The Issue The issue for determination is whether Respondent should be suspended without pay and dismissed from employment with Petitioner.
Findings Of Fact Mr. Hurst holds a Florida teaching certificate. Mr. Hurst was employed as a teacher with the School Board. He has been employed with the School Board since 1984. Mr. Hurst taught at Poinciana Elementary School, Citrus Cove Elementary School, Crystal Lakes Elementary School, and Lake Worth Middle School. At each of these schools, Mr. Hurst received disciplinary actions. No dispute exists as to paragraph numbered 7 of the Petition, which states: "On or about September 3, 1996, Respondent [Mr. Hurst] received a written reprimand from his principal for failing to allow a child to use the restroom causing her to wet her pants and, as a result, incur public humiliation; failing to use good judgment by going to a student's house unannounced, at a time when parents are not normally at home, for the purpose of informing the parents that the child had not turned in a math paper; and for his continued use of sarcastic comments towards parents. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of this discipline." No dispute exists as to paragraph numbered 8 of the Petition, which states: "On or about March 10, 1998, Respondent [Mr. Hurst] received a formal written reprimand for inappropriate behavior because of his use of offensive nicknames towards students, including the use of phrases such as "shut-up" and "hiney," and for not reporting a child who had left Respondent's [Mr. Hurst's] class to go to his school's front office. Respondent [Mr. Hurst] was advised that his use of sarcasm and teasing of students must stop immediately, or he would be considered grossly insubordinate and more serious disciplinary action would be taken. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 9 of the Petition, which states: "Between February 4, 1999 through February 10, 1999, Respondent [Mr. Hurst] served a five (5) day suspension without pay for pushing a student and using profane language towards the student. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 10 of the Petition, which states: "On or about February 1, 2001, Respondent [Mr. Hurst] began serving, and did serve, a ten (10) day suspension without pay for inappropriately touching a student and for making inappropriate romantic/sexual comments towards a co-worker while working as a teacher at Crystal Lakes Elementary School. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 11 of the Petition, which states: "Subsequent to the aforementioned suspension, Respondent [Mr. Hurst] was transferred to Starlight Cove Elementary School. His first day of work was on or about February 15, 2001." At each disciplinary action, Mr. Hurst was advised and directed that any future inappropriate conduct would result in further disciplinary action, up to and including dismissal. During the 2001-2002 school year, Mr. Hurst was employed with the School Board pursuant to a professional services contract. At hearing, Mr. Hurst did not deny the previous disciplinary actions. Furthermore, he agreed that the pertinent time period for proving the allegations of fact of the Petition was February 15, 2001 through March 16, 2001. Mr. Hurst is a member of the collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (PBCTA). Mr. Hurst was aware that the School Board engages in progressive discipline. Furthermore, he was aware that the use of profanity and other inappropriate conduct for which he was previously disciplined was not allowed and violated the laws and rules under which the School Board operated. At Starlight Cove Elementary School (Starlight Cove), Mr. Hurst was to assist where needed. He was eventually assigned to assist another teacher, Mr. Barrett, with his fifth grade class. Mr. Hurst's assignment with Mr. Barrett's fifth grade class was to be a temporary assignment. Mr. Barrett's class was one of the most challenging classes at Starlight Cove. The students needed structure and a disciplinarian. Mr. Barrett had no problems with his class. In the beginning, Mr. Hurst and Mr. Barrett were in the classroom together. Some time later, Mr. Barrett took leave for the birth of his child, which resulted in Mr. Hurst's being in the classroom alone, as the sole teacher. Temporary and substitute teachers usually have a difficult time with students in the area of discipline. Students, recognizing that a teacher is temporary or a substitute, generally become discipline problems. On or about March 2, 2001, Mr. Hurst was the sole teacher. One of the students in the fifth grade class complained to Mr. Hurst that another student had used profanity. Mr. Hurst gave the class, what he considers his routine lecture on the use of profanity, giving them examples as to what may be accepted language and as to what may be unacceptable language for which the students could be disciplined. On or about March 2, 2001, after school, the principal of Starlight Cove, Susan Saint John, inquired of Mr. Hurst about his routine lecture on profanity because she had received several written communications from the students in his class, complaining that he had used profanity. At hearing, Ms. Saint John testified that Mr. Hurst informed her that he used both a profane word and alphabet substitutes for profane words in his examples during his routine lecture. Moreover, Ms. Saint John testified that her notes of the incident, which were made at the time of her conversation with Mr. Hurst and which showed that he used the word "ass," were accurate. Mr. Hurst denies that he used profanity but insists that he used only alphabet substitutes for the profane words. The more credible evidence is that Mr. Hurst used both alphabet substitutes for profane words and used the profane word "ass" in his routine lecture.2 The evidence also shows that students complained of Mr. Hurst using profane language although the evidence is insufficient to show that he used all the profane words, other than "ass," complained of by the students. The evidence is insufficient to show that Mr. Hurst used profanity other than in the routine lecture and that he used any other profane word than "ass." The evidence is insufficient to show that Mr. Hurst was advised that the use of alphabet substitutes for profane words was unacceptable and would be contrary to the directive for him not to use profane words. The use of profanity, whether by words or alphabet substitutes, by teachers with students constitutes unethical conduct. Ms. Saint John reported the incident to the School Board's Professional Standards department on or about March 2, 2001, but the intake sheet for Professional Standards was not completed until about a week later. Since 1996, Starlight Cove has used a system of discipline for students that uses color codes from green to red. The color of green is the beginning point and indicates that a student is following the rules. If a student fails to follow the rules, the colors progress from green to yellow (a warning) to red. The color code system is posted in classrooms and in the teachers' faculty handbook. Mr. Barrett used the color code system of discipline, and it was posted in his classroom. On March 2, 2001, Ms. Saint John was frequently called to the classroom at which Mr. Hurst was substituting for Mr. Barrett for discipline reasons. Her prior experience with the class was that Mr. Barrett had control of the class and that she had not been called into the classroom for discipline problems. Furthermore, previously, when persons, other than Mr. Barrett, were in charge of the class, she had been infrequently called to the class for discipline reasons. When Ms. Saint John entered the classroom on March 2, 2001, one of the things that she noticed was the color code had been changed from green to yellow and red. Based upon her prior experience with the class, she assumed that Mr. Hurst was incorrectly utilizing the color code system of discipline since the color had changed to yellow for the entire class. At no time did she discuss her assumption with Mr. Hurst. Mr. Hurst denied incorrectly using the color code system. However, he admitted that he "bluffed" the students into behaving appropriately by telling them that he would change the color code for the entire class from green to yellow. Because the students were well-behaved when Mr. Barrett was in the classroom, Mr. Hurst had no opportunity to observe Mr. Barrett using the color code system. Ms. Saint John does not recall specifically advising or training Mr. Hurst on the use of the color code system. The color code system is reviewed at faculty meetings. Mr. Hurst attended the faculty meetings. Mr. Hurst was aware of the color code system and of how to use the system. The evidence is insufficient to demonstrate that Mr. Hurst incorrectly or inappropriately used the color code system. On March 16, 2001, Mr. Hurst was transferred to Lake Worth Middle School. On June 29, 2001, the Petition was executed by the Superintendent of the School Board. An investigation was performed before the determination was made to seek suspension and termination of Mr. Hurst from employment with the School Board. As part of the investigation, statements from some of the students in Mr. Hurst's class were taken. These statements by the students, as well as the previously indicated disciplinary actions against Mr. Hurst, were some of the documents relied upon by the School Board for the determination to seek suspension and termination of Mr. Hurst. After the determination to suspend and terminate was made, the statements were sworn to by the students.3 The evidence at hearing shows that, based upon the evidence before the School Board at its meeting, the School Board's action to suspend and dismiss Mr. Hurst was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order: Suspending Dennis W. Hurst as a teacher. Dismissing Dennis W. Hurst from employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2003.
