The Issue Whether Respondent Legacy Academy Charter, Inc.’s (Legacy) school charter for the Legacy Academy Charter School should be terminated for the reasons set forth in Petitioner the School Board of Brevard County’s (School Board or the Sponsor) November 20, 2019, 90-Day Notice of Proposed Termination of Charter, pursuant to section 1002.33(8)(b), Florida Statutes (2019).
Findings Of Fact Legacy operates Legacy Academy Charter School, a non-Title 1 public elementary charter school (grades K through 6), currently located at 1923 Knox McRae Drive in Titusville, Florida. It is currently in its third year of operations. Legacy represents itself as a STEAM (Science, Technology, Engineering, Arts, and Mathematics) charter school. Legacy and the School Board entered into a charter contract on April 12, 2016. Legacy chose to defer opening for one year, with the intent of opening at the beginning of the 2017-2018 school year. From the time of the original charter, the School District found numerous deficiencies and issues with Legacy’s attempt to open and operate a charter school. For example, in October 2016, it reviewed Legacy’s progress and prepared a “pre-opening checklist” that noted certain deficiencies. In April 2017, representatives from the School District and Legacy met to review the pre-opening checklist and discuss Legacy’s progress toward opening for the school year on August 10, 2017. Assistant Superintendent Archer testified that, based on this meeting, she felt that Legacy was not ready to open, and thought it was in Legacy’s best interest for the School District to offer an opportunity for a second deferral. The School District’s concerns were well-taken; Legacy had not yet secured a school site, had not ordered textbooks, had not hired a Principal, did not have a student enrollment or lottery process in place, did not have an approved and established bank account, did not have office staff in place, and had not hired teachers. Legacy declined the offer to defer another year. Legacy ultimately found a location for the 2017-2018 school year: a former preschool located at the First United Methodist Church in downtown Titusville. During a pre-opening site visit in July 2017, the School District found that the school site was not ADA compliant, that there were safety issues concerning the playground, that the school site lacked infrastructure for necessary technology, and that Legacy had not removed religious symbols. On July 31, 2017, when the School District learned that Legacy had not obtained a certificate of occupancy from the City of Titusville (the first day of school was August 10), the School District issued a recommendation for the immediate termination of the charter for health, safety, and welfare concerns. The School District ultimately rescinded that recommendation for immediate termination on August 8, 2017, after Legacy obtained a certificate of occupancy. Legacy opened for the 2017-2018 school year on August 10, 2017. The School District received various complaints soon after, concerning whether ESE and gifted students were receiving their services, whether Legacy was providing free and reduced lunch, and whether Legacy was providing the appropriate materials and curriculum to its teachers. During the 2017-2018 school year, the School Board issued 10 notices to Legacy for various concerns, defaults, and deficiencies, including concerns found during a new site checklist for Legacy’s November 2017 move into a second location in Port St. John, Florida, and information revealed in a specific review audit of Legacy’s fiscal management and financial position conducted by RSM US LLP (RSM) on March 12, 2018. On April 18, 2018, the School Board issued a “90 Day Notice of Termination,” which listed six grounds for termination: Evidence of the School’s failure to meet generally accepted standards of fiscal management and/or willfully or recklessly failing to manage public funds in accordance with the law as set forth in Rule 6A-1.0081, Florida Administrative Code, Section 218.503, F.S., Section 1002.33(9), F.S., Section 1002.33(7)(a)(9), F.S., Section 1002.345(1)(a), F.S., and Sections 4(G) and 9(A) of the Charter Contract; Evidence of the School’s failure to comply with laws related to public meetings and records as set forth in Section 286.011, F.S., Section 1002.33(16)(b)1, F.S., and Section 9(A_ of the Charter Contract; Evidence of the School’s failure to comply with laws related to teacher certification as set forth in Chapter 1012, F.S., Section 1002.33(12)(f), F.S., and Section 10(C) of the Charter Contract; Evidence of the School’s failure to cure the material breaches of terms or conditions of the Charter Contract after receiving the District’s written notice of noncompliance as set forth in Section 1002.33(7), F.S., 1002.33(9)(c), F.S., and Sections 1(D)(l)(iv)(a) and 12(F) of the Charter Contract; Evidence of the School’s failure to comply with background screening and other requirements set forth in Chapter 1012, F.S., Sections 1002.33(12)(g), F.S., 10132, F.S., 1012.465, F.S., and 1012.458, F.S. and Section 10(J) of the Charter Contract; and Evidence of the School’s failure to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including, without limitation, the Individuals with Disabilities Education Act (IDEA) as referenced in Rule 6A-6.030191(4)(d) and Rule 6A-6.030191(7), Florida Administrative Code, Sections 1003.571(1)(a) and 1002.33(16)(a)(3), F.S., and Section 3(l) of the Charter Contract. Legacy contested the termination, and the School Board referred the matter to the Division, which assigned it DOAH Case No. 18-2778. Rather than proceed to a final hearing, the parties agreed to and executed an Amended Charter Agreement, dated September 11, 2018 (Amended Charter), and filed a Joint Notice of Voluntary Withdrawal. The Preamble to the Amended Charter sets forth, in pertinent part, the explicit agreement of the parties concerning the issues that resulted in the execution of the Amended Charter: By entering into this Amended Charter, the parties wish to address the areas of deficiencies identified in the 90-Day Termination Notice. In doing so, Sponsor agrees to withdraw its 90-Day Termination Notice, allowing the School a chance to address the areas of deficiency and come into compliance with the terms of the original Charter, as amended by this Amended Charter. In exchange, the School agrees to submit to the Division of Administrative Hearings for Case Number 18-2778 a notice of withdrawal of its request for hearing. Each party is responsible for its own attorneys’ fees and costs incurred related to this DOAH proceeding. Nothing herein shall prevent the Sponsor from, or waives the Sponsor’s right to, issue another 90- Day Termination Notice based on repeated instances of non-compliance with the six (6) areas set forth in the April 18, 2018 Termination Notice issued by the Sponsor, based on new areas of non- compliance, and/or to immediately terminate the Charter in the event of a health, safety, and welfare issue under section 1002.33(8), Florida Statutes. The School will be allowed to present evidence that it believes prior alleged breaches were cured, wherein the assigned DOAH judge will make the final decision regarding whether the Sponsor has met the burden of proof under then existing laws.