business for a period of no less than five years. In the event of a joint venture or a newly formed company, at least one of the entities of the joint venture or principal of the newly formed company must have been in business for a period of no less than five years. Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General contractor for the same project. The Board considers this a conflict of interest and such proposals will not be considered for award of a contract under this Request for Qualifications. * * * M. MDCPS reserves the right to reject any proposal, to waive technicalities, or to accept the proposal that, in its sole judgment, best serves the interest of Miami-Dade County Public Schools. * * * Failure to file a protest within the time prescribed in §120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any questions concerning this RFQ should be directed to the Department of A/E Selection, Negotiations & Design Management; attention, Mr. Ivan M Rodriguez, R. A. Director at . . . . The Pre-Qualification Process portion of the RFQ provided, in pertinent part, as follows: Intent: To pre-qualify between three (3) to six (6) design-build firms to subsequently invite them to bid on the following project: State School "MMM" 1600 Student Station Addition @ Miami Coral Park Senior High School (Preliminary estimated Construction Cost- $17,473,890) 8865 S.W. 16th Street, Miami, Florida 33165 Project No.: A0746 The selected proposer will be placed on a list of qualified bidders for bidding on design-build services for the above project. * * * C. Pricing The selected proposers will be allowed to bid the above listed project[], under a competitive bid process, based on design criteria established by a Design Criteria Professional under contract by MDCPS. The Evaluation/Scoring Process portion of the RFQ provided, in pertinent part, as follows: All proposers will be evaluated based on information presented in their submittals, utilizing the Board approved "Procedure[] for [] Selection of Design-Build Firms" dated January 5, 1994 (Updated March 10, 1999) . . . . The "Procedure[] for [] Selection of Design-Build Firms" referenced in this portion of the RFQ provided, in pertinent part, as follows: I. SELECTION PROCESS: INTENT To select Design-Build firms for bidding on each DCPS Design-Build project identified. Selected proposers will be placed on a list of qualified bidders for bidding on each DCPS Design-Build project as advertised. SCHEDULE: Dates for the items listed below shall be projected and become part of future Request for Proposals (RFP) advertisement. Board Review Mailing Advertisement Proposal Submittal Deadline Evaluation Interviews Bid on Design-Build Projects Award of Design-Build Project * * * PRICING: Selected proposers will be allowed to bid each Design-Build project identified under a competitive bid process. * * * EVALUATION/SCORING PROCESS: All proposers will be evaluated based on information presented in their submittals . . . . SCORING The evaluation/scoring process will be conducted in two steps. First, staff shall evaluate all factors in the Initial Screening section of Form-1 . . . . Second, the Selection Committee shall evaluate all factors contained in the Interview section of Form-1 . . . . The evaluation/scoring process shall be as follows: INITIAL SCREENING All proposers will undergo an initial screening process conducted by staff where they will be evaluating the proposer[]s' qualifications. The proposers will be evaluated by staff utilizing Form-1 . . . ; maximum score in this category is 115 points. Proposers that do not comply with the RFP will not be accepted and shall be duly notified. INTERVIEWS All proposers that comply with the RFP shall be contacted to schedule interviews by the Selection Committee. The Proposers will be evaluated by each of the members of the Selection Committee utilizing Form-1 . . . . The maximum score in this category is 115 points. RANKING Both the initial screening score and the interview score will be added, and the sum of both scores will determine the ranking of all proposers. The highest and lowest of the seven (7) total scores for each proposer will be dropped, and an average taken of the remaining five (5), to determine total score and ranking. Three (3) or more firms will be selected as eligible to bid on the project advertised. The Board shall have the right to make exceptions to this procedure when valid public emergency conditions warrant. INSTRUCTIONS FOR USE OF DADE COUNTY PUBLIC SCHOOLS DESIGN-BUILD SERVICES SELECTION-FORM 1 * * * INITIAL SCREENING (115 POINTS TOTAL) From the proposer's response to the RFP, staff will objectively evaluate the firm's abilities in accordance with those criteria listed below (Scores for each applicant will be based on comparison with all other applicants): * * * C. ARCHITECTURAL ENGINEERING DESIGN (30 POINTS): Submit General Services Administration Standard forms 254 (one for each discipline) and 255 (one for entire team), which best describes the proposed architectural/engineering design team. . . . * * * INTERVIEWS After the proposers have been evaluated based on their written applications, they will be invited to make a presentation to the Selection Committee on their approach to perform Design-Build projects for DCPS. . . . * * * The Submittal Requirements portion of the RFQ provided, in pertinent part, as follows: Note: Please refer to Pages 4-9 of the "Procedure[] for [] Selection of Design- Build Firms" attached hereto as Exhibit "C" of this RFQ, for additional information on the following items: * * * E. Architectural/Engineering design- Submit Forms 254 and 255 for A/E team members only. Identify the architect's experience in design-build, the A/E team's experience with DOE codes, MDCPS design criteria/standards, master specifications, educational specifications and furniture, fixtures and equipment. Describe the A/E team's design coordination and quality control systems. * * * P. State of Florida licenses (design and construction)- Provide current copy of State of Florida registration and licenses for proposer and all its professional consultants. * * * R. Contractors Pre-qualification Certificate- Provide current copy of MDCPS Contractor Pre-qualification Certificate. Proposers must have a valid certificate with a minimum of $17,473,890 single project capacity, in order to be considered. * * * The pre-proposal conference referenced in the RFQ was held on July 25, 2002. Attendees were given a written document which contained, among other things, the following questions (that had been submitted in advance of the conference) and answers (that had been given to these questions by "staff"): QUESTION Can an A/E firm presently under contract with the Board for a specific school project, join with the general contractor for the same school project and present a proposal. ANSWER No! The Board views this as a conflict of interest and will not consider such entities. QUESTION Can one firm submit two different proposals, one as a single prime firm and the other as part of a joint venture? ANSWER No! The legal advertisement is very specific to this issue and will only allow one submittal per applicant, either as a single prime firm or as part of a joint venture. QUESTION Can A/E firms presently under contract with the Board as term consultants participate in a design-build entity submitting a proposal? ANSWER Yes! Staff does not see any conflict with this situation. The Board, at their meeting of April 1994, has ruled that neither a direct nor an implied conflict exists. Question: Will there be a design evaluation at the time of bidding in determining the successful bidder? ANSWER No! The successful bidder will be determined based on the bid process. All bidders are to comply with the design criteria bidding documents. However, during the selection process, we will be evaluating the design approach to this project. Question: The RFP [sic] requires the applicant to be authorized to do business in the State of Florida as a design-build