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 6th day of June, 2002.
Findings Of Fact The parties entered into a stipulation to the effect that the Respondent, Dr. Thomas L. Richey, Superintendent of Collier County Schools, and the Chiller County School Board, does not admit that Petitioner, James Morgan is qualified for out of zone assignment to Barron Collier High School. However, due to his performance record over the past two school years, 1986-1987 and 1987-1988, the school system believes that it is in his best interests that he not be moved at this time and that he be permitted to continue his education at Barron Collier High School through completion of academic requirements and the award of a high school diploma.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the School Board of Collier County accept the stipulation as presented and enter a Final Order consistent with the terms thereof, permitting Petitioner to remain a student at Barron Collier High School through his graduation. RECOMMENDED this 20th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1988. COPIES FURNISHED: Thomas L. Richey, Superintendent Collier County Public Schools 3710 Estey Avenue Naples, Florida 33942 Frank P. Murphy, Esquire 850 Central Avenue, Suite 300 Naples, Florida 33940-6036 James H. Siesky, Esquire 791 Tenth Street South, Suite B Naples, Florida 33940-6725
The Issue Is Petitioner entitled to enough points so as to be considered to have passed the October 31, 1997, Principles and Practice Chemical Engineering Examination?
Findings Of Fact On October 31, 1997, Petitioner took the Principles and Practice Chemical Engineering Examination. Petitioner received a score of 68 on the examination. A score of 70 is required to pass. A score of 70 is a converted raw score of 48. Petitioner's score of 68 is a converted raw score of 46. Therefore, Petitioner needs two raw-score points to achieve a passing score. Petitioner challenged the scoring of Questions 28, 62, 114, and 119. Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying (NCEES) to be re-scored. The re-score resulted in no additional points being added to Petitioner's score. No significant evidence was presented with regard to Questions 28 and 62, and Petitioner's expert agreed that they had been scored correctly with zero points awarded. Question 114 is an essay question. Petitioner received a raw score of 4 on this question, (40 percent of a possible 10 points). Question 119 is an essay question. Petitioner received a raw score of 2 on this question, (20 percent of a possible 10 points). Neither Petitioner's nor Respondent's expert was pleased with the scoring method established by NCEES, but both experts agreed that applicants are bound by the scoring plan established by whatever entity devised the test and scoring system, in this case NCEES. The NCEES scoring system is called the Solution and Scoring Plan. It contemplates that if an examinee's answer meets some criteria specified by NCEES for 4 points (but not all the criteria for 4 points) and also meets some criteria specified by NCEES for 2 points (but not all the criteria for 2 points), the examinee is to be awarded only 2 points, not 1 point or 3 points. Petitioner received a score of 4 on Question 114, a gas absorption problem. Petitioner got the correct answer but did not do much to justify the assumptions he made. He wrote his assumption in the body of his calculations instead of at the beginning, where he must have actually made the assumption in order to work the problem. According to Dr. Narayanan, Petitioner merely made an assumption of diluteness. Dr. Peters explained that Petitioner had assumed that the percent removal would be identical for the two cases contained in the problem. Petitioner had assumed that the percent removal of ammonia in condition one, which is 85 percent, is exactly the same as condition two. However, in Dr. Peters' view, there is no justification for that assumption. The Petitioner had calculated the new Yout based solely on the ratio of the two cases, without proving that the approach is valid. Therefore, although Dr. Narayanan would have scored Petitioner with 5 or 6 points, instead of 4 points on this problem, Dr. Peters' view was that achieving the correct answer from an incorrect procedure did not demonstrate more than 4 points on the established scoring system. Upon all the evidence, I find that Petitioner's answer to Question 114 meets the criteria set forth for a score of 4 under the NCEES Solution and Scoring Plan. Accordingly, Petitioner was entitled only to a score of 4 for that problem. Petitioner received a score of only 2 points on Question 119. Overall, Petitioner selected the proper equations and demonstrated the solution procedure correctly with the correct mass balances, but the scoring plan required that for a score of 4 on Question 119, examinees had to at least attempt to sketch the heat release curve, which Petitioner did not do. Petitioner admitted that he did not even attempt to draw the curve because he ran out of time. More specifically, Part A of Question 119 required Petitioner to determine the temperature at which the flash cooler must be operated and the composition, in mole percent, of the liquid stream removed. Petitioner did not demonstrate the calculation for the mole fractions in the liquid phase composition. Instead, he calculated the vapor phase composition. Although there is no way he could calculate the correct temperature, which he did, without somehow calculating the liquid phase compositions coming out of the process, Petitioner still did not fulfill all of the requirements of Part A of Question 119, as that question was posed on the examination. Petitioner's expert, Dr. Narayanan, partially agreed with the official scoring of Question 119. However, he stated that Petitioner's failure to report the liquid phase compositions, rather than the gas phase compositions, was merely an oversight. Petitioner calculated something correctly that was not required, but he did not calculate at all one element which was required. More specifically, Part B of Question 119 required Petitioner to sketch the heat release curve. Petitioner determined enough raw data for plotting the curve, but did not plot the curve due to the time factor. Completing all requirements of each problem posed was part of the testing procedure. Petitioner made no reasonable attempt to sketch the heat release curve, and therefore, Petitioner did not get any part of Part B of Question 119 correct. Upon the foregoing findings of fact, I accept as persuasive the testimony of Respondent's expert, Dr. Peters, that the scorer applied the NCEES scoring plan correctly, without a subjective component, and that Petitioner is not entitled to any more points on the October 31, 1997, Principles and Practice Chemical Engineering Examination than those which were originally awarded to him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a final order confirming Petitioner's score of 46 on the October 31, 1997, Principles and Practice Chemical Engineering Examination. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Ashok Raichoudhury 9917 Northwest 6th Court Plantation, Florida 33324 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Ketura Bouie suffers from “retardation”, as that term is defined by Section 393.063(43), Florida Statutes, and therefore qualifies for developmental services offered by the Respondent agency under Chapter 393, Florida Statutes.