[4] 4 As referenced previously, Legacy filed a Motion for [sic] Limine and Motion to Strike on April 6, 2020, which, inter alia, argued that the undersigned should not consider evidence or allegations related to the previous conduct that resulted in the April 18, 2018, 90-Day Notice of Termination, contending that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and additionally contending that the doctrine of equitable estoppel precludes the School Board from raising those issues in this proceeding. In the April 29, 2020, Order Denying Respondent’s Motion in Limine and Motion to Strike, the undersigned found that Legacy had not established that the Joint Notice of Voluntary Withdrawal constituted a resolution of those issues, and also concluded that consideration of equitable estoppel, which could constitute a defense to this action, requires an evidentiary record. See, e.g., Fewless v. Dep’t of Mgmt. Servs., Div. of Ret., Case No. 18-5787 (DOAH June 17, 2019, Fla. D.M.S. Oct. 24, 2019). The undersigned provided the parties with “the opportunity at the final hearing to address the terms of the Amended Charter Agreement, create a record, and argue, in the proposed final orders, whether such pre-Amended Charter Agreement issues should be considered in the instant proceeding.” At the final hearing, Legacy did not attempt to introduce evidence to establish that equitable estoppel would preclude the undersigned’s The Amended Charter also makes specific reference to the deficiencies enunciated in the April 18, 2018, 90-Day Notice of Termination, stating: In the event that a proceeding is requested before an Administrative Law Judge based on any of the six (6) identified areas set forth in the April 18, 2018 90-day Termination Notice issued by the Sponsor, the School agrees to an expedited hearing within forty-five (45) days of the Sponsor’s written notice based on the calendar availability of the Administrative Law Judge. All other provisions of law regarding a DOAH termination hearing will apply. The undersigned finds that consideration of evidence related to the six areas set forth in the April 18, 2018, 90 Day Notice of Termination, in addition to evidence related to those areas set forth in the Termination Notice is warranted.5 Legacy moved into its current location on or about July 11, 2018. After the filing of the Joint Notice of Voluntary Withdrawal, and shortly after the parties executed the Amended Charter, the School District, starting October 19, 2018, began issuing multiple official notices of default, insufficiency, and other notices, to Legacy, for a variety of reasons. Thereafter, the School Board issued the Termination Notice. Florida charter schools are generally governed by section 1002.33. Section 1002.33(8)(a) provides as follows: (8) CAUSES FOR NONRENEWAL OR TERMINATION OF CHARTER.— (a) The sponsor shall make student academic achievement for all students the most important consideration of these issues, and made no argument concerning equitable estoppel in its proposed final order. 5 The undersigned will also only consider those grounds raised in the Termination Notice in the ultimate determination of whether the School Board is entitled to terminate the Amended Charter. factor when determining whether to renew or terminate the charter. The sponsor may also choose not to renew or may terminate the charter if the sponsor finds that one of the grounds set forth below exists by clear and convincing evidence: Failure to participate in the state’s education accountability system created in s. 1008.31, as required in this section, or failure to meet the requirements for student performance stated in the charter. Failure to meet generally accepted standards of fiscal management. Material violation of law. Other good cause shown. ACADEMIC ACHIEVEMENT AND STUDENT PERFORMANCE The School Board contends that Legacy failed to meet academic achievement and requirements of student performance under sections 1002.33(2), 1002.33(7)(a)4., and, 1002.33(8)(a)1., and sections (2) and 9(C) of the Amended Charter. Within this first ground, the Termination Notice identifies the following three categories: (a) failure to demonstrate improvement in student learning and academic achievement; (b) failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs; and (c) failure of the Charter Governing Board to demonstrate oversight of assessments and accountability procedures to assure that the School’s student performance standards are met or exceeded. Failure to demonstrate improvement in student learning and student achievement. The School Board contends that Legacy failed to demonstrate improvement in student learning and student achievement, and that there was actually a significant decline in student proficiency, as measured by student performance on the Florida State Assessment (FSA) in English Language Arts, Math, and Science. 17 At the elementary school level, the FSA is administered annually in the areas of English Language Arts (ELA) and Mathematics to students in grades 3 through 6. In addition, the FSA is administered in the area of Science to students in grade 5. See § 1008.22(3)(a), Fla. Stat. All FSA assessments use scaled scores and achievement levels. Achievement levels range from 1 through 5, with level 1 being the lowest achievement level, level 5 being the highest achievement level, and level 3 indicating satisfactory performance on an assessment. See § 1008.22(3)(e)1., Fla. Stat. Ms. Ward’s expert report further explained these achievement levels as follows: 1–inadequate, highly likely to need substantial support for the next grade; 2–below satisfactory, likely to need substantial support for the next grade; 3–adequate, may need additional support for the next grade; 4– proficient, likely to excel in the next grade; and 5–mastery, highly likely to excel in the next grade. School grades are calculated, in part, based on students’ FSA scores. See § 1008.34, Fla. Stat. The School Board presented evidence and testimony, including expert testimony, concerning Legacy’s student performance data for grades 3 through 6 in ELA and mathematics, and grade 5 in science, for its first two school years of existence—2017-2018 and 2018-2019.6 Ms. Ward, the School Board’s expert, ultimately opined that Legacy’s student performance significantly declined from the 2017-2018 to the 2018-2019 school year, as evidenced by an increase in students receiving achievement levels of 1 or 2 on the FSA, and, with one exception (to be discussed below), a percentage of 6 On March 23, 2020, Commissioner of Education Richard Corcoran issued DOE Order No. 2020-EO-01, an Emergency Order, that, inter alia, cancelled all assessments for the 