The Issue The issue in this case is whether just cause exists for Petitioner, the St. Lucie County School Board, to terminate the employment of Respondent, Josephine Knight.
Findings Of Fact Petitioner is the School Board of St. Lucie County, Florida (hereinafter referred to as the "School Board"). Respondent, Josephine Knight, is employed by the School Board pursuant to a professional services contract. Ms. Knight has been employed as a teacher for approximately 15 years. At all times relevant to this matter, Ms. Knight was assigned to work at St. Lucie Elementary School (hereinafter referred to as the "Elementary School"). At all times relevant to this matter, the principal of the Elementary School was Dr. Jayne Hartman. Prior to the 1997/1998 school year, Dr. Hartman interviewed Ms. Knight for a position at the Elementary School and subsequently recommended her for a position. Ms. Knight was assigned as a temporary fourth grade teacher during the 1997/1998 school year. Ms. Knight was assigned as a third grade teacher for the 1998/1999 school year. Ms. Knight had been assigned to fourth grade class while employed by the School Board until this year. Ms. Knight was disappointed with her new assignment. During her first two years of assignment to the Elementary School, Dr. Hartman observed Ms. Knight and made suggestions for improvement. Rather than accepting Dr. Hartman's efforts to constructively criticize her, Ms. Knight grew resentful and defensive. Although the evidence failed to support Ms. Knight's characterization of her treatment during the 1997/1998 and 1998/1999 school years, Ms. Knight felt that she was being subjected to "unremitting harassment from her principal." Ms. Knight responded to Dr. Hartman's criticism by attempting to transfer from the Elementary School to another school within the School Board's district. Ms. Knight was unsuccessful in finding another school that would accept her. Dr. Hartman recommended Ms. Knight's reappointment at the Elementary School for the 1999/2000 school year. Prior to the commencement of the 1999/2000 school year Dr. Hartman directed all staff, including Ms. Knight, to attend a staff breakfast on August 16, 1999. The breakfast was to be followed by a meeting of all teachers in the media center of the Elementary School. Dr. Hartman had arranged for teachers assigned to teach the same grade to sit together during the meeting and had prepared handouts for each teacher. Those handouts were placed at each teacher's assigned seat. Ms. Knight failed to attend the breakfast on August 16, 1999. She did attend the teachers' meeting, but arrived late and refused to sit at the table with the other third grade teachers. On August 18, 1999, Ms. Knight again arrived late for a staff meeting. Later in the morning of August 18, 1999, Ms. Knight wrote a note to Dr. Hartman informing her that she intended to use comp time during lunch. Rather than follow school policy, Ms. Knight left during lunch without first determining whether her use of comp time had been authorized. On August 19, 1999, Dr. Hartman spoke to Ms. Knight in the morning and told her that she needed to speak with her. Ms. Knight went to see Dr. Hartman later that same day. Dr. Hartman verbally counseled Ms. Knight. Dr. Hartman spoke to Ms. Knight about her lateness in arriving at staff meetings, her use of comp time prior to getting approval, and her refusal to sit with other third grade teachers as she had been directed. Dr. Hartman asked Ms. Knight to explain her actions, but Ms. Knight took notes and refused to answer Dr. Hartman. Due to Ms. Knight's misconception that she was being harassed by Dr. Hartman and in anticipation of the August 19, 1999, counseling session, she had prepared a letter of resignation the night before the August 19th meeting with Dr. Hartman. During the August 19th meeting, Ms. Knight gave Dr. Hartman the letter (hereinafter referred to as the "Resignation Letter"). In pertinent part, Ms. Knight wrote the following in the Resignation Letter: The intended purpose of this letter is to inform you of my resignation from my present position as a third grade teacher so soon after starting my fifteenth year in the system. After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I've been under you supervision. This included lack if [sic] administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude towards students, minorities, and me. These are conditions in which no one should be subjective [sic] to in the workplace. In fact, it seems to almost define going postal. You and I know the countless times I have tried to relocate to another school unsuccessfully. Which means as [sic] September 2, 1999 I will be resigning. [Emphases added]. The accusations Ms. Knight made in the Resignation Letter concerning Dr. Hartman, to include the allegations that she knew of Ms. Knight's unsuccessful efforts to transfer, are incorrect. Those accusations were the result of Ms. Knight's inability to deal with constructive criticism. After fully considering the Resignation Letter and Ms. Knight's negative attitude toward her, Dr. Hartman reasonably concluded that Ms. Knight had threatened her and she reasonably became concerned for her personal safety. On the evening of August 19, 1999, Dr. Hartman contacted Russell Anderson, the Assistant Superintendent of Human Resources, and reported the incident to him. Dr. Hartman also contacted Jane Grinstead, her immediate supervisor, and read the Resignation Letter to her. Finally, Dr. Hartman contacted Dave Morris, the Coordinator of Safety/Security for the School Board, and advised him of Ms. Knight's reference to "going postal." The morning of August 20, 1999, School Resource Officer McGee met with Dr. Hartman. Officer McGee was assigned to stay with Dr. Hartman the entire day because of the threat contained in the Resignation Letter. Mr. Russell, Dr. Hartman, and Officer McGee met with Ms. Knight and a union representative on August 20, 1999, to discuss the Resignation Letter. When asked about her reference to "going postal," Ms. Knight admitted that she understood that it meant to "kill or shoot your boss," or words to that effect. Following the meeting of August 20, 1999, a Friday, Ms. Knight was informed that she would be placed on temporary duty assignment from Monday, August 23, 1999, until the effective date of her resignation, September 1, 1999. On Monday, August 23, 1999, Ms. Knight withdrew her resignation. Because it had not been approved by the School Board, the resignation was considered rescinded. In light of the threat of violence contained in the Resignation Letter, the School Board informed Ms. Knight on August 24, 1999, that she was suspended without pay pending a review and final resolution of the matter. Based upon a review of Ms. Knight's personnel file, Mr. Russell concluded that Ms. Knight should be terminated from employment with the School Board. In addition to the Resignation Letter, Mr. Russell considered certain incidents described in paragraph 7 of a Statement of Charges to Terminate Respondent Josephine Knight's Employment with Petitioner (hereinafter referred to as the "Statement of Charges"). Mr. Russell conferred with Dr. William Vogel, the Superintendent of Schools, concerning the matter. Mr. Russell recommended that Ms. Knight should be terminated from employment with the School Board. By letter dated October 6, 1999, Dr. Vogel informed Ms. Knight that he would be recommending her termination from employment to the School Board due to her "violation of School Board Policies." Ms. Knight timely requested a formal administrative hearing to contest Dr. Vogel's decision. The Statement of Charges further defines the basis for the School Board's action in this case: That the foregoing acts as set forth in this statement and attached exhibits, constitutes just cause under Fla. Stat. s 231.36(1)(a) to terminate Josephine Knight's employment with the St. Lucie County School Board. See Fla. Stat. s 231.36 and School Board policy 3.57 attached as Exhibit O. School Board policy 3.57 provides, in pertinent part, the following anti-violence in the workplace policy: All employees will refrain from any speech, conduct, activity, or behavior of any type that is reasonable interpreted as abusive, profane, intolerant, menacing or intimidating. No speech, behavior, activity or other conduct shall occur or be made by any employee where it is reasonably interpreted that the primary motivating intent is to intimidate, threaten or abuse any person in the workplace. The School Board has zero tolerance for violations of this policy. Any person employed by the School Board who communicates a threat of violence to any other School Board employee is subject to termination. The particular incidents which the School Board considered in concluding that there was just cause for Ms. Knight's termination and that the foregoing policy had been violated by Ms. Knight included the comment about "going postal" in the Resignation Letter and the incidents described in paragraph 7 of the Statement of Charges. While the incidents described in paragraph 7 of the Statement of Charges may indicate a lack of judgment, unacceptable treatment of students, and a hot temper on Ms. Knight's part, they are not relevant in considering whether Ms. Knight displayed conduct contrary to School Board policy 3.57 or just cause. Ms. Knight's Resignation Letter, however, does support the School Board's decision. Based upon the events of August 16 and 18, 1999, Dr. Hartman reasonably concluded that Ms. Knight's comment about "going postal" in the Resignation Letter was primarily motivated by an intent to "intimidate, threaten or abuse" her. The day after the Resignation Letter was provided to Dr. Hartman, Ms. Knight admitted to Dr. Hartman and Mr. Russell that she knew what the terms meant and no other reasonable explanation has been offered by Ms. Knight to explain why she made the comment. Ms. Knight's suggestion at hearing that she was merely trying to get the School Board's attention so that she would be transferred to another school was not convincing and, even if true, would not diminish the reasonableness of Dr. Hartman's reaction to the threat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board finding just cause for the termination from employment by the School Board of Josephine Knight. DONE AND ENTERED this 18th day of August, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 August, 2000. COPIES FURNISHED: Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Lorene C. Powell, Esquire Florida Education Association 1718 East 7th Avenue, Suite 301 Post Office Box 5675 Tampa, Florida 33675 Dr. William Vogel, Superintendent St. Lucie County School Board 2909 Delaware Avenue Fort Pierce, Florida 34947 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 101 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to impose discipline on Respondent’s employment; and, if so, what is the appropriate discipline.
Findings Of Fact At all times material to this case, Respondent was a School Board employee. Respondent was employed as a custodian at Choctawhatchee High School (“Choctaw”) when he was terminated in 2017. As a custodial employee, Respondent was subject to the Collective Bargaining Agreement entered into between the School Board and the Okaloosa County Education Association. When he was terminated, Respondent had been employed by the School Board for approximately 24 to 26 years. Respondent was employed as a custodian at Choctaw beginning in 2015. Prior to that, Respondent was employed by the School Board as lead custodian at Choice School (“Choice”). Before that, at least five years before his employment at Choctaw, Respondent was employed by the School Board as a pre-K liaison at Edwins Elementary (“Edwins”). In addition, Respondent had been employed by the School Board over the years as a bus driver and in other custodial positions. The School Board's termination of Respondent's employment was based largely upon a formal equity complaint1/ (“Formal Complaint”) submitted on October 5, 2017, by Mrs. Williams, a volunteer at Choctaw, alleging harassment by Respondent with an attached email addressing her concerns regarding contacts by Respondent and a history of alleged harassment by Respondent. The email attached to Mrs. Williams' Formal Complaint is dated October 3, 2017, and states: Harassment has gone back to Edwins Elementary nearly 8 years ago. I was a parent as well as a PTO [parent teacher organization] Member/President for a few years at Edwins Elementary. There were constant unprofessional/vulgar comments made by Steve Hall in reference to my body and parts of my body, the way my clothing may fit certain areas of my body or his requesting to take photos of me. I think on occasion he may have taken some photos because as I would turn around and his phone was lifted in my direction to do so. On countless occasions employees would stand with me to hinder him hanging around and commenting. This frequently occurred during his employment at Edwins Elementary School. On one occasion my young high school age daughter, at the time, was at Edwins Elementary School with me during school hours. I was introducing my daughter to some people and Steve walked up so not to be rude I introduced her to him as well. Steve Hall's comment was not "hi" or "how are you?" it was "move over mom . . .!" As her mother I was disgusted! I told Mr. Farley but my daughter did not want to get into it or write a statement. I respected her wishes and just limited her presence on that campus. This entire time I have also been volunteering at Choctawhatchee High School. I found out that he was moved from Edwins to another school. I am still a full-time volunteer at CHS [Choctaw] and one day Steve Hall showed up at Choctaw's front desk. Knowing what actions I have seen from him I was extremely concerned finding out Steve is now an employee at Choctawhatchee High School. Approaching me at the front desk at Choctaw began to be a habit for Steve Hall. I called and met with Mr. Farley to work out a solution hoping this could be resolved professionally. The rule was Steve was not to be anywhere within the front office area to include the mail room. I have had to call Mr. Farley on multiple occasions because he continued to approach me in the front office. Currently he continues to try to communicate inappropriately with me at the football games or on campus, school events. Steve sits in the stands eating concession food and watching the football games for the most of the game. Steve tries to initiate conversation through my son who is special needs and only understands he is suppose to be nice to everyone. Not wanting/needing to explain this situation to my son. [sic] My son responds when spoken to by Steve because Steve is an adult and my son knows I require respect from him no matter who speaks to him. This makes football games and school events difficult every season with this year being no different! At the CHS vs. Tate game I was thankful there was a fence between the sections we were sitting in, so that he could not get closer without going all the way down and back up. I just turned away with no response. It is frustrating feeling like I have to hide to avoid Steve! This school year Steve has come to the front office area 3 times within the first month and a half of school. Each time I reported it and Steve was told to stay away from the front office. On one of the occasions I was in the back, in the mail room. Someone came to let me know Steve was up front looking for me. I tried to go out the back of the mailroom door to Mr. Snaith's office to get assistance and Steve walked in to confront me. The confrontation was extremely uncomfortable to say the least. About that time Mr. Snaith walked in and witnessed most of the confrontation escorting me away from Steve and we called Mr. Farley. Again! Steve was talked to about not coming to the front office for any reason. He has Ms. Liz's phone number (his supervisor) if he needs her. He has since come back to the front office again! He was told again not to come to the front office at all for any reason and it was discussed by Mr. Farley he needed to be more aware of his actions and the way they may be perceived. I am also the parent in charge of "Parents for Prior." After this years current situations, Steve was spoken to by Mr. Bill Smith. Steve Hall approached me at the Pryor Middle School football game held at Choctaw stadium. I was trying to work a table at the game, soon after the most recent issue. Steve approached my son first then walked closer to me requesting to speak to me for a "hot minute" in the alley between the touchdown shack and stadium. I'm sure it would be on the stadium cameras as stated in my statement to Bill Smith. I was unable to leave due to my possession of money and tickets. I glared at Steve and he stated I guess I should just keep walking. I nodded "yes"! This is only the most prominent on campus situations. I called Bill Smith and explained I should tell Steve to stay away. I feel we are past this due to this being years in the making. This has already been addressed and discussed with Steve on multiple occasions. Bill Smith stated I needed to send him an email statement and apologized he had not yet gotten with Mr. Chapman, from a week before, because of the hurricane. This was my second statement to Bill Smith this school year as well as one meeting with him. I enjoy volunteering my time at Choctawhatchee High School. Within a few years I'll be a Choctaw parent, unless I am required to move my son to another high school because of this. This is not what I want to do as a parent or volunteer. I do not feel it is fair I may need to remove myself and choose another high school for my son to attend because of an employee's unprofessional/vulgar behavior. Steve Hall repeatedly drives by my home. The latest time that I know of was within a week or so before school started this year 2017-2018. I was on the phone walking out of my home, I looked up and saw Steve sitting out in front of my home rolling down his window motioning me to come talk to him. I turned to return inside to get my husband, who is law enforcement, but Steve drove off in his green avalanche. I do not live on a main road nor have I given him my address. My street is not a road someone would just drive by on. If this continues I will file a restraining order. If there are any questions or concerns please do not hesitate to contact me. Mrs. Williams’ Formal Complaint was assigned to Gary M. Marsh, investigator, Escambia County School District, on October 11, 2017, for investigation. Mr. Marsh conducted his investigation and submitted his investigative report dated October 31, 2017, to the School Board's superintendent. The investigative report was hand-delivered by Mr. Marsh and received by the superintendent on November 3, 2017. In a letter dated November 14, 2017, the School Board's assistant superintendent of human and resources advised Respondent that she was recommending to the superintendent that Respondent be suspended with pay, effective immediately, and further that his employment with Petitioner be terminated at the December 11, 2017, School Board meeting. The letter states: Mr. Hall, An investigation has now been completed regarding the Formal Equity Complaint made against you on/or about October 5, 2017. A copy of the investigative report is attached for your information and review. This is the second formal investigation of an equity complaint against you since 2014. Based upon a culmination or multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years, I am recommending that the Superintendent suspend you with pay effective immediately and further that your employment with the School District be terminated at the December 11, 2017, School Board meeting. The charges against you are based upon the finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC); in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School (CHS). Additionally, while at CHS, new allegations of harassment have been made against you. Due to these allegations you were directed on multiple occasions by both your supervisor and a district administrator not to enter the CHS front office or mail room. As a result of a recent