Findings Of Fact Ketura Bouie is 15 years old. She currently resides in Tallahassee, Florida. She is enrolled in a new school after transferring from Chatahoochee. Ketura has had several “social” promotions from grade to grade over the years. Her application for developmental services has been denied by the Respondent agency. Wallace Kennedy, Ph.D., is a Board-certified and Florida-licensed clinical psychologist. He was accepted as an expert in clinical psychology and the testing of children. He conducted a psychological evaluation of Ketura on April 12, 1995, for which he has provided a written narrative dated April 13, 1995. His narrative was admitted in evidence. Ketura was 13 years old at the time of Dr. Kennedy’s evaluation. He administered three standardized tests which are recognized and accepted for determining applicants’ eligibility for developmental services. These tests were: a wide range achievement test, Wechsler Intelligence Scale for Children— Revised (WISC-R), and Vineland Adaptive Behavior Scale. (Vineland) The wide range achievement test generally measures literacy. Ketura recognized only half of the upper-case letters of the alphabet and only a few three-letter kindergarten words. Her results indicated that she has the achievement level expected of a five and a half year old kindergarten student, even though she was then placed in the seventh grade. In Dr. Kennedy's view, there is "no chance Ketura will become functionally literate". The WISC-R measures intellectual functioning and academic aptitude without penalizing the child for handicaps. The mean score on this test is 100. To score two or more deviations from this mean, a subject must score 70 or below. All of Ketura’s WISC-R scores on the test administered by Dr. Kennedy in April 1995 were well below 70. They consisted of a verbal score of 46, a performance score of 46, and a full scale score of 40. Ketura’s full scale IQ of 40 is in the lowest tenth of the first percentile and represents a low moderate level of mental retardation. Ketura’s full scale score of 40 is the lowest result that WISC-R can measure. The Vineland measures communication, daily living skills, and socialization. Ketura’s composite score for Dr. Kennedy on the Vineland was 42. In conducting the Vineland test, Dr. Kennedy relied on information obtained through his own observation of Ketura and information obtained from Ketura’s mother. It is typical in the field of clinical psychology to rely on information supplied by parents and caregivers, provided they are determined to be reliable observers. Dr. Kennedy assessed Ketura’s mother to be a reliable observer. Dr. Kennedy’s Vineland test revealed that Ketura has a social maturity level of about six years of age. Her verbal and written communication skills are poor. Ketura has poor judgment regarding her personal safety. She cannot consistently remember to use a seatbelt and cannot safely use a knife. She has poor domestic skills. She has no concept of money or of dates. She does not help with the laundry or any other household task. She cannot use the phone. Ketura’s socialization skills are also poor. She does not have basic social manners. Her table manners and social interactive skills are poor. She has no friends, and at the time of Dr. Kennedy’s evaluation, she was unhappy due to classmates making fun of her for being unable to recite the alphabet. Dr. Kennedy rendered an ultimate diagnosis of moderate mental retardation and opined that Ketura's retardation is permanent. Although Dr. Kennedy observed that Ketura was experiencing low levels of depression and anxiety during his April 1995 tests and interview, he did not make a clinical psychological diagnosis to that effect. He attributed these emotional components to Ketura’s lack of confidence in being able to perform the tasks required during testing. In his opinion, Ketura did not have any behavioral or emotional problems which interfered with the reliability of the tests he administered. Also, there were no other conditions surrounding his evaluation which interfered with the validity or reliability of the test scores, his evaluation, or his determination that Ketura suffers from a degree of retardation which would qualify her for developmental services. In Dr. Kennedy’s expert opinion, even if all of Ketura's depression and anxiety were eliminated during testing, her WISC-R scores would not have placed her above the retarded range in April 1995. The retardation range for qualifying for developmental services is 68 or below. Ketura’s I.Q. was tested several times between 1990 and April 1995 with resulting full scale scores ranging from 40 to All or some of these tests and/or reports on the 1990 - 1995 tests were submitted to the agency with Ketura’s application for developmental services. Also included with Ketura’s application to the agency were mental health reports documenting depression, a recognized mental disorder. The most recent of these was one done as recently as May of 1996. However, none of these reports were offered or admitted in evidence at formal hearing. Respondent’s sole witness and agency representative, was Ms. JoAnne Braun. She is an agency Human Service Counselor III. Ms. Braun is not a Florida-licensed psychologist and she was not tendered as an expert witness in any field. As part of the application process, she visited with Ketura and her mother in their home. She also reviewed Petitioner’s application and mental health records described above. She reviewed the fluctuating psychological test scores beginning in 1990, one of which placed Ketura at 70 and another of which placed her at 74 on a scale of 100. Ms. Braun also reviewed a March 1995 psychological testing series that showed Ketura had a verbal 50, performance 60, and full scale 62 on the WISC-R test, one month before Dr. Kennedy’s April 1995 evaluation described above. However, none of these items which she reviewed was offered or admitted in evidence. The agency has guidelines for assessing eligibility for developmental services. The guidelines were not offered or admitted in evidence. Ms. Braun interpreted the agency's guidelines as requiring her to eliminate the mental health aspect if she felt it could depress Ketura's standard test scores. Because Ms. Braun "could not be sure that the mental health situation did not depress her scores," and because the fluctuation of Ketura’s test scores over the years caused Ms. Braun to think that Ketura’s retardation might not “reasonably be expected to continue indefinitely”, as required by the controlling statute, she opined that Ketura was not eligible for developmental services. Dr. Kennedy's assessment and expert psychological opinion was that if Ketura's scores were once higher and she now tests with lower scores, it might be the result of better testing today; it might be due to what had been required and observed of her during prior school testing situations; it might even be because she was in a particularly good mood on the one day she scored 70 or 74, but his current testing clearly shows she will never again do significantly better on standard tests than she did in April 1995. In his education, training, and experience, it is usual for test scores to deteriorate due to a retarded person's difficulties in learning as that person matures. I do not consider Ms. Braun’s opinion, though in evidence, as sufficient to rebut the expert opinion of Dr. Kennedy. This is particularly so since the items she relied upon are not in evidence and are not the sort of hearsay which may be relied upon for making findings of fact pursuant to Section 120.58(1)(a), Florida Statutes. See, Bellsouth Advertising & Publishing Corp. v. Unemployment Appeals Commission and Robert Stack, 654 So.2d 292 (Fla. 5th DCA 1995); and Tenbroeck v. Castor, 640 So.2d 164, (Fla. 1st DCA 1994). Particularly, there is no evidence that the "guidelines" (also not in evidence) she relied upon have any statutory or rule basis. Therefore, the only test scores and psychological evaluation upon which the undersigned can rely in this de novo proceeding are those of Dr. Kennedy. However, I do accept as binding on the agency Ms. Braun’s credible testimony that the agency does not find that the presence of a mental disorder in and of itself precludes an applicant, such as Ketura, from qualifying to receive developmental services; that Ketura is qualified to receive agency services under another program for alcohol, drug, and mental health problems which Ketura also may have; and that Ketura’s eligibility under that program and under the developmental services program, if she qualifies for both, are not mutually exclusive.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Families issue a Final Order awarding Ketura Bouie appropriate developmental services for so long as she qualifies under the statute.RECOMMENDED this 24th day of February, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Blvd. Tallahassee, FL 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Blvd. Tallahassee, FL 32399-0700 Marla Ruth Butler Qualified Representative Children's Advocacy Center Florida State University Tallahassee, FL 32302-0287 Marian Alves, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 100A Tallahassee, FL 32399-2949