2019-2020 school year, including the FSA Assessment, as well as school grades. students receiving achievement levels of 3 or higher being lower than the State or Brevard School District average. The School Board’s contention that Legacy’s student performance significantly declined over the two school years in question can be summarized in these charts: ELA Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 19.5% 22% 31.7% 22% 4.9% 2018-2019 34% 23.3% 28.2% 11.7% 2.9% Mathematics Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 34.1% 34.1% 17.1% 9.8% 4.9% 2018-2019 47% 26% 19% 6% 2% Science Year Level 1 Level 2 Level 3 Level 4 Level 5 2017-2018 18.2% 36.4% 18.2% 27.3% 0% 2018-2019 56.7% 30% 10% 3.3% 0% Legacy’s ELA performance in the 2017-2018 school year was higher than the School District average. However, the percentage of Legacy students performing at level 3 and above for the remaining assessments was lower than State and School District averages for all assessments. The School Board also presented evidence and testimony, including expert testimony, that analyzed students’ 2016-2017 school year assessment levels in ELA and mathematics prior to attending Legacy, and then traced those students’ assessment levels during their time at Legacy.7 The School Board presented evidence that the number of students whose assessment levels were 1 and 2 increased after attending Legacy, while the number of students whose assessment levels were 3 and above decreased. In its first school year (2017-2018), Legacy received a school grade of C, and in its second school year (2018-2019), Legacy received a school grade of D. Legacy was the only public school in the school district that received a D school grade for the 2018-2019 school year. Legacy argues that, based on the percentage of points earned for the calculation for school grades, it has averaged a C for the school years 2017- 2018, 2018-2019, and 2019-2020. Legacy notes that this grade is the same, or better, over this same period of time than two schools within its geographic proximity: Mims Elementary and Coquina Elementary. Legacy further noted that Mims and Coquina received D grades for the 2016-2017 school years. Legacy also introduced evidence that it received capital outlay funding for the school year 2019-2020, and that, according to the guidelines set forth in section 1013.62, Florida Statutes, as charter schools must have “satisfactory student achievement based on state accountability standards applicable to the charter school[]” to receive such funding, it must be found to have satisfactory student achievement. The School Board presented evidence that comparing Legacy’s “average” grade to other geographically-proximate schools is not persuasive. First, Coquina, Mims (and other schools Legacy compared itself to during the final hearing, such as Apollo and Oak Park Elementary Schools), are Title I public elementary schools. Legacy, as a charter school, should be considered a “high-performing” school. The other “comparator” schools contain higher subgroups of economically disadvantaged, minority, and ESE populations than Legacy. Second, as a charter school, Legacy can enroll students from 7 The School Board could not provide such an analysis with respect to science assessment levels, as the science FSA is administered only in fifth grade. anywhere in the district, and has no boundaries, so that a comparison to neighboring schools is not persuasive. Third, if Legacy is compared to other charters and schools that emphasize STEAM innovation, such as Sculptor Charter School, South Lake Elementary School, and Educational Horizons Charter, those schools are consistently “A” schools, and Legacy’s declining grades only emphasize its failure to demonstrate improvement. Assistant Superintendent Archer testified that to establish academic achievement, comparing one school to another is not ideal; rather, it is important to drill down to data on individual student achievement to determine whether each student displays the appropriate level of growth each school year. The School Board further contends that Legacy, with one exception, failed to achieve any of its self-identified academic goals listed in its Application (which is incorporated into the Amended Charter), academic goals submitted to the School Board, and those academic goals identified in a School Improvement Plan (SIP) that Legacy submitted annually to the School Board pursuant to the Amended Charter.8 With respect to Legacy’s goals listed in its application: Legacy Goal Student Achievement Performance Meet or exceed performance scores of District and State traditional public schools (based on percentage of students assessment levels 3 through 5 on FSA) 2017-2018 ELA: Legacy–58.5%; District 60.3%; State 55.9% (Note–Legacy met this goal) 8 Legacy contends that the annual SIP requirement imposed by the School Board runs afoul of section 1002.33(7), which provides that “[t]he sponsor may not impose unreasonable rules or regulations that violate the intent of giving charters greater flexibility to meet educational goals.” The undersigned notes that section 1001.42(18)(a), Florida Statutes, requires school boards to annually approve and require implementation of a new, amended, or continuation of an SIP for each school in a district which meets certain criteria, such as receiving a school grade of D or F, among others. Assistant Superintendent Archer testified that it requires an SIP for all of its charter schools. She further testified that Florida requires academic achievement goals, which the School District now includes in the SIP. Legacy agreed to the SIP process in its Amended Charter, and submitted an SIP to the School District for each year of its existence. Further, having received a D grade in 2018-2019, Legacy was obligated to submit an SIP under section 1001.42(18)(a). 2017-2018 Math: Legacy–31.7%; District 61.6%; State 57% 2017-2018 Science: Legacy–45.5%; District 60.8%; State 58.7% 2018-2019 ELA: Legacy–42.7%; District – 61.6%; State 57% 2018-2019 Math: Legacy–45.5%; District 59.9%; State–57.8% 2018-2019 Science: Legacy–13.3%; District 59.9%; State 57.8% Grades K through 2 reading: Mean growth from fall to spring will be at least one year, as evidenced by outcomes from fall, winter, and spring Florida Assessment for Instruction in Reading (FAIR) Legacy cannot meet this goal because it did not administer FAIR for grades K-2 students Grades 3 through 6 FSA ELA and Math: 86% level 3 or higher; 10% decrease in level 1 or 2 2017-2018 ELA: levels 3 through 5– 58.5%; levels 1 and 2 – 41.5% 2018-2019 ELA: levels 3 through 5– 42.7%; levels 1 and 2 – 57.3% 2017-2018 Math: levels 3 through 5– 31.8%; levels 1 and 2–68.2% 2018-2019 Math: levels 3 through 5– 27%; levels 1 and 2–73% Grade 5 Science: 50% level 3 or higher 2017-2018 Science: levels 3 through 5–45.5% 2018-2019 Science: levels 3 through 5–13.3% Growth/Performance: the longer a student stays at Legacy, as the student is promoted, the higher the performance of