investigation it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur. Your conduct is considered to be gross insubordination, misconduct in office and harassment in direct violation of the following School Board policies: School Board Policy 07-03 Employment Conditions for Education Support Personnel School Board Policy 06-27 Equity Policy: Harassment on the Basis of Race, Color, National or Ethnic Origin, Sex, Age, Religious Beliefs, Marital Status, Pregnancy or Disabilty In accordance with both School Board policy 06-28 E(2) and Section K(a) of the OCESPA Master Contract you may file a written appeal to the Superintendent within ten (10) calendar days of receipt of the enclosed investigative report and this recommendation. In a letter dated November 29, 2017, the assistant superintendent of human resources requested that the superintendent recommend to the School Board that Respondent be terminated for gross insubordination, misconduct, and harassment. The Superintendent notified Respondent in a letter dated November 29, 2017, that she would recommend his termination from employment at the December 11, 2017, School Board meeting for gross insubordination, misconduct, and harassment. At its December 11, 2017, meeting, the School Board approved the superintendent’s recommendation, and Respondent was terminated from his custodian position. Neither Superintendent Mary Beth Jackson nor Assistant Superintendent Stacie Smith testified at the hearing. According to the November 14, 2017, letter from the assistant superintendent, quoted above, the recommendation for Respondent's termination is "[b]ased upon a culmination of multiple instances of harassment, misconduct in the workplace or gross insubordination, over the course of the last three years." [emphasis added]. The three allegations that form the basis of the recommended discipline against Respondent are analyzed below under headings derived from the November 14, 2017, letter as follows: 1) "finding of illicit material in your desk at Edwins Elementary School and repeated inappropriate comments leading to coworkers feeling harassed which led to your transfer in 2014 from Edwins Elementary School to Okaloosa Technical College (OTC)"; 2) "in late 2014, during your time at OTC, allegations of unwanted sexual behavior constituting sexual harassment on your part as confirmed in a formal investigation which led to your demotion and transfer from a lead custodian to a custodian at Choctaw High School"; and 3) "it has been determined that you have continued to enter the school front office area in direct insubordination of your supervisor and a district administrator. Further, after review of the investigative report there is sufficient evidence to believe that harassment of a school volunteer did occur." ILLICIT MATERIAL IN RESPONDENT'S DESK AT EDWINS AND REPEATED INAPPROPRIATE COMMENTS TO COWORKERS LEADING TO A TRANSFER At the hearing, it was revealed that Respondent's employment at Edwins predated his employment at Choice. Respondent was employed at Choice during the 2013-2014 school year.2/ Therefore, the alleged illicit material and inappropriate comments that allegedly occurred at Edwins could not have taken place "over the course of the last three years," as alleged in the November 14, 2017, letter. Notwithstanding the fact that none of the alleged “Edwins events” could have taken place over the past three years as alleged, the School Board presented no testimony or documentary evidence to prove the underlying fact that Respondent had “illicit material” in his desk while employed at Edwins. In fact, there was no testimony at all concerning this alleged prior discipline. Mrs. Williams’ email attached to her Formal Complaint states that the alleged harassment "has gone back to Edwins Elementary nearly 8 years ago." In fact, Mrs. Williams first met Respondent at least seven years before she filed her Formal Complaint against Respondent referenced in this case. When they first met, Respondent worked with the in-school suspension and student training programs at Edwins and her son attended Edwins. Mrs. Williams was a volunteer with the parent-teacher organization. Her duties as a volunteer included fundraising. Mrs. Williams described her initial relationship with Respondent as a casual friendship. Mrs. Williams kept her parent-teacher organization materials in his office and would often call him to gain access to those materials. A self- described “hugger,” while at Edwins, Mrs. Williams used to initiate hugs with Respondent and others. Although not a part of the allegations against Respondent, the evidence shows that, on one occasion, while at Edwins, Respondent asked Ms. Williams “was [she] ever into blacks." Mrs. Williams responded, “No” and that she was married. Respondent asked if she knew anybody who was into blacks because he had a friend who was into “white chicks.” Mrs. Williams told him that she knew a secretary at Choctaw who dated “black guys.” There is no indication that Mrs. Williams considered this conversation with Respondent as offensive or harassment. Mrs. Williams’ email attached to her Formal Complaint alleges that, while at Edwins, Respondent made inappropriate comments to her about her body, parts of her body, the way her clothes fit and asked to photograph parts of her body. Mrs. Williams testified that she was dismayed by his comments but never told Respondent to stop or leave her alone. Regarding Respondent’s alleged request to photograph her, Mrs. Williams testified that he made the request only once; she shook her head "No," but did not verbalize any protests and walked away. Mrs. Williams also alleges that while working at Edwins, Respondent made her aware that he was interested in her by his eye gestures and other nonverbal cues, as well as sometimes saying “whoa” when he walked by her. Respondent denies making gestures or statements indicating that he was sexually interested in Mrs. Williams. There is no indication that Mrs. Williams ever told Respondent to stop his alleged behavior or that she reported the incidents at the time. Mrs. Williams does not recall whether she reported Respondent’s alleged comments or request to photograph her to anyone at the time. Respondent denies the allegations. No witnesses were called to corroborate Mrs. Williams' allegations, and Mrs. Williams testified that she could not “attest” to anyone who could corroborate her allegations. In her testimony, Mrs. Williams explained the reference in her email attached to her Formal Complaint about the occasion at Edwins when Respondent allegedly told her to “move over mom” after she had introduced her daughter. She testified that Respondent’s statement was very offensive and sexual in nature because she believed that Respondent was saying that he liked her but now that he saw her daughter “[he was] going to go after [her] daughter.” Mrs. Williams further testified that she believed that the incident was a reportable offense because her daughter was a minor at the time, but that her daughter did not want to report and she did not file a formal complaint. Mrs. Williams testified that that Respondent had referred to her by nicknames such as “baby,” “baby girl” and “sweetie,” which she found unprofessional and made her feel uncomfortable. While there is evidence that Respondent has used the term “baby girl” in his vernacular, he explained that he used the term as just another way for saying “how you doing.” Respondent explained in his testimony that it was just “[a]nother saying for saying hey, shortie, like they say. So you say, hey, baby girl, how are you doing today?” The context of Mrs. Williams' testimony on this point suggests that Respondent used the nicknames for Mrs. Williams while they were both at Edwins. There is no evidence, however, that Mrs. Williams reported these instances at the time. There is also no evidence that Mrs. Williams ever told Respondent not to call her nicknames, or that she reported Respondent’s use of nicknames. Remarkably, Mrs. Williams’ Formal Complaint does not even mention that Respondent called her by nicknames. Despite the allegations against him, there is no evidence that while at Edwins, or at any other time, Respondent asked Mrs. Williams for a date, out for drinks, suggested that they have sex, touched her inappropriately, talked to her on the phone outside of school, or interfered with Mrs. Williams’ ability to perform her volunteer duties or responsibilities. The allegations against Respondent, while he was at Edwins, do not fall within the “course of the last three years” as alleged in the charging document (the November 14, 2017, letter) and are, therefore, inconsistent with the reasons espoused by the School Board for the discipline sought in this case. Moreover, considering the fact that Mrs. Williams’ allegations against Respondent while he was at Edwins were not timely reported, that her allegations were uncorroborated, drew no protest from Mrs. Williams at the time, and were denied by Respondent, it is found that the evidence is insufficient to show that Respondent harassed Mrs. Williams, sexually or otherwise, while at Edwins. In sum, the evidence presented at the final hearing was insufficient to prove that Respondent made “repeated inappropriate comments,” which led to “coworkers feeling harassed” while he was at Edwins. The evidence also failed to show that Respondent was transferred because of those comments or because illicit material was found in his desk. LATE 2014 ALLEGATIONS OF UNWANTED SEXUAL BEHAVIOR CONSTITUTING SEXUAL HARASSMENT LEADING TO RESPONDENT’S DEMOTION AND TRANSFER FROM LEAD CUSTODIAN TO A CUSTODIAN AT CHOCTAW This allegation, as set forth in the November 1, 2017, letter from the assistant superintendent, refers to allegations of sexual harassment that occurred in 2014 when Respondent was a lead custodian at OTC, which is in the same facility as Choice. In 2014, Respondent began working at Choice as a lead custodian. The allegations arising from Respondent’s time at Choice are not included within Mrs. Williams’ Formal Complaint. The School Board presented no testimony or competent substantial evidence to prove the underlying facts that Respondent committed “unwanted sexual behavior constituting sexual harassment” while at Choice. Respondent testified concerning this alleged prior discipline, acknowledging that he allowed a teacher at Choice to listen to some rap music, that he used the term “baby girl,” and that the School Board considered the use of the term “baby girl” a form of sexual harassment. Respondent denied, however, that he engaged in inappropriate conduct or sexual harassment. Respondent testified that he accepted a transfer as a lead custodian at Choice to a Custodian II position at Choctaw. He further testified that he was advised by the School Board that he would be transferred back to a lead custodian when a position became available. The School Board presented its Exhibit P-8a as evidence of this alleged prior discipline, which was ultimately proffered and “admitted” as a proffered exhibit (Proffer P-8a). Upon reconsideration, while it lacks evidentiary value, Proffer P-8a is received into evidence. Proffer P-8a, entitled “Confidential Inquiry Summary,” is an investigative report purportedly authored by Arden E. Farley, as a contract investigator for the School Board. Proffer P-8a does not prove the underlying facts and does not constitute competent evidence in support of the discipline sought against Respondent in this case. No witnesses were called to prove the underlying discipline related to Respondent’s alleged demotion. Furthermore, Proffer P-8a is hearsay and does not corroborate direct testimony or any other competent evidence. Because Proffer P-8a references Respondent’s alleged use of the term “baby-girl,” the School Board, through counsel, argued that Proffer P-8a is evidence that Respondent was aware that the use of the term “baby-girl,” or similar terms, was improper and could subject him to discipline. This conclusion is contrary to the evidence presented at the hearing. Although Mrs. Williams testified that Mr. Hall used the term during their time at Edwins, Respondent and Mrs. Williams were at Edwins prior to Respondent’s time at Choice. Thus, Proffer P-8a could not have put Respondent on notice that it was inappropriate for him to refer to Mrs. Williams as “baby-girl” while at Edwins. There is otherwise no competent evidence that Respondent referred to Mrs. Williams, or any other complainant, as “baby-girl” or any other nickname while at Choctaw. ALLEGED HARASSMENT OF A SCHOOL VOLUNTEER AND FAILURE TO FOLLOW DIRECTIVES NOT TO ENTER THE SCHOOL FRONT OFFICE AT CHOCTAW Harassment is governed by the School Board’s equity policy. Respondent acknowledged that he received a copy of the then existing Equity Policy in 2009. No evidence was presented as to what the Equity Policy consisted of in 2009. The Equity Policies presented at the final hearing reveal that two of the policies were adopted in 2015 and a third Equity Policy was adopted at the December 11, 2017, School Board meeting; the same School Board meeting where the superintendent’s recommendation to terminate Respondent was considered and approved. The alleged harassment of a school volunteer while at Choctaw appears to include encounters at football games, in the front office, and one time at Mrs. Williams’ home. Football Games The testimony at hearing revealed that Mrs. Williams was complaining about two encounters with Respondent at football games. Respondent’s duties at Choctaw required him to be present at football games. During the first encounter, Mrs. Williams and her son were in the stands watching a Choctaw football game. There is a fence that divides the stands. Respondent was on one side of the fence and he attempted to initiate a conversation with Mrs. Williams and her son. Respondent was saying “hello.” Mrs. Williams ignored Respondent and no conversation was undertaken. The second encounter occurred prior to a Pryor Middle School football game, which was taking place at Choctaw. Mrs. Williams, accompanied by her son, was setting up a parent- teacher organization table, and Respondent approached her and her son and initiated a conversation with her son. Mr. Hall knows Mrs. Williams’ son from his time at Edwins. Towards the end of the brief conversation, Respondent asked Mrs. Williams if he could speak with her for a “hot minute.” Mrs. Williams glared at him and then said “no,” and Respondent went about his way. Respondent presented credible testimony that a “hot minute” is slang for “a second” or “just for a minute.” There was no other evidence concerning the term “hot minute.” Front Office The email attached to Mrs. Williams’ Formal Complaint states that Respondent’s “approaching me at the front desk at Choctaw began to be a habit for Steve Hall.” The email further states that Mr. Hall was in the front office three times during the first month and a half of the 2017-2018 school year. In a separate email, Mrs. Williams documented an “encounter” that occurred on September 1, 2017. She does not indicate that Respondent had any contact with her, just that he was in the front office. In fact, on that occasion, Mrs. Williams turned her back to Respondent and Ms. Gloria Scaife, who was working in the front office, spoke with him. In an email, dated September 7, 2017, Ms. Scaife states that Respondent was in the office and asked her if she had seen Ms. Liz (who is the lead custodian). Respondent credibly explained that, on that occasion, he went to the front office to find his supervisor to obtain access to supplies. A second encounter in the 2017-2018 school year occurred in the mailroom. Mrs. Williams was in the mailroom when Respondent entered the room. Mrs. Williams testified that Respondent “cornered her in mailroom . . . that she couldn’t get around him . . . and that he was upset and very loud.” She further testified that she “could not move without touching [Respondent].” Mrs. Williams’ testimony conflicts with the other accounts of this encounter, which are more credible. Andy Snaith, dean of students for Choctaw, testified that there were other people in the mailroom and that he observed “what appeared to be a conversation with [Respondent] and Mrs. Williams. [Respondent's] back was to me. I believe he was doing the talking . . . .” When asked for more detail, Mr. Snaith stated: Q: And with other people in the mailroom, was there enough room, based on what you saw from Mrs. Williams, to back away from Mr. Hall? A: Yeah. It wasn't that crowded. Q: So there was plenty of room for her to move around? A: Yes. Q: Any idea what they were talking about? A: No. Q: How would Mrs. Williams get out of the mailroom, if she wanted to leave? A: There's two ways, I believe where she was standing, she could have gone to the left or to the right. The left is where the door that leads into the hallway, and then the other one leads to the main office. Consistent with the recollection of Mr. Snaith, Respondent testified that upon being told by Mrs. Sanders that Mrs. Williams was telling others that he was saying things to Mrs. Williams, he went to the office to ask Mrs. Williams if this was true. Respondent further testified: I asked [Mrs. Williams], calm and simple, [Mrs. Williams], have I talked to you, have I seen you? She said, no, I haven't seen you in three, four months. I said, that's all I wanted to know, because Liz is making a comment that I have said something to you and that was not true, and I walked away. It is unclear from the testimony as to exactly when this conversation took place, other than sometime early in the 2017-2018 school year. It is clear, however, that that occasion was the last time that Respondent was in the front office area at Choctaw. In her testimony, Mrs. Williams stated that she was not alleging or asserting that Mr. Hall had committed racial discrimination, nor that he made adverse remarks about her color, age, religious beliefs, ethnic origin, or marital status. And Mrs. Williams does not allege that Respondent made any comments about her body parts, the way her clothing fit, or asked to take photos of her while he was at Choctaw. Rather, those allegations allegedly occurred while Respondent was at Edwins, were unreported for years and could not be corroborated. There is no evidence that Respondent ever told Mrs. Williams to perform any improper act and then threatened her with consequences if she failed to comply. There is also no evidence that Respondent ever had authority to make employment decisions affecting Mrs. Williams. Mrs. Williams’ House Respondent first met Mrs. Williams prior to the time related in any of the allegations, when he went by her house to inquire about some tire rims that her husband had for sale. Mrs. Williams testified that in the summer of 2017, two weeks prior to the start of school, Respondent came by her house and parked at the curb. Her son alerted her that Respondent wanted to talk to her. She testified that she was upset because Respondent was there and she spoke with Respondent while he sat in his car. She could not recall what was discussed, but knows the conversation lasted only a couple of minutes, and that she then turned around and walked away.3/ Mrs. Williams stated that Respondent had been by her home on several different occasions but could not elaborate on any other incidents. Respondent acknowledged that he had gone by Mrs. Williams’ house because he does lawn service and was riding by her house. As he recalled, he noticed her son in the yard and asked him to get Mrs. Williams. Respondent and Mrs. Williams had a brief conversation. At no time during that conversation, or any other conversation, did Mrs. Williams tell Respondent to “stay away,” “leave me alone,” or make any other gesture or comment indicating that Respondent was to avoid her. Further, there is insufficient evidence to show that anyone from the School Board told Respondent to avoid contact with Mrs. Williams. Alleged Failure to Follow Directives Respondent acknowledged that shortly after starting at Choctaw, he had been verbally advised to avoid the front office. Mr. Mims, the School Board’s zone manager for custodial services, was the first person to advise Respondent to stay away from the front office. The Dean