The Issue Whether the Respondent committed the violations alleged in the Second Amended Notice of Specific Charges filed by the Petitioner on March 15, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. At all times material to this proceeding, Ms. McElrath was employed as a teacher by the School Board and assigned to Miami Jackson, where she taught for almost 13 years. Ms. McElrath taught English, and she was the coach of the Miami Jackson debate team for one year and the advisor for the student newspaper for six years. She has consistently been rated acceptable in teaching and in professional responsibility in her annual evaluations at Miami Jackson. Ms. McElrath is employed by the School Board under a professional service contract. Prior to the incident that is the subject of these proceedings, Ms. McElrath had never been the subject of a School Board personnel investigation. She was known to her colleagues as a friendly person and had never displayed violent behavior. Thomas Rolle is a computer specialist employed by the School Board and assigned to Miami Jackson. Mr. Rolle's duties include trouble-shooting and maintaining the computers at Miami Jackson and administering the computer network. Mr. Rolle is blind in his left eye and is severely hearing impaired. He wears hearing aids in both ears; he can also read lips and understand a speaker in a face-to-face conversation. About three weeks prior to February 23, 2000, Mr. Rolle was conducting a computer survey at Miami Jackson to determine which computers needed to be configured for the school's Internet connection. When he arrived at Ms. McElrath's classroom, the class was watching a video on television, and the classroom was dark. Mr. Rolle also noticed that the computer and the Internet connection drop were on opposite sides of the classroom. Ms. McElrath told Mr. Rolle that she would move the computer closer to the Internet connection drop and that he should come back later to work on the computer. About ten days later, Ms. McElrath passed Mr. Rolle in the hallway, and Ms. McElrath told Mr. Rolle that she had moved the computer in her classroom. Ms. McElrath asked that Mr. Rolle come to her classroom to configure the computer. Ms. McElrath felt that her class was getting behind because there was no Internet connection in her classroom. Mr. Rolle did not go to Ms. McElrath's classroom as she had requested. Shortly before 11:00 a.m. on February 23, 2000, Ms. McElrath went to Dr. Choate, Mr. Rolle's supervisor, and asked if Dr. Choate could expedite Mr. Rolle's visit to her classroom to configure her computer. While Ms. McElrath was in Dr. Choate's office, Dr. Choate paged Mr. Rolle, and he immediately called back. Dr. Choate asked Mr. Rolle if he could go to Ms. McElrath's classroom; he told her that he was working in Room 137, the Language Arts lab, but that he would be finished soon and would go to Ms. McElrath's classroom in about 30 minutes, after he had finished a few tasks on the first floor of the school building. Dr. Choate gave Ms. McElrath this information. Ms. McElrath left Dr. Choate's office and went directly to Room 137. She was frustrated because Mr. Rolle had told her before that he would configure her classroom computer but had not done so. Ms. McElrath thought that if she went to Room 137 and waited for him, Mr. Rolle would be more motivated to go to her classroom immediately. When Ms. McElrath entered Room 137, Mr. Rolle was helping Ludgerte Jean-Baptiste, a school paraprofessional, create a school map for a job career fair. Both Ms. Jean- Baptiste and Mr. Rolle were facing away from the door to the room. At first, Ms. McElrath looked for some novels she had seen previously in the Language Arts lab, but they weren't there. She jiggled her keys to make noise so Mr. Rolle and Ms. Jean-Baptiste would notice her. Mr. Rolle did not turn around, but, after a few moments, Ms. Jean-Baptiste turned around and asked if she could help Ms. McElrath. Ms. McElrath told her she was waiting for Mr. Rolle. Ms. Jean-Baptiste touched Mr. Rolle on the shoulder, and he turned around. Ms. McElrath asked him to come with her to her classroom to configure the computer for the Internet. Mr. Rolle told her that he needed to finish helping Ms. Jean- Baptiste and would go to Ms. McElrath's classroom within 30 minutes. Ms. McElrath was very persistent and repeatedly inquired as to why he could not come to her classroom immediately. Ms. Jean-Batiste told Mr. Rolle that she could finish with the map if there was something else that he needed to do. Mr. Rolle got up to leave Room 137, and Ms. McElrath asked Mr. Rolle if he was ready to go to her classroom. Mr. Rolle told Ms. McElrath that he would go to her classroom within 30 minutes, that he needed to go to his office to get the computer software, the configuration information, and the drivers before he went to her classroom. Ms. McElrath was annoyed. She became confrontational and blocked Mr. Rolle's path to the door of Room 137. When Mr. Rolle moved to his left to go around her, Ms. McElrath moved to her right to block his path. She continually asked him why he could not go to her classroom "now," and she persisted in moving to block his path to the door. Mr. Rolle stated several times to Ms. Jean-Baptiste that she should watch, that she was a witness. When Mr. Rolle reached the door, Ms. McElrath's back was to the door. Mr. Rolle tricked Ms. McElrath by feinting in one direction and actually moving in the other direction. As he stepped to his right to go through the door, Mr. Rolle moved his left arm between his body and Ms. McElrath's, pushed her aside, 3/ and opened the door with his right hand with sufficient force that the door hit the outside wall. Ms. McElrath was startled when Mr. Rolle pushed her, and she took a step back; she and Mr. Rolle pivoted as he moved through the doorway, so that she was facing the patio outside and Mr. Rolle was facing her. While the door was open, and without any further provocation from Mr. Rolle, 4/ Ms. McElrath raised her keys and sprayed a substance into Mr. Rolle's face from a canister on her key ring. The door closed, and Mr. Rolle fell to his knees, holding his eyes. Ms. Jean-Baptiste, who was inside Room 137, saw Ms. McElrath spray the substance into Mr. Rolle's face, and she went to help him to the bathroom to flush out his eyes with water. Ms. McElrath fled upstairs to her classroom. At least five students and one staff member observed this incident. Immediately after the incident, Ms. McElrath and Mr. Rolle were summoned to the principal's office. Ms. McElrath completed a written statement in which she asserted that she had sprayed Mr. Rolle with a fluid she used to clean her dry-erase board. In her statement, Ms. McElrath stated only that she had a heated discussion with Mr. Rolle, that she had felt threatened when he said that he would not be responsible for what he might do to her, 5/ and that he had shoved her. Mr. Rolle suffered temporary damage to his eyes and was required to wear dark glasses for several weeks. His eyes were blurry and watery and light-sensitive for about a week, and he had difficulty doing his work. He also had to drop several classes he was taking at Florida International University because he missed several classes as a result of the injury to his eyes. A Conference-for-the-Record was held on May 1, 2000, to discuss with Ms. McElrath the Preliminary Personnel Investigative Report of the incident involving Mr. Rolle, in which it was concluded that the charge that Ms. McElrath assaulted Mr. Rolle was substantiated, and to discuss Ms. McElrath's violation of School Board policy and rules, as well as her future employment status with the Miami-Dade County school system. Ms. McElrath was advised at the Conference-for- the-Record that she would be notified of the "recommended action or disciplinary measures to include any of the following: a letter of reprimand, a TADS Category VII prescription for the Professional Responsibilities Component infraction which could impact the annual evaluation decision, suspension or dismissal." At this conference, Ms. McElrath conceded that the substance she had sprayed in Mr. Rolle's face was actually pepper spray. She stated that she was seeing a counselor recommended to her by the Employee Assistance Plan. She acknowledged that her actions were precipitated because she perceived that Mr. Rolle was ignoring her and that there was no excuse for her actions toward Mr. Rolle. The first time Ms. McElrath alleged to the School Board that Mr. Rolle had moved his hands to her throat and that she was fearful that he intended to attack her was in a letter dated July 26, 2000, which she wrote "to