entity; however, when we called the State there is none available. What do we do? ANSWER You must comply with all State requirements including required registration and licenses (Design & Construction) in accordance with Florida law. It is your responsibility to comply. MCM was among those that submitted a qualification proposal in response to the RFQ (MCM's Qualification Proposal). MCM's Qualification Proposal was accompanied by a cover letter, dated August 1, 2002, from its President, Jorge Munilla, which read, in pertinent part, as follows: MCM is pleased to submit our qualifications to provide Miami Dade County Public Schools with Design-Build Service for State School MMM * * * MCM has substantial experience with the Design-Build process as it relates to constructing educational facilities. We have assembled a team of professionals that will deliver the quality and cost efficiency required by Miami Dade County Public Schools. The team includes: PJB Associates, who[] will provide architectural services; Bliss & Ny[i]tray, [who] will supply structural engineering requirements; Fortin, Leavy, Skiles, Inc., [who] will provide civil engineering services; LIVS [and] Associates,[7] [who] is providing mechanical, electrical, plumbing and fire protection consulting expertise; and the talented firm of Rosenberg Design Group, [who] will provide Landscape Architecture design. It is significant that our team members have all participated in Design- Build projects for Miami Dade County Public Schools and therefore are acquainted with the unique relationship which it necessitates. The MCM Design-Build team will deliver the cost effective construction, timely delivery, and quality design goals that are required by Miami-Dade County Public Schools. The information that follows this letter details precisely how the MCM team will satisfy these project objectives. * * * MCM's Qualification Proposal contained a Proposer's Profile, which provided, in pertinent part, as follows: TOTAL NUMBER OF YEARS IN BUSINESS MCM Corp. is confident that our team, if selected for this project, will execute the contract and deliver functionally effective facilities in concert with M-DCPS staff. The project team and our organization are structured in such a manner as to provide clear-cut lines of communication and accountability. . . . MCM Corp. has learned that a critical factor in the achievement of project goals is the selection of a project team that has the technical knowledge and experience to deliver. The following lists the principal occupation of each member of the design- build team, their occupational license number, and the number of years they have been engaged in that practice. Team Members License Years in Business MCM Corp. General Contractors CG C023834[8] 19 PJB Associates, P.A. Architects AA 0003085[9] 5 Fortin, Leavy, Skiles, Inc. Civil Engineering 3653 19 Bliss & Nyitray, Inc. Structural Engineering 674 39 LIVS Associates MEP EB 0004134[10] 17 Rosenberg Design Group Landscape LA 0000143 31 Also included in MCM's Qualification Proposal were Standard Forms (SFs) 254 (Architect and Related Services Questionnaires) for PJB Associates, P.A. (PJB); Fortin, Leavy, Skiles, Inc. (Fortin); Bliss & Nyitray, Inc. (Bliss); LIVS; and Rosenberg Design Group (Rosenberg); and an SF 255 (Architect and Related Services Questionnaire for Specific Project) completed by PJB as MCM's proposed Project Architect (or A/E of Record). Under the arrangements that had been made, if MCM were the successful bidder on the Instant Project, it would enter into an agreement for design services with PJB and PJB, in turn, would retain the services of Fortin, Bliss, LIVS, and Rosenberg (as sub-subcontractors/sub-subconsultants on the project, having no direct contractual relationship with MCM) to assist it in fulfilling its contractual obligations to MCM. The SF 254 for LIVS was filled out by Hector Vergara, the partner that is "in charge of all [the firm's] mechanical work, and it lists the Westview Project as an "example" of the projects the firm has done in the "[l]ast 5 [y]ears." According the form, the "[c]ost of [LIVS'] [w]ork" on the Westview Project was $6,800,000.00 and the "[c]ompletion [d]ate (. . . [e]stimated)" of such work was "2003." The SF 255 reflected that Fortin, Bliss, LIVS, and Rosenberg would be "consultants" to PJB on the Instant Project in the "[s]pecialit[ies] of "[c]ivil [e]ngineering," "[s]tructural engineering," "[m]echanical/[e]lectrical/ [p]lumbing/[f]ire [p]rotection," and [l]andscape [a]rchitect[ure]," respectively, and it contained "brief resumes" of "key persons" from these entities who would be working on the project. Among these "brief resumes" were those of Mr. Vergara and Arnold Leon of LIVS, which indicated that they both had done work on the Westview Project. Among the other documents that were part of MCM's Qualification Proposal were the "job descriptions" and "resumes" of MCM personnel who would be assigned to the Instant Project, including Fernando Munilla (a principal of MCM), Alexis Leal (MCM's Vice President of Purchasing), and Riccardo Salani (an Estimator-Scheduler with MCM). Fernando Munilla's, Mr. Leal's, and Mr. Salani's resumes each listed the Westview Project as one of the projects on which they had worked. This was not the first design-build project solicitation of the School Board's to which MCM had responded. It had, "several months before," submitted a qualification proposal in response to the School Board's Request for Qualifications for Design-Build Firms for State School "FF,"11 which contained the same General Requirements, including paragraph G., as the RFQ in the instant cases. As in the instant cases, PJB was MCM's proposed Project Architect (or A/E of Record) on the State School "FF" project. TLC Engineering (TLC) was the original proposed MEP (mechanical/electrical/ plumbing) sub-subcontractor/sub-subconsultant. After MCM had submitted its qualification proposal, however, MCM and PJB wanted to replace TLC with LIVS as the proposed MEP sub- subcontractor/sub-subconsultant. When School Board staff (Ms. Bazan, Carlos Hevia of Capital Construction, and Ivan Rodriguez of the Department of A/E Selection, Negotiations and Design Management) were asked whether such a substitution could be made, they indicated that it would be "no problem."12 MCM therefore assumed, when it submitted its Qualification Proposal in the instant cases, that its proposing LIVS as an MEP sub- subcontractor/sub-subconsultant would not result in MCM's disqualification from further consideration pursuant to paragraph G. of the General Requirements of the RFQ, notwithstanding that LIVS was the School Board's A/E of Record on the Westview Project and MCM was the "completion contractor" on that same project (the identical roles LIVS and MCM had had at the time MCM was competing for the State School "FF" design- build contract). Following the review and evaluation of the qualification proposals that had been submitted in response to the RFQ in the instant cases, the School Board posted an "official interview schedule," on which the competing "design- build firms'" "initial screening scores" were announced. These scores were as follows: 105.50 for SBR; 103.50 for James Pirtle Construction Company (Pirtle); 98.00 for Betancourt Castellon Associates, Inc. (Betancourt); 93.00 for MCM; and 77.50 for the Beck Group (Beck). This "official interview schedule" also contained the following "notes": NOTE 1: Each firm must bring all equipment necessary to conduct its presentation. NOTE 2: The initial scores shall be cumulative to the interview scores. The final ranking for each firm shall consist of the initial score plus the interview score. NOTE 3: The following firm has withdrawn from the interviews: The Haskell Company Prior the first scheduled interview, Beck withdrew its proposal, leaving only four proposers to compete for award of the contract for the Instant Project. The determination was thereafter made to "pre-qualify" for bidding all of the remaining proposers