The Issue Whether the Petitioner qualifies for renewal of a consumer's certificate of exemption as an "educational institution" as defined in Section 212.08(7)(o)2.d., Florida Statutes.
Findings Of Fact Based on the evidence presented, the following findings of fact are made: Petitioner is an active not-for-profit incorporated organization, having its principal place of operation in the State of Florida. Petitioner is a recipient of a 501(c)3 Letter from the Internal Revenue Service (IRS) and maintains its exempt status thereunder. Respondent is the state agency charged with the administration of the tax laws of the State of Florida and is the agency responsible for issuing or denying certificates of exemption to qualified organizations. Petitioner applied for renewal of its certificate of exemption on or about January 5, 1997, as an educational institution. The application for exemption was denied by Notice of Intent to Deny rendered by Respondent, after several requests for information, on the grounds that Petitioner did not qualify under the statutory requirements for a consumer certificate of exemption. Petitioner, founded in 1981, is a nationwide organization of writers, located in east central Florida, which seeks to encourage, train, and develop professional and avocation writers. It holds an annual writers' conference for adults and students; sponsors writing contests in the public schools and community colleges; provides a community speakers' bureau in the community and schools of the area; bestows scholarship and awards service to deserving individuals; and publishes periodic newsletters and an annual directory. The only criteria Petitioner could meet as an educational institution was as an "administrative office." No evidence was presented to indicate that Petitioner could qualify under any other alternatives or options allowed under Section 212.08(7)(o)2., Florida Statutes. Petitioner is not an accredited educational institution with regular classes, a television or radio network, a museum, library, or an accepted and statutorily recognized continuing educational program. There was no evidence to show that Petitioner has any control of or any organizational nexus with any accredited educational institution; or that Petitioner functions to assist or regulate any specific educational institution within the meaning of the applicable statute as it has been defined by prior Final Orders of the Department. See Section 212.08(7)(o)2.d., Florida Statutes. There was no evidence to show that Petitioner customarily and routinely exercised any control over any specific educational institution or that an agreement of any kind with any educational institution existed. There was no evidence to show Petitioner functions or operates within a larger hierarchy of any educational institution, or that any administrative rules, policies or by- laws have been promulgated or adopted by any educational institution that specifically identify the Petitioner or the conditions in which Petitioner uses or controls public property, facilities, or personal services operated by an educational institution. The Florida Department of Education has not approved Petitioner as an educational institution or promulgated any administrative rules regarding the Petitioner. Petitioner has not provided or raised funds for any educational institutions or for the administrative assistance of any educational institutions, nor does it directly provide 50 percent of its expenditures to any educational institution; Petitioner provides no volunteers and raises no funds for any charitable or educational organizations; and does not provide 50 percent of its expenditures to statutorily provided educational or charitable programs. Petitioner is not organized or operated exclusively to receive, hold, invest and administer property and to make expenditures to or for the benefit of public education programs in this state, nor is Petitioner a Charter School under Section 228.056, Florida Statutes, a Direct Support Organization under Sections 237.40, 240.299, or 240.331, Florida Statutes, or a Nonprofit Cable Consortium.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying a consumer's certificate of exemption for Petitioner. DONE AND ENTERED this 27th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1998. COPIES FURNISHED: William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street Carlton Building, Room 204 Tallahassee, Florida 32301 Dr. Ed Kirschner Petitioner's Representative Space Coast Writer's Guild Post Office Box 804 Melbourne, Florida 32902-0804 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Amended Notice of Specific Charges filed on October 2, 2013.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32, Florida Statutes. At all times relevant to this proceeding, Respondent was employed as a special education ("SPED") teacher at Mandarin Lakes K-8 Academy ("Mandarin Lakes"), a public school in the Miami-Dade County Public School District, pursuant to a professional services contract. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies and procedures, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. Respondent's Classification During the 2012-2013 school year, it is undisputed that Respondent was classified as a SPED teacher. Petitioner's Amended Notice of Specific Charges avers that Respondent was employed as a SPED "inclusion teacher." Respondent, in his Proposed Recommended Order, also maintains that, during the 2012- 2013 school year, he was a SPED inclusion teacher. Petitioner's witnesses, however, presented conflicting evidence regarding whether Respondent, for the 2012-2013 school year, was charged with the duties and responsibilities of an inclusion teacher or a "co-teacher." Inclusion teaching occurs where "two or more teachers are assigned to a group of students, but one of the teachers is responsible for only one student or a small group of students in the classroom." See § 1003.03(5)(c)2., Fla. Stat. "Co-teaching" is when "two or more teachers are assigned to a group of students and each teacher is responsible for all of the students during the entire period." See § 1003.03(5)(c)1., Fla. Stat. Moreover, in the co-teaching setting, "each teacher is responsible for planning, delivering, and evaluating instruction for all students in the class or subject for the entire period." Id. The undersigned ultimately finds that, during the 2012- 2013 school year, Respondent was a SPED inclusion teacher. As such, Respondent was responsible for providing support to a small group of special education students within the general education classroom.1/ The Events Giving Rise to this Proceeding Petitioner alleges, in its Amended Notice of Specific Charges, that,"[d]uring the 2012-2013 school year, school