clarify, explain, and/or respond" to the information contained in the summary of the May 1, 2000, Conference-for-the-Record. In this letter, Ms. McElrath stated that she sprayed Mr. Rolle with pepper spray because she was defending herself; he had shoved her and was bringing his hands up to her throat, and she felt threatened. Ms. McElrath asked that this letter be included as part of her record. Summary It is uncontroverted that Ms. McElrath sprayed Mr. Rolle in the face with pepper spray and that she lied when she asserted in the statement she gave immediately after the incident that the chemical she sprayed in Mr. Rolle's face was a solution she used to clean her dry-erase marker board. The disputed factual issues that are presented for resolution in this case are whether Ms. McElrath conducted herself in her employment as a teacher in a manner that failed to reflect credit on herself and the school system; whether Ms. McElrath committed misconduct in office and thereby impaired her effectiveness in the school system; whether Ms. McElrath committed violence in the workplace; and whether Ms. McElrath acted in self-defense when she sprayed Mr. Rolle with pepper spray. Having considered all of the evidence submitted with respect to Ms. McElrath's conduct during the incident involving Mr. Rolle, the undersigned finds that Ms. McElrath was acting in the course of her employment as a teacher and that her conduct certainly did not reflect credit on her. In making this finding, consideration has been given to Ms. McElrath's actions in blocking Mr. Rolle's path as he tried to leave Room 137 and in repeatedly demanding to know why he would not go directly to her classroom, after he had explained that he needed to obtain materials necessary to configure her computer for the Internet, as well as to her spraying Mr. Rolle with pepper spray. The undersigned further finds that Ms. McElrath committed misconduct in office. Ms. McElrath did not value Mr. Rolle's worth as an employee of the School Board entitled to make judgments regarding his professional responsibilities or Mr. Rolle's dignity as a person. Furthermore, Ms. McElrath used exceedingly poor professional and personal judgment both in spraying Mr. Rolle with pepper spray and in her actions toward Mr. Rolle as he was trying to leave Room 137. The evidence presented by the School Board is not sufficient, however, to establish that Ms. McElrath failed to sustain the highest degree of ethical conduct, that she interfered with Mr. Rolle's exercise of his political and civil rights, or that she used coercion to influence Mr. Rolle's professional judgment. Having considered all of the evidence presented on which findings of fact can be based, the undersigned finds that Ms. McElrath's actions with respect to Mr. Rolle were so serious that they impair her effectiveness in the school system. In making this finding, the undersigned is mindful that, based on the record herein, during her tenure as a teacher in the Miami- Dade County public schools, Ms. McElrath has not been the subject of any other disciplinary action and that she has consistently received "acceptable" annual evaluations, the highest overall rating a teacher in the Miami-Dade County school system may earn. Nonetheless, the lack of control Ms. McElrath exhibited in her behavior towards Mr. Rolle raises serious and disturbing questions regarding her ability to resolve in a reasonable manner those frustrating situations that sometimes occur when one works with busy colleagues, her ability to respond in an appropriate manner to the stresses of classroom teaching, and her ability to appreciate the consequences of her actions. Without question, the act of spraying someone in the face with pepper spray is an act of violence that, the evidence herein establishes, took place at Miami Jackson, the public school in which Ms. McElrath worked as a teacher. The greater weight of the evidence is sufficient to establish that Mr. Rolle pushed Ms. McElrath aside as he was moving to open the door to leave Room 137, but Ms. McElrath testified that Mr. Rolle's "shove" did not harm her but merely startled her and did not precipitate her action in spraying Mr. Rolle with the pepper spray. Rather, Ms. McElrath asserts that she took this action in response to Mr. Rolle's moving his hands upward to grab her throat. Having carefully considered all of the evidence on which findings of fact can be based, the undersigned finds that Ms. McElrath did not have a reasonable basis for believing that Mr. Rolle was about to attack and choke her. It is notable in this regard that, as far as can be discerned from the record herein, Ms. McElrath did not, as one would expect, immediately explain her action as self-defense but, rather, waited approximately five months before presenting this justification to the School Board. The testimony of Andrea Zuniga, the only witness who corroborated Ms. McElrath's claim that Mr. Rolle was moving his hands up to grab her throat, has been considered and found not sufficiently persuasive to outweigh the testimony of Ms. Jean-Baptiste, Diane McKnight, and Mercedes Thompson that they saw no such action by Mr. Rolle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Mary Jane McElrath without pay be sustained and that her employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 3rd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2001.
The Issue Whether portions of Leon County School Board's "Pupil Progression Plan" constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The parties stipulated that petitioner has standing to challenge respondent's "Pupil Progression Plan," Petitioner's Exhibit No. 1, because William R. Muldrow, Jr., failed physics, which will prevent or delay his graduation from Lincoln High School. He began the course in the fall of 1989, and earned "C"s for the first and second grading periods. Report cards with this information were sent home. At the end of the third or the beginning of the fourth week of the third six-week grading period, the physics teacher sent word home that he was in danger of failing. Respondent's policy requires that high school students and their parents receive report cards every six weeks and, if a student appears to be in danger of failing, academic warnings half way through any six-week grading period. Results of standardized tests are also reported to parents.. As feared, young Mr. Muldrow flunked the third six weeks, and he also failed the final semester examination. As a result he received an "F" for the semester. Applicable in these circumstances is respondent's Policy 4.15(3)(d) "Grading - High School, 9-12." An earlier version, voted on by the School Board on August 29, 1989, would have "remove[d] the requirement for earning one quality point during the final six weeks or exam for promotion, effective date August 1, 1990." Petitioner's late-filed exhibit. But this version was repealed before it took effect. The challenged rule now provides: The semester grade for each course is determined by totalling the points earned in both [sic] the three six-week grading periods with the points earned on the semester examination. The point values . . . are as follows: GRADE GRADING PERIOD SEMESTER EXAMINATION "A" 8 points 4 points 6 points 3 points 4 points 2 points 2 points 1 point 0 points 0 points The semester grade is assigned as follows: 5 through 10 points 0 through 4 points c. A student earning more than five (5) grade points during the first two six--week marking periods must earn at least one additional point in order to earn credit for the semester. Should a student earn no additional points, the teacher will place an F as the final grade average for the course for the semester. In its present form, the rule attaches particular importance to students' performance on the final exam and in the final grading period because, as respondent's Mr. Felton testified, "education is cumulative." Physics in particular, like mathematics and foreign languages, builds on what has gone before. The Leon County School Board established course performance standards for the physics course William R. Muldrow, Jr. failed (as well as for some 400 other courses.) Although the State Board of Education has adopted course performance standards for some twelfth grade courses, physics is not among them. Mastery of 65 percent of the physics course performance standards is a necessary, but not a sufficient, condition for passing. The physics teacher was free to add pertinent material and evaluate the students' performance, in accordance with grading policy filed at the beginning of the year with Carol Cowdry, who, as the principal's designee, was the local school board's representative. At respondent's request, the State Department of Education reviewed respondent's pupil progression plan for, among other things, conformity with state law, and found the plan fully consonant with pertinent statutory requirements. Petitioner produced no evidence to the contrary.