without conducting the scheduled interviews. The evidentiary record does not reveal that anyone protested this "pre-qualif[ication]" decision; however, neither does it reflect that the School Board gave notice of the opportunity any adversely affected persons13 had to file such a protest and of the consequences of their not taking advantage of such opportunity. Following this "pre-qualif[ication]" decision, the proposers were provided copies of the Criteria Documents (or design criteria package) that had been prepared for the Instant Project. Volume I of the Criteria Documents contained, among other things, an Instructions to Bidders, a List of Subcontractors Form, Special Provisions for Compliance with M/WBE, General Conditions of the Design-Build Contract, and General Requirements. The Instructions to Bidders provided, in pertinent part, as follows: INSTRUCTIONS TO BIDDERS * * * The Instructions to Bidders, General Conditions of the Design-Build Contract, Special Conditions for Design-Build Projects and all other documents and sections, listed in the Specifications under the Bidding Requirements, apply equally to each Section and Division of the Specifications. All sections of the Criteria Documents are complementary and are part of the contractual requirements. 2.7.1 Board reserves the right to waive informalities and irregularities in a proposal, to reject any bid that shows omissions, alterations or additions not called for in the Criteria Documents and to reject any bid containing conditions or unauthorized alternate bids. * * * 2.8.1 A bid may not be modified, withdrawn or canceled by the bidder during the stipulated time period following the time and date designated for the receipt of bids and the bidder so agrees in submitting the bid. * * * 3.2.2 When notified by Criteria Professional, prior to or after Award of Contract by Board, the successful bidder shall meet with representatives of Board at MDCPS/DCP/DB "Kick Off" meeting. At that time, the successful bidder shall bring the Design Build Team whose work is highly crucial to the completion of the Work. . . . The List of Subcontractors Form contained the following directions: This list of subcontractors shall be submitted to the Section of Contract Management, 155, N.E. 15th Street, Miami, Florida, 33132, no later than the end of the second working day after award, i.e., for bids awarded on Wednesday, list shall be submitted by 4:30 p.m. on Friday. If the list of subcontractors is not submitted as requested, the Board may initiate action which will result in rescinding the award. Subcontractor as used herein shall be defined in Florida Statute 713.01(16)- Subcontractor means a person other than a material supplier or laborer who enters into a contract with the contractor for the performance of any part of such contractor's contract. For each subcontract listed below, the bidder shall name the subcontractor or list the bidder's firm if he/she proposes to do the work. The cost of work as quoted by the subcontractor shall be listed. If the name of a subcontractor is deleted or added, the owner shall be notified immediately along with the justification for the change. The Special Provisions for Compliance with M/WBE provides, in pertinent part, as follows: Subcontractor/Subconsultant- A person other than material person or laborer who enters into a contract with a contractor for the performance of any part of such Design Builder's contract. Design or other required consultant services contracted for, in the performance of this contract will be considered as a Subcontractor. . . . The General Conditions of the Design-Build Contract provided, in pertinent part, as follows: General Conditions of the Design Build Contract * * * 1.1.2 The Contract The Contract represents the entire integrated agreement between the parties hereto and supercedes prior negotiations, representations or agreements, either oral or written. The Contract may be amended or modified only by a Modification. The contract shall not be construed to create a contractual relationship of any kind (1) between the Board and a Subcontractor or Sub-subcontractor, or (2) between any persons or entities other than the Board and the Design-Build Contractor. The Contract Documents include the Criteria Documents and the approved Construction Documents. * * * 3.1.1 The "Design-Build Contractor" is the person, firm or corporation authorized to do business in the State of Florida and properly licensed or registered for the work to be performed with whom the Contract has been made with the Board for the performance of the Work described in the Criteria Documents. "Contractor" refers to a third party Contractor. * * * 3.3.2 The Design-Build Contractor shall be responsible to the Board for acts and omissions of the Design-Build Contractor's employees, Subcontractors and their agents and employees and other persons performing portions of the Work under the Contract and shall be responsible to the Board for coordination and complete execution of the Work in accordance with the Contract. * * * 3.3.6 The Design-Build Contractor shall enforce strict discipline and good order among its employees and other persons carrying out the Contract including its Subcontractors and Sub-subcontractors. . . . * * * 3.9.2 During the Construction Phase, the Design-Build Contractor shall employ a competent, full time, on-site Superintendent, the Design-Build Contractor's A/E of Record Representative, who participated at least fifty percent (50%) of his/her time during the Design Phase, and shall be on site at a minimum of 50% of the working hours of each week. An M/E/P coordinator and necessary assistants shall be in attendance at the job site during the performance of the Work. . . . The Design-Build Contractor's A/E of Record on-site Representative shall not be used for checking shop drawings. The Superintendent, the Design-Build Contractor's A/E of Record Representative, M/E/P Coordinator and the major Subcontractor's Superintendents shall be fluent in English. * * * 3.12.1 Shop drawing are drawings, diagrams, schedules and other data specifically prepared for the Work by the Design-Build Contractor or a Subcontractor, Sub- Subcontractor, . . . to illustrate some portion of the Work. The Design-Build- Contractor, Subcontractor, Sub- Subcontractor, . . . shall not use the Design-Build Contractor's A/E of Record contract drawings as shop drawings, but the Design-Build Contractor shall require these entities to produce and submit such documents independently. * * * 3.18.1 The Design-Builder shall negotiate a fair and equitable agreement with each of the Architect/Engineer consultants listed in the Design-Builder's response to the request for qualifications for this project. The Design-Builder may choose additional A/E consultants, for which prior written notice to Board shall be given, but shall not terminate or replace those A/E consultants originally designated without the prior written approval of the Board. When requesting termination or replacement of A/E consultants, the Design-Builder must submit the following items: Letter requesting written Board approval of the action, stating clearly the reason for such request and the proposed replacement A/E consultant(s). Signed and sealed or notarized release from the A/E consultant(s) being replaced or justification acceptable to the Board that such release is not obtainable. Federal Standard Form 255 and 254 of the proposed A/E consultant(s). Site specific professional liability insurance incorporating the proposed A/E consultant(s) in the policy. A hold harmless clause signed and notarized . . . . * * * 4.1.1 The Board's Representative (also referred to as the "Design Criteria Professional" or "DCP") will provide administration of the Contract as described in the Criteria Documents . . . * * * 4.2.6 The DCP will review and approve or take other appropriate action upon Design- Build Contractor's submittals, previously approved by the Design-Build Contractor's A/E of Record such as Shop Drawings, Product