of Students Andy Snaith never told Respondent to avoid the front office. Even though told not to go to the front office, Respondent had to go by the front office every day. In that regard, Mr. Mims told Respondent that they could not keep him out of the school. Although Respondent understood that the request that he refrain from going to the front office may have been designed to minimize his contact with Mrs. Williams, there was no evidence or testimony presented by the School Board showing that Respondent was ever specifically told to avoid Mrs. Williams or why he was supposed to avoid the front office. Mr. Mims testified that he told Respondent to avoid the front office twice. He further testified that he was aware of Respondent being in the front office only three times over the course of three school years. When finding out about these situations, instead of having a face-to-face meeting, Mr. Mims would merely call Respondent on the phone. Respondent acknowledged going to the front office only twice in 2017, the first being while looking for Mrs. Sanders and the second being the conversation with Mrs. Williams when she was in the mailroom. There is no evidence of a written directive or other documentation advising Respondent to avoid the front office until a September 18, 2017, meeting between Respondent, Bill Smith, and Andy Mims. At that meeting, which was the first meeting between Mr. Smith and Respondent, Respondent was specifically advised to not go into the front office. Respondent has not been in the front office, nor has Bill Smith received a report that Respondent has been in the front office since their meeting in September 2017. Even though there were two instances where Respondent went to the the front office after speaking with Mr. Mims, Mr. Mims testified that while Respondent worked for him, he “met expectations as an employee.” Mr. Mims further testified that Respondent “did everything I asked him to do.” Mr. Mims statements are consistent with his written evaluations of Mr. Hall’s work performed in May 2017, May 2016, May 2015, and May 2014. The stated purpose of the evaluations is to “support decisions concerning employee discipline, promotion and improvement.” Respondent’s evaluations during the pertinent time period do not support the discipline sought in this case. To the contrary, they conclude that he is a hard worker and that he meets the expectations of his supervisors. Even when he allegedly received prior discipline while at Choice during the 2014-2015 school year, Respondent was not placed on a “success plan” for improvement and, in fact, received a “meets expectations” evaluation. The evaluations written by Respondent’s supervisors conclude that Respondent “Demonstrates a willingness to accept authority and direction; Demonstrates appropriate interactions with staff, clients, students and/or parents; Demonstrates appropriate oral skills when communicating with others; [and] Demonstrates appropriate relations with supervisor and peers.” Recognizing that there were issues at Choctaw unrelated to Mrs. Williams, Respondent requested transfers to another school. These transfer requests began during the 2016-2017 school year and continued during the beginning of the 2017- 2018 school year. Even though there were positions available in the schools where Respondent desired to transfer, his supervisor, Mr. Mims, denied Respondent’s requests for transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Okaloosa County School Board: Dismissing the allegations against Respondent in this case and rescinding any discipline imposed thereby; Reinstating Respondent’s employment with the Okaloosa County School Board as though there was no break in service of his employment; Restoring all salary, benefits, and rights from the date of his last paid workday to the date of his reinstatement, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law; less any earnings or benefits that Respondent received during the time between his termination and the time of his reinstatement. DONE AND ENTERED this 9th day of November, 2018, 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 9th day of November, 2018.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent Susan L. Duerson was employed by Petitioner Miami-Dade County School Board as a School Clerk II, a position classified as an educational support employee pursuant to Article XXI, Section 3, of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade (the collective bargaining agreement). Respondent was initially employed by the School Board on November 15, 1996, as a part-time "skilled clerical" employee and assigned to Homestead Middle School. On November 10, 1997, Dr. Antonio T. Fernandez, the principal of Neva King Cooper Educational Center (hereinafter "NKC"), hired Respondent on a full-time basis as a School Clerk II. NKC is a special education center which serves profoundly mentally handicapped students. Because of their condition, many of the students at NKC are medically-fragile and require specialized attention. As a School Clerk II, Respondent was required, among other things, to maintain a wide variety of documents, forms, reports, evaluations, and business correspondence. As part of her duties, she was also responsible for maintaining attendance records; scheduling meetings, conferences and appointments between parents and instructional staff; and arranging bus transportation for the students at her school site. Approximately two months after being hired at NKC, Respondent suffered a stroke while hospitalized for kidney stones. From January 12, 1998, through June 19, 1998, Respondent was on medical leave due to a variety of health problems. Although Respondent was not eligible for an extended leave of absence due to her brief employment at NKC prior to her stroke, Dr. Fernandez, along with district administrators, approved Respondent's request for an extended leave of absence. On April 14, 1998, Respondent's treating physician notified Petitioner's Office of Professional Standards that Respondent was capable of performing most of her duties, but that as a result of her stroke, Respondent could not climb, could not grasp, and did not have finger dexterity of her right hand. Respondent also had difficulty remembering the daily tasks and duties that she was required to perform. On June 20, 1998, Respondent returned from her leave of absence and began working at NKC. Because of her physical limitations resulting from her stroke, Respondent sought accommodations from Petitioner in order to fulfill the essential requirements of her job. These requests were presented to Petitioner's District Consultative Committee. The Committee made recommendations in an attempt to provide Respondent with reasonable accommodations. On October 28, 1998, Petitioner approved several accommodations to assist Respondent in fulfilling her responsibilities, including providing a "Wanchik's writer," a "slip-on typing aid," a "day-timer," and a hand-held tape recorder. The tape recorder was provided to Respondent so that she could accurately copy messages for their intended recipients and track her assignments as Respondent frequently was unable to remember them. Respondent was given written instructions for assignments that were not routine in nature, was given the assistance of another employee in removing and replacing files for Respondent's use, and was allowed to leave work early three times a week so that she could attend physical therapy. Respondent's work performance, upon returning from her leave of absence and despite the accommodations provided to her, was unsatisfactory. Assignments were not completed in a timely fashion and were not accurately documented. For example, notices to parents were sent late and with the wrong student's information on them. On December 14, 1998, almost six months after returning from her leave of absence, Respondent was formally observed by her principal. Her work was found to be deficient in the areas of knowledge, quality of work, efficiency, dependability, judgment, attendance, and punctuality. During the December 14 observation, it was noted that Respondent failed to timely schedule conferences, failed to complete assigned tasks, and was unable to correctly process and prepare records required by her work site. Respondent's work was also found to be deficient with respect to her attendance data collection duties. Schools are required by law to maintain accurate attendance records. When they fail to do so, a school can loose funding. Due to Respondent's inability to maintain accurate attendance records, NKC lost funding for some of its programs. Respondent was also found to have problems correctly scheduling transportation for some of the students at NKC. At times, students would not be picked up as the necessary transportation was not requested by Respondent although she was required to do so. Respondent also had difficulty maintaining accurate records for students in the Exceptional Student Education program, particularly with regard to scheduling meetings with parents, staff members, and psychologists. Due to her unsatisfactory rating on December 14, 1998, Respondent was issued an interim evaluation which rated her as unsatisfactory for the 1998-99 school year. On January 11, 1999, a conference-for-the-record was held with Respondent to address her non-compliance with site directives, her unsatisfactory interim evaluation, her prescription for improvement of those deficiencies noted in the interim evaluation, and her future employment status with Petitioner. She was informed that her failure to correct those deficiencies would result in disciplinary action. On April 22, 1999, another conference-for-the-record was held with Respondent to address her non-compliance with site directives and to review her performance to date, together with the status of her prescription and her future employment. She was advised of her continuing failure to complete her duties in a satisfactory and timely manner. Respondent was issued a new prescription for improvement of her performance, which was based upon her supervisor's observations of her performance since Respondent's prior formal observation on December 4, 1998. She was advised that the prescriptive activities assigned to her must be completed by the agreed-upon deadlines and that her failure to remedy her deficiencies would lead to disciplinary action, including dismissal. By the time of the April 22 conference, Respondent had been working at NKC for ten months, exclusive of the period of time that she had been on a leave of absence. Nonetheless, she was still exhibiting the same or similar deficiencies that had been noted in her first evaluation. After student records could not be located at the school due to Respondent having taken them home, she was issued a written directive on May 10, 1999, ordering her not to remove permanent student records from the school site. Respondent had previously been directed not to take student records to her home but had disregarded that directive. Accordingly, the May 10 directive advised Respondent that failure to comply with the directive again would be considered an act of insubordination and might lead to further disciplinary action. On May 11, 1999, Respondent was reminded of the accommodations that had been provided her in order that she could perform the duties of her position in an effective manner. Although Respondent was allowed to leave early to attend physical therapy sessions and was provided the assistance of office personnel in removing and replacing files, her supervisor noted that Respondent--of her own volition--had not taken advantage of many of the accommodations provided by her work site. Respondent admitted that she had not taken the adaptive devices that had been purchased as part of her accommodations to her physical therapist, who was to have these devices adjusted so that they fit her properly. Since Respondent's performance had not improved, and since Respondent repeatedly made the same mistakes, her principal urged her to take advantage of the accommodations provided her. After Respondent's excessive absenteeism began to have a detrimental effect on her work, on May 21, 1999, Respondent was issued a written directive advising her of her failure to maintain appropriate attendance and requiring Respondent to notify her work site of her employment intentions, i.e., whether Respondent was going to return to work or take another leave of absence. As of that date, she had accumulated over forty absences. On May 25, 1999, Respondent met with the principal and requested a second leave of absence. She and her doctor believed that she needed to take a leave of absence until May 10, 2000, due to the alleged stress brought on by her duties. Respondent was still on prescription for improvement of her performance at the time she took a second medical leave of absence effective from May 10, 1999, through May 9, 2000. On May 9, 2000, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her medical fitness to return to duty, to review her employment history, and to address her future employment status with Petitioner. Due to her prior medical history, including her having fallen at her work site on two occasions, she was required to show that she was medically fit to return to her regular duties. At the May 9 conference, Respondent's medical fitness was addressed. Respondent's doctor had cleared her to return to work and advised that Respondent's only limitation was that she could only type with one hand on a left-handed keyboard. The Office of Professional Standards cleared Respondent to return to work. At the conference, Respondent was advised that her prescriptive status would be removed so that she could start anew but that her performance would continue to be monitored throughout the school year. She was directed to maintain regular attendance and was told that all intended absences must be communicated to her principal or his secretary. She was also advised that all absences for illness must be documented by her treating physician. She was informed that her non-compliance with the directives issued at this conference would lead to disciplinary action. On June 8, 2000, approximately a month after she returned from her second leave of absence, a meeting was held with Respondent to address numerous errors she committed while performing her daily tasks. She was advised that she had lost certain records and had failed to properly notify parents of conferences involving students in the exceptional student education program. She was reminded that her failure to properly notice these conferences could expose the school district to liability. In order to assist Respondent to improve her performance and to insure that errors would not continue to occur, she was directed to meet with the assistant principal on a daily basis. On June 20, 2000, Respondent was provided with additional accommodations to assist her in performing her duties. She was advised that a left-handed keyboard would be purchased for her, that she would continue to be provided the assistance of another employee to remove and replace files for her, that she was to continue tape-recording her assignments as a reminder to herself of the tasks that she must complete, and that she would continue to receive written instructions with regard to non-routine assignments. On July 14, 2000, another tape recorder was purchased for Respondent since the one previously issued to her had been lost. She was also issued a new day-timer calendar to keep track of her daily assignments. Over a year after her previous evaluation, on July 27, 2000, Respondent was formally evaluated and was again found to be unsatisfactory in the categories of quality of work, efficiency, and dependability. She was issued a new prescription to assist her in improving her performance. She was required to keep a log of her files since she continued to lose documents and had, by this point, lost a complete file. As a result of her unsatisfactory evaluation, on July 27, 2000, a conference-for-the-record was held with Respondent to address her performance, her interim evaluation, and her future employment with Petitioner. She was advised of her continued inability to perform her daily duties and that her failure to improve would lead to disciplinary action. On September 20, 2000, a conference-for-the-record was held to address Respondent's performance, to review the prescriptive activities assigned to her during the conference held on July 27, and to address her future employment. By the time of that conference, more than four months after Respondent had returned from her second leave of absence, her work performance had not improved. During the September 20 conference, Respondent was advised of her continuing failure to correctly input student attendance information and to provide adequate and timely notice of parent conferences. She was also reminded of the importance of using her school-issued tape recorder in order for her to minimize mistakes and to accurately process information. In order to assist her in improving her performance and in completing her prescriptive activities, the deadline for completing the prescription was extended to October 27, 2000. On October 23, 2000, Respondent was given written notice of her repeated failure to properly send parental notices of conferences and "staffings." She was directed to rectify these deficiencies and to continue to meet with the assistant principal for further assistance. She was advised that if she needed additional assistance, it would be provided to her. On November 16, 2000, another conference-for-the- record was held with Respondent to address her performance and to review the status of the prescription that had been issued at the conference-for-the-record held on July 27. She was advised of her continued deficiencies, which included incorrectly inputting attendance dates, improperly responding to administrative requests, improperly dating time-sensitive material, and failing to give adequate parental notice for school "staffings." She was also issued an addendum to the July 27 prescription. Respondent was further advised that she had failed to complete the prescriptive activities that had been previously issued but that in another effort to assist her, the deadline for completing those activities would be extended to January 12, 2001. Respondent was further advised that her failure to overcome her performance deficiencies would lead to disciplinary action. Respondent acknowledged the support and assistance that the office staff had given her and thanked the principal for all of his support. On December 1, 2000, Respondent, after failing to provide timely notice of a conference with a parent and failing to provide notice of a meeting with another parent, was again reminded by the assistant principal that part of her duties was to provide adequate and timely notice of staff conferences with parents. On December 12, 2000, Respondent was notified in writing that she had failed to complete the prescriptive activities that had been assigned to her on July 27 and amended on November 16. Among other things, Respondent had failed to keep a log of her files and had failed to notify staff and parents of scheduled meetings. Respondent had still failed to make use of her tape recorder. On January 16, 2001, a conference-for-the-record was held with Respondent to address her performance and to review the status of her prescriptive activities and her future employment status. She was advised that her performance had not improved and that her repeated failure to complete her prescriptive activities despite three extensions of time was considered insubordination. Respondent was also advised that her failure to improve her overall performance mandated a recommendation for disciplinary action, which could include dismissal. On March 8, 2001, a conference-for-the-record was held with Respondent at the Office of Professional Standards to address her performance, her non-compliance with site directives, and her professional responsibilities. She was advised that although she had been on prescription for a significant portion of the year, she had failed to correct her deficiencies and improve her performance. As a result of her continuing unsatisfactory performance, she was advised that a recommendation for disciplinary action, including dismissal, would be submitted to the School Board. On March 22, 2001, Respondent's principal recommended that due to her inability to complete her prescriptive activities or to correct her performance deficiencies in spite of continuous support and assistance at the work site, her employment by Petitioner should be terminated. After she continued to accrue excessive and unauthorized absences, on May 9, 2001, Respondent was again reminded of prior directives that she report to work on a regular basis; that if she was to be absent, she needed to communicate that fact to school administrators; and that Respondent provide documentation for any absence alleged to be related to illness. She was also advised that her excessive absenteeism and her repeated failure to comply with administrative directives regarding her absences would lead to disciplinary action, including dismissal. On June 20, 2001, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and initiate dismissal proceedings against Respondent for just cause.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension, denying any claim for back pay, and dismissing Respondent from her employment by the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 3rd day of April, 2002, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 3rd day of April, 2002. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Susan L. Duerson 15601 Southwest 137th Avenue, No. 306 Miami, Florida 33177 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308