Conclusions The failure of the School Board to install metal detectors cannot be a basis for a finding of negligence. The legislative decision of the governmental entity to appropriate funds to build, expand or modernize a facility is immune from liability for negligence. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). It was not foreseeable that Michael was dangerous because one teacher saw him viewing a website that she did not like, because one thought he was weird, because he talked too much in class sometimes, and because he once punched a girl. The failure of security personnel to effectively bar all access to the school prior to the official start of the school day, absent a showing of actual or constructive knowledge that the boys were sneaking in and that one of them was dangerous, also fails to constitute negligent supervision. The failure of the security guard to respond before the two boys returned to the bathroom, based on the boy's description of the time frame, also fails to demonstrate negligence. Guns, Violence, and Schools: The Results of School Violence--Litigation Against Educators And Students Shedding More Constitutional Rights at The School House Gate, 46 Loy.L.Rev. 389 (Summer 2000). ATTORNEY’S AND LOBBYIST’S FEES: Attorney's fees are set at 25 percent, in compliance with s. 768.28(8), F.S., or $250,000, for a $1,000,000 award. The lobbyist's fee is an additional 6 percent, or $60,000. Costs are not included in the fees. LEGISLATIVE HISTORY: This is the second year that a claim bill has been submitted for Maria Gough and Jorge Gough, as a result of the death of their son, Jaime Gough. RECOMMENDATIONS: For the reasons stated above, I recommend that Senate Bill 40 (2008) be reported UNFAVORABLY. Respectfully submitted, cc: Senator Frederica Wilson Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Tom Thomas, House Special Master Counsel of Record
The Issue The issue is whether Respondent's proposed decision to award a computer-maintenance contract to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On November 20, 1998, Respondent issued a Request for Proposals titled "The Maintenance of Network Terminal Equipment" (RFP). The purpose of the RFP is to obtain a three-year maintenance service contract for video display terminals, printers, microcomputers, and related components located throughout the State of Florida. The RFP seeks a three-year, labor-intensive contract projected at the hearing to be worth between $3 million and $3.5 million. RFP Section 6.1 promises a "comprehensive, fair, and impartial evaluation" of all timely submitted offers by an "Evaluation Committee," which is an undefined term. Nothing in the RFP describes the Evaluation Committee, in terms of number or qualifications, except that repeated references to "each evaluator" imply the existence of more than one member. Section 6.1.A identifies four evaluation categories: Corporate Experience (100 points), Project Staff (200 points), Minimum Maintenance Service Requirements (200 points), and Cost (500 points). The category at issue in this case is Corporate Experience. Section 6.1.B states that the Procurement Officer will evaluate whether each offer meets the "fatal criteria." The only relevant fatal criterion is 10, which states: "Are there three (3) years of financial statements for the proposer and any proposed subcontractors, TAB 6?" RFP, Section 6.3.A.10. The RFP does not define "financial statements," nor does it require audited financial statements. The Procurement Officer bore the responsibility for determining whether offers complied with the fatal criteria, and he testified that he applied this fatal criterion by checking for a balance sheet, income statement, and statement of changes in financial position. Tr., p. 84. However, the Procurement Officer, acknowledging the absence of any definition of "financial statements," testified that he would accept "even a balance sheet and income statement," which is exactly what he received from Intervenor. Tr., p. 99. The Procurement Officer added: "I didn't throw out anyone for lack of submitting any other financial statements that are commonly included in audited financial statements." Id. Section 6.1.B also provides that offers meeting the "fatal criteria" will be scored by the Evaluation Committee, which will score each responsive offer "based on the evaluation criteria provided in Section 6.3 " Regarding Corporate Experience, Section 6.1.C.3 states: "The criteria, which will be used in evaluating Corporate Experience, are listed in the Rating Sheet, see Section 6.3.B." Section 6.3 states that the non-fatal criteria for each of the four categories are listed on the Rating Sheet, which is part of the RFP. Each evaluator must assign a score from 0-4 for each of these criteria. The meaning of each point value is as follows: 0 = no value; proposer has no capability or has ignored this area 1 = poor; proposer has little or no direct capability or has not covered this area, but there is some indication of marginal capability 2 = acceptable; proposer has adequate capability 3 = good; proposer has a good approach with above average capability 4 = superior; proposer has excellent capability and an outstanding approach Section 6.3.B lists 40 evaluation criteria divided among three categories. (The fourth category is Cost; its scoring methodology is irrelevant to this case.) Project Staff and Minimum Maintenance Service Requirements contain a total of 37 criteria. Corporate Experience contains only three criteria. The three criteria of Corporate Experience are: Does the proposal present financial information that supports the proposer's ability to perform this work required by this Request for Proposal? (RFP section 5.6.B) Is the ratio of current assets to current liabilities at least 2:1? Is the debt to net worth ratio (total liabilities/net worth) equal to or less than 1? Has the cash/operating capital exceeded projected monthly operating expenses over the past three years? Does the proposer have sufficient financial resources to complete the project? Does the proposal document the proposer's experience, organization, technical qualifications, skills, and facilities? (RFP section 5.6.B) Is the experience supplied (including subcontractor experience) relevant? Has the proposer (including any subcontractors) previously provided the maintenance services required by the department? Have the proposer and any subcontractors previously worked together? Does the proposer[-]supplied organization chart demonstrate the capability to perform well on this project? Have the projects supplied by the proposer or for any subcontractors been performed recently enough to be relevant? What percentage of the work is to be done by the proposer and each subcontractor? Does the proposal present maintenance projects similar to the requirements of this RFP as references? (RFP section 5.6.B) Is each project described in sufficient detail so that the department is able to judge its complexity and relevance? Are projects similar or greater in scope? How broad is the range of equipment that was serviced? How current is the project? The challenge focuses exclusively on the first criterion under Corporate Experience. On this criterion, the evaluators gave Intervenor an average of 3.0 and Petitioner an average of 2.0. The Procurement Officer prepared an Evaluation Manual for the evaluators. The Evaluation Manual states: Scoring should reflect the evaluator's independent evaluation of the proposal's response to each evaluation criterion. Following each evaluation criterion are considerations each evaluator may use in determining an evaluation score. These considerations are only suggestions. The considerations provided are not intended to be an all-inclusive list and will not be scored independently for the criterion that they address. Joint Exhibit 8, page 4. Nothing among the documents given prospective offerors informed them explicitly that the evaluators were not required to consider any of the bulleted items listed under each of the criteria. However, the Procurement Officer conducted a Proposers' Conference, at which he stated that the bullets under all of the criteria were strictly suggestions that the evaluators were free to ignore. Tr., p. 115. The Procurement Officer provided this information in response to a question asked by a representative of Intervenor. Joint Exhibit 23, pp. 63-64. The RFP did not require attendance at the Proposers' Conference, nor did Respondent publish the response following the conference. The three bullets under the first criterion under Corporate Experience appear in Respondent's manual titled "Developing a Request for Proposal (RFP)." The exhibit in evidence is a copy of the manual issued on April 1, 1998, but this manual has been in existence well