Data and Samples, for conformance with the information given and the design concept expressed in the Criteria Documents. . . . * * * 4.2.12 The Design-Build Contractor and Design-Build Contractor's A/E of Record shall provide DCP which will confirm completeness and correctness of same and forward to Board for Board's review and records, the written documents required by the Contract to be provided such as Warranties, Operation and Maintenance Manuals, as-built drawings, releases of claim and other documents required of the Contract. The DCP will process any pending Change Order requests and evaluate the assessment of liquidated damages, if any. Upon its determination that the Design-Build Contractor and Contractor[']s A/E of Record has fulfilled the requirements of the Contract, the DCP will issue a final Certificate for Payment. * * * A Subcontractor is a person or entity other than a materialman or laborer who enters into a subcontract with the Design- Build Contractor for the performance of any part of the Design-Build Contractor[']s Work. The term "Subcontractor" is referred to throughout the Contract as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor (sometimes referred to as a "third party contractor" ) or subcontractors of a separate (third party) contractor. A Sub-subcontractor is a person or entity other than a materialman or laborer who enters in to a sub-subcontract with a subcontractor for the performance of any part of such subcontractor's contract. The term "Sub-Subcontractor" is referred to throughout the Contract as if singular in number and means a Sub-subcontractor or any authorized representative of the Sub- subcontractor. The term "Sub-subcontractor" does not include separate subcontractors of a third party contractor. All Subcontractor's shall be licensed and/or certified as required by the Florida Building Code and state statutes. Separate permits may be required including but not limited to electrical, plumbing, mechanical, and roofing work. * * * As stated in the Instructions to Bidders, the Design-Build Contractor shall furnish in its proposal to Board the list of Subcontractors, Sub-subcontractors and materialmen (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work . . . . If Board has a reasonable objection to any proposed Subcontractor, Sub- subcontractor or materialman, Board will promptly notify Design-Build Contractor. The Design-Build Contractor shall not contract with any proposed Subcontractor, Sub-subcontractor or materialman to whom Board has made a reasonable objection pursuant to Subparagraph 5.2.2. If Board has a reasonable objection to a Subcontractor, Sub-subcontractor or materialman, the Design-Build Contractor shall propose another to whom the Board has no reasonable objection. A Subcontractor, Sub-subcontractor or materialman may be added to the list of Subcontractors, Sub-subcontractor[s] or materialmen if required for performance of Change Order Work. A listed Subcontractor, Sub-subcontractor or materialman may be changed only upon written approval of the Board. The request to change shall state reasons for the request and shall be accompanied by a signed and notarized release from the listed Subcontractor or Contractor's Affidavit to Board that such a release is not obtainable. * * * The General Requirements include Procedural Requirements, Subsections 2.03 and 9.01 of which provide as follows: 2.03 DESIGN-BUILDER ("D-B") D-B shall appoint its D-B Project Manager which is D-B's representative for the Project. The collective management of D-B services, including D-B'[s] architect, engineers and other consultants, is to be vested in D-B Project Manager. D-B Project Manager is the representative of D-B and all communications are to be through him/her to DCP and M-DCPS Project Manager. D-B Project Manager's role does not preclude the involvement of D-B's architect, engineers and other consultants. The architects, engineers and other consultants with responsibility for different aspects of the Project are to attend appropriate meetings but this must be coordinated with D-B Project manager. 9.01 PRE-CONSTRUCTION CONFERENCE Prior to beginning construction, DCP (through PM) shall schedule a Pre- Construction Conference. Ten (10) days notice is required for the meeting. At minimum, the following parties shall attend: DCP Team (DCP) Design-Builder Team (D-B) PM Major Subcontractors Region Superintendent Principal BCC Representatives Testing Lab Consultant HVAC Test & Balance Consultant H. Others as applicable. * * * Section 01012 of the General Requirements discusses the Project Architect. It provides as follows: PROJECT ARCHITECT (Also referred as Architect/Engineer of Record or D-B'[s] A/E. The Project Architect (A/E of Record) is a Principal, Partner, Agent, Subcontractor or Employee of the Design-Builder,[14] and is the person lawfully licensed to practice Architecture and Engineering or an entity lawfully practicing Architecture and Engineering identified as such in the Contract; and is referred to throughout the Criteria Documents as is singular in number. The term Architect/Engineer of Record means the Architect/Engineer of Record or its authorized representative. Whenever the terms Design-Builder's A/E or A/E is used throughout the Criteria Documents, it refers to the Project Architect. DUTIES AND RESPONSIBILITIES OF THE PROJECT ARCHITECT The Project Architect shall have all the duties and responsibilities established under the applicable State Statutes regulating the professions of Architects and Engineers. The Project Architect shall employ a Project Manager and necessary assistants, and shall be responsible for managing all design and production of Design and Construction Documents and the coordination of its implementation during the construction. The Project Architect shall review and approve or take other appropriate action upon Subcontractor submittals, such as Shop Drawings, Product Data and Samples prior to their submittal to the DCP for approval. The Project Architect shall consult with the DCP concerning all items related to the design and production of the Construction Documents. The Project Architect shall be responsible for the preparation of the Record Drawings. Prior to Design-Builder's request for determination by DCP of substantial completion, the Project Architect shall determine, on his/her own, that the Project has achieved substantial completion. The Project Architect shall inspect the work and provide, through the Design-Builder, a punchlist of all items to be completed or corrected. Upon receipt of request for determination of substantial completion from the Design-Builder, the DCP shall proceed to determine if the work is ready for inspection as provided under the General Conditions. All four remaining proposers, MCM, SBR, Pirtle, and Betancourt, submitted sealed bids. The bids were opened on December 17, 2002, and subsequently tabulated. MCM had the lowest "base bid" ($17,673,600.00). SBR had the second lowest "base bid" ($18,037,446.00). Betancourt's and Pirtle's "base bids" were $18,269,000.00 and $19,540,000.00, respectively. Following the tabulation of bids, School Board staff recommended to the members of the School Board that the contract for the Instant Project be awarded to MCM as the lowest bidder. On February 6, 2003, SBR, through counsel, filed a notice of protest with the School Board, which read as follows: This firm represents SBR Joint Venture, who as you know, has submitted a proposal for construction of the above-referenced [p]roject [the Instant Project]. It has come to our attention that MCM Corp. ("MCM") who submitted a proposal to provide design build services for the above- referenced project, must be disqualified from further consideration in connection with an award of the Project due to MCM's failure to comply with general requirements as promulgated by the Miami-Dade County Public Schools relative to the Project. Specifically, item I G of the General Requirements mandates that: " Any proposer, firm or company desiring to