that student ELA: increase in levels 1 and 2 from 48% to 50%; decrease in levels 3 through 5 from 52% to 50% Math: increase in levels 1 and 2 from 49% to 53%; decrease in levels 3 through 5 from 51% to 47% School Grade: first year grade of “B”; second year grade at or above “B”; third year grade of “A” First year school grade of “C” Second year school grade of “D” No reported grade for year three With respect to Legacy’s goals identified in the 2017-2018 SIP: Legacy Goal Student Achievement Performance 75% grade level average will be achieved by students in grades 1-2 on the Quarterly Literary Assessment (QLA) spring assessment Legacy failed to administer the spring QLA for grades 1 and 2 70% average percentile rank will be achieved by students in grades 3 through 6 on the Reading Comprehension portion of the final FAIR assessment Legacy did not administer the FAIR assessment to grades 3 through 6 75% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in ELA 58.67% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA ELA 65% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grades 3 through 6 on the 2018 FSA assessment in Mathematics 31.8% of Legacy students in grades 3 through 6 achieved levels 3 through 5 on the FSA for Mathematics 70% average proficiency rate (FSA levels 3 through 5) will be achieved by students in grade 5 on the 2018 FSA assessment in Science 45.5% of Legacy students in grade 5 achieved levels 3 through 5 on the FSA for Science With respect to Legacy’s goals identified in the 2018-2019 SIP: Legacy Goal Student Achievement Performance Reduce the percentage of achievement at level 1 or 2 to 10% or below, and increase students at level 3 or above to 35% or greater for the FSA assessment in ELA 57.3% of students in grades 3 through 6 achieved proficiency rates of levels 3 through 5 (did not meet) Decrease the amount of students who fell to levels 1 and 2 range by at least 5% and increase level 3 and above by 10% for the FSA assessment in Mathematics Level 1 increased by 12.9%; Level 2 decreased by 8.1%; and Level 3 decreased by 4.8% (did not meet) Exceptional Education Students (ESE) increase to 35% at level 3 or higher for ELA, and 25% at level 3 or higher for Mathematics 19% of ESE students scored level 3 or higher on FSA for ELA, and 14.3% of ESE students scored level 3 or higher on FSA for Mathematics English Language Learners (ELL) students increase by 10% proficiency from the first diagnostic test to the last exam of the school year Legacy provided no data With respect to Legacy’s Academic Achievement Goals for 2018-2019, which were separate from its SIP, the School Board introduced evidence that: with respect to ELA, Legacy failed to reduce level 1 and 2 to 10% or below, or increase levels 3 through 5 to 35% or greater, as level 1 achievement increased from 19.5% to 34% over the previous year, and level 3 through 5 achievement decreased from 58.6% to 42.8% over the previous year; and, with respect to Mathematics, Legacy failed to decrease levels 1 and 2 by at least 5% each, and increase levels 3 through 5 by 10% overall, as levels 1 and 2 increased by 4.8% over the previous school year, and levels 3-5 decreased by 4.8%. Clear and convincing evidence establishes that, over the two school years of its existence, Legacy’s students, with little exception, have declined in the area of student achievement. Although Legacy’s ELA performance in the 2017-2018 school year was higher than the school district’s average, it declined in all other areas during this time period, and declined across-the- board the subsequent year. The School Board also established, by clear and convincing evidence, that Legacy, with one exception, failed to meet its self- identified goals in its application, SIPs, and academic achievement goals submitted to the School Board. Failure to demonstrate accountability by analyzing student performance data and by evaluating the effectiveness and efficiency of its major educational programs. Section 1002.33(7)(a)4. requires charter schools to address: The methods used to identify the educational strengths and needs of students and how well educational goals and performance standards are met by students attending the charter school. The methods shall provide a means for the charter school to ensure accountability to its constituents by analyzing student performance data and be evaluating the effectiveness and efficiency of its major educational programs. Students in charter schools shall, at a minimum, participate in the statewide assessment program created under s. 1008.22. Assistant Superintendent Archer testified and provided an expert report, concerning Legacy’s failure to analyze its student data, as required under governing law, the Amended Charter, and district requirements. Assistant Superintendent Archer testified: [Legacy’s] failure to implement any type of strategy to address and analyze data and establish methods to measure goals and make those data-informed decisions for instruction has negatively impacted the student achievement. Again, if you don’t know what your students need, how do you fill any gaps in their education or knowledge? If you don’t know what they know, and what to do if the student doesn’t understand, you cannot continue to support the children. Therefore, any kind of lack of analysis is the responsibility of the school. There are numerous progress monitoring tools available to Legacy that would document and permit analysis of individual student data and progress. Most notably, “Performance Matters” is a progress monitoring tool available to all schools within the school district. Assistant Superintendent Archer testified that Legacy did not consistently use Performance Matters or any other progress monitoring. On a site visit to Legacy, Assistant Superintendent Archer testified that she was unable to review any other documentation, notebooks, or other evidence that teachers were engaging in sufficient progress monitoring. Section 1008.25(4), Florida Statutes, provides that a student who does not achieve level 3 on an FSA assessment for ELA or mathematics, and who does not have an individualized education plan (IEP) in place, must be placed on an individualized progress monitoring plan (PMP). A PMP would be referenced in Performance Matters. Assistant Superintendent Archer testified that Legacy did not access Performance Matters during its first school year, and during their second year, only accessed it sporadically and inconsistently. Assistant Superintendent Archer further testified that during their third school year (2019-2020), Legacy had potentially 33 students that should have a PMP, but that Performance Matters indicated only 4 PMPs were in place. Legacy had previously indicated that it would utilize personalized academic plans (PAP) for its students, which were designed so that students and teachers would monitor an individual student’s progress. Assistant Superintendent Archer testified that Legacy never produced any evidence of a PAP for any of