administrators observed Respondent in his capacity as a SPED inclusion teacher and noticed issues with his teaching ability." In April 2013, Angela Fleites, the principal of Mandarin Lakes, formally observed Respondent in the classroom. Principal Fleites broadly enumerated Respondent's responsibilities to include: (1) ensuring the children were on point; (2) following and processing instruction; and (3) having success in the particular lesson. Principal Fleites observed that Respondent was not focused on the task at hand and was not paying attention to the needs of the special education students. Specifically, she observed Respondent "walking aimlessly" around the room without direction or specific purpose. During the April 2013 formal observation, Respondent provided Principal Fleites with a copy of his lesson plans. While the lesson plans were appropriate, Principal Fleites, without offering any specificity, opined Respondent was not implementing the lesson plans. Principal Fleites also observed Respondent failing to re-direct off-task behavior of special education students. Based on the facts recounted above, Principal Fleites opines that Respondent did not address the individual learning needs of his SPED students. In a follow-up formal observation conducted in May 2013, Principal Fleites observed that Respondent was paying more attention to the primary teacher than the needs of the special education students. Again, Principal Fleites observed Respondent walking around the classroom aimlessly and providing very little, if any, redirection to the students demonstrating off-task behavior. Respondent, as requested, provided his lesson plans to Principal Fleites during the May 2013 observation. Again, she opined that while the lesson plans were appropriate, Respondent failed to implement the same. Principal Fleites, however, could provide no greater detail on this point other than "the lesson plan clearly talked about the individual needs of students and meeting those individual needs, and that was not happening. . . ." Based on the above observation, Principal Fleites opined Respondent was not addressing the academic needs of his students. Principal Fleites is familiar with Petitioner's procedure regarding a fitness-for-duty exam.2/ Despite her familiarity, she never asked or requested that a fitness-for-duty determination be conducted for Respondent. She did however, on two occasions, recommend Respondent to the Employee Assistance Program; however, Respondent did not present himself to same. In December 2012, Renita Lee, an assistant principal at Mandarin Lakes, formally observed Respondent in the classroom. During this 30-minute observation, Ms. Lee recalled Respondent simply standing in a corner in the back of the classroom. On that occasion, Respondent did not have lesson plans available for review. During this observation, Ms. Lee noticed several students who were off-task; however, Respondent did not address the behavior. Ms. Lee's recollection was that at least two of the off-task students were special education students. Based upon the aforementioned facts, Ms. Lee opined that Respondent failed to address the students' individual learning needs during the 30-minute observation period. Ms. Lee again observed Respondent in the classroom in January 2013. On this occasion, Ms. Lee observed, over a two- hour period, Respondent walking aimlessly around the room. She testified that Respondent neither assisted nor re-directed the students. Based on the above-observation, Ms. Lee opined that Respondent did not address the academic needs of his students. Ms. Lee noted that Respondent was "supposed to focus on students that are in need of assistance for a particular benchmark." A benchmark, as defined by Ms. Lee, is "a set of objectives that students are expected to know to where they were going to actually be tested on for FCAT." Ms. Lee acknowledged that, through testing and available test results, one can determine whether Respondent's students have met the particular benchmarks. At times, Ms. Lee observed that Respondent had fallen asleep while sitting upright in a faculty meeting. Kenneth Williams, an assistant principal at Mandarin Lakes during the 2012-2013 school year, formally observed Respondent in the classroom in March 2013. Mr. Williams observed that Respondent was "in a daze" and not paying attention to the needs of the learners. Mr. Williams testified that Respondent did not redirect two students who were displaying off-task behavior.3/ During the same observation period, Mr. Williams received a piece of paper from Respondent; however, the same was not a typical lesson plan in that the document did not outline Respondent's duties and instructions for the SPED students on that occasion. John Soderholm, an eighth-grade science teacher at Mandarin Lakes, perceived Respondent as a "co-teacher" in his classroom. With that belief, Mr. Soderholm was critical of Respondent's engagement with the classroom population as a whole. Specifically, on two occasions Mr. Soderholm requested Respondent to lead the entire class; however, Respondent did not accept the invitation. Concerning the special education students, Mr. Soderholm observed Respondent making "minimal attempts to walk around and be in the classroom"; however, he opined that Respondent never truly engaged. Haronique Durham, an eight-grade teacher at Mandarin Lakes, perceived Respondent's role as an inclusion teacher and a co-teacher in her classroom. According to Ms. Durham, Respondent did not interact with the students, but rather, "usually walked back and forth in the back of the room pacing and he either looks up to the sky and covers his mouth and walks back and forth." According to Ms. Durham, Respondent never helped the students in her class and never taught a lesson. Ms. Durham acknowledged that special education students have an Individual Education Plan ("IEP"), which, among other things, sets forth specific goals for the individual student. Ira Gardner, a physical education teacher at Mandarin Lakes during the 2012-2013 school year, on more than one occasion observed children "hanging out of the third floor window" of a classroom. On one such occasion, upon entering the classroom, he observed that Respondent was the only teacher in the classroom, and admonished Respondent that "[y]ou got to look at everybody" and that "[t]hese kids are all over the place." Mr. Gardner, Assistant Principal Williams, Assistant Principal Lee, and Principal Fleites credibly testified that Respondent, on one or more occasions, appeared to be engaged in an audible conversation with himself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 31st day of January, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 31st day of January, 2014.