participate in this process must not have as a part of its team an A/E firm presently under contract with the Board for a specific project and a General [c]ontractor for the same project." As disclosed by MCM in its proposal to construct the [p]roject, MCM is currently performing substantial work connection with another project known as the Westview Middle School-remodeling and renovation ("Westview"). The architect under contract with the School Board regarding the Westview Project is LIVS and Associates. In conflict with the qualification general requirements, MCM's proposal to construct school MMM contemplates the formation of a design build team which will include LIVS and Associates, as its mechanical, electrical, plumbing and fire protection consulting engineers. As such, the proposal by MCM is violative of the requirements of design/build firms in order to qualify for the Project. Back-up documentation including, but not limited to, material portions of the request for qualifications and disclosures by MCM are attached for your review. Under the circumstances, we respectfully request that MCM be disqualified from performing any services in connection with [p]roject and the second [lowest] bidder, which is SBR Joint Venture, be awarded the Project. MCM responded to SBR's notice of protest by letter dated February 10, 2003, in which it argued that SBR's protest was without merit and "should be dismissed" and further stated, among other things, the following: The Contract documents permit[] the board to waive all irregularities. If the board were to consider that Ivan Rodriguez, Carlos Hevia and Blanca Bazan[15] misspoke on behalf of MDCPS when they approved LIVS as part of the MCM Design Build team, and or if the board were to consider the inclusion of LIVS as part of the Design Build Team as a conflict, then if that be the case, by this letter MCM hesitantly tenders substitution of LIVS (who has graciously agreed), with SDM Consulting Engineers, Inc., who is also fully qualified, has had extensive experience with DCPS and has agreed to take on the challenge. The members of the School Board were scheduled to vote at their February 12, 2003, meeting on staff's recommendation to award the contract for the Instant Project to MCM, but the "item [was] tabled" because of the pendency of SBR's protest. At the meeting, the School Board Attorney told the School Board members that he had "reviewed [SBR's] protest with staff and [they had] come to the conclusion that [they did not] agree with [SBR's] position," explaining, in part, as follows: The language [of paragraph G. of the General Requirements of the RFQ] is interpreted that if you have the A/E and the general contractor, who are under contract with the board on the same project, that is considered a conflict. In this particular instance, you have a third element here. One, is that the bonding company took over this project and the bonding company brought MCM in as a subcontractor, if you will, a completing contractor here in this particular instance. So, it was never the intent of this language to cover a situation other than one where you had both the A/E and the general contractor under contract with the board. Construing the language of paragraph G. of the General Requirements of the RFQ (which is not clear and unambiguous on its face) as not "cover[ing] [the] situation" present in the instant cases is not at all unreasonable. Because it has a contract with the Surety and not the School Board, MCM is not the Westview Project's "General contractor"16 as that term is typically used in the construction industry.17 Since there is no language manifest in the proposal/bid solicitation documents in evidence which compels the conclusion that, for purposes of the solicitation, this accepted industry meaning of the term was not intended, it is entirely appropriate to rely on this meaning and find, as did School Board staff, that MCM's role in the Westview Project does not disqualify its proposal from consideration under paragraph of the General Requirements of the RFQ.18 Moreover, even if it could not be reasonably disputed that MCM was the Westview Project's "General contractor" within the meaning of paragraph G. of the General Requirements of the RFQ (which, as noted above, is not the case), MCM's proposed use of LIVS on the Instant Project would still not, under every reasonable interpretation of the paragraph, create a "conflict of interest" of the type the paragraph prohibits. It is not beyond reason, particularly when the provisions of the Criteria Documents are considered19 (most significantly, Subsection 3.18.1 of the General Conditions and Section 01012 of the General Requirements), to conclude that an "A/E firm" on the design- build "team," within the meaning of paragraph G., does not refer to an entity, like LIVS, that is neither the design-builder seeking the contract for the Instant Project, a member of such a design-builder (where it is joint venture or partnership), the design-builder's proposed "Project Architect" as described in Section 01012 of the Criteria Documents' General Requirements (who is also referred to therein as the "Architect/Engineer of Record" or "A/E"), nor any other Architect/Engineer consultant with whom the design-builder intends to contract in accordance with the requirements of Subsection 3.18.1 of the Criteria Documents' General Conditions, but rather is merely a proposed MEP sub-subcontractor/sub-subconsultant (that is, a third-tier contractor). The evident purpose of paragraph G. of the General Requirements of the RFQ is to avoid a situation where a firm acting as the School Board's A/E of Record on another School Board project let under the "traditional bid contract scenario" is inclined to deal with the "General contractor" on that project in a lax manner compromising the School Board interests because of a relationship the firm has with that "General contractor" on the Instant Project.20 The chance of this happening if the firm were merely a third or lower tier contractor on the Instant Project would be remote, so remote that it is reasonable to believe (as John Pennington, the School Board's Director for Construction Compliance, who was "intimately involved in making [the language in paragraph G.] the final language," credibly testified) that it was not the School Board's intent, in including paragraph G. in the General Requirements of the RFQ, to eliminate a potential competitor based on this possibility.21 Had the School Board intended otherwise, it could have made its intent clear and unmistakable by having the first sentence of paragraph G. read as follows: "Any proposer, firm or company desiring to participate in this process must not propose to have working on the instant project in any capacity, including as a third or lower tier contractor, both a firm that is presently serving under a contract with the Board as the Board's A/E of Record on another project and a firm that is a General contractor for that same project." It did not do so, however. Instead, it used language in paragraph G. reasonably susceptible to the interpretation that, under this provision, proposing to use as an MEP sub-subcontractor/sub- subconsultant on the Instant Project a firm that is the School Board's A/E of Record on another project does not disqualify a proposer even if the proposer is the "General contractor" for that other project. Following the School Board meeting, SBR, on February 16, 2003, filed its formal written protest of the intended decision to award the contract for the Instant Project to MCM. On February 18, 2003, Fernando Munilla sent a letter to School Board member Dr. Marta Perez, which read, in pertinent part, as follows: MCM has been informed that unfortunately MCM's response to SBR's bid protest was not provided to you prior to the February 12, 2003, Board meeting. We enclose same for your ready reference. We respectfully request you inquire on the particulars raised in our letter, and if you agree with your staff's recommendation (that SBR's