its students. Legacy contends that it reviewed performance data of its academic programs continuously, and that it submits its academic achievement goals to the School Board on an annual basis. Ms. Montford, Legacy’s current principal (who also served as its first principal in 2017-2018), testified that Legacy’s governing board provides oversight of assessments and accountability procedures for its school, but was unable to provide any evidence of this oversight. Despite Legacy’s contentions, the School Board established, by clear and convincing evidence, that Legacy failed to consistently and accurately utilize methods that identified the strengths and weaknesses of its students, and how well educational goals and performance standards were met by students attending Legacy. Failure of the Charter Governing Board (Governing Board) to demonstrate oversight of assessments and accountability procedures to assure that the Legacy’s student performance standards are met or exceeded. Similar to subsection I.B. above, the School Board contended, in its Termination Notice, that over the preceding two and one-half years, after reviewing the minutes of 35 meetings of Legacy’s Governing Board, there were only four instances in which Legacy’s Governing Board discussed an SIP. The School Board further contends that these minutes do not reflect input into the development of a plan, review of school and/or student performance data, or analysis of school needs. And, similarly, Legacy contends that its Governing Board conducted public meetings on a regular basis to discuss and invite public input concerning its student performance standards. As this contention is directly related to the findings in subsection I.B. above, the undersigned finds that the School Board has established, by clear and convincing evidence, that Legacy’s Governing Board failed to demonstrate oversight of assessment and accountability procedures to assure that Legacy’s student performance standards were met or exceeded. EXCEPTIONAL STUDENT EDUCATION The School Board contends that Legacy failed to comply with all applicable laws, ordinances, and codes of federal, state, and local governance including the Individuals with Disabilities Education Act (IDEA), as implemented by Florida through sections 1002.33(2), 1003.571(1)(a), and 1002.33(16)(a)3., Florida Statutes, Florida Administrative Code Rules 6A- 6.030191(4)(d) and 6A-6.030191(7) and adopted in section 3(j) of the Amended Charter. ESE concerns services required for students with disabilities. At the federal level, ESE is governed by the IDEA, which makes available a free appropriate public education (FAPE) to eligible children with disabilities. Florida law incorporates the IDEA in section 1003.571. Upon parental consent for an evaluation under IDEA, a child may be found eligible for ESE if the child has a disability that results in a need for special education services to make progress in school. If the child is eligible, the school is then required to develop an IEP, which is a document that details the individual child’s area(s) of need, educational goals, and support that the school will provide. The school must provide ESE services to the student at the duration and frequency indicated in the IEP. If a school fails to provide these services, the student may be owed compensatory education services, which are an equitable form of reimbursement when a school does not provide FAPE. Section 1002.33(16)(a)3. requires charter schools to comply with laws pertaining to ESE. Dr. Davis, the School Board’s fact and expert witness in charter school compliance, explained that each ESE student’s records are contained in an audit file, which is separate from that student’s cumulative student file. This audit file contains all meeting and conference notes, test results, meeting dates and notices, and the student’s IEP. And Ms. Gilman, the School Board’s fact and expert witness in ESE, stated that a school must provide services in accordance with the student’s IEP, and if it fails to do so, the student is owed compensatory education services. All ESE services must be reflected in lesson plans, and a school is required to report each student’s progress to the student’s parents a minimum of every nine weeks. Ms. Gilman further testified of the importance of documenting and monitoring ESE students, as progress monitoring determines whether a student is meeting his or her goals in a timely manner within the duration of the IEP. If the School District does not provide documentation that a student receives these services, then it determines that the student is owed compensatory education services. The School Board presented evidence that during Legacy’s first school year (2017-2018), it had not hired an ESE teacher within 15 days of the first day of class, and that student’s schedules did not provide any time for ESE services. The School District conducted a site visit after receiving complaints, and found the ESE teacher who was ultimately hired covering another classroom, and that Legacy could not produce ESE documentation when requested. Legacy received multiple official notices from the School Board regarding its ESE services and documentation, starting October 13, 2017, with a Notice of Deficiency. After receiving what it deemed an inadequate response from Legacy, on December 1, 2017, the School Board issued a Notice of Default, which stated that Legacy had not provided appropriate programs, strategies, and support services for ESE students. Legacy responded, and the School Board issued another Notice of Default. On February 22, 2018, the School District’s ESE department conducted one of many ESE audits of Legacy’s ESE services. The audit report showed four areas of noncompliance: (1) teachers need to document the accommodations they provide to each student in a user-friendly format; (2) ESE teachers need to have a well-documented lesson plan that details the services provided to the ESE students; (3) ESE teachers need to document attendance of ESE students and log of daily services provided; and (4) progress reports need to be provided to ESE students at the same time period as non-disabled peers. This audit included a corrective action plan, and the District additionally required Legacy to conduct an internal audit of its records to determine if any evidence existed that it actually provided ESE services. Legacy identified 27 students who were owed a total of 11,574 compensatory education service minutes, and proposed a compensatory education plan to provide those minutes. In March 2018, Legacy provided additional information in response to the December 1, 2017, Notice of Default. The School Board reviewed that information, finding that Legacy continued to be deficient in its documentation and provision of ESE services. On April 18, 2018, the School Board issued the first notice of termination, which included Legacy’s failure to comply with ESE laws. As discussed previously, the parties entered into an Amended Charter after