The Issue This is a rule challenge proceeding pursuant to Section 120.56(4), Florida Statutes, in which Petitioner claims to be substantially affected by an agency statement that allegedly violates Section 120.54(1)(a), Florida Statutes. The subject matter at issue here concerns two sentences at page 11 of a pamphlet generated by Respondent, which is entitled "Florida's Educational Opportunities for Students with Sensory Impairments (2000)(the DOE Pamphlet)." The two sentences state that the Florida School for the Deaf and the Blind (FSDB) is an available educational option for sensory-impaired children in Florida.
Findings Of Fact Background Congress enacted the Individuals with Disabilities Education Act (IDEA) "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. Section 1400 (d)(1)(A). As a condition to IDEA funding, each state must have a policy in effect that executes the principal goal of the Act, which is to assure "all children with disabilities [have] the right to a free appropriate public education." 20 U.S.C. Section 1412(1). In 1997, Congress substantially amended IDEA. On March 12, 1999, regulations were published at Part B of Part 34 of the Code of Federal Regulations (CFR), implementing the 1997 IDEA amendments. The IDEA, as amended, is implemented in Florida at Section 230.23(4)(m), Florida Statutes, and Chapter 6A-6, Florida Administrative Code. IDEA’s centerpiece is the "individualized education program" (IEP), which is a detailed statement "summarizing the child’s abilities, outlining the goals for the child’s education and specifying the services the child will receive." Polk v. Central Susquehanna Intermediate Unit, 853 F.2d 171, 173 (3d Cir. 1988). The IEP provides special education and related services tailored to the child’s unique needs and designed to provide the child with a "free appropriate public education." 20 U.S.C. Sections 1401(8), 1414(d); 34 CFR Sections 300.13, 300.15, 300.344-300.347; Section 230.23(4)(m)5, Florida Statutes; Rule 6A-6.03028, Florida Administrative Code. A team including the child’s teachers, local education agency representatives and the child’s parents creates the IEP; 20 U.S.C. Section 1414(d)(1)(B); 34 CFR Section 300.344; Rule 6A-6.03028, Florida Administrative Code. Both IDEA and the parallel Florida Statute state that special education students should be educated with non-disabled peers "to the maximum extent appropriate," and that separate classes or schooling should be used if "the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." See 34 CFR Section 300.550 and Section 230.23(4)(m)6, Florida Statutes. Placement must be determined on a child-by-child basis. Section 230.23(4)(m), Florida Statutes, generally identifies the educational options available for sensory- impaired children in Florida, including FSDB. That statute is implemented in pertinent part by Respondent at Rules 6A-6.03014, and 6A-6.03022, Florida Administrative Code, which set school district admissions criteria for visually impaired and dual- sensory impaired children, respectively. One of the options listed in the statute is FSDB. Section 230.23(4)(m)3, Florida Statutes. Section 242.3305, Florida Statutes, states the "responsibilities and mission" for FSDB. In pertinent part, it provides that FSDB educates "hearing-impaired and visually impaired students in the state who meet enrollment criteria." Rule 6D-3.002, Florida Administrative Code, implements that statute by setting forth the "Admission and Enrollment Requirements" for FSDB. The DOE Pamphlet was generated in 1997, and amended in 2000, to explain the special education options available to parents of sensory-impaired school-age children in Florida. The Parties Petitioner is a nine-year-old student who is legally blind and otherwise developmentally impaired. He resides in St. Johns County, Florida, and attends classes for the sensory- impaired offered by the St. Johns County School District. His parents moved from Belize in September, 1999, for the express purpose of enrolling Petitioner at FSDB. Respondent is the head of the state agency that published the DOE Pamphlet. FSDB is a state school that, pursuant to Section 242.3305, Florida Statutes, maintains a residential program for educating sensory-impaired children in Florida. The Factual Background The Petition asserts that Petitioner’s parents moved to St. Johns County in 1999, where they "chose to enroll the Petitioner in the . . . FSDB . . . as described in the DOE Pamphlet." The Petition notes that FSDB declined to accept Petitioner. The Petition further states Petitioner then filed multiple due process petitions pursuant to Section 232.23(4)(m), Florida Statutes, which "yielded an offer by FSDB that the Petitioner be evaluated over an extended period in a temporary assignment at FSDB." Thereafter, "As the parents’ choice of enrollment was denied by FSDB, Petitioner’s parents enrolled the Petitioner in the local St. Johns County School District." The Petitioner further states that he later sought County support for placement at FSDB, which was rejected because the County believed it could adequately educate Petitioner. The records of DOAH adequately set forth the factual background. Petitioner was denied admission to FSDB when he applied in 1999. Thereafter, his parents filed a due process petition to contest the FSDB denial (DOAH Case No. 99-493OE). Petitioner and FSDB entered into a Settlement Agreement, which allowed Petitioner to enroll at FSDB on a "temporary assignment basis for extended evaluation [in] accordance with Rule 6D- 3.002(4) . . ., for a period of 90 school days within which time [Petitioner] will participate in the educational program as established by the IEP team." The Petitioner dismissed his case, however, for reasons not apparent in this record, the child’s parents opted not to enroll their son in the school. On January 19, 2000, Petitioner’s parents again filed a request for a due process hearing, alleging that they made a "unilateral mistake" in entering into the first Settlement Agreement. (DOAH Case No. 00-0348E). On March 1, 2000, Petitioner and FSDB entered into another Settlement Agreement (the Second Settlement Agreement). The Second Settlement Agreement provided for the same 90-day