The Issue The issues in this case are whether Respondent violated subsections 1012.795(1)(d), (g), and (j), Florida Statutes,1/ and Florida Administrative Code Rule 6B-1.006(3)(a), (e) and h), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent holds Florida Educator’s Certificate 697708, covering the areas of Health, General Science, and Physical Education. Respondent’s Educator’s Certificate is valid until June 30, 2013. At all times pertinent to this action, Respondent was employed as a science teacher at Pensacola High School in the Escambia County School District. He also coached football and the girl’s weightlifting team at Pensacola High School. During the 2010-2011 school years, which began in August 2010, Respondent’s science classes had a total enrollment of approximately 120 students. One of his students was Y.F., a 14- year-old female ninth-grade student, who attended Respondent’s second-period science class which met every school day. Respondent has two children, a daughter and a son. In the fall of 2010, Respondent’s daughter was six years old and his son was 14 and in the ninth grade. During the time period from October 1 through October 8, 2010, approximately 340 text messages were exchanged between Respondent and Y.F. The frequency of the text messages was inappropriate. In addition, the timing and content of a number of those text messages from Respondent to Y.F. were inappropriate. Y.F. and her mother gave Respondent Y.F.’s cellular telephone number so that Respondent could provide Y.F. with information regarding the girls’ weightlifting tryouts and tutoring. While some of the texts exchanged between Respondent and Y.F. between October 1 and 8, 2010, involved the subject of tutoring, the girls’ weightlifting team, and an in-class review activity, many involved non-school-related matters. Respondent admits that texting Y.F. hundreds of times was inappropriate. The frequency of texts exchanged between Respondent and Y.F. included: 24 texts on Friday October 1, 2010, between 5:13 p.m. and 11:00 p.m., 12 of which were from Respondent; 58 texts on Saturday, October 2, 2010, between 9:04 a.m. and 11:02 p.m., 35 of which were from Respondent; 88 texts on Sunday, October 3, 2010, between 12:02 p.m. and 11:57 p.m., 51 of which were from Respondent; 26 texts on Monday, October 4, 2010, between 7:18 a.m. and 11:18 p.m., 15 of which were from Respondent; 52 texts on Tuesday, October 5, 2010, between 10:42 a.m. and 11:10 p.m., 32 of which were from Respondent; 40 texts on Wednesday, October 6, 2010, between 9:15 a.m. and 11:52 p.m., 28 of which were from Respondent; 40 texts on Thursday, October 7, 2010, between 5:24 p.m. and 11:31 p.m., 27 of which were from Respondent. Y.F. provided sworn testimony during Respondent’s Termination Hearing held March 15, 2012, regarding some of the text messages that she received from Respondent.2/ When Y.F. was asked whether she felt that the 88 messages on Sunday were bothersome, she testified, “A little, yes.” When asked whether some of the words Respondent chose in his text messages were inappropriate, Y.F. testified, “Yes, some.” Those responses by Y.F. are credited. In one of the text exchanges between October 1 and October 8, 2010, Respondent responded to a chain text message that Y.F. sent to her cell phone contacts list, including Respondent. It contained the survey question, “explain [describe] me in one word,” and provided a list of answers to choose from, one of which was the word “sexy.” In response, Respondent selected the option “sexy” and sent this answer to Y.F. In her testimony at Respondent’s Termination Hearing, Y.F. credibly testified that she found Respondent’s use of the word “sexy” in responding to the survey message was “kind of a bother.” When asked whether she felt as though Respondent was “coming on” to her, Y.F. testified, “I mean in a way, yes, but in another way I was like I just brushed it off.” Y.F. further testified that she was Respondent’s student at the time of the messages and did not feel awkward in class with Respondent. Nevertheless, Respondent’s message was inappropriate and Y.F. perceived that it was not right. In that same time frame, between October 1 and 8, 2010, Respondent responded to another text message from Y.F. received through her group distribution. This time, the message contained a survey question from Y.F. that asked, “would you bang or pass?” to which Respondent responded, “bang.” While Y.F. does not remember receiving Respondent’s message, she acknowledged that the group distribution message could have gone out. Respondent admitted that he sent the “bang” message to Y.F., that the message had a sexual connotation, and that sending the message to a 14-year-old female student was wrong. A review of the timing and content of some of the actual text messages retrieved from the cell phones belonging to Respondent and Y.F. further reveal the inappropriate nature of Respondent’s text communications with Y.F. Of the text messages exchanged on Wednesday, October 6, 2010, which was a school night, Respondent texted Y.F. at 11:03 p.m., “Sweet dreams.” On Thursday, October 7, 2010, at 5:41 p.m., also a school night, Respondent texted Y.F. the message, “going to game.” She responded at 5:42 p.m., “No, no money.” At 5:43 p.m., Respondent texted Y.F., “Next time ask me 4 some.” At 5:44 p.m., Y.F. replied, “Idk, I don’t like asking.” At 6:12 p.m., Respondent persisted by texting, “just ask next time.” At 6:13 p.m. Y.F. responded, “Idk maybe.” Then, at 6:15 p.m., Respondent texted, “can u call me?” At 6:15 p.m., Y.F. texted back, “I don’t call till after 9.” Respondent responded at 6:27 p.m., “okay @ you call me later,” to which Y.F. responded by texting, “Kk.” Later that same evening, Thursday, October 7, 2010, at 10:42 p.m., Y.F. texted Respondent, “Hey.” Respondent texted back at 10:44 p.m., “what u up 2.” At 10:45 p.m., Y.F. replied, “just layin down.” Respondent immediately texted back at 10:45 p.m., “sexy.” Seven minutes later, at 10:52 p.m., Respondent texted Y.F., “just want to chat.” He then texted, “I meant txt.” Y.F. texted back at 10:53 p.m., “Ok.” Respondent texted to Y.F. at 10:55 p.m., “I need 2 talk 2 u bout ur make up work?” Y.F. responded by texting, “what about it.” Respondent texted back at 10:58 p.m., “well I was jus gonna tell u not 2 worry bout it.” Y.F. texted right back, “Really?” At 10:59 p.m., Respondent replied, “yeah.” Y.F. texted back, “Thanx.” Respondent replied at 11:00 p.m., “u r welcome.” After that, beginning at 11:02 that same evening, October 7, until after midnight, October 8, 2010, Respondent engaged in a monologue by texting Y.F. a series of unanswered text messages, as follows: 11:02 p.m., Respondent to Y.F.: “wish I could talk 2 u for a sec.” 11:02 p.m., Respondent to Y.F.: “can I call U?” 11:04 p.m., Respondent to Y.F.: “?” 11:08 p.m., Respondent to Y.F.: “hello” 11:11 p.m., Respondent to Y.F.: “Ok we will just text” 11:14 p.m., Respondent to Y.F.: “do you want me to stop texting u?” 11:18 p.m., Respondent to Y.F.: “I’m sorry! nite” 11:25 p.m., Respondent to Y.F.: “if you do chahge [sic] your mind & decide 2 txt me its ok Im at Walmart getting candy for our game that were playing 2 morrow” 11:27 p.m., Respondent to Y.F.: “What kind of chocolate candy is ur favorite” 11:31 p.m., Respondent to Y.F.: “I will be out 4@ least another hour if u want 2 txt or email” October 8, 2010 (after midnight) 12:08 a.m., Respondent to Y.F.: “what kind of chocolate u want” 12:25 a.m., Respondent to Y.F.: “Hey I guess u gone to sleep I got u some choc c u 2 morrow” In his testimonies, including his Termination Hearing, his deposition taken in this case, as well at the final hearing, Respondent tried to justify his texts to Y.F. by explaining that the text messages with Y.F. between 10:55 p.m., October 7, and 12:35 a.m., October 8, 2010, concerned Y.F.’s make-up assignment and chocolate candy he was purchasing for an in-class review game in preparation for a test. He admitted, however, that it was inappropriate for him to be texting with Y.F. late in the evening. He also admitted that he did not text any other student to ask about what candy they liked. When asked in his deposition why he was texting a 14- year-old ninth grade student after midnight asking her what kind of chocolate she wants, Respondent testified: I wish I knew the answer to give you for that. I don’t know. I don’t know why I did a lot of the things that I did during that time period. Out of 22 years of teaching, I’ve never done anything remotely close to that. Why I did it then, I don’t know. I deeply regret it. If I could take it back, I would. Although there is no evidence that he ever told her, Respondent thought Y.F. was pretty, or even beautiful. He told her that she was his favorite student —- that every year he had a favorite, and this year it was her. Even prior to the period of high-frequency texting, Respondent initiated a non-school related contact with Y.F., this time offering Y.F. cake. On Sunday, September 27, 2010, Respondent’s wife and two children took Respondent to lunch at a local restaurant to celebrate his birthday that had occurred the day before. His wife bought him a birthday cake and brought it to the restaurant. It was a yellow pound cake with white icing. After lunch, Respondent went to a coaches’ meeting and took the cake with him. At some point, Respondent had a telephone conversation with Y.F. during which Respondent asked Y.F. if she would like to have some of his birthday cake. Y.F. told Respondent that she would. Respondent already knew where Y.F. lived. He told Y.F. that he would drop off the cake on his way home. When Respondent left the coaches’ meeting, he drove to Y.F.’s home in his truck. He did not get out of his truck. Rather, Y.F. met him at his truck. Respondent rolled down his driver’s-side window. According to Respondent, he said, “Hey, how are you doing? Here’s the cake.” He testified that he then handed Y.F. the cake, she said “Thank you,” and he then immediately drove away. Respondent could have taken the cake home to his family or to school the next day to share it with his other students. Instead, Respondent decided to use the cake as an excuse to meet with Y.F. When asked in his deposition why he took the cake to Y.F. instead of bringing it home to his family, he had no excuse. Respondent answered: I don’t know why. You know, thinking back on it, that’s what I should have done. Why I didn’t, I don’t know. At the final hearing, regarding the fact that he had given his left-over birthday cake to Y.F., Respondent admitted: Looking back on it, it was inappropriate. I shouldn’t, again, it was something that I shouldn’t have done. It is found that, under the circumstances, rather than for the benefit of Y.F., Respondent used the cake as an excuse to see Y.F. for his own personal benefit. During the October 1 through 8, 2010, frequent-texting time period, Respondent again made arrangements to meet with Y.F. outside the school setting. Respondent knew that Y.F. liked certain types of sweets. He asked Y.F. if she had ever eaten cupcakes from a certain cupcake store located on Cervantes. He suggested to Y.F. that she should meet him there on a Saturday so that he could tutor her. Respondent and Y.F. never met at the cupcake shop for the contemplated tutoring session. The texting between Respondent and Y.F. came to an abrupt end on Friday, October 8, 2010, when Y.F. lost her cellular telephone early in the morning at school. Student E.M. found the telephone in a classroom during first period. After finding Y.F.’s cell phone, E.M. and another student, S.B., reviewed the text messages on the phone. They were offended by the texts they found from Respondent. The students called Respondent that Friday night, October 8, 2010, and placed him on speakerphone. During the call, student S.B. confronted Respondent regarding his text messages and called him a “filthy bastard.” The callers did not identify themselves and Respondent did not know whether he was speaking to adults or students. During the call, Respondent told the caller that he would pay if she would not tell or turn in the phone. S.B. said she wanted one hundred dollars. Respondent said that he only had fifty. At the final hearing, Respondent denied that he ever offered money in exchange for the phone. He admitted, however, that he arranged to meet the callers at a local convenience store, and then later at another location for purposes of obtaining the cell phone from the callers. At the final hearing, when asked whether he wanted to get the phone back so that nobody else would learn about the texts, Respondent testified, “Yes sir. Damage control so nobody else would call.” When further asked whether he wanted the phone back so that nobody else would know about it, Respondent testified, “Yes, sir.” Respondent also offered the inconsistent explanation during his testimony that he wanted to get the phone back so that he could turn it in to the principal at Pensacola High School. That testimony was not credible and is not credited. Rather, it is found that Respondent wanted to get Y.F.’s cell phone back so that his texts to Y.F. would not be further discovered. Respondent and the students with Y.F.’s phone arranged to meet at a convenience stored named “Trisha’s One Stop” to exchange the phone for money on Saturday. Respondent drove around that Saturday, October 9, 2010, but could not find the convenience store. He called the callers and suggested that they meet at the Brownsville Assembly of God Church in Pensacola. The girls agreed, but never went to the church. Respondent, however, went to the church and waited for some time. During the weekend of October 9 and 10, 2010, Respondent became despondent. He punched holes in walls at his home, banged his head against the wall, rolled around on the floor, and at one point grabbed a gun and threatened to harm himself. While some of this behavior might be attributed to marital distress he was experiencing at the time, apart from the allegations in this case, it is found that the primary reason for Respondent’s “bizarre” behavior that weekend was because of his guilt and concern he felt over the fact that the discovery of Y.F.’s cell phone would reveal his inappropriate communications with Y.F. According to Respondent, after waiting for some time at the church to meet with the callers and obtain Y.F.’s phone, he decided instead to turn himself into the principal of Pensacola High. He testified that, after meeting with another high school coach, he arranged to meet the principal during the weekend to report what had happened and turn in his own cell phone. Student S.B. turned in Y.F.’s cell phone to the Pensacola High School administration on Monday, October 11, 2010. Upon discovery of the text messages between Respondent and Y.F., the Escambia County School Board suspended Respondent from his teaching position, and on January 19, 2011, terminated Respondent’s employment with the Escambia County School District. Respondent challenged his termination by requesting arbitration on the issue of his dismissal. The outcome of that arbitration proceeding was pending as of the hearing in the instant case. Prior to the incidents that are the subject matter of this case, Respondent has had no discipline in his twenty-two years as a teacher, and neither of Respondent’s Florida nor Alabama teaching certificates has ever been disciplined. In addition, all of Respondent’s performance evaluations throughout his 22-year teaching career have been satisfactory or higher. Respondent’s former supervisor, Michael McMillian, wrote a recommendation and testified about Respondent’s excellent teaching performance, how students’ benefited from his teaching, and his good moral character. Mr. McMillian, however, was unaware of the allegations or facts of this case. There is no evidence that Respondent ever touched Y.F. Escambia County School Board asked Pensacola Police to investigate whether Respondent had violated any criminal laws. No criminal violations were found. However, according to Pensacola Police Detective Tarlanda Gooden, who conducted the investigation, based upon her experience as a sex crime investigator who has investigated numerous sex crimes, Respondent’s actions with minor female student Y.F. constituted “grooming” behavior for eventual sexual contact with Y.F. The undersigned agrees and further finds that Respondent’s grooming behavior towards Y.F. was for Respondent’s personal benefit. Based upon his review of materials from Respondent’s level-one grievance hearing, as well as his Termination Hearing, Dr. Alan Scott, Assistant Superintendent for Human Resource Services, was of the professional opinion that Respondent’s misconduct violated the statutory and rule provisions cited in the Administrative Complaint filed against Respondent in this proceeding. Dr. Scott’s opinion is based on thirty-two years of experience in the field of education in the State of Florida, where he has served as a teacher, coach, assistant principal, principal, county administrator for curriculum, instruction and discipline, and as assistant superintendent. While Dr. Scott’s opinion has not been used to supplant legal conclusions recommended herein, his opinion is credible and has been considered. In sum, as alleged in the Administrative Complaint, “Respondent engaged in inappropriate conduct towards fourteen year-old female student Y.F., in that from October 1, 2010, through October 8, 2010, Respondent exchanged approximately 340 text messages with Y.F. Several of Respondent’s messages were of a flirtatious and suggestive nature and included offering to pay Y.F.’s way to attend sporting events, offering to purchase [candy] for Y.F., and telling Y.F. that Respondent could be described as ‘sexy.’” Based upon the clear and convincing evidence reflected in the factual findings above, it is further found that Respondent’s behavior toward Y.F. was unacceptable and should not be tolerated from a licensed school teacher in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent, William Randall Aydelott, violated the provisions of subsections 1012.795(1)(d), (g) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a), (e) or (h), revoking Respondent's Florida educator’s certificate for a period of five years, and imposing as a condition of re-certification that Respondent provide written verification from a Recovery Network Program approved, licensed Florida provider, that Respondent poses no threat to children and is capable of assuming the responsibilities of an educator. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. 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 29th day of August, 2012.