this first notice of termination. The Amended Charter refers to previous ESE issues concerning Legacy: In the audit report dated February 22, 2018, the Sponsor cited four (4) findings of non-compliance regarding the ESE services provided by the School, including the School’s failure to document accommodations provided to each student in accordance with the student’s IEP, failure to provide well-developed lesson plans that detail the services provided to ESE students as documented on each student’s IEP, failure to provide documentation of attendance of ESE students and log of daily services provided, and failure to provide evidence that the School generated Annual Goals Progress Reports and EP Goals Progress Reports (Gifted) with data driven comments for parents. It has since adopted the District’s attendance logs, has adopted standardized lesson plans, and will continue to follow the District’s Corrective Action Plan as contained in the audit report dated February 22, 2018. The School has conducted an internal audit to determine what students may be owed compensatory education. By September 30, 2018, the School shall work with District ESE staff to ensure that all students have been properly identified and submit a plan to the District setting forth compliance with the deficiencies mentioned above and a plan to provide compensatory education to all students who did not receive the proper ESE services. Said plan shall include the methods by which each affected student will be receiving compensatory education, including the School’s plan for students who may no longer be enrolled at the School. All expenses related to compensatory education shall be borne by the School and all compensatory services shall be provided to the affected students by November 15, 2018, with supporting documentation of compliance provided to the District by December 1, 2018. Said plan shall be approved by the Sponsor. Upon a showing of good cause, the School may request an extension of any of these dates, and the Sponsor’s consent to such request shall not be unreasonably withheld. There was no persuasive evidence presented at the final hearing that Legacy has ever provided the 11,574 compensatory education service minutes owed from the 2017-2018 school year. Legacy contends that it responded to every notice received from the School District, as provided in the Amended Charter, and that an April 2019 ESE audit conducted by the School District, which identified numerous deficiencies and corrective measures, did not mention these minutes. However, the School Board had no record of, and Legacy presented no evidence that, these compensatory education minutes were provided to eligible students. After the execution of the Amended Charter, which included the requirement that Legacy submit a compensatory education plan to the School District by September 30, 2018, Legacy requested an extension for the deadlines contained in this provision of the Amended Charter, to be completed by January 15, 2019, with supporting documentation to the School District by February 1, 2019. In that time period, Legacy engaged in a familiar pattern of submitting a draft plan that the School District considered insufficient, but, on December 7, 2018, the School District contingently accepted Legacy’s following of a draft plan pending minor revisions. However, Legacy never submitted a revised document, and on January 18, 2019, the School District issued a Notice of Non-Satisfaction for failing to submit an acceptable compensatory education plan (which, at that point, would be the third amended compensatory education plan). Thereafter, on February 4, 2019, the School District issued a Notice of Default, and provided Legacy a February 19, 2019, deadline to come into compliance by submitting an acceptable compensatory education plan. Instead, Legacy requested an extension of the February 19, 2019, deadline, which, in a letter dated February 27, 2019, the School District denied. On April 4, 2019, the School District issued another Notice of Non- Satisfaction, for Legacy’s failure to comply with the February 4, 2019, Notice of Default. Following this April 4, 2019, Notice of Non-Satisfaction, the School District met with Legacy, and on April 16, 2019, issued a Notice of Deadlines, which outlined information and new deadlines that the School District and Legacy agreed to comply with concerning compensatory education services. The School District’s Division of ESE conducted follow-up audits on April 16 and 22, 2019, to ensure that Legacy was in compliance with ESE requirements. The report from these audits cited seven areas of noncompliance: (1) documentation of accommodations and strategies; (2) documentation of services; (3) documentation of daily attendance and services; (4) documentation of student progress reports; (5) documentation of parent notification; (6) documentation of written IEPs; and (7) documentation of supplemental aids and services. Three of these areas of noncompliance (documentation of accommodations and strategies, services, and daily attendance) were repeat deficiencies from the previous February 22, 2018, audit. Ms. Gilman testified that the findings of these follow-up audits raised concerns of whether Legacy’s ESE students were actually receiving the services that the law requires. Ms. Gilman’s expert testimony is credited. As a result of the April 2019 audit, Legacy was required to provide 1,305 compensatory education service minutes for the six sample students identified. Legacy completed these compensatory education service minutes, which were for the 2018-2019 school year, at the beginning of the summer between the 2018-2019 and 2019-2020 school years. At the beginning of the 2019-2020 school year, Legacy had completed the compensatory education service minutes (1,305) owed to those six students, but had not completed the compensatory education service minutes (11,574) owed to the 27 students from the 2017-2018 school year. The School District presented evidence that Legacy experienced ESE staff turnover during its three years of operation. Legacy presented evidence of an ESE teacher shortage for several weeks, making it difficult to hire and retain such teachers. During the 2019-2020 school year, Legacy lost its only ESE teacher for a period from September through October 2019, when Legacy hired a new ESE teacher. During these weeks without an ESE teacher, additional compensatory education minutes accrued because none of Legacy’s ESE students received services during this time. As a result, the compensatory education services minutes owed for 2019-2020 was 16,200 minutes. At subsequent parent meetings, some of the parents of Legacy’s ESE students waived some of the compensatory education minutes owed, resulting in a total of 9,990 minutes owed. Ms. Luna, one of Legacy’s current ESE teachers and who worked as an ESE teacher for Legacy during the 2019-2020 school year, testified that Legacy worked to fulfill ESE compliance issues. Ms. Luna testified that