temporary assignment, which would commence on the first day of the 2000-2001 school year. That agreement also provided that Petitioner could contest any decision made by FSDB after the temporary assignment. The Petitioner then dismissed his petition. On July 9, 2000, Petitioner filed a third request for due process hearing against FSDB (DOAH Case No. 00-2871E). It alleged that both settlement agreements denied rights under the IDEA, violated FSDB’s admissions rules, and the Second Settlement Agreement was an attempt by FSDB to "circumvent the requirements of law." Petitioner requested a hearing to determine "their conformity to both IDEA and FSDB Rule 6D." On August 8, 2000, DOAH dismissed the case on two grounds. First, Petitioner failed to allege a dispute subject to DOAH review, because Petitioner "clearly stated his intent to continue his enrollment in the public schools of St. Johns County . . .," and further stated his satisfaction with that school system. Final Order in N.H. v. F.S.D.B., Case No. 00- 2871E at p. 3. Second, it was dismissed because the Second Settlement Agreement barred the action. Id. at p.3, et seq. That order was not appealed, and became final. Petitioner filed a fourth due process petition on August 1, 2000 (DOAH Case No. 00-3129E), opposing FSDB’s IEP meeting set for August 8, 2000, which was set by FSDB to implement the Second Settlement Agreement. Petitioner later withdrew that request. FSDB has repeatedly stated, and continues to maintain, that it will excuse the terms of the Second Settlement Agreement to allow Petitioner to remain in the St. Johns County School District. Alternatively, FSDB continues to state Petitioner may temporarily enroll at FSDB pursuant to the Second Settlement Agreement. The Current Case Petitioner filed the instant rule challenge on January 21, 2001. His father received a copy of the predecessor 1997 version of the DOE Pamphlet in August 2000, from a representative of the Dade County School District. He asserts the following two sentences constitute an unpromulgated rule in violation of Section 120.56(4), Florida Statutes: Parents in Florida have the right to choose the educational setting they consider most appropriate for their child who has a hearing or visual impairment. FSDB is an option in the continuum of placement for the education of students with sensory impairments. The Petition claims Petitioner is adversely affected by the two sentences due to the following three injuries: (1) his "parents were denied the right to choose the educational setting they feel most appropriate for their child"; (2) his sensory-impaired peers attend FSDB; and (3) the St. Johns County School District loses funding for special education of sensory- impaired children because most local parents of sensory-impaired children choose FSDB over the District. At the hearing, Petitioner presented the testimony of two employees of the Respondent, Shan Goff and Margot Palazesi. Both testified that the Respondent promulgated the DOE Pamphlet as an informational document for parents and others dealing with sensory-impaired children in Florida. Ms. Goff testified that DOE generates a multitude of similar brochures and pamphlets. She further stated that there is no relation between funding of FSDB and funding of local school districts’ special education programs. The DOE Pamphlet is clear. At page 3, the DOE Pamphlet distinguishes between mandatory education of sensory- impaired children in school districts and discretionary admissions at FSDB: School districts must provide educational programs to each eligible student who has a sensory impairment, beginning on the student’s third birthday and continuing until the student’s 22nd birthday or until the student graduates with a standard diploma, whichever comes first. * * * For students between the ages of 5 and 22 who have sensory impairments and who meet enrollment requirements, the FSDB provides educational and co-curricular programs, support services, day school and residential programs. Immediately following the two challenged sentences, the DOE Pamphlet advises: Interested parents may contact the School’s Parent Information Office for information regarding admission . . . There is no evidence that the DOE Pamphlet, read in pari materia, is inconsistent with the laws, regulations, or policies of the federal government.
The Issue The issue herein concerns Respondent's appeal of the School Board's assignment of George S. Mulet, Jr. to an alternative school placement.
Findings Of Fact Based on the documentary evidence received and the entire record compiled herein, the following relevant facts are found: By letter dated February 9, 1983, the Petitioner, School Board of Dade County, Florida, administratively assigned Respondent, George Sixto Mulet, Jr. to Youth Opportunity School--South--in accordance with a recommendation of the principal and screening committee of the Petitioner's Department of Alternative Education Placement. The basis for that action was allegedly the Respondent's disruption of the educational process in the regular school program. By letter dated March 8, 1983, and received by the Division of Administrative Hearings on March 21, 1983, the Petitioner referred the matter to the Division of Administrative Hearings for a hearing pursuant to Chapter 120, Florida Statutes. The matter was duly scheduled by copy of a notice of hearing served on the parties dated April 11, 1983, noticing the matter for hearing for April 27, 1983. In this regard, the undersigned's secretary received a message from Marta Quinones, Respondent's mother, stating that she was requesting a continuance of the hearing. The undersigned Hearing Officer's secretary advised the parent, Marta Quinones, that it would be necessary to request a continuance in writing. No such written request was received, nor was the undersigned Hearing Officer, or Petitioner's counsel, advised in writing, or otherwise, that the Respondents would not appear at the hearing as scheduled. Accordingly, I shall recommend that the matter be referred to the School Board of Dade County to take final action consistent with its preliminary assignment based on the Respondent's failure to administratively pursue its appeal rights.