The Issue This is a case in which the School Board of Dade County proposes to assign Rodolfo Damian Menedez to the Jan Mann Opportunity School-North. The School Board contends that the assignment to opportunity school is appropriate because of the student's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." The Respondent and his parents oppose the assignment to opportunity school. This case was originally scheduled for hearing on September 20, 1985, but was continued because there were no court reporter and no translator in attendance. The parties agreed to reschedule the hearing on oral notice of less than 14 days in order to secure an early hearing date. At hearing on October 7, 1985, both parties stated they had no objection to the notice of hearing. At the end of the formal hearing, the Hearing Officer advised both parties that they would be allowed ten (10) days within which to file proposed findings of fact and conclusion of law. On October 21, 1985, the Respondent filed a document titled "Final Order" which has been treated as a proposed recommended order with proposed findings of fact. As of the time of the issuance of this Recommended Order, the Petitioner has not filed any proposed findings of fact or conclusions of law. Specific rulings on the proposed findings of fact submitted by the Respondent are incorporated in the appendix attached to this Recommended Order.
Findings Of Fact There is information in the school records which indicates that the Respondent was involved in other instances of misconduct, but I have not made further findings in that regard for several reasons. First, the records do not appear to be all that carefully prepared, which causes me to place little credence in the accuracy of the records. Second, the records were not corroborated by testimony of a witness with personal knowledge, except for certain admissions in the testimony of the Respondent and his mother. Third, the Respondent denied the accuracy of some of the information in the records. Third, the Respondent denied the accuracy of some of the information in the records. And, finally, much of the information in the records is vague and general and does not adequately explain the nature of the incidents of the nature of the Respondent's role in the incidents, this being particularly true of the incidents involving fighting.
Recommendation For all of the foregoing reasons it is recommended that the School Board of Dade County enter a Final Order rescinding the assignment of Rodolfo Damian Menendez to the Jan Mann Opportunity School-North and assigning him to an appropriate school in the traditional school program. DONE AND ORDERED this 22nd day of October, 1985, at Tallahassee, Florida. M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1985. APPENDIX The factual assertions contained in the Respondent's posthearing document titled "Final Order" have been treated as proposed findings of fact and are specifically ruled on as follows: The substance of the proposed findings of fact contained in the following paragraphs have been accepted and incorporated into the findings of fact in this Recommended Order: FIRST, SECOND, THIRD, FOURTH, and EIGHTH. The proposed findings of fact contained in the following paragraphs are rejected as irrelevant in light of the other findings and in light of the recommended disposition of this ease: FIFTH, SIXTH, and SEVENTH. The proposed findings of fact in the following paragraph is rejected because it is a proposed conclusion of law rather than a proposed finding of fact: NINTH. As of the time of the issuance of this Recommended Order, the Petitioner had not filed any proposed findings of fact. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137-4198 Ignacio Siberio, Esquire 525 N.W. 27th Avenue Suite 100 Miami, Florida 33125 Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Mr. William R. Perry, Jr., Director Alternative Education Placement Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Ms. Maeva Hipps School Board Clerk Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner has just cause to dismiss Respondent for misusing School District technology, harassing, intimidating or bullying School Board employees, committing professional or ethical misconduct or gross insubordination, or failing to follow a policy, rule or directive.
Findings Of Fact Respondent has been employed by the Palm Beach County School Board from 1978 through May 2, 2012; for nearly all of these 24 years, she has been employed as a classroom teacher. Respondent holds a continuing contract, although the parties have stipulated that this is a "just cause" case, pursuant to the collective bargaining agreement between Petitioner and the Palm Beach County Classroom Teachers Association, July 1, 2011- June 30, 2014 (CBA). CBA, Article II, Section M.1 authorizes dismissal of an instructional employee if Petitioner proves just cause by clear and convincing evidence. (In an abundance of caution, for reasons explained in the Conclusions of Law, this Recommended Order relies on the continuing contract for the limited grounds for dismissal and the CBA for the clear and convincing standard of proof for dismissal.) Petitioner has previously transmitted to the Division of Administrative Hearings (DOAH) two adverse employment proceedings against Respondent. In DOAH Case 10-0371 (Prudente I), Petitioner proposed, in December 2009, to suspend Respondent without pay for ten days for using School District email to send to her coworkers emails that, among other things, depicted a presidential candidate in a negative fashion. In DOAH Case No. 10-10835 (Prudente II), Petitioner proposed the termination of Respondent for sending to her coworkers inappropriate emails under circumstances that established gross insubordination and harassment, intimidation, and bullying of other School Board employees. Prudente I covers acts and omissions from February 2007 through November 2008 (Tr. 186); Prudente II covers alleged acts and omissions from 2009 through June 30, 2010 (Tr. 189); and the present case covers acts and omissions from July 12, 2011 through February 2012 (Petition, paragraph 20, and Tr. 15, 20, 22, 27, and 150). After an administrative hearing in Prudente I, on January 24, 2011, DOAH Administrative Law Judge June C. McKinney issued a Recommended Order urging that the School Board enter a Final Order rescinding the proposed ten-day suspension and awarding Respondent back pay. After transmittal to DOAH, Prudente II was assigned to the undersigned Administrative Law Judge, but this case never went to hearing. By Settlement Agreement dated March 30, 2011, Respondent and Petitioner disposed of Prudente I and II. The Settlement Agreement provides for: a) Respondent to be suspended for ten days without pay; b) Petitioner to withdraw its exceptions and issue a Final Order adopting the Recommended Order in Prudente I; and c) the parties not to reopen Prudente II after it had been closed without prejudice. Given the adoption of the Prudente I Recommended Order, the basis for the ten-day suspension without pay must have been Prudente II, although this is unclear from the Settlement Agreement. The reference to back pay in the Prudente I Recommended Order implies that Respondent served her suspension prior to the November 2010 hearing. However, the record in the present case suggests otherwise. First, after the execution of the Settlement Agreement, Respondent served the ten-day suspension mentioned in the agreement; if she had already served the ten- day suspension that had been proposed in Prudente I, she presumably would have been credited for this suspension in the Settlement Agreement. Second, at the hearing, a discussion among counsel and the Administrative Law Judge suggested that the ten-day suspension ordered by the Settlement Agreement arose under Prudente II. (Tr. 190-93.) Although Prudente II is thus the source of prior discipline, which is relevant if Respondent is subject to discipline in the present case, Prudente I, not Prudente II, provides a source of facts that may be useful in the present case establishing, for instance, Respondent's state of mind or knowledge while sending the emails from July 12, 2011, through February 2012. By adopting the Prudente I Recommended Order, the School Board, in its Final Order, adopted the findings of Judge McKinney--many of which were unfavorable to Respondent--as well as her ultimate recommendation, which was, of course, favorable to Respondent. By contrast, Prudente II does not establish any facts because, prior to the hearing, the parties settled the case without admitting to any guilt. After serving her ten-day suspension without pay, Respondent resumed teaching duties on April 7, 2011. She received a temporary assignment at Dreyfoos High School for what remained of the 2010-11 school year. Undeterred by her recent suspension, Respondent quickly returned to her emailing ways. In May and June 2011, Respondent sent a series of rambling, sometimes-incoherent emails complaining of various forms of mistreatment directed to her. Respondent sent these emails to various persons, including members of the School Board, the Central Area superintendant, Ms. Gero, and an EEOC investigator. But Respondent's preferred recipient appears to have been Ms. Wellings, evidently due to her EEO responsibilities and Respondent's self-identification as a victim of employment discrimination. Respondent evidently had filed a discrimination complaint against Petitioner with the Equal Employment Opportunity Commission (EEOC). The EEOC complaint appears to have alleged that Petitioner had failed, after the Settlement Agreement, to pay the back pay ordered by Judge McKinney in Prudente I; to reinstate certain medical, dental, and vision benefits; to grant Respondent a preference for her permanent teaching assignment at Dreyfoos; and to redress miscellaneous, earlier grievances. Appearing to have become dissatisfied with what she viewed as Petitioner's intransigence in the EEOC proceeding, Respondent evidently decided to bring pressure on Ms. Wellings by announcing her list of grievances directly or indirectly to third parties who, Respondent assumed, had some influence over Ms. Wellings. For example, on June 20, 2011, Respondent sent to Ms. Wellings, with copies to an EEOC representative and others, the following email: Please, DO NOT CONSIDER PBCSD DECEITFUL DENEEN WELLINGS EEO DISCRIMMINATION [sic], Retalliation [sic] and Legal Dept Cafeteria Style Misrepresentations with her Negligence & Failure to Follow EEO, Ethics & DOAH Judges' Recommended Orders she requested to overturn with Unethical Agreement Malpractices as she has written in her letter of June 13, 2011. On the same day, Respondent left a three-minute voicemail on the office telephone of Ms. Wellings. The voicemail began: Hello this is a message for the deceitful Deneen Wellings. This is Paula Prudente . . .. I have . . . sent an EEOC, an EEO and Ethics complaint and a pending lawsuit against you and you do not have a right to file a motion to dismiss it. You are not dismissed Deneen. You are very deceitful and you still have a pending lawsuit against you. . . . [Y]ou are not excused and you are not dismissed. . . . Give me my back pay for November, my health insurance and my reinstatement of my position at Dreyfoos School of the Arts, my ADA accommodation and you are going to have to cease and desist your cafeteria style of . . . law and agreements cause . . . you are very wrongful in your misrepresentations . . . you are very deceitful Deneen. I will also be out of town but . . . the lawsuit is still going against you. You are not dismissed. Thank you. The message continues, essentially restating the statements set forth above. When Ms. Wellings returned from vacation on July 12, 2012, and found the hostile email and voicemail of June 20 and other emails of similar tone, Ms. Wellings emailed Ms. Gero about Respondent. Ms. Wellings described the tone of the voicemail as "threatening" and the email and voicemail as "insulting and offensive." Ms. Wellings characterized the email as unprofessional and unethical because Respondent had provided false information about Ms. Wellings to School Board members and employees, Administrative Law Judges, and representatives of state and federal agencies. Ms. Wellings wanted Respondent to stop this "harassing behavior" and asked Ms. Gero to take whatever action she deemed necessary and appropriate. Listening to the June 20 voicemail, Ms. Gero agreed that the tone was "very threatening" and suspended Respondent's access to School District email. Since Respondent had been placed on temporary assignment, she was being supervised by Mr. Davis, so Ms. Gero referred the matter to him for further action. On the next day, Mr. Davis sent Respondent a Specific Incident Memorandum and Administrative Directive. Noting the confrontational nature of the email to Ms. Wellings and the copying of the email to School Board members and others, Mr. Davis's memorandum reminds Respondent of Petitioner Policy 3.29(10)(d), which states that School District email shall be used for School District business and shall not be used to send abusive, threatening, or harassing messages. Referring to the voicemail to Ms. Wellings, Mr. Davis's memorandum states that Respondent called Ms. Wellings names that were unprofessional, malicious, insulting, and demeaning. The memorandum reminds Respondent of Florida Administrative Code Rule 6B-1.006(5)(d), which prohibits engaging in harassment or discriminatory conduct that creates a hostile, intimidating, abusive, offensive, or oppressive environment, and Rule 6B-1.006(5)(e), which prohibits malicious or intentionally false statements about a colleague. The memorandum refers to Petitioner Policies 5.002, which prohibits threatening, insulting, or dehumanizing gestures that are severe or pervasive enough to create an intimidating, hostile, or offensive educational environment, and 3.02(4), which requires each employee to treat all individuals with respect and to create an environment of trust, respect, and nondiscrimination. Mr. Davis's memorandum concludes: You are hereby directed to cease any and all improper use of District Technology . . ..Further you are directed to interact with all School District Personnel in a respectful and professional manner, as required by [the] Policies and [rules] described herein, including School Board Policies 3.02 and 5.002 and 6B-1.006, F.A.C. Failure to abide by these directives will lead to the appropriate disciplinary action being taken against you. [Based upon the principle of progressive discipline contained in the CBA,] [a]s a provision of the Settlement Agreement [has already imposed] a ten day unpaid suspension[,] [t]herefore the next likely step, should you fail to adhere to this directive, may be Termination of Employment. It is understood that you have the right to file complaints with the appropriate authorities. However, you must adhere to School Board Policies and Directives and maintain professionalism. If you require assistance in this regard, I suggest that you direct communications regarding these matters through your attorney. Meanwhile, on July 1, 2011, Respondent had been assigned to teach at Spanish River High School. Shortly after Respondent's arrival at Spanish River, William Latson was assigned to the school to serve as the new principal. Almost immediately after assuming his new responsibilities at Respondent's new school, Mr. Latson began to receive odd emails from Respondent, suggesting that Ms. Gero's suspension of Respondent's access to School District email was short-lived. With copies to various third parties, again in an apparent attempt to bring pressure upon the main addressee, Respondent sent to Mr. Latson and others confrontational emails telling the addressees what they should and should not do. Mr. Latson was nonplused because Respondent's emails addressed to him were often unrelated to anything going on at the time and were filled with so many directives and complaints as to be incomprehensible. Mr. Latson directed Respondent to discontinue sending such emails, but Respondent ignored Mr. Latson's directive. To facilitate an investigation of an issue evidently unrelated to the present case, Mr. Latson, by letter dated September 20, 2011, reassigned Respondent to her residence, with pay, as of that date. The term of her reassignment was one day. For reasons also apparently unrelated to the present case, by letter dated October 10, 2011, the Chief of School Police informed Respondent that, until further notice, she had been reassigned to a temporary duty location at the transportation department call center, effective the next day. Respondent remained in this temporary assignment for the remainder of the timeframe relevant to the present case. The culmination of the email to Mr. Latson occurred on October 19, 2011. Responsible for delivering checks to various school employees, Mr. Latson sent emails to those employees who had not yet received their checks, including Respondent, inviting them to come by the office to pick them up or to provide mailing addresses where he could mail them. In her response, Respondent supplied her mailing address, but launched into a bewildering set of vitriolic directives, awkward references to herself in the third person, and head-turning claims that, at their most coherent, seem to confuse Mr. Latson with Ms. Wellings. The directives start with a demand not to refer to Respondent as "Mrs.," which is in fact my Mother's & Sisters in Law marriage Titles; they did not apply to work as Mrs. Prudente at PBCSD--they always lived in NY. . . . Please cease & desist your Misrepresentations on my status & respectfully remove your unsubstantiated, defamatory opinions & hearsay from my Records & confirm corrections to PB Post & Sentinal [sic] Newspapers/TV & Radio Media Broadcasts. . . . "Please Resolve & Replace Misrepresentations with Ethical Corrections Officially Stated & Filed in Dept of Admin Hearing Judges McKinney & Meale's Decisions & EEOC Federal Investigators, Specifically: "PBCSD Petitions are inadequate & failed to prove insubordination of the teacher, Ms. Prudente. Rescind the 10 day suspension with 10 days Backpay." Petitioner has not pleaded the Wellings email and voicemail, which precede the start date of July 1, 2011, and the Latson emails as grounds for dismissal in the present case. But these communications nonetheless serve at least two purposes. They establish that the emails described below were not isolated instances and tend to prove that Respondent's use of School District email was intentionally insubordinate and consciously harassing. The emails that fall within the timeframe of July 12, 2011, through February 2012 concern Respondent's participation in the School District's wellness program. The wellness program offered eligible employees a discount of $50 from their monthly premium for medical insurance during the 2011-12 school year, provided they met certain criteria. The timeframe for satisfying the eligibility criteria for this $500 benefit ran from January 1 through August 1, 2011. A School District flyer announcing the wellness program identifies three eligibility criteria: a biometric health screening, an online personal health assessment, and an online tobacco user status form. Clearly stating that interested employees must complete all three criteria by August 1, 2011, the flyer warns that the program sponsor--United Health Care--is unable to verify completion of these criteria until the start of open enrollment in the fall of 2011. It is neither clear, nor particularly important, which of these criteria that Respondent failed to submit on time. According to one of her emails, Respondent failed to timely submit the health screening and personal health assessment. Other emails suggest that Respondent failed to timely submit only the health screening. Shortly before the midnight deadline, on the evening of July 31, Respondent tried to submit the needed form or forms online, but, due to some problems, she was unable to do so. It is possible that the error lie with Respondent's computer or with Petitioner's software program, but, again, this fact is not particularly important. In any event, due to the failure of Respondent to submit one or two of the required three forms, Petitioner's benefits department declined to credit Respondent with the $500 premium discount that she sought for the 2012-13 school year. When Respondent learned in the fall of 2011 that she had not qualified for the $500 benefit, she sent an email dated November 9, 2011, to Ms. Howard. In the email, Respondent claimed that she had experienced a "computer glitch" when trying to submit her paperwork online. Respondent's November 9 email is characterized by a measured tone and the lack of any inappropriate commentary. Unlike nearly all of Respondent's other emails, copies are not provided to third parties. This email, as well as all that follow it, were sent using the School District email system. On the next day, Ms. Howard replied by email to Respondent that she was unable to make an exception for Respondent. Ms. Howard added, though, that Respondent could use the late-filed health assessment form toward her "2012 point requirements." On November 11, 2011, Respondent sent an email in reply to Ms. Howard. In a more confrontational tone than the preceding email, Respondent's email starts: How humiliating, UNflexible and Unfair to NOT reciprocate PBCSC Professional Health Benefits Courtesy, regardless of my 33 years of A+ Classroom Teaching, my professional flexible years of health insurance computer glitches to be reciprocated with PBSC UNflexible Health Benefits Blocked with On- Going Unfair EEO ADA Labor Practices & Penalties for Veteran A+ Teachers. The November 11 email concludes with a request to cancel the $50 monthly "Penalties for the UNFAIR PBCSD 70 minute glitch after midnight glitch OR cancel my Health Insurance Benefits so I can look for an ETHICAL NON-Discriminatory Health Ins Provider." In closing, Respondent struck a more reasonable tone, as she concluded: "I always appreciate your professional courtesy and consideration as I have also provided A+ to PBCSD since 1978." By email dated on the morning of November 14 to Ms. Howard, a couple of union representatives, and Respondent's attorney, Respondent essentially restated the requests contained in the November 11 email. In an afternoon email on the same day, though, Respondent's tone became more strident and more confusing, as she addressed the "computer glitch" that supposedly prevented her timely filing of the wellness program form or forms and another issue involving benefits. This email was almost entirely in capital letters and boldface. By email dated November 17 to Ms. Gero with copies to, among others, Respondent's