alleged irregularity in MCM's bid lacks [sic] merit), then we ask you move the Board to exercise its right to waive the alleged irregularity, as permitted by the bid documents under section 00100 page 4 subsection 2.7.1 in order that MCM continue to work on the project. On March 4, 2003, the School Board Attorney sent a memorandum to the Superintendent of Schools advising that upon further review of the matter he had changed his opinion and was now of the view that SBR's protest had merit, explaining in the memorandum as follows: This specification [paragraph G. of the General Requirements of the RFQ] prohibits a proposer from having as a part of its Design-Build team an Architect/Engineer (A/E) firm who is under contract with the Board for a specific project and General Contractor for the same project. The specification provides that the Board considers this a conflict of interest and such proposals would not be considered for award of the contract. MCM submitted a proposal which has LIVS [and] Associates, an A/E firm under contract for the Westview Middle School project as part of its team. MCM is the General Contractor on the Westview Middle School project under a contract with the surety company to complete the project as the completing contractor. MCM contends that in view of the fact that they are the completing contractor and are not in direct contract with the Board for the project, this particular provision should not apply. We disagree. The particular specification in question does not specify or require that the general contractor for the same project be under contract with the Board. Conflict exists by virtue of the fact that the A/E, acting on behalf of the Board for the Westview Project, has to inspect and review the work of MCM and, with this proposal, will be in business with MCM on another Board project. Accordingly, MCM's proposal should not have been considered for award. While it is true that, in paragraph G. of the General Requirements of the RFQ, the School Board did not include the words "under contract with the Board" after "General contractor," if it intended that "General contractor," as used in paragraph G., have the same common meaning as the term has in the construction industry (and there is no language in the proposal/bid solicitation documents in evidence compelling the conclusion that it did not have such an intent), these additional words would have been redundant because, as noted above, a "General contractor," as that that term is typically used in the construction industry, is necessarily one who is "under contract" with the owner. Furthermore, contrary to the suggestion made by the School Board Attorney in his March 4, 2003, memorandum, under MCM's proposal, MCM and LIVS would not have a direct business relationship22; rather, LIVS would be doing business with PJB.23 While LIVS' participation (as a third-tier contractor) in the Instant Project with MCM may create a potential "conflict" for LIVS, this potential "conflict," at least arguably, is not the type that is prohibited by paragraph G. of the General Requirements of the RFQ. On March 11, 2003, MCM and PJB sent the following letter to the School Board: This letter will serve as our formal request to replace the engineering firm of LIVS originally selected for State School MMM [with] SDM Consulting Engineers in which MCM's architect of record, PJB Associates, P.A., had entered LIVS as their mechanical and electrical consultants for the above referenced project [the Instant Project]. Even though we consider LIVS to be an excellent engineering firm, d[ue] to an alleged conflict of interest that is said to exist, we are respectfully requesting replacement to prevent controversy.[24] We also request that you submit this to M- DCPS's Legal Department to verify if there is any conflict; and if so, we respectfully request a written reply. In the absence of a reply within the next three working days, we will assume that this issue has been resolved. Thank you in advance for your attention. Also on March 11, 2003, MCM, anticipating that it would not be awarded the contract for the Instant Project, sent the School Board another letter, which read as follows: This letter will serve as notice of the intent of Magnum Construction Management Corporation (MCM) to protest any decision of the Miami-Dade County School Board to reject all bids on the Miami-Coral Park Project. Based on information obtained to date, MCM will assert that the decision to reject all bids is based on the false assumption that under the terms of the Request for Qualifications, MCM was disqualified to bid on the Miami-Coral Park Project and that bids on the project were over budget. MCM will assert that it was qualified to bid on the project and that its bid was responsive and within the budget. MCM subsequently filed a formal written protest and an amended formal written protest. On March 12, 2003, the Design Criteria Professional for the Instant Project sent a letter to Ms. Bazan advising her that the three lowest bids submitted for the Instant Project "were within the budget of $17,473,891.36," and that the two lowest bids, those submitted by MCM and SBR, were "substantially below the State of Florida allowable cost per student station under the Smart Schools Clearinghouse." On March 26, 2003, the School Board referred SBR's and MCM's formal written protests to DOAH. A day later, it referred MCM's amended formal written protest to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order rejecting SBR's protest and awarding the contract for the Instant Project to MCM. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2003.
The Issue DOAH Case No. 11-5494TTS: The issue is whether Respondent, Joseph Fayed (Fayed), committed the violations alleged, and, if so, what penalty should be imposed. DOAH Case No. 11-5495TTS: The issue is whether Respondent, Walt Petters (Petters), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is a district school board created by Article IX, section 4, of the Florida Constitution. As such, Petitioner’s authority and responsibilities extend to personnel matters, and include the power to hire, suspend, and dismiss Board employees. At all times material to these cases, Petitioner’s organizational structure designated Maintenance as the department responsible for repairs and upkeep to all School District property. Maintenance was charged to budget for and complete repairs and improvements to hundreds of school sites and other Board properties. At all times material to these cases, Petitioner kept a list of vendors who could be called upon by Maintenance to complete work that could not be performed by Board personnel. Maintenance’s system allowed it to assign work previously approved or contemplated by the budget to a vendor and then submit a purchase order to the Board’s purchasing department so that the vendor would be paid at the conclusion of the work. At all times material to the allegations of this matter, Respondent Fayed was employed by the Board on an annual contract and served as supervisor of central services in the Maintenance Department. Fayed oversaw maintenance work performed within his service area. It is undisputed that the annual contract held by Fayed could be non-renewed without cause. Therefore, at the conclusion of the 2011-2012 school year (presuming his contract ended concurrent with the school year), Petitioner was not obligated to retain Fayed. By history, Fayed worked for Petitioner for well over 30 years, completed his DROP time, and separated from the School District. After remaining out of the system for some period of time, Fayed returned to work for the School District and continued to do much of the same type of work he had done prior to retirement. At all times material to the allegations of this matter, Respondent Petters was employed by Petitioner on an annual contract. Petters was the director of Maintenance. His responsibilities required him to supervise all employees within the School District’s Maintenance Department. Fayed