Recommendation Based on the foregoing findings and conclusions, it is hereby RECOMMENDED: That the matter be referred back to the Petitioner, School Board of Dade County, Florida, to take final action pursuant to the recommendation made herein based on the Respondent's failure to exhaust, or otherwise pursue, its appeals protections pursuant to Chapter 120.57(1), Florida Statutes. RECOMMENDED this 17th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 17th day of May, 1983. COPIES FURNISHED: Mark A. Valentine, Esquire Law Offices of Jesse J. McCrary, Jr. Suite 800, 3000 Executive Plaza 3050 Biscayne Blvd. Miami, Florida 33137 Mrs. Marta Quinones 3531 Southwest 91 Ave. Miami, Florida 33165 Mr. Leonard M. Britton Superintendent Dade County School Board Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Petitioner established "just cause" to terminate Respondent from her teaching job.
Findings Of Fact Ms. Harter is a special education teacher in the School District. She is a long-time Polk County, Florida, resident and has worked for the School District since 1985. The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. On December 10, 2010, Ms. Harter entered a guilty plea for leaving the scene of an accident, which is a third-degree felony, and resisting or obstructing an officer without violence, which is a first-degree misdemeanor. The circuit court withheld adjudication and sentenced Ms. Harter to 36 months’ probation on the felony charge, a short period of incarceration in the county jail, community service, fines, and restitution. As of the hearing date, Ms. Harter had successfully completed her community service hours and was successfully completing the remainder of her probation. Polk County School Board Policy 6Gx53-3.001 (School Board Policy 3.001) sets out the Employment Procedures followed by the School Board. In pertinent part, School Board Policy 3.001(V)(C)(4)(a), provides that: "criminal offenses listed below will render applicants and employees ineligible for employment with Polk County Public Schools. WILL NOT HIRE OR EMPLOY -- Felony convictions including, but not limited to the following: . . ." The School Board Policy then lists 49 enumerated crimes that specifically make a person ineligible for employment. School Board Policy 3.001(V)(C)(4)(d)4, also provides that a person may be considered for employment with the School District on a "case-by-case basis" when a person is "on probation [for] (Crimes not listed above)." Mr. Farinas, the School District director of employee relations, credibly testified that, it is the School Board's practice to automatically terminate employees who plead guilty to a felony charge, no exception. The School Board does not employ anyone who has a felony conviction. Further, the School Board, in considering whether or not to grant a "case-by-case" analysis for employing a person who has been convicted of an offense not listed in the School Board Policy, has limited its consideration to misdemeanors. The record, however, shows that the School Board has not been presented the question of whether or not to consider a person for continued employment, who has a felony conviction for a crime not listed in the School Board Policy and is serving a probationary sentence. Ms. Harter has worked for the School District in many different capacities since 1985. It was undisputed that Ms. Harter was an exemplary special education teacher, who is respected by her peers and students. Ms. Harter has a long, successful record of working with emotionally-handicapped students. As Mr. Darby, an assistant principal who supervised Ms. Harter stated, "without Julie's influence, a lot of those students would have never made it through high school." It was undisputed that Ms. Harter is a "very dedicated and responsible teacher." For example, Ms. Whiteley credibly testified that Ms. Harter "knew all of her students, knew everything about her students, and worked very hard to get them to be successful, and also job placements." The record clearly shows that Ms. Harter is a dedicated special education teacher who loved her students and did an excellent job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the School Board established "just cause" to terminate Ms. Harter and that Ms. Harter's employment be terminated. DONE AND ENTERED this 14th day of July, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of July, 2011.