attorney, Respondent addressed several issues. As to the wellness program, the email states: Diane Howard . . . willfully neglected my requests to correct the Google Glitched Date & blocked me from UHC Benefits & August 1st 50 Question monthly $50 Smoking Survey discount due to another frustrating Google Glitch. Fri., Nov 18 will be my final request for all parties to make corrections for Compensation w/o ADA Age discrimmination [sic]. Not hearing from Ms. Howard, Respondent sent several more emails to various recipients, such as her attorney, Ms. Gero, and, less frequently, Ms. Howard. These emails complained about the "computer glitch" and one or two other benefits issues that she had raised. Interspersed among these emails are occasional references to Respondent's EEOC case and EEOC complaints that she has filed over the years. A couple of emails refer to a School District police investigator's "promise" to contact Respondent to discuss her eligibility for the wellness program's monthly discount. The police investigator became involved when he was summoned in mid-November to the benefits office where Respondent was loudly demanding that she be allowed to participate in the wellness program. To mollify Respondent, the investigator, who was the same investigator who had handled Respondent's case in Prudente I, told Respondent that he would help her set up an appointment for the following week. Respondent furnished the investigator a copy of some paperwork that she said supported her claim of unfair treatment in terms of her employee benefits. Up to this point, the tone of Respondent's post- November 10 emails betrays more confusion than anger. It is unclear why she thought that a police investigator, whose responsibilities obviously do not include employee benefits, would help her secure the $500 premium discount, but it is perfectly clear that Respondent believed that he would do so. On November 22, 2011, Ms. Howard replied to several emails that Respondent had sent her, all in November. Ms. Howard's email states that she had previously told Respondent that she could not make an exception for her, but Respondent "continued to send these confusing, rambling, unprofessional and unethical emails to me and my staff, while copying [the teachers' union] and many other people." Ms. Howard's email states that Respondent was "highly disruptive" when she appeared in the benefits office on November 18 and concludes: Please stop sending these emails as they are offensive, threatening, harassing and insulting. Also do not come back into this office as you have been here 3 times already and we have repeated our response three times. . . . To be very clear, our response is: If you have medical bills that are not being paid by our health carrier, United, you need to fax these to our onsite United Healthcare representation [name and phone number omitted]. The annual enrollment period ended Nov 18, 2011. You were able to go online anytime during a three week period and make your benefit selections for 2012. Our position is that you did not meet the requirements in order to comply with the [wellness-program discount.] Therefore you are not eligible for the premium discount in 2012. You may complete the requirements in 2012, by July 31, 2012, and then you will be eligible for the discount in 2013. The online health assessment that you completed on August 2, 2011, will apply towards the fulfillment of the requirements for the 2013 premium discount. To restate, do not continue to call, visit or send emails on these same issues. I find them offensive, insulting and harassing. By reply email later the same day to Ms. Howard, with a copy to Ms. Gero, Respondent stated: Thank you for re-confirming your offensive opinions, false & abusive allegations against me as your choice to make threatening & confusing replies which have continued to frustrate me again today. I repeatedly requested your support assistance for appropriate annual adjustments [to Respondent's other benefits issue.] I never requested your humiliating misrepresented emails & phone call replies to me whenever I request sincere support assistance. I am constantly intimidated by your PBCSD Admin' Depts insulting, and inappropriate threatening letters, emails & phonecall responses 'including termination' because I have filed requests your Sworn Oath to Ethcal [sic] EEO HR Compliance. Your false allegations and misrepresentations are demonstrably contradictory to my A+ Appreciated, Awarded & Honored Professional 33 years of Classroom Excellence, which I am equally deserving of your reciprocal Ethical, EEO ER HR ADA & Ins Benefits Support. Your wrongful, rude, retalliative [sic] letters, emails & phonecall responses with Misrepresented false allegations for my requesting your consideration, support & advise [sic] is an ineffective and inflammatory excuse for your disgraceful Misconduct. The next day, someone, probably Ms. Gero, forwarded to Respondent information about Petitioner's employee assistance program (EAP). Nine days later, Respondent replied by email to Ms. Gero, Mr. Howard, Ms. Wellings, and Mr. Davis, thanking them for sending her the EAP information, but adding: By the Way, Please help me to appropriate reinstate and reduce my documented 2009- 2010-2011 EAP Diagnosed Manic Stress which was demonstrably induced & worsened by PBCSD workplace & District office Administrators whom have Google-Glitched or denyed [sic] and/or blocked me from continuing my Highly Qualified A+ Merit Teaching career with Equal Employment HR ER Opportunity, Voluntary transfer positions/applications, ADA Accommodations, and most importantly to reimburse/reinstate my earned & deserved United Health Care Medical, Dental & Vision Benefits without the $50 Smoker's Penalty in the New People Soft Google Glitch (as I have appropriately earned and updated annually over the last 33 years in PBCSD). Please reply & mail my DOAH Judge Recommended Order [sic] to Rescind the 10 days Nov 2010 Suspension with 10 days Backpaycheck, since My case was dismissed & Closed without Prejudice because PBCSD Failed to prove the Teacher's Insubordination (Please remove your defamatory Misrepresentations & unsubstantiated False Allegations."[)] On December 2, the interim executive director of the union, Tony Hernandez, informed local union representatives that teachers would need to sign new contracts by December 16. On December 5, Respondent sent an email to Mr. Hernandez about signing a new contract and addressing some aspect of her employee-benefits claims, possibly the appeal that is discussed below. Later the same day, Melinda Wong, Petitioner's Director of Human Resources Customer Relations, sent an email to Respondent advising her that she was under a still-valid continuing contract, which she had signed in January 1982, so she would not be receiving a contract that year. Ms. Wong added that she did not have any knowledge about the benefits appeal, so she could not respond to that part of Respondent's email. On December 6, Respondent sent a reply email to Ms. Wong, with copies to Ms. Howard, Ms. Gero, and Mr. Hernandez, thanking Ms. Wong for her "prompt & professional" reply. This email states, "fyi," that the School District's imposition of unfair, excessive $50 monthly charges & willful complacency to make corrections on hundreds of New Insurance Surveys/Non- Smokers--regardless of repeated requests & reports to UHC [United Healthcare]/Employee Benefits Directors & Classroom Teachers Association Offices. Watch TV News Investigations coverage today on . . . Channel 5. I informed UHC & Risk Mgt that our PBCSD Tech Support IT upstairs (specifically, a few of our former JILHS Tech Academy students) can fairly resolve PBCSD UHC Risk Mgt Survey Gli8tches in less than 10 minutes-- Whomever [sic] does not make professional efforts to offer sensible Employee Solutions is part of the on-going problems. In early December, an automated email notified School District employees that the benefits enrollment period had ended and they could view their choices online. In response, on December 7, Respondent emailed Ms. Howard, a staffperson in Ms. Howard's department, Ms. Gero and Ms. Wong asking for their help because the deadline for appeals was December 9, and she had to address the "computer glitch" that had prevented her from receiving the $500 premium discount and another employee- benefits problem. This email thanks the recipients for their anticipated assistance. When no one responded, Respondent re- sent this email on December 8, adding her attorney to the recipients. On December 22, Ms. Howard sent an email to Respondent and apparently other similarly situated employees: Your appeal for the Wellness rewards credit was not able to be granted. We are sorry the decision could not be more favorable. You will receive information in the mail in January about the requirements to be completed in 2012 for the discount to be applied in 2013. We will have [benefits] representatives available to sit with employees at their work sites from Jan 24 to Feb 18, 2012. They can assist you in navigating the myuhc site so that you will be able to successfully complete the requirements in 2012 for the discount in 2013. Please be sure to follow the instructions in the home mailing you will receive in January if you would like an appointment with one of thes [sic] representatives. Also we communicate benefits information throughout the year by emails from "Benefits Buzz" so be sure to look for them and read them. Again we are sorry that our decision could not be more favorable. To this email, Respondent responded, the same day, by email: As we all know, For 33 years I have promptly and professionally achieved A+ Merited School Awards and submitted by Lab Corp Bloodwork and Survey for Wellness Rewards again with [my attorney] from last Nov 2010 through December 2011 and re-submitted again from July 15 through August 1, 2011 on Google Glitched People Soft & UHC Self Service WebSites, [sic] However, PBCSD Benefits/Risk Management/UHC willfully continues to BLOCK & GLITCH & DENY my Payroll Deductions and Out of Pocket Expenses & Appeals in order to receive my Professional Health Benefits over this past year Nov 2010-Dec 2011. Please APPROPRIATELY RE-SUBMIT and CREDIT my HEALTH CARE WITHOUT the PBCSD $50 MONTHLY PENALTY SCAM to United Health Care and Risk Management Benefits Directors, which UI have also reported to Elected School Board Officials, DOJ/EEOC Federal Investigator and [the website of a labor lawyer]. (Respondent's reference to a "scam" may be connected to a warning email that Respondent and other School District employees had received concerning an online scam supposedly from the "College Board"--a warning that prompted a brief response by Respondent suggesting that the School District IT person add to the list of scams the "computer glitch" scam.) On January 10, 2012, Respondent sent another email to Ms. Wellings, Ms. Gero, Ms. Howard, and her attorney demanding the $50 monthly discount. Although the entire email is underlined and possibly in boldface, it is not inappropriate or confrontational in tone. The addition of Ms. Wellings appears to be due to Respondent's statement that she will "visit Payroll Tues or Wed. again in order to follow up on your mandatory HR/EEO & Insurance Compliance as you have been advised by the DOJ EEOC Federal Investigator . . . Letter to Deneen Wellings in July 2011." On January 11, Respondent sent an email to an EEOC investigator, Ms. Gero, Ms. Wellings, Ms. Wong, Mr. Hernandez, and her attorney. The email starts: I did NOT 'miss the deadline.' As you know, PBCSD GLITCHED and ACCESS BLOCKED for hundreds of Employees, including me, in Spring & Summer months of 2011 due to their District Technology System switching overhaul of a "NEW UPDATED VERSION of Google" which is an understandable GLITCH that WE ALL KNOW CAN BE APPROPRIATELY ADJUSTED in the School District Technology Offices. PLEASE RE-SUBMIT my Reasonable Request for Amicable Adjustment to REMOVE the capricious monthly $50 penalties and/or FILE ADDITIONAL EEOC, EEO HR GRIEVANCE Case CLAIMS, with [union attorney] who diligently assisted me in my Civil Rights to to [sic] retrieve and reinstate my PBCSD Benefits BLOCKED & DENIED ACCESS for my Medical, Vision, St. Mary's Hospital Breast Cancer Followup Appts & Dental BENEFITS REIMBURSEMENTS REINSTATEMENTS in April thru October 2011 and in December-January 2012 for their willful, wrongful Complacency, Non- Compliance & now OVERCHARGING me monthly $50 penalty. Remember, I filed and completed by LabCorp Blood Labs & SURVEYS after my SEVERAL MONTHS of my Risk Mgt UHC BENEFITS were ACCESS BLOCKED and Oct-December my Professional Development TDE Inservice Sessions Opportunities to Re-Certification are also willfully BLOCKED & Denied by Admin Wellings, Latson & Gero. PLEASE RE-SUBMIT to REMOVE Discriminatory, Retalliative [sic] Penalties & Blocks or FILE ADDITIONAL GRIEVANCE COMPLAINT in my EEO HR Case against PBCSD for Professional Career Discrimmination [sic] Damages & Losses. Later the same day, a union representative replied to Respondent's email by saying that she and Mr. Hernandez "appealed to the district on your behalf regarding the August 1, 2011 Health Survey timeline that you missed. Unfortunately, we have been unsuccessful in getting them to grant credit for completing the survey." The union representative copied Respondent's attorney, so he would be aware of their efforts. On January 12, Respondent sent an email to Ms. Howard without copies to anyone else. The email states: How consistently stressful that since I've re-submitted 2008 EEO ADA HR Concerns & Ethics Complaints that none of the infamous "PBC School Board Admin Specialists" have ever been capable of favorably following any of the lawfully sensible ethical CTA FEA Contract Dr's & DOAH Judge's Recommendations nor Conflict Resolutions for any of my respectfully re-submitted Claims to EEO ADA HR & Risk Mgt Ins Benefits Legal Dept Appeals, except by wrongfully writing false reports & filing their threatening letter containing false, defamatory allegations for me to drop my EEOC Claims or I will be suspended and/or terminated for insubordination. Thankfully, the DOJ/EEOC has been lawfully capable of re-submitting Investigations for the infamous PBCSD Administrative Specialists in order to clear up their consistent, Collaborative Complacency & Non- Compliance. I have learned to "Never give up & never give in" (Vince Lombardi) . . . As Always, Truth, Justice & Perseverance Prevails from now on 2012. On January 17, Ms. Howard emailed Ms. Gero. This email states: I wrote to [Respondent] on Nov 22 via email asking her to stop sending these harassing emails. Since then she is continuing to send me these emails. In addition, they are rambling and confusing. By letter dated February 21, 2012, Mr. Davis suspended Respondent's access to School District email for misuse of School District technology. The letter notes that he had warned her to discontinue improper use of School District email. In addition to the above-noted Latson and Wellings emails, Respondent has misused School District email in the past. Respondent had received and defied several warning memoranda from two past principals not to use School District email to harass coworkers. In the more recent of these situations, at John I. Leonard Community High School, Respondent used a code to email all school employees when she did not have permission to communicate by these means to all school employees, Respondent addressed an email to a female coworker named "Continent" as "Cuntinent," and Respondent sent the above-mentioned emails ridiculing presidential candidate. Respondent's emails involving the $500 premium discount constitute harassment and gross insubordination. Respondent's emails constitute harassment due to their large number over a relatively brief period of time, their confrontational tone, and the relatively modest benefit involved. Ms. Howard did not ignore Respondent. Upon receipt of Respondent's first email, Ms. Howard immediately contacted the appropriate person at United Health Care. The United Health Care representative researched the matter with the company's information management personnel responsible for online filings and later assured Ms. Howard that nothing indicated a problem at the company's end of the attempted transaction. Unfortunately, Ms. Howard did not communicate these efforts to Respondent, so a few more emails were justifiable from Respondent's perspective. Although Ms. Howard may not have told Respondent about the appeal process, it seems, from Ms. Wong's response to one of Respondent's emails, that Respondent was aware of this process. Approximately 100 other employees had complained about problems with online filing. By mid-December, as the new plan year was about to start, Ms. Howard was forced to cobble together an appeal process for the employees. Ms. Howard and the teachers' union entered into a memorandum of understanding under which they jointly examined, employee-by-employee, all of the online registration files and applied uniform standards to each redetermination. Respondent must be permitted some email communication with Ms. Howard prior to disposition of her appeal on December Some employees won their appeals, so it may be inferred that the online filing system was flawed. But, even prior to December 22, Respondent crossed the line between pressing her rights and harassing Ms. Howard. These pre-December 22 emails include baseless claims of discrimination and wilful neglect of duty by Ms. Howard and irresponsible claims that Ms. Howard has abused, threatened, and lied to Respondent. Absolutely nothing in the record suggests that these claims by Respondent are true, or, more importantly, that Respondent had any reason whatsoever to believe that they were true, except for the simple fact that she had been denied a $500 benefit due to a computer problem for which, in the final analysis, Respondent had no more reason to assign responsibility to United Health Care or Petitioner than she had to assign to herself. Additionally, the four emails that Respondent sent to Ms. Howard after the December 22 email announcing the unfavorable outcome of the appeal also compel a finding of harassment. Petitioner had made its final decision concerning eligibility for this $500 benefit. Nothing whatsoever can be gained from further emails to Ms. Howard. At this point, Respondent's only option was litigation of some form. Although the tone of these post-December 22 emails is relatively muted, their very existence constitutes nothing more than an attempt to hector and harangue Ms. Howard. In sending these harassing emails to Ms. Howard, Respondent committed gross insubordination. Mr. Davis had warned Respondent that further misuse of School District technology to abuse School District employees could result in Respondent's termination. Mr. Davis's directive was reasonable in nature, and Mr. Davis had proper authority over Respondent to issue the directive. By harassing Ms. Howard with the above- described emails in November, December, and January, Respondent exhibited a constant or continuing refusal to obey Mr. Davis's directive. In sending these harassing emails to Ms. Howard, Respondent committed misconduct in office. Respondent's emails unreasonably interfered with Ms. Howard's performance of her professional or work responsibilities and created a hostile, abusive, and offensive environment. Given Respondent's history of abusing School District email repeatedly--despite directives to stop--her harassing emails to Ms. Howard were so serious as to impair Respondent's effectiveness in the school system. Harboring grudges for actual or perceived slights, Respondent has displayed, repeatedly, a torch-the-earth approach to emailing in which, with copies to various third parties and vague threats to go to the media or file another EEOC complaint, she has cast herself as a force of disruption to the educational process that is the mission of the School District and its instructional, noninstructional, and administrative employees and agents. As such, Respondent's effectiveness in the school system is null. As noted in the Conclusions of Law, the definition of "gross insubordination" requires an "intentional" refusal to obey a directive. Implied in the harassment prohibited by the Principles of Professional Conduct, also noted in the Conclusions of Law, may be some notion of conscious, if not intentional, conduct. The record contains hints of some mental or emotional impairment suffered by Respondent. Testifying that she felt an urge to nurture Respondent, Ms. Gero ordered that Respondent enter the EAP, which she attended from September 28, 2011 to January 3, 2012, at which time she "successfully" completed the program. But Respondent sent three of the four post-appeal emails to Ms. Howard in the ten days after completing the EAP. Because Respondent did not testify to any impairment at the hearing, the Administrative Law Judge is left to infer that the therapy may have addressed a different issue; if addressing a relevant issue, the therapy may not have provided much relief; or, of course, after the therapy, Respondent consciously chose to continue to harass Ms. Howard. Clearly, Respondent's thinking is, at times, disordered. But she has repeatedly abused School District email in a fashion similar to the present case, and she has repeatedly been ordered to stop. Respondent's thinking does not appear to have been so disordered to have prevented her from understanding that, if she continued to harass coworkers by way of School District email, she could be fired, as Mr. Davis clearly warned. For a $500 benefit, Respondent took this risk. She is not dismissed for a rude email or two. She is dismissed because, for months, she subjected Ms. Howard to a barrage of emails that were not intended to communicate, except in their number and hostility. Along the way, several persons, including the police investigator, Ms. Gero, and Ms. Howard, gently tried to direct Respondent from the disastrous path that she was on, but she was grimly determined to pursue this matter to its obvious conclusion: win the $500 benefit or be fired trying. CBA Article II, Section M.7 provides: Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation--Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. Written Reprimand--A written reprimand may be issued to an employee when appropriate in keeping with the provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with the provisions of Article II, Section B of this Agreement. Suspension Without Pay--A suspension without pay may be issued to an employee, when appropriate, in keeping with the provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. . . . Dismissal--An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.