served under Petters’ supervision. As director of Maintenance, Petters oversaw all of the geographical service areas for the School District. All outside vendors who performed maintenance work for School District properties were directly tied to Petters’ department. The Controversy Prior to August 15, 2011, Board employees raised concerns of improprieties committed by Petters and Fayed in connection with the performance of their duties in the Board’s Maintenance Department. An internal investigation of the School District’s maintenance department suggested that there were 25 separate instances of improper activity. Based upon the investigation, Petitioner procured an independent audit to be performed by RSM McGladrey, Inc. (McGladrey). McGladrey was tasked to review the 25 claims, review all pertinent records of the Maintenance Department, and present a detailed report to the School District’s Superintendent. That report, dated September 23, 2011, formed the basis for the charges against Petters and Fayed. The McGladrey report was attached to letters from the Superintendent dated October 5, 2011, that advised Petters and Fayed that their employment with the School District would be recommended for termination at the Board’s October 11, 2011, meeting. At that meeting, Petters and Fayed were terminated subject to their administrative rights to contest the action. Respondents timely sought a formal administrative hearing in connection with the charges of misconduct, willful neglect of duty, and/or being incompetent. The Vendors SMG SMG Coatings, Inc. (SMG), is a painting company operated by Tim Tillotson (Mr. Tillotson). Although, technically owned by Mrs. Tillotson, the company’s day-to-day field operations are directed and supervised by Mr. Tillotson. At all times material to the allegations of these cases, SMG routinely bid on contracts for the School District. It also competed for the “primary contractor” designation. Petitioner used two methods of procurement for maintenance work to be performed by outside vendors. One method, “primary contractor,” was for minor projects that did not exceed $5,000.00, in value. Vendors designated as the “primary contractor” were utilized to do these minor jobs without additional bidding. When a job exceeded $5,000.00, all vendors on a list of approved vendors were allowed to bid on the project. These vendors are known as “continuing contract” holders in this record. Vendors on the “continuing contract” approved list were to receive notice of the job and be given an opportunity to successfully bid the work. Although the threshold amount was later raised, and the method of evaluating contractors was later changed from an hourly rate to a unit measure for the type of painting work, the underlying concerns regarding how SMG received the Board’s work remain the same. At all times material to these cases, SMG was a “primary contractor” on the approved “continuing contract” vendor list. The allegations of these cases aver SMG received preferential treatment not afforded other vendors doing business with the School District. Sena-Tech Sena-Tech, LLC (Sena-Tech), is an electrical contractor that first became authorized to do School District work during 2008. Steve Terry (Mr. Terry) is the president of Sena-Tech. The allegations of these cases aver Sena-Tech received preferential treatment not afforded other electrical vendors doing business with the School District. The Relationships Petters and Fayed are long-term employees of the School District, who have forged friendships with each other and with vendors doing business with the Board. Specific to these cases are the friendships between Petters, Mr. Tillotson, and Mr. Terry. It is undisputed that at all times relevant to the allegations of these cases, Petters and Mr. Tillotson ate lunch together many times a month. Petters vacationed with Mr. Tillotson on one or more occasions. Petters and Mr. Tillotson made no effort to hide their close friendship. Similarly, Fayed is friends with Mr. Tillotson. Although they are not as close as Petters and Tillotson, it is undisputed that Fayed also lunched with Mr. Tillotson on a regular basis. Given his work history, Fayed is familiar with painting contractors doing business in the school district. There is no evidence that Fayed made any effort to encourage other painting vendors to compete with SMG for the Board’s business. Fayed has also known Steve Terry for years. Mr. Terry has been to Fayed’s home in the past and considers Fayed a friend. Petters and Mr. Terry are also well known to one another. Mr. Terry has joined Fayed and Petters for lunch. Neither Fayed nor Petters acknowledged that forging friendships with vendors doing business with the School District gave the appearance of impropriety to persons looking at the situation from outside of the Maintenance Department. The Jobs Sena-Tech Prior to 2008, Sena-Tech did not have standing as a “continuing contractor” or vendor approved to do work for the School District. Nevertheless, Sena-Tech received jobs and was paid for work done prior to its inclusion on the list. Purchase Orders (POs) were approved by Petters for payment to Sena-Tech in connection with nine specific jobs. Petters was required to sign-off on jobs and to submit POs so that the vendor would be paid. A purchase order is the written document formalizing the transaction between the Board and the vendor. In this case, all POs were initiated by Maintenance and paid by Petitioner’s Purchasing Department. The weight of the credible evidence confirms that nine jobs given to Sena-Tech prior to 2008 were electrical in nature and should have gone to a contractor on the approved list or, if not technically “electrical” due to the voltage of the work, should have been given to a vendor that successfully bid the jobs. In either instance without competent supporting documentation, Sena-Tech would not have automatically received the work. There is inadequate evidence that the work performed by Sena-Tech resulted in a higher cost to the Board, however, because the process, by which work should have been distributed to vendors, was circumvented in connection with the nine Sena- Tech POs approved by Petters. There is no evidence that Petters personally benefitted from the work given to Sena-Tech. There is insufficient evidence to establish that Fayed was personally involved in the disputed Sena-Tech POs, or that he participated in the selection of that company for the disputed work. There is no evidence that Fayed personally benefitted from the work given to Sena-Tech. SMG The weight of the credible evidence established that SMG circumvented the Board’s bidding process by submitting false information. SMG obtained work based upon unrealistically low hourly rates. To calculate the labor cost for a job required a simple formula: hourly rate multiplied by the number of hours to complete the job. Theoretically, all vendors would take the same amount of time to complete a job. Because the hourly rate would be multiplied by the number of hours the job required, the job labor cost would be correct. In these cases, that did not happen. Instead, SMG inflated the number of hours for the job and thereby assured itself a payment greater than its hourly rate would have afforded had the rate been applied to the actual hours worked for the job. In some instances, SMG billed the job at a higher hourly rate than its contract allowed. According to Fayed and Petters, so long as the bottom line (the ultimate cost to the School District) was reasonable, the process was adequate and had long been in place. Fayed and Petters did not acknowledge that the method used by SMG might have resulted in a higher cost to the Board. Based upon their professional experience in the Maintenance Department, both Respondents claimed that the amounts charged by SMG and paid for by Petitioner were appropriate. In truth, the process was not appropriate because vendors who bid actual (as opposed to illusory) hourly rates did not have the opportunity