Findings Of Fact Respondent was reassigned to the Jan Mann Opportunity School-North on January 7, 1983. Prior to this reassignment, Respondent had been involved in 12 incidents during the current academic year which resulted in disciplinary action. Additionally, his academic progress was unsatisfactory in all but one course. Respondent is now attending the alternative school and is making satisfactory progress. He will be returned to the regular academic program when his performance and conduct have stabilized.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter its Final Order affirming Respondent's placement in its alternative education program. DONE and ENTERED this 6th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Freddie Roberts 13100 Northwest 22nd Avenue Miami, Florida 33167 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Ave. Miami, Florida 33132
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Petitioner employed Respondent as a secretary at Lindsey Hopkins Prior to 2010, school administrators at Lindsey Hopkins had received numerous complaints from school employees that Respondent had verbally harassed them. On February 8, 2010, Esteban Sardon was working as Assistant Principal of Lindsey Hopkins. On that date he was in one of the school's administrative offices and Respondent was also present. Mr. Sardon coughed while in the office. Almost immediately, Respondent accused Mr. Sardon of having spit on her. Respondent sent Dr. Rosa Borgen, the principal of Lindsey Hopkins, a letter on February 10, 2010, that alleged that Mr. Sardon had deliberately twice spit and coughed in her face. In her letter, Respondent described "[t]wo big huge cough breath [sic] rate were [sic] about 70 to 80 wind speed with a [sic] some saliva." Respondent also sent Mr. Sardon a memorandum calling his behavior "unprofessional" and alleging that she was going to contact "CRC" (the Civil Rights Compliance Office). Mr. Sardon denied, credibly, that he spat on Respondent. The more credible evidence established that he did cough twice in Respondent's presence, but the coughs were dry coughs and not in the direction of Respondent. Respondent fabricated the allegation that Mr. Sardon had purposefully spat on her. In an attempt to resolve the issues related to Respondent's allegations that Mr. Sardon had spat on her, Mr. Gornto, a district administrator, decided that the school administrators should meet with Mr. Sardon and Respondent. On March 9, 2010, Pamela Johnson, an instructional supervisor, from Mr. Gornto's office, met with Mr. Sardon, Respondent, Dr. Borgen, and another assistant principal of Lindsey Hopkins. At the meeting, Respondent presented a document entitled "What Would Make Me Happy" and asked Mr. Sardon to sign it. The "demands" were as follows: I will never ever to [sic] use you're [sic] inside waste on me [sic]. Meaning neither your breath, nor your saliva. I am not a toilet. I am Human [sic]. A Human Being [sic]. Not to try to embarrass me in front of my co-workers. Not to retaliate against me after this incident. Big apology. Mr. Sardon offered an apology to put the matter at rest, but he refused to sign the document. Shortly after the "spitting" accusation, Respondent had conflicts with Drusilla Sears and Donna Wallace, both of whom worked closely with Mr. Sardon. On March 2, 2010, Ms. Sears, a school account clerk, asked Respondent if she was finished using a copy machine. Respondent told her that she had asked a "stupid question," thereby starting a verbal altercation that included finger- pointing by Respondent and by Ms. Sears. The greater weight of the credible evidence established that Ms. Sears did not threaten physical harm to Respondent. This run-in upset Ms. Sears. On March 3, 2010, Respondent sent another letter to Dr. Borgen claiming that Ms. Sears had tried to beat her up. In the letter Respondent also stated, in all capital letters, the following: "I AM NO FOOL. I KNOW SOMEONE TOLD DRUSILLA TO DO THIS TO ME." There was no credible evidence that anyone had instructed Ms. Sears to do anything to Respondent. To the contrary, the greater weight of the credible evidence established that Respondent provoked the incident with Ms. Sears. On March 5, 2010, Respondent wrote another letter to Dr. Borgen. That letter referenced the incidents with Mr Sardon and Ms. Sears and also asserted that someone had placed child pornography on her school computer. There was no credible evidence that anyone had placed pornography on Respondent's computer.1 On March 16, 2010, Mr. Gornto sent Respondent a memorandum related to an earlier correspondence he had received from Respondent. In the letter Mr. Gornto told Respondent that any future complaints regarding employees should be made to Dr. Borgen, to the CRC, or to the school police department. Despite this directive from Mr. Gornto, Respondent continued to contact Mr. Gornto. These contacts (Petitioner's Exhibits 9, 12, and 17-21) were in the form of emails that contained false (and often nonsensical) allegations of employee wrongdoing against her. Each of these emails constituted separate and distinct acts that contradicted Mr. Gornto's directives to Respondent. A recurring theme in those emails was that Dr. Borgen and other school employees were trying to "destroy" her or make her "miserable." In one email, Respondent alleged that one of Mr. Gornto's subordinates had been impersonating Mr. Gornto. In April 2010, Respondent approached school clerk Donna Wallace and accused her of saying something about Respondent to a school counselor. Ms. Wallace denied, credibly, that there was a factual basis for the allegation. Respondent told Ms. Wallace to "watch her back" and threatened to sue her for slander. The incident made Ms. Wallace feel uncomfortable and embarrassed. On April 13, 2010, Respondent engaged in a verbal altercation with Shundra Hardy, a data input specialist. Ms. Hardy worked in the student registration department. When Mr. Sardon was made aware of this incident, Mr. Sardon told Respondent that she was only to visit the registration area as long she did not disturb other employees. This directive caused Respondent to yell and confront Mr. Sardon in his office, As a result of that confrontation, Mr. Sardon called school security. On May 18, 2010, a conference for the record (CFR) was held with Respondent. Dr. Borgen, Mr. Gornto, and Dr. Anna Rasco (Administrative Director of Petitioner's Office of Professional Standards) represented Petitioner. The recent conflicts involving Respondent prompted a decision that she would have to undergo a fitness for duty evaluation. During the time the evaluation was to be completed, Respondent was placed on alternate assignment at her home. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for the evaluation, and she was directed not to contact the school (other than through the principal's office to report her attendance) while on alternate assignment. By letter dated August 10, 2010, Stephen Kahn, M.D., advised Dr. Rasco that Respondent was not fit for duty due to her mental status.2 By letter to Dr. Rasco dated September 4, 2010, Richard S. Greenbaum, Ph.D., a psychologist, opined that Respondent could return to work if she continued to see a psychotherapist.3 On October 4, 2010, Respondent called Lindsey Hopkins and spoke with two employees. These contacts were in direct violation of the directives that had been issued to her.4 On October 14, 2010, a CFR was held with Respondent. Ms. Nyce Daniel (who had replaced the retired Dr. Borgen as Principal of Lindsey Hopkins), Mr. Gornto, and Dr. Brasco represented Petitioner. This CFR was held to address Respondent's non-compliance with the terms and directives given to her while on alternate assignment. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for a fitness evaluation. Respondent was also advised that she would not be permitted to return to work because of the conflicting opinions between Drs. Kahn and Greenbaum. Respondent selected Joseph W. Poitier, Jr., M.D., to conduct her third evaluation. By letter to Dr. Rasco dated March 14, 2011, Dr. Poitier opined that within a reasonable medical certainty Respondent was able to return to work without restriction.5 On March 30, 2011, a CFR was held with Respondent. Ms. Daniel, Mr. Gornto, and Dr. Brasco represented Petitioner. Based on Dr. Poitier's opinion, Respondent was advised that she could return to work on April 4. Respondent was again given directives that included explicit directives to refrain from the behaviors that had caused the need for her fitness for duty evaluations. Specifically, Respondent was instructed to avoid altercations with school staff. On April 5, 2011, with people present in the office, Respondent, using vulgar language, told Cassandra Johnson (a teacher at Lindsey Hopkins) that her husband, Charles Johnson (the head custodian) had engaged in a sexual affair with Dr. Borgen and that Dr. Borgen had been "doing all the guys in school." Ms. Johnson attempted to distance herself from Respondent, but Respondent pursued Ms. Johnson down the hall and continued her verbal tirade. Ms. Johnson was humiliated and upset by the incident. Respondent's actions disrupted Ms. Johnson's ability to perform her duties that day. Mr. Johnson was very upset by Respondent's accusation and denied, credibly, that he had ever had a sexual relationship with Ms. Borgen. Mr. Johnson was concerned that the accusations could hurt his marriage, and he was concerned because his wife was very upset. On April 7, 2011, Respondent confronted Thomas Nunn (an automotive instructor at Lindsey Hopkins) and implied that he had been in an intimate relationship with Dr. Borgen. Mr. Nunn was not offended by Respondent's comments. However, Ms. Daniel learned of Respondent's comments to Mr. Nunn. On April 8 Ms. Daniel directed Respondent to refrain from such conduct. At the time Ms. Daniel gave those directions to Respondent, Ms. Daniel did not know about the incident involving Mr. and Ms. Johnson. On April 8, 2011, Respondent called Mr. Gornto's office to ask permission to take half-day leave. This call was in violation of the directives Mr. Gornto had given to her as to how she was to communicate with her supervisors. On April 11, 2001, Ms. Daniel learned of the incident involving Mr. and Mrs. Johnson. On or about April 28, 2011, Respondent complained to the CRC that Erinn Gobert (the ESOL chairperson at Lindsey Hopkins) and Sophia Hall (an assistant principal at Lindsey Hopkins) had been harassing her. She stated that they were mumbling things about her, taunting her, and teasing her. She further reported that Ms. Gobert and Ms. Hall made gestures that they wanted to fight with Respondent. Respondent's accusations of harassment triggered an investigation. Respondent's accusations were complete fabrications. Neither Ms. Gobert nor Ms. Hall had any meaningful contact with Respondent. On May 18, 2011, a CFR was held with Respondent to address her gross insubordination and violation of other school board rules. Ms. Daniel, Mr. Gornto, and Dr. Rasco represented Petitioner. As a result of her behaviors, Ms. Daniel had to constantly give Respondent specific tasks to minimize Respondent's interaction with other employees. Despite Ms. Daniel's efforts, Respondent's run-ins with co-workers were throughout the school and reached outside of Respondent's assigned work area. Many of her co-workers were not comfortable working with or near Respondent. The efforts to shield co- workers from Respondent created extra work for Ms. Daniel. Respondent's repeated contacts with Mr. Gornto and her baseless accusations towards co-workers disrupted his work and consumed an inordinate amount of his time. Respondent's behavior negatively impacted employee morale at Lindsey Hopkins and disrupted its operations. Respondent repeatedly refused to obey administrative directives that were reasonable in nature and given with proper authority.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011.
The Issue Whether Petitioner, who is employed as an occupational therapist by a local school board, is considered a “teacher” eligible for the 2015 State of Florida Best and Brightest Scholarship Program.