Recommendation It is RECOMMENDED that the School Board enter a Final Order dismissing Respondent from employment, effective as of the first day of the 15-day suspension proposed in the April 16, 2012, notice from the Superintendent. DONE AND ENTERED this 7th day of December, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2012. COPIES FURNISHED: Shawntoyia Bernard, Esquire Palm Beach County School Board Office of the General Counsel Suite C323 3300 Forest Hill Boulevard West Palm Beach, Florida 33406 Jeffrey S. Sirmons, Esquire Johnson and Sirmons, LLP Suite 309 510 Vonderburg Drive Brandon, Florida 33511 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 E. Wayne Gent, Superintendent Palm Beach County School Board Office of the General Counsel Suite C316 3340 Forest Hill Boulevard West Palm Beach, Florida 33406
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
Findings Of Fact Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School. James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories. Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental. The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use. Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/ After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental, Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards. On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students. Upon arriving at the school, Mr. McCallum and Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report. Mr. McCallum requested that Ms. Gribben accompany Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing, Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk." Mr. Makowski came to the principal's office. Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches. Mr. Culbert then began to question Mr. Makowski about his inappropriate searches. Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches. Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop. Mr. McCallum urged Mr. Makowski to be honest. Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation. Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes. Mr. Makowski surrendered his laptop computer to Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours. On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report, Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children. All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches. Mr. McCallum's report concluded as follows: On Monday, September 20, 2010, after Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds, Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act. The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting. Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident. The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students. Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges. "Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay. Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/ At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report. Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum. Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination. Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality." During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment." Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing. At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned. Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board. At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention. No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer. Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact. Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned. Mr. Makowski has not been subject to discipline by the School Board prior to this case. In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement. The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011. In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 21st day of November, 2011.
The Issue Whether WKDR II, Inc. (WKDR), is jurisdictionally time-barred from bringing the challenges in Case Nos. 21-0844 and 21-0845 to contest the Department of Revenue's (Department) tax assessment and subsequent freeze of WKDR's bank account to attempt to collect on the assessment.
Findings Of Fact The Department administers Florida's sales tax statutes and performs audits to ensure compliance with sales tax laws. WKDR is a Ford franchise car dealership operating as LaBelle Ford. WKDR is organized as an "S" corporation and is wholly owned by Douglas Plattner (Mr. Plattner). WKDR's address is 851 South Main Street, LaBelle, Florida 33935 (851 South Main Street). Mark Smith (Mr. Smith) is a self-employed certified public accountant (CPA) at the firm of Smith and Waggoner CPAs. He is the CPA for Mr. Plattner and WKDR. Mr. Smith's business mailing address is 115 Tamiami Trail North, Suite 7, Nokomis, Florida 34275 (115 Tamiami Trail). On or about March 21, 2019, the Department began a sales tax audit of WKDR for the period of March 1, 2016, through February 28, 2019 (audit period). WKDR was notified of the audit through a Notice of Intent to Audit Books and Records, dated March 21, 2019. Jeff Barnard (Mr. Barnard) was a tax auditor for the Department. Mr. Barnard was responsible for examining the books and records of various taxpayers for compliance with Florida tax laws. Mr. Barnard retired from the Department in May 2021. He was employed by the Department for 30 years. He spent the last 15 years with the Department as a Tax Auditor IV—the most senior tax auditor position at the Department. Mr. Barnard was responsible for the tax audit of WKDR for the audit period. On or about July 30, 2019, Mr. Smith sent the Department a fully executed Power of Attorney/Declaration of Representative form (POA form) to appear as WKDR's representative in connection with the Department's audit. The POA form was completed and signed by WKDR's owner (Mr. Plattner) and its CPA (Mr. Smith). The POA form gave Mr. Smith authority to speak and act on WKDR's behalf for the Department's audit. The POA form correctly states the mailing addresses of both WKDR and its CPA/representative, Mr. Smith. It also correctly states the e-mail address and fax number for Mr. Smith. Mr. Smith entered WKDR's address in section 1 of the POA form. The POA form included spaces for a contact person's name, telephone number, and fax number at WKDR, but those spaces were left blank in the form signed by Mr. Smith and Mr. Plattner. The POA form signed by both Mr. Smith and Mr. Plattner set forth the name, address, telephone number, and fax number of Mr. Smith’s CPA firm in section 2 of the POA form. Section 6 of the POA form provides as follows: Notices and Communication. Do not complete Section 6 if completing Section 4. Notices and other written communications will be sent to the first representative listed in Part I, Section 2, unless the taxpayer selects one of the options below. Receipt by either the representative or the taxpayer will be considered receipt by both. If you want notices and communications sent to both you and your representative, check this box. If you want notices or communications sent to you and not your representative, check this box. Mr. Smith completed section 6 by checking option "a," indicating that they wished to have notices and communication sent to both the taxpayer (WKDR) and the representative (Mr. Smith). Mr. Smith's e-mail address was added on the POA form by the Department's employee, Lisa Weems, after she called Mr. Smith's telephone number to obtain his e-mail address. All other information was added by Mr. Smith after consultation with Mr. Plattner, before they both signed the form. Throughout the audit, the Department's auditor, Mr. Barnard, primarily communicated with WKDR through its designated representative—Mr. Smith—at his mailing address and e-mail address. This included multiple requests for documents. At times, Mr. Barnard communicated directly with Mr. Plattner while copying Mr. Smith on the correspondence. Mr. Barnard sent a letter dated November 14, 2019, by regular mail, to WKDR at 851 South Main Street, with a copy to Mr. Smith at 115 Tamiami Trail. Mr. Smith testified that he received and read this letter. The November 14 letter provided WKDR and Mr. Smith with notice that, as things stood on that date, a NOPA was imminent. The letter stated, in pertinent part: On September 20th, we wrote you a letter requesting the information needed to complete the audit of WKDR II Inc. and the DR54 Formal Notice of Demand to Produce Certain Records. The letter stated that your failure to provide the information be [sic] September 27, 2019 may result in an assessment. That is, the implementation of alternative audit procedures to estimate a liability based on the best available information. As of the date of this letter you have not complied with our request. Therefore, enclosed is the Notice of Intent to Make Audit Changes (DR1215) and the audit work papers, which are an estimate based upon the best information available as provided in Section 212.12(5)(b), Florida Statutes. You have 30 days to review the audit adjustments, which expires on December 16, 2019. * * * If we do not hear from you by December 16, 2019, the audit file will be sent to Tallahassee so that the Notice of Proposed Assessment (NOPA) can be issued to you. The NOPA is the formal notice of the amount due. The NOPA will also provide the procedures for filing informal and formal protests. The Notice of Intent to Make Audit Changes, which was included with the November 14 letter, listed a "balance due through 11/14/2019" of $1,157,025.16. This sum included taxes of $801,967.01, a penalty of $200,491.75, and interest of $154,566.40. The notice also explicitly laid out WKDR's opportunities to informally protest this preliminary sum through a conference with the auditor or the auditor's supervisor. It provided that after the 30-day informal conference period expired, a NOPA would be issued. On December 20, 2019, Mr. Barnard sent an e-mail to Mr. Plattner with a copy to Mr. Smith. Attached to the e-mail was a letter of the same date. The letter provided as follows: On November 14, 2019, a Notice of Intent to Make Tax Audit Changes (DR-1215) was issued with additional tax due of $801,967.00. The 30 day informal protest period with the Service Center was up December 13, 2019.[2] Although your representative, Mark Smith, did provide some sales invoices after issuance of the DR-1215 they did not represent a full month of invoices as requested. Please be advised all sales invoices for December 2018 must be provided by January 3, 2020 for any changes in the assessment to be considered. These invoices should consist of same for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for December 2018. As indicated in the December 20 letter, one month before the NOPA was issued, Mr. Barnard notified Mr. Smith and Mr. Plattner that the 30-day informal protest period expired on December 13, 2019. Mr. Smith's testimony on this matter was evasive. At first, he acknowledged that he received the December 20 letter. However, after objection from WKDR's counsel, Mr. Smith backtracked and denied receipt. His attempted denial was not credible and is not credited. The undersigned finds that Mr. Smith received the December 20 letter. Mr. Barnard sent another letter, dated January 7, 2020, by regular mail to Mr. Plattner, and by e-mail to both Mr. Plattner and Mr. Smith, which stated as follows: Please be advised the information necessary to make an adjustment to the audit results issued on November 14, 2019 has not been provided. As stated in our December 20, 2019 letter this information was sales invoices for all new and used vehicle sales, parts sales, service invoices/tickets, and autobody invoices for the entire month of December 2018. 2 The Notice of Intent to Make Tax Audit Changes sent on November 14 provided a deadline of December 13 for the 30-day informal conference period, while the e-mail sent on December 20 referenced a deadline of December 16. The discrepancy in the December 20 letter is immaterial as both deadlines (December 13 and 16) had passed by the date of the December 20 letter. The audit will be closed and a Notice of Proposed Assessment will be issued shortly. Once again, Mr. Smith’s testimony was evasive. After seemingly admitting he received and read the January 7 letter, Mr. Smith testified that he did not receive the January 7 letter. The undersigned found Mr. Smith's testimony on this point wholly untruthful. At the hearing, during cross-examination, the Department's counsel asked Mr. Smith about his actions and impressions after receipt of the January 7 letter in the following exchange: Q. Let's go to Exhibit 22, which is Bates Number 00081. This is another e-mail sent to you on January 7th, 2020 to Mr. Plattner showing a carbon copy to Mr. Mark Smith CPA POA. The third sentence states; "The audit will be closed and a notice of proposed assessment will be issued shortly." Does that mean that the audit is still open or the audit is closed? A. That, like I said, I mean, I've -- I've dealt with audits where they say they're going to do this and do that and it's taken them two years to send anything. Q. This letter dated January 7th, 2020 does not give a new deadline, does it? A. It does not appear to but -- yeah, it does not appear to. Q. In fact, it says the audit is closed. That means that it's done, right? A. No. I don't -- I -- not necessarily. Q. It also says that the notice of proposed assessment will be issued shortly. So you knew at this time, the NOPA was imminent, right? A. Not necessarily. Q. Is there any language in this letter indicating that WKDR has any more time to provide additional documents? A. I've worked with the State before and they've provided us additional time quite often. Q. In fact, the auditor did provide you a deal -- a great deal of additional time to have the audit, didn't he? A. Well, we provided him so many documents that we thought he needed more time too. The whole tenor of Mr. Smith's testimony was to acknowledge that he read and understood the January 7 letter to say the NOPA was imminent, but that he knew from his experience the NOPA was "not necessarily" imminent. Notably, when asked if he knew at that time that the NOPA was imminent, Mr. Smith did not say that he did not know that because he did not receive or read the January 7 letter when it was sent to him by e-mail. Mr. Smith provided answers to these and several other questions about what he did or did not do in response to the January 7 letter. It was not until after an objection by WKDR's counsel that, as before, Mr. Smith backtracked to say that he did not receive the letter. In making the finding that Mr. Smith was untruthful when he testified that he had not received the January 7 letter, the undersigned had the distinct opportunity to observe the demeanor of Mr. Smith during testimony on this issue. He was not credible and his belated denial is not credited. The undersigned finds that Mr. Smith received the January 7 letter, reviewed it, and hoped that he could buy more time as he had thought he might be able to. Testimony of Lisa Weems Ms. Weems is a Revenue Specialist III for the Department. She has worked for the Department, in its Compliance Standards Section, for over 15 years. In addition to other tasks, Ms. Weems is responsible for printing NOPAs to send out to taxpayers and their representatives. Ms. Weems testified in great detail about the process she uses to send out NOPAs. When a NOPA is issued, it is uploaded to the Department's system overnight and cannot be printed until the following morning. Because of this, Ms. Weems sends out NOPAs only four days a week—Tuesdays, Wednesdays, Thursdays, and Fridays. Ms. Weems prints and mails out approximately 400 NOPAs per week. On the day of the final hearing, she had mailed out 88 NOPAs. Ms. Weems has a system in place to keep track of the NOPAs she sends out. Ms. Weems clearly and credibly testified about the process she used to send out NOPAs and when and by what means she used to send the NOPA to WKDR and its representative in this case. Each NOPA is mailed out in a packet that includes four documents: the NOPA, NOPA Remittance Coupon, Tax Audit Satisfaction Survey, and a document titled How to Pay Your Audit Assessment and Notice of Taxpayer Rights. The packets are sent by USPS first-class mail. WKDR's NOPA was issued on January 13, 2020. It had to load in the Department's system overnight, so it was printed on January 14, 2020. WKDR's NOPA assessed taxes of $801,967.01, a penalty of $200,491.75, and interest of $166,431.12, for a total due by WKDR of $1,168,889.88 following the audit.3 3 The amount of the taxes assessed and penalty remained the same as was listed in the Notice of Intent to Make Audit Changes. The amount of the interest had increased. The interest listed in the Notice of Intent to Make Audit Changes was for the period up to November 14, 2019. The NOPA specified that the deadline to request a formal hearing before DOAH was May 12, 2020, or 60 days from the date the assessment becomes a final assessment. The Notice of Taxpayer Rights provided detailed instructions on how to contest the assessment and provided further details on the timelines and deadlines to do so. Ms. Weems sent WKDR and Mr. Smith copies of the NOPA by USPS first-class mail on January 14, 2020. On January 14, 2020 (the day after the NOPA was uploaded), Ms. Weems printed an original and copy of WKDR's NOPA. She placed the original NOPA and the other three documents in a window envelope, addressed to WKDR at 851 South Main Street. A copy of the NOPA, along with the three other documents, were placed in another envelope, addressed to Mark Smith, CPA, at his business mailing address, 115 Tamiami Trail. Ms. Weems testified that she created a mail log sheet, wrapped the log sheet around the envelopes, and placed both of these NOPA envelopes in the outgoing mail basket. After placing the items in the outgoing mail basket, a Department employee from Building L picks up the outgoing mail and mails it out. Ms. Weems testified that she has mailed NOPAs this way for over 10 years. Ms. Weems testified that it was her practice, and what she was taught by the Department, to send NOPAs that had assessments for over $100,000.00 by fax and e-mail, in addition to regular mail.4 WKDR's assessment was for an amount greater than $100,000.00. On January 16, 2020, Ms. Weems sent a copy of the NOPA to Mr. Smith by fax transmission. 