to obtain jobs. Vendors who bid the hourly rates that would be applied to the real hours of work could not compete with SMG’s unrealistically low rate. SMG was assured of “primary contractor” status without meaningful competition so long as its hourly rate was less than its competitors. At all times material to these cases, SMG was the preferred painting vendor. Fayed and Petters knew the system was flawed. In fact, Petters claimed that he told superiors that the system should be changed. When the threshold amount of jobs was increased from $5,000.00, to $20,000.00, the hourly rate method was still used. More important, neither Petters nor Fayed required SMG to bill only its actual hours for a job. There are a number of ways to track time on a given painting job. Outside vendors could be required to sign in and out at a job location. A site supervisor could verify the daily hours worked at a given location. No reasonable effort to verify the actual hours spent on a job was used when it came to SMG. Petters and Fayed knew or should have known that the hours submitted by SMG were false. Whether the Board could have or should have paid less for the SMG jobs is unknown. Another vendor working fewer hours at a higher rate might have cost the School District the same amount. Because the hours billed by SMG were false, it is impossible to calculate what the jobs should have cost. For the jobs that SMG billed a higher hourly rate than their contract allowed, it would be possible for the Board to calculate an overpayment. At the heart of this matter is the indifference displayed by Fayed and Petters to hold SMG accountable for the actual hours worked. The dispute might have been avoided if SMG had either bid fair hourly rates or billed actual hours worked. SMG did neither. Petters knew what was going on and did not intervene to stop the fiction. Recapping Board payments made to SMG, pursuant to the 2004-2005 paint contract, shows that of the $772,467.13, spent for painting jobs, only $8,200.00, went to a vendor other than SMG. Of the projects that exceeded $5,000.00, $276,614.68 went to SMG without meaningful bids from other vendors on the approved list. All approved paint vendors were entitled to submit proposals for the projects that exceeded $5,000.00. Of the ten projects that met the $5,000.00 threshold, a competing vendor was able to submit a proposal on only three of the jobs. When the threshold was raised to $20,000.00 in 2008, SMG’s competition had fewer opportunities to obtain work from the School District. As the primary vendor (again using a false hourly rate), SMG was able to capture more jobs because the Maintenance Department did not have to offer work to another vendor unless the amount exceeded $20,000.00. Fayed and Petters supported the higher threshold and Fayed lobbied for its approval. Board payments made during the 2008 paint contract requested by the Maintenance Department totaled $1,246,184.37. The entire amount went to SMG. Whether the Board could have obtained the work for a lesser amount is unknown. A review of the 2008 paint jobs established that no bids were obtained for work that exceeded the $20,000.00 threshold. No serious effort was made to secure outside bids or vendors to compete against SMG. Had Petters or Fayed brought the lack of competition to the Board’s attention (or to any supervisor in the school system), it is unknown whether SMG would have obtained the volume of work it was paid for during this time. The Other Claims SMG was allowed to use Board equipment and fuel without cost. It is unknown whether other vendors could have saved these expenses when presenting their bids for School District work. Arguably, Petters and Fayed would have let other successful vendors use Petitioner’s equipment and fuel. As SMG secured the work, the question cannot be resolved. Petitioner’s policy allows personnel to use School District transportation when their work duties require travel to more than one work-site. Fayed’s duties required travel to job sites throughout the central area. Vehicles provided for official business may not be used for personal activities. The weight of the credible evidence established that Fayed used his School District vehicle to attend to personal matters such as doctor visits, stops at his personal residence, and a trip to Patrick Air Force base. See Policy 8651. Petitioner’s ethics policy is designed to create a culture of honesty and integrity. See Policy 4210. Fayed and Petters ignored the reality that their close friendship with a vendor caused the honesty and integrity of the Maintenance Department to be brought into question. Petters defiantly insisted that SMG retain “primary contractor” status when another company prevailed on the 2010 paint contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter Final Orders as follows: As to DOAH Case No. 11-5494TTS, finding there is just cause to terminate the employment of Joseph Fayed effective October 11, 2011. As to DOAH Case No. 11-5495TTS, finding there is just cause to terminate the employment of Walt Petters effective October 11, 2011. DONE AND ENTERED this 6th day of September, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of September, 2012. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Dr. Brian Binggeli, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.
Findings Of Fact Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not appear to have been any action by the School District to place Respondent on a teacher assistance plan. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of concern: Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal Demonstrates Knowledge of Subject Matter Also included on Respondent's 1994-95 annual evaluation form were the following comments: Mrs. Steel has had a difficult time transitioning from second to third grade. A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty- five were not engaged. In general, the classroom was chaotic. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching. On December 4, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan. Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively, (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form: Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The evaluation rated Respondent's performance as unsatisfactory. The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments: It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern. It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows: On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: verbal and Nonverbal Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Self Control Adheres to and Enforces School Policies I have discussed my concerns with Ms. Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows: Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS). If the deficiencies are not corrected during the prescribed time period, a change in your employment status may be recommended. If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone. On each occasion that Ms. Samango raised the issue of Respondent's request for a transfer to another school, Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the 231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4 Dr. Barbara Jeanne Burdsall is employed by the School Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr. Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5 Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School. Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the 231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson, Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively. By way of example, Dr. Mary B. Gray observed Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers. There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed to be present. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in Respondent's teaching at the second observation, but the improvement was not sufficient to be effective. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999.