Findings Of Fact The 2015 Florida Legislature Appropriations Act created the Best and Brightest Teacher Scholarship Program, chapter 2015- 232, p. 27, Item 99A. The eligibility pre-requisites for applying to and being awarded the Scholarship (up to $10,000) were established in the Scholarship. The Scholarship provides as follows: Funds in Specific Appropriation 99A are provided to implement Florida's Best and Brightest Teacher Scholarship Program. The funds shall be used to award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT. To be eligible for a scholarship, a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment and have been evaluated as highly effective pursuant to section 1012.34, Florida Statutes, or if the teacher is a first-year teacher who has not been evaluated pursuant to section 1012.34, Florida Statutes, must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment. In order to demonstrate eligibility for an award, an eligible teacher must submit to the school district, no later than October 1, 2015, an official record of his or her SAT or ACT score demonstrating that the teacher scored at or above the 80th percentile based upon the percentile ranks in effect when the teacher took the assessment. By December 1, 2015, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall submit to the department the number of eligible teachers who qualify for the scholarship. By February 1, 2016, the department shall disburse scholarship funds to each school district for each eligible teacher to receive a scholarship. By April 1, 2016, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall provide payment of the scholarship to each eligible teacher. If the number of eligible teachers exceeds the total the department shall prorate the per teacher scholarship amount. The Scholarship does not define the word “teacher.” Petitioner, who timely filed an application for the Scholarship, contends that she is a “teacher” and is therefore eligible for the award. Respondent and Intervenor contend that Petitioner is an occupational therapist, and, as such, she is not considered a “classroom teacher,” which is the target group that the Legislature intended for the teacher scholarship program to cover. Petitioner contends that even if the Scholarship is limited to “classroom teachers,” she meets the statutory definition of a “classroom teacher” and is therefore eligible to receive the Scholarship. It is undisputed that the 2015 Scholarship language is vague as to whether the Scholarship is limited to classroom teachers. In 2016, the Legislature made it clear that the award is intended to only cover “classroom teachers.” Legislation enacted in subsequent legislative sessions may be examined to ascertain legislative intent. See Crews v. Fla. Pub. Emp’rs Council 79, AFSCME, 113 So. 3d 1063, 1073 (Fla. 1st DCA 2013)(citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006)). Recently, the Governor signed chapter 2016-62, Laws of Florida. Section 25 of chapter 2016-62 enacts section 1012.731, Florida Statutes, the Florida Best and Brightest Teacher Scholarship Program.1/ Section 1012.731(2) provides that the “scholarship program shall provide categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic success.” The Legislature's amendment of the language, just a year after the first appropriation, confirms that the Legislature intended the award to go to "classroom teachers," as defined in chapter 1012. Petitioner was hired by Respondent as an occupational therapist. She has worked as an occupational therapist for Respondent for approximately 17 years. Petitioner does not hold a Florida teaching certificate and her position as an occupational therapist does not require a Florida teaching certificate. Instead, Petitioner is licensed by the Florida Department of Health, which has jurisdiction over ethical violations committed by occupational therapists licensed in Florida. In her position as an occupational therapist, Petitioner reports to Respondent’s director of Pupil Support Services, who supervises all therapists within Sarasota County Public Schools. Petitioner’s stated job goal is “[t]o facilitate the handicapped student’s independent functioning in the school setting.” Petitioner’s performance responsibilities, as set forth in her job description, are to: Conduct appropriate evaluation of students referred for possible exceptional student education needs and prepare reports of the evaluation and findings. Plan intervention and service delivery programs to meet student’s individual needs. Implement and direct interventions essential to meeting targeted students’ needs. Provide information and consultative services to appropriate personnel in support of students with disabilities. * * * Establish schedules for meeting with students, conferencing with parents and assisting in rehabilitation techniques. Provide resources to all stakeholders involved in the evaluation, identification of student needs and rehabilitation of students. Petitioner delivers therapeutic services individually or in a small group setting, in a room assigned to her, or in a classroom, usually at the same time a teacher is delivering instruction to the entire class. Petitioner completes “lesson plans,” which are referred to in the therapy setting as “plans of care.” Plans of care differ in substance from lesson plans prepared by teachers because lesson plans set out a teaching plan for the entire class, whereas plans of care set out therapeutic goals and activities directed to one student that complies with the goals set forth in a student's Individualized Education Plan (IEP). As an occupational therapist, Petitioner is responsible for maintaining a “class roster,” which is referred to in the therapy setting as a “caseload.” Occupational therapists maintain a caseload for student accountability purposes and for Medicaid billing purposes. Petitioner’s therapy sessions are assigned a “700” course code, which correlates in the Florida Department of Education's course directory to “related services.” Joint Exhibit O is an example of courses offered to students by Respondent. The course list includes math, language arts, physical education, science, social studies, art, Chinese, music, and occupational therapy. Petitioner is listed as the “teacher” for the occupational therapy course. Unlike the other listed “teachers,” Petitioner is not instructing students in a subject area; she is delivering a service. See § 468.203(4)(b), Fla. Stat. (2015). Succinctly stated, the difference, in this context, between “occupational therapy” and the other listed “courses,” is that occupational therapy is not a subject area that a student learns about; it is a service that a student receives to help them to achieve independent functioning. Although listed as “course” by Respondent, occupational therapy, as compared to the other listed “courses,” is not a “course” within the meaning of section 1012.01(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County enter a final order finding Petitioner ineligible for the Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 8th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of April, 2016.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