4 It must be noted that the Department's internal policy to send NOPAs with assessments over $100,000.00 by e-mail and fax is an unadopted rule; however, it is not necessary to rely on it as the basis for the determination in this matter. See § 120.57(1)(e)1., Fla. Stat. Ms. Weems sent the fax to Mr. Smith's fax number, which was provided on the POA form. Ms. Weems used a fax coversheet when sending the fax. The coversheet recorded several important pieces of information. It provided the case number and the taxpayer's name (WKDR). Two boxes on the fax coversheet were checked—a box indicating there was a "POA" (Power of Attorney) in the file and a box indicating the NOPA was to be sent to the "POA." Ms. Weems also made some notes on the fax coversheet. She wrote: "original notice mailed 1/14/20," "email: mark@swagcpa.com," and "(8) pages." Ms. Weems testified that the reference to eight pages represented the amount of pages she faxed. These pages included the four documents sent by USPS first-class mail mentioned above. After faxing the documents to Mr. Smith's fax number, Ms. Weems received a fax transmission report. The report indicated "Results OK." The term "OK" on a fax transmission report is generally accepted as meaning that the transmission was completed successfully. On January 16, 2020, Ms. Weems also sent a copy of the NOPA and Notice of Taxpayer Rights to Mr. Smith by e-mail. Ms. Weems sent the e-mail to Mr. Smith at mark@swagcpa.com—the e-mail address she obtained from Mr. Smith's office, and which he confirmed was his through testimony at the hearing. The e-mail's subject line stated "Audit Number 200262550-010 WKDR II, INC." The e-mail stated as follows: Please respond back to me by e-mail letting me know you did receive the Notice of Proposed Assessment (Nopa) and Taxpayer Rights by Email and Fax please. Good afternoon, Mr. Smith. I'm e-mailing you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights. I also faxed you the Notice of Proposed Assessment (Nopa) & Taxpayer Rights to fax number 941-866-7691. The Original Notice of Proposed Assessment (Nopa) & Taxpayer Rights was mailed out on 1/14/2020. Any questions call the Nopa Line at 850-617-8565. Thanks, Lisa Weems. The e-mail included an attachment labeled "3125_001.pdf." Ms. Weems testified that the attachment was a copy of the NOPA and Taxpayer Rights. Ms. Weems requested a "delivery receipt" and "read receipt" through her e-mail platform for the e-mail she sent to Mr. Smith. This was her customary practice when sending e-mails. A few seconds after sending her e-mail, she received a "delivery receipt" confirmation that the e-mail was delivered to mark@swagcpa.com. Shortly thereafter, Ms. Weems received a "read receipt" confirmation that her e-mail was received by Mr. Smith and was "read." The use of delivery and read receipts are not novel practices. Delivery and read receipts are used by a sender of an e-mail to confirm that the e-mail sent has been delivered to the addressee and, subsequently "read," that is, opened by the recipient. Ms. Weems keeps a monthly log of the NOPAs she sends out by fax and e-mail. Ms. Weems's monthly log for January 2020 includes entries that confirm she sent the WKDR NOPA by e-mail and fax to Mr. Smith at the contact information he provided. In addition to her personal monthly log, Ms. Weems also used SAP—a Department computer system that employees work in every day—to document her activities. On January 16, 2020, Ms. Weems made a notation in SAP that stated as follows: "I faxed the Notice of Proposed Assessment (NOPA) & taxpayer rights to Mark Smith on 1/16/20 to fax number 941-866- 7691. I e-mailed the Notice of Proposed Assessment (NOPA) and taxpayer rights to Mark Smith on 1/16/20 to e-mail address (mark@swagcpa.com). See attachments and notes." Testimony of Mark Smith Mr. Smith testified that he did not receive the NOPA by USPS first- class mail, fax, or e-mail. If the undersigned took Mr. Smith's testimony as true, all three of the Department's avenues of sending the NOPA failed. Mr. Smith testified that the NOPA, sent by USPS first-class mail, in the same fashion used for several other letters that he had received from the Department, was not received. Other than Mr. Smith's denial, WKDR provided no evidence that the NOPA and accompanying documents Ms. Weems mailed in separate packages to WKDR at its address and to WKDR's representative's address were not received. Mr. Smith testified that during the time the NOPA was sent, his business utilized an electronic faxing service called MyFax.com. Through this service, he received faxes in e-mail format, with the contents of the fax attached to the e-mail as a PDF document. Mr. Smith testified that he did not receive the fax from Ms. Weems. Mr. Smith also testified that he rarely read faxes because "90 plus percent of our faxes are payroll-related" and belonged to his business partner. Mr. Smith did not credibly explain how he comes to know about the ten percent of faxes directed to him. While perhaps his business partner screens faxes, it is inconceivable that a business firm would not ensure that incoming faxes are directed to the person to whom they are sent. That is particularly true where, as here, Mr. Smith has provided his business fax number as a means to give him notices regarding WKDR's audit. Although the Department provided documentation of a delivery and read receipt of the NOPA sent by e-mail to Mr. Smith, Mr. Smith testified that he did not receive it. Mr. Smith offered no credible explanation for the delivery and read receipts. Once again, it is not credible that a CPA who serves as the POA for taxpayer WKDR would not be reviewing e-mails delivered to his e-mail address, when his office has provided that e-mail address to the Department. Notably, he acknowledged reviewing other e-mail communications from the Department with regard to WKDR's audit. Mr. Smith's feigned ignorance of an e-mail delivered to him and opened by him is not credible and is not credited. The competent substantial evidence establishes that the Department mailed the NOPA to both Mr. Smith and WKDR at the addresses provided on the POA form. The testimony that Mr. Smith did not receive the NOPA is not credible. WKDR did not deny that it received the NOPA mailed to it; WKDR offered no testimony on the subject.5 The NOPA was mailed to the same addresses provided by Mr. Smith and Mr. Plattner on the POA form and used by the Department to successfully communicate with Mr. Smith during the audit. WKDR and Mr. Smith were on notice that a NOPA was forthcoming. The Department advised WKDR and Mr. Smith by letter through regular mail and e-mail, on at least two occasions, that a NOPA was going to be issued and that the Department anticipated an assessment of additional taxes of approximately $801,967.00. The Department provided notice of the NOPA in a manner reasonably calculated to inform WKDR and its representative of WKDR's rights and of the deadlines to take action to protect those rights. WKDR and the Department communicated frequently during the audit, but after issuance of the NOPA, communications with WKDR and Mr. Smith ceased for several months. Mr. Smith did not reach out to the Department to find out why communications ceased. The reasonable inference is that Mr. Smith was fully aware of why the previous communications during the audit stopped: because the audit had culminated 5 In its post-hearing submittal, WKDR argued that the NOPA mail should have been sent to Mr. Plattner. But the NOPA package was addressed to WKDR, the taxpayer, at the mailing address given on the NOPA. WKDR had the opportunity in the POA form to designate Mr. Plattner as the taxpayer contact person but chose not to do so. in the NOPA and it was up to WKDR to contest the NOPA in a timely hearing request. On or around February 18, 2021, the Department issued an NIL against WKDR, by which it notified WKDR that it intended to freeze funds from WKDR's bank account in the amount of $999,999.99. The NIL provided that WKDR had 21 days from the date of receipt of the NIL to dispute the matter. On February 19, 2021, WKDR submitted a petition for a chapter 120 administrative hearing to challenge the NOPA. WKDR's petition challenging the Department's NOPA was filed with the Department 403 days after the date on the NOPA (January 13, 2020) and 286 days after the deadline for filing a petition to request an administrative hearing had passed. On February 23, 2021, WKDR timely filed a petition for an administrative hearing to dispute the NIL. WKDR's dispute of the NIL is solely based on its challenge to the NOPA, and its claim that it did not receive the NOPA when issued the year before. WKDR failed to timely exercise its opportunity to protest the amount of the Department's assessment, the underlying audit findings, and the methods the Department used to reach the amount in the assessment. There is no claim by WKDR in this case that the content of the Notice of Taxpayer Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested; its claim is solely that it did not receive the NOPA and the accompanying Notice of Taxpayer Rights, a claim which is not credible. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department sent the NOPA to WKDR's representative by USPS first-class mail, e-mail, and fax, and to WKDR directly by USPS first-class mail; and that Mr. Smith received the NOPA by USPS first-class mail, e-mail, and fax, and that WKDR received the NOPA by USPS first-class mail. WKDR did not submit a timely request for hearing to dispute the NOPA.
Conclusions For Petitioner: Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 For Respondent: J. Clifton Cox, Esquire John G. Savoca, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order dismissing DOAH Case Nos. 21-0844 and 21-0845. DONE AND ENTERED this 30th day of November, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2021. Mark S. Hamilton, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Kristian Oldham, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Jacek Stramski, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Doug Plattner 3118 Walter Travis Drive Sarasota, Florida 34240 James H. Sutton, Esquire Moffa, Sutton & Donnini, PA 8875 Hidden River Pkwy, Suite 230 Tampa, Florida 33637-2087 J. Clifton Cox, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Allison M. Dudley, Esquire Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 John G. Savoca, Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Michael J. Bowen, Esquire Akerman LLP 50 North Laura Street, Suite 3100 Jacksonville, Florida 32202 James A. Zingale, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Conclusions This cause coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, at its meeting conducted on January 18, 2012, to consider (1) the Recommended Order of Dismissal rendered on November 16, 2011, by the Honorable Jessica E. Varn, Administrative Law Judge of the State of Florida, Division of Administrative Hearings, consisting of Findings of Fact, Conclusions of Law, and a Recommendation; (2) Petitioner’s Exceptions to Recommended Order of Dismissal; (3) Respondent’s Response in Opposition to Petitioner’s Exceptions; and (4) Costs Affidavit. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, having reviewed the entire record and transcript, and having heard oral arguments presented by representatives on behalf of the parties, and being fully advised in the Premises: IT IS THEREUPON ORDERED AND ADJUDGED BY THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, that: 1. With Petitioner’s consent, THE SCHOOL BOARD does not rule upon paragraphs | through 13 and paragraphs 17 through 27 of Petitioner’s Exceptions to Recommended Order of Filed January 23, 2012 4:44 PM Division of Administrative Hearings After Schoo! Programs, Inc. vs. Broward County School Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order Dismissal as they do meet the requirements for exceptions as such are outlined in Section 120.57(1)(k), Florida Statutes. 2. Paragraphs 14 through 16 inclusive of Petitioner’s Exceptions to Recommended Order of Dismissal are denied by THE SCHOOL BOARD to the extent that such paragraphs assert exceptions to findings of fact. 3. Paragraphs 14 through 16 inclusive of Petitioner’s Exceptions to Recommended Order of Dismissal are denied by THE SCHOOL BOARD to the extent that such paragraphs assert exceptions to conclusions of law. 4. The prayer for relief within Petitioner’s Exceptions to Recommended Order of Dismissal is denied by THE SCHOOL BOARD to the extent that it asserts an exception to the recommended penalty contained within the Recommended Order of Dismissal. 5. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA accepts, approves and adopts in its entirety the Recommended Order of Dismissal and dismisses the bid protest of Petitioner AFTER SCHOOL PROGRAMS, INC. for lack of standing. 6. Costs in the amount of $2,255.57 are hereby awarded in favor of THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA and against the Petitioner, AFTER SCHOOL PROGRAMS, INC. DONE AND ORDERED in Fort Lauderdale, Broward County, Florida this_23 day of - 2012. THE SCHOOL BOARD OF BROWARD COYNTY, FLORIDA By: Ann Murray, Chair Page 2 of 4 After School Programs, Inc. vs. Broward County Schoo! Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order JA A Supervisor, Officia Copies furnished to: ROBERT W. RUNCIE, Superintendent of Schools Office of the Superintendent The School Board of Broward County, Florida 600 Southeast Third Avenue — 10" Floor Fort Lauderdale, Florida 33301 HARRIS K. SOLOMON, ESQUIRE Brinkley Morgan Attorneys for Petitioner After School Programs 200 East Las Olas Boulevard — 19"" Floor Fort Lauderdale, Florida 33301 ROBERT PAUL VIGNOLA, ESQUIRE Office of the School Board Attorney Attorneys for Respondent School Board Kathleen C. Wright Administrative Building 600 Southeast Third Avenue - 11th Floor Fort Lauderdale, Florida 33301 STATE OF FLORIDA, DIVISION OF ADMINISTRATIVE HEARINGS The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Page 3 of 4 After Schooi Programs, Inc. vs. Broward County School Board DOAH Case Number: 11-5458BID SBBC AGENDA 011812HH1 Final Order APPEAL OF FINAL ORDER Pursuant to Section 120.68, Fla. Sta., a party to this proceeding may seek judicial review of this Final Order in the appropriate district court of appeal by filing a notice of appeal with Noemi Gutierrez, Agency Clerk, Official School Board Records, The School Board of Broward County, Florida, 600 Southeast Third Avenue — gn Floor, Fort Lauderdale, Florida 33301, on or before thirty (30) days from the date of this Final Order. A copy of the notice and a copy of this Final Order, together with the appropriate filing fee, must also be filed with the Clerk, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401- 2399. If you fail to file your notice of appeal within the time prescribed by laws and the rules of court, you will lose your right to appeal this Final Order. fritz allwork doah bidprotest afterschoolprograms ASP-Final Order- 2012.1,18.final.doc Page 4 of 4