prior to that. The manual suggests that the RFP include a criterion for evaluating the adequacy of the offeror's financial resources. Under the category of reviewing financial statements, the manual lists the first three bullets, as well as other considerations. However, nothing in the manual requires the inclusion of these bulleted items as scoring criteria or the consideration of these bulleted items within one or more scoring criteria. The rating sheets contain a space for comments. The following are the scores and comments from each of the five evaluators for the challenged criterion regarding the financial resources of Petitioner and Intervenor. Evaluator 1 assigned Intervenor a 2, noting "high debt, loss in income 1998." Evaluator 1 assigned Petitioner a 1, noting "financial information limited. Total assets less than value of contract." Evaluators 2 and 4 each assigned Intervenor a 3 and Petitioner a 2 without any comments. Evaluator 3 assigned Intervenor a 3, noting "Exceeds all requirements." Evaluator 3 assigned Petitioner a 3, noting "financials appear to meet this requirement. However, the replacement parts-inventory [sic] dollars seem very low in relations [sic] to the mentioned state contracts that are currently existing [sic]-[.]" Evaluator 5 assigned Intervenor a 4 without any comments, but citing the presence of a 10-K report in response to where he found the financial information. Evaluator 5 assigned Petitioner a 1 originally, noting "asset/liabilities 1:1." However, he changed his score to a 2 and lined out his comment. In general, the five evaluators have technical backgrounds in telecommunications or information management. They do not have significant backgrounds in business or financial matters. Evaluator 1 has a limited financial background, having taken a couple of accounting courses in college. His testimony during his deposition was evasive. Unwilling or unable at the deposition to discuss substantively the financial statements, Evaluator 1 claimed not to recall nearly all material aspects of the evaluation that had taken place about four months earlier. Evaluators 2 and 3 testified at the hearing. Evaluator 2 owns a company, although he has never read the financial statements of any company besides his own. However, he believes that he can read financial statements to determine if a corporation is profitable. On the other hand, Evaluator 2 admits that he does not know how to calculate the ratio of current assets to liabilities from the financial statements or the difference between a balance sheet and an income statement. Evaluator 2 also admits that he does not know how the value of determining whether the ratio of debt to net worth is less than 1. Evaluator 2 concedes that he does not know how to determine if an offeror had sufficient cash to complete the contract. However, during his deposition, Evaluator 2 testified that he checked the financial statements for cash on hand and monthly income, although he admitted that he did not know how much cash a company would need to perform the contract. Evaluator 2 also admitted in his deposition that, in giving Intervenor a 3 and Petitioner a 2, he did not compare the net worth or ratio of cash to operating expenses of the two offerors. Evaluator 3 testified that he has some relevant education in college, but he has not previously examined financial statements for Respondent. Like Evaluator 2, Evaluator 3 testified that he did not compute any of the bulleted ratios and was incapable of calculating the current ratio described in the first bullet or the other ratios described in the second and third bullets. Evaluator 3 conceded that he did not determine whether the offerors had sufficient resources to complete the project. In his deposition, Evaluator 3 admitted that his review of the financial criterion was largely confined to checking to see if an offeror's assets exceeded its liabilities. Evaluator 3 conceded that he did not compare debt loads. In two respects, Evaluator 3 approached the evaluation differently from his counterparts. First, he assumed that someone had already determined that the offerors were financially able to service the contract. Second, evidently relying on information not contained in the offers or RFP, Evaluator 3 determined that Petitioner's parts inventory was too low. In his deposition, Evaluator 4 stated that he felt that it was optional whether he had to consider whether the financial information supported an offeror's ability to perform the contract. In rating Intervenor, Evaluator 4 admitted that he was unaware of its debt load. Evaluator 4 testified in his deposition that he did not feel qualified to decide whether an offeror could perform financially under the RFP. In his deposition, Evaluator 5 testified that he did not know what financial resources an offeror must possess to be able to complete the contract. He also admitted that he never determined if Intervenor had operated at a loss for the past two years. In addressing the qualifications of the evaluators to score the financial criterion, it is useful to compare their evaluations to what was being evaluated. The Administrative Law Judge rejects Petitioner's implicit invitation to assess the qualifications of the evaluators without regard to the extent to which their evaluations corresponded with, or failed to correspond with, that which they were evaluating. It is impossible to perform much of a comparative analysis of the financial resources of Petitioner and Intervenor because of the paucity of financial information supplied by Petitioner. Petitioner did not submit audited, reviewed, or even compiled financial statements, so that a credibility issue attaches to its owner-generated statements. Also, Petitioner did not submit a statement of changes in financial position, which is the first financial document that the Procurement Officer testified that he would consult in assessing a corporation's financial resources. Tr., p. 88. Absent this data concerning cash flow, it is not possible to identify reliably the information necessary to consider the third bullet, which asks the evaluator to compare historic cash flow from operations (which is derived from the statement of changes in financial position) with the "projected monthly operating expenses" (which is derived from the income statement). Subject to these important qualifications concerning Petitioner's financial statements, Petitioner's balance sheet reveals a current ratio of 5:1 and a ratio of total liabilities to net worth of well under 1. By contrast, Intervenor's audited financial statements (for DecisionOne Corporation and Subsidiaries) reveal a current ratio of barely 1:1, total liabilities in excess of total assets, and a negative shareholder's equity of $204,468,000. Intervenor's income statement discloses a net loss of $171,641,000 in fiscal year ending 1998 with a note suggesting that $69,000,000 of this loss is attributable to nonrecurring merger expenses. If interest is included, as it should be (given its impact on real-world cash flow), Intervenor's statement of changes in financial position reports negative cash flows for the past three years. Counting interest and taxes, the negative cash flow in 1998 is $37,298,000. This negative cash flow is attributable to the payment of a $244,000,000 to Intervenor's parent, but negative cash flows of $13,144,000 and $11,961,000 in 1997 and 1996, respectively, do not include any dividend payments. Perhaps partly due to the already-discussed problems in ascertaining the role, at hearing, of the accuracy of the scoring, Intervenor did not elicit explanatory testimony concerning its relatively complicated financial statements, although Intervenor's forbearance seems directed more to not developing the evidentiary record concerning the formal and substantive deficiencies of Petitioner's financial statements. However, it is clear that, except for Evaluator 1, Respondent's evaluators could not and did not understand much more of Intervenor's financial statements than that they were professionally prepared and contain large numbers. Turning to the extent to which the scores correspond to what the evaluators were scoring, Petitioner's financial statements are incomplete and owner-generated. Given these facts, the evaluators could legitimately give Petitioner a 2, which is an "acceptable" score, reflective of "adequate capability." The evaluators could also have legitimately given Petitioner a 1, indicative of a "poor" score with "some indication of marginal capability." The evaluators could not have given Petitioner a 0 because its financial statements are at least partly present in the offer and reflect some financial capability. By contrast, Intervenor's financial statements are completed and audited. However, they portray a company that is in financial distress with substantial losses, a negative shareholder's equity, and ongoing negative cash flows. Although much better in form than the financial statements of Petitioner, Intervenor's financial statements raise at least one question as to form because, although disclosing interest and tax payments, they attempt to stress a modified cash flow without regard to these substantial cost items. Given the sizeable losses suffered recently by Intervenor, the evaluators could not rationally assign Intervenor a 3, which is "good" and reflective of "above average capability." Without dealing with Intervenor's losses and specifically identifying cash flow that would be available, after debt service and other expenditures, to service the contract, the evaluators could not rationally assign Intervenor even a 2. Except for Evaluator 1, the evaluators never identified the financial condition of Intervenor and thus never considered it in their scoring. Undermined from the start by a lack of knowledge of roughly how much financial capacity would be necessary to service the three-year contract, the scoring process, as applied to Intervenor, is further undermined by the near-total absence in the record of any informed reason for the scoring of Intervenor's offer. Evaluator 3 erroneously believed that someone not on the evaluation team had already determined that the offerors were financially capable of performing the contract. Evaluator 4 erroneously believed that evaluating the financial condition of the offerors was optional, and admitted that he was unqualified to perform this task in any event. Evaluator 2 claimed to be able to identify losses on a financial statement, but, if he did so as to Intervenor's statements, there is no evidence in the record that he gave the matter any thought. Evaluator 5 expressly admitted that he never made this determination. The only informed bases in the record, either contemporaneous with the scoring process or at any later time through the hearing, for the scoring of the subject criterion in the offers of Petitioner and Intervenor are the evaluation forms of Evaluator 1. In these forms, Evaluator 1 correctly noted the loss suffered by Intervenor in 1998 and the already- mentioned formal deficiencies of Petitioner's financial statements. However, the sole contribution of Evaluator 1 to this case is in the comments on his forms. He was unwilling and unable to discuss any aspect of his scoring when questioned at his deposition. The case of the financial qualifications of the evaluators thus comes down to four evaluators who had no idea what they were doing and one evaluator who offers only two spare, handwritten notes suggestive of a rational basis for distinguishing between the financial capabilities of the two offerors. This is insufficient. The RFP promised an informed evaluation by more than one evaluator. Even if the RFP did not so promise, the promising comments of Evaluator 1 are not indicative of his qualifications when, for no good reason, he could not recall the recently completed evaluation process or could not or would not respond meaningfully to questions concerning the financial materials that he was evaluating. For the purpose of assessing the qualifications of Evaluation 1, the hint of rationality present in his two comments is overwhelmingly offset by the actual financial condition of Intervenor. Rejecting a chance to discuss his evaluation, Evaluator 1 has chosen to let his evaluation be judged on the strength of its correspondence to the subject matter of the evaluation, Intervenor's financial statements. Under all of the circumstances, Evaluator 1's evaluation of the subject criterion in Intervenor's offer was clearly erroneous and contrary to competition. The remaining evaluators' evaluations of this criterion were clearly erroneous, contrary to competition, arbitrary, and capricious. However, Petitioner has elected not to make a direct issue of the accuracy of the scores. Addressing the qualifications of the evaluators, then, their evident lack of qualifications, coupled with the already-described grave deficiencies in the results of their scoring the first criterion of Intervenor's offer and the material impact on the outcome of the relative scoring of the offers of Intervenor and Petitioner, has rendered the evaluation process clearly erroneous, contrary to competition, arbitrary, and capricious.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order rejecting all offers. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 William E. Williams Andrew Berton, Jr. Huey Guilday Post Office Box 1794 Tallahassee, Florida 32302-1794 R. Beth Atchison Assistant General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory P. Borgognoni Kluger Peretz 17th Floor, Miami Center 201 South Biscayne Boulevard Miami, Florida 33131
The Issue Whether just cause exists to suspend Respondent from his employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to the instant proceeding, Respondent was assigned to Miramar High School ("Miramar"), where he serves as a drama teacher and, until March 6, 2012, sponsored the school's drama club. Respondent's career with the School Board, which spans some 25 years, has not been entirely without incident: on November 3, 2010, one of Miramar's assistant principals issued a written directive to Respondent that instructed him, among other things, to "speak in a calm, respectful, and professional tone at all times"; some 15 months later, on February 10, 2012, Respondent was issued a written reprimand, which was based upon an allegation that he had engaged in unprofessional behavior during a meeting. As detailed below, the School Board now seeks to suspend Respondent for three days, alleging that, during a meeting with two administrators on March 8, 2012, Respondent once again behaved unprofessionally.1/ Instant Allegations The relevant facts are largely undisputed. On March 6, 2012, Respondent was advised by a member of Miramar's administration that the drama club would not be permitted to travel to the state thespian competition. The circumstances surrounding the cancellation of the trip, although not relevant to this proceeding, frustrated and disappointed Respondent, who immediately resigned as the drama club sponsor by submitting a letter to Brian Faso (Miramar's principal). The letter, which was dated March 6, 2012, provided, in relevant part: Effective immediately, I am resigning my position as Drama Club and Thespian Sponsor. I appreciate the opportunity to work with some of the very talented students at Miramar High. Notwithstanding the seemingly unambiguous nature of the foregoing correspondence, Mr. Faso was uncertain if Respondent also intended to resign his teaching position. As a result, Mr. Faso instructed Cornelia Hoff, Miramar's intern principal, to meet with Respondent to discuss the issue. Thereafter, on March 8, 2012, Ms. Hoff met with Respondent in the principal's conference room. Ms. Hoff was seated at the head of the conference table, with Respondent positioned two chairs away to her left. Pamela Carroll, one of Miramar's assistant principals and the only other person in attendance, was seated opposite Respondent. At the outset of the meeting, Ms. Hoff inquired of Respondent concerning his intentions——namely, whether he desired to remain in his position as drama teacher. Respondent did not immediately answer, attempting instead, unsuccessfully, to discuss the canceled trip that prompted his March 6 letter. After some back and forth, Ms. Hoff advised Respondent that, pursuant to Miramar's "best practices," the position of drama teacher is "tied" to service as the drama club sponsor.2/ Reasonably interpreting this remark as an insinuation that his employment could be in jeopardy, Respondent sat upright3/ in his chair and stated, in a louder-than-normal speaking voice (but not a yell),4/ that he would "sue everyone in the room" if the canceled trip "came back to haunt" him. Predictably, Ms. Hoff adjourned the meeting a few moments later. Although Respondent's behavior during the meeting of March 8 was no doubt regrettable, there is no evidence that the isolated, intemperate remark has impaired his effectiveness as a School Board employee. Further, and in light of the circumstances under which the comment was made (i.e., in direct response to a remark that led Respondent to question the security of his employment), there is insufficient evidence that Respondent intentionally disregarded the standing directive that he speak calmly and professionally at all times. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against him in this proceeding; and awarding Respondent any lost pay and benefits he experienced as a result of the three-day suspension. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2013.