all regular and compensatory ESE services for the 2019-2020 school year have been provided during remote learning caused by the COVID-19 pandemic, and documented through the Google Classroom platform. However, because Legacy failed to produce progress monitoring reports related to ESE students during discovery, and failed to timely disclose its desire to introduce these progress monitoring reports as exhibits at the final hearing, the undersigned excluded such evidence. The School Board has established, by clear and convincing evidence, that Legacy failed to provide 11,574 compensatory education service minutes to 27 ESE students from the 2017-2018 school year. The School Board also established, by clear and convincing evidence, that Legacy failed to properly provide ESE services to its ESE students in the 2018-2019 school year, despite numerous notices. Although Ms. Luna’s testimony that Legacy has completed regular and compensatory ESE services for the 2019-2020 school year was persuasive, it is not clear, because of the lack of admissible progress monitoring reports, that Legacy’s ESE students received the services required under their IEPs. FINANCIAL MANAGEMENT The School Board contends that Legacy failed to meet generally accepted standards of fiscal management and/or willfully or recklessly failed to manage public funds in accordance with the law and promote enhanced academic success and financial efficiency by aligning responsibility with accountability as set forth in sections 218.503, 1002.33(9), 1002.33(7)(a)9., 1002.33(2)(a), and 1002.345(1)(a)3., Florida Statutes, Florida Administrative Code Rule 6A-1.0081, and sections 4(H), 4(G)(3)(a), and 9(A) of the Amended Charter. Section 1002.33(8)(a)2. provides that a sponsor may terminate a charter if it finds, by clear and convincing evidence, a “[f]ailure to meet generally accepted standards of fiscal management.” The School District administers the public funds that Legacy receives for its operations. Pursuant to section 1002.33(9)(g), Legacy is responsible for its finances, with various reporting requirements to the School District. Legacy’s Governing Board is responsible for the operation and fiscal management of the school, and shall provide oversight over the school’s operations. Legacy’s Governing Board must submit a monthly financial statement to the School District no later than the last day of the month following the month being reported. Section 1002.33(9)(g)1.a. requires Legacy to use the accounts and codes prescribed in the most recent issuance of the “Financial and Program Cost Accounting and Reporting for Florida Schools,” a publication, for all financial transactions and maintenance of public records. The primary source for revenue for a charter school is the Florida Education Finance Program (FEFP), which is based on a weighted calculation of the enrollment of the school (also known as full-time equivalent (FTE)). See § 1002.33(17) Fla. Stat. Legacy also qualified for a $500,000.00 Charter School Program grant (CSP), in which Florida provides start-up and implementation funds for new charter schools. CSP is a reimbursement grant, in which a charter school first purchases items, and upon submission of appropriate documentation, receives a reimbursement of the funds spent. The School District acts as a pass-through for the CSP funds, and reviews documents for proper documentation and adherence to the Governing Board policy before authorizing reimbursement. CSP funds are to be distributed in two phases: start-up (prior to opening, $25,000.00) and implementation (after opening, $475,000.00). Legacy failed to receive full reimbursement from CSP at either phase because it did not properly document purchases and failed to follow its Governing Board purchasing policies. This failure caused financial issues with Legacy, to be discussed further below. On November 19, 2018, Legacy took out a short-term loan from Legacy Funding Services, LLC, evidenced by a promissory note, in the original principal amount of $112,505.00.9 Legacy agreed to repay the promissory note by March 15, 2019, and accrue interest. The purpose of this loan was to provide funds to purchase items, to be reimbursed by the CSP grant. The School Board presented evidence that, in early 2018, it had various concerns about Legacy’s financial situation. The School District requested its internal auditor, RSM, to conduct a review of Legacy’s financial condition, and report whether financial emergency indicators, as defined in section 1002.345, were present. After meeting with School District staff, and Ms. Montford, RSM provided a “Specific Review” audit dated March 12, 2018. This Specific Review formed part of the basis for the April 18, 2018, 90-Day Notice of Termination. The 2018 RSM Specific Review found that Legacy made no payments on this short-term loan before the maturity date. Legacy had not paid the promissory note by the maturity date because it did not receive CSP funds. According to section 218.503(1)(a), one condition of a “financial emergency” is “[f]ailure within the same fiscal year in which due to pay short-term loans . . . as a result of a lack of funds.” Legacy made a payment on the promissory note after the maturity date. Then, it renegotiated the loan into a new promissory note dated September 20, 2019, in the principal amount of $88,322.11, with a maturity date of August 1, 2021. That promissory note included a security agreement, by which Legacy agreed to pledge all of its furniture, fixtures, equipment, and 9 Legacy Funding Services, LLC, is not connected to or otherwise affiliated with Legacy Academy Charter, Inc., or any of its principals. the like as collateral; however, as the school’s assets are purchased with public funds, it was improper to enter into this security agreement. Legacy provided evidence, in a Uniform Commercial Code (UCC) filing, that this security agreement was removed from the promissory note. The 2018 RSM Specific Review also found that Legacy listed this loan as revenue on its monthly financial report, as opposed to a liability, which is problematic. By standard accounting principles, revenue is income that an entity generates; a loan, such as the Legacy loan, obviously does not qualify as revenue. Legacy has engaged an external third-party auditor, King & Walker, CPA, P.L. (King & Walker) to conduct an annual financial statement audit. This annual financial statement audit is a review of the balances of Legacy’s financial statements, and the auditor ultimately issues an opinion on whether those balances are reasonable and accurate in all material respects. These audits are reported in accordance with generally accepted accounting principles (GAAP), which are standards set by the American Institute of Certified Public Accountants. GAAP is an all-encompassing version of the financial statements that includes every long-term item, pension, long-term capital assets, long-term payables, and the like. In all of its previous annual audits from King & Walker, Legacy has received a “clean” audit, that is, that the financial statements “present fairly, in all material respects[,]” with no adverse findings. Although Legacy contends that this is sufficient to establish that it has met accepted standards of financial management, the evidence presented at the final hearing indicated otherwise. The King & Walker audit report provides exceptions. For example, it states that the audit is “not for the purpose of expressing an opinion on the effectiveness of the school’s internal control.” It also states that “consideration of internal control . . . was not designed to identify all deficiencies in internal control that might contain material weaknesses or significant deficiencies . . . material weaknesses may exist that have not been identified.” Ms. Manlove, who was an auditor for RSM and was accepted as an expert in the field of auditing, explained that government entities commonly report their funds on a “fund balance” or “modified accrual basis,” which does not include every long-term asset or liability, but only includes short-term items. Ms. Manlove stated that this differs from GAAP. In 2019, the School District again engaged RSM to conduct a review to analyze Legacy’s compliance with the Amended Charter, fiscal management and controls, compliance with Florida law (focusing on indicators of a deteriorating financial condition or financial emergency), and compliance with Florida law concerning background screenings of Legacy employees. The 2019 RSM Review differed from the King & Walker audits, as it looked for compliance with what the Florida Department of Education requires of charter schools to report to sponsors, which means a “fund balance” approach that includes short-term items that are normally found in monthly financial statements. RSM met with Ms. Montford and performed field work on site at Legacy in August and September 2019, and additionally contacted Kevin Lugar of Building Hope, which Legacy had contracted with to support accounting support. Ms. Manlove testified that Ms. Montford, who was then serving as Principal, had possession of the documents, and that many of the requested financial documents were not kept at the school. The 2019 RSM Review, in analyzing whether any indicators of a financial emergency existed, looked for evidence of failure to pay uncontested claims from creditors within 90 days after the claim is presented, as required by section 218.503(1)(b), and found: A December 27, 2018, debit card payment in the amount of $323.12 to IC Systems, which was supported by a demand for payment that stated that IC Systems was a debt collection agency for Parrish Medical Group. Legacy could not provide a copy of the original invoice, and contended that this was a payment to AT&T, but could provide no evidence to support this contention. Based on this lack of documentation, it is not clear whether this payment aged over 90 days; A March 8, 2019, debit card payment in the amount of $843.96 to Florida Power & Light (FPL), which was supported by a document that indicated that this was a “final notice before power is turned off,” with a due date of March 7, 2019. Legacy did not respond to RSM’s inquiries as to whether FPL shut off Legacy’s power; Ms. Manlove testified that there was a pattern of FPL shut-off and past- due notices. The School Board presented evidence of four additional shut-off notices from FPL–July 10, 2018, November 27, 2018, February 26, 2019, and March 26, 2019—as well as four past due notices from FPL—April 2, 2019, June 3, 2019, November 2, 2019, and March 3, 2020. The Governing Board was not aware of these FPL shut-off and past-due notices. The 2019 RSM Review also analyzed a sampling of expenditures. Legacy’s segregation of financial duty policies provides that the Principal may authorize payments of $5,000.00 or less, and the Principal and Treasurer must jointly authorize (i) payments greater than $5,000, and (ii) payments of $1,500 or more that utilize CSP funds. The 2019 RSM Review found a December 5, 2018, check for $67,635.00 to CFL Alarms, LLC (CFL Alarms), for the purchase of computers and related equipment. The records provided to RSM indicated that Ms. Montford, as Principal, and Mr. Carroll, as Treasurer, approved of this expenditure. However, Ms. Montford was not the Principal of Legacy at that time, and Mr. Carroll had never served as Treasurer, but rather as Governing Board Vice Chair. Legacy submitted a CSP reimbursement request to the School District for the CFL Alarms purchase, but provided invoices from CFL Alarms that did not contain details such as types of equipment purchased or serial numbers of computers. Mr. Pulchan, the owner of CFL Alarms, testified that, in response to the School Board’s subpoena for its records, he added serial numbers and modified the invoices per Ms. Montford’s request. It also became apparent during the final hearing that CFL Alarms was not a licensed reseller of the Lenovo or Dell computers that it sold to Legacy. In fact, the evidence showed that CFL Alarms purchased computer equipment directly from Dell and Amazon, and then resold the equipment to Legacy at a substantial mark-up of between 45 and 60 percent. While Mr. Pulchan testified that he delivered and installed this equipment, Legacy provided no evidence or testimony why it could not have purchased this equipment directly, or in a more cost-effective manner. Legacy provided bank records that reflected a refund from CFL Alarms to Legacy in the amount of $33,131.50. CFL Alarms provided records from Mr. Pulchan’s Amazon account that reflected the return of Lenovo laptops. The undersigned finds that the evidence was unclear as to what Legacy purchased from CFL Alarms for $67,645.00, or what Legacy returned to CFL Alarms for $33,131.50. The payment to CFL Alarms, evidenced by a check signed by Ms. Montford, is also evidence that Legacy did not follow its segregation of financial duties policies. The School Board presented additional evidence that Legacy lacked a formal monitoring process for debit card purchases. It presented evidence that Legacy’s December 2019 bank statement reflects four payments to FPL, only one of which by check. Legacy made the other three payments with a debit card in the amounts of $948.31, $74.31, and $485.60, which were unsupported by other documentation. The School Board also presented evidence that it was, at best, unclear whether Legacy’s Governing Board properly monitors, performs due diligence, and exercises fiduciary responsibility over the school, as required under section 1002.33(9)(i) and (j). Part of the reason for this was that Legacy did not produce complete board packets for its monthly Governing Board meetings. An additional reason is that Mr. Carroll, the Governing Board vice chair, who has extensive background in finance and who previously served as the chief financial officer for NASA, provided inconsistent testimony about past-due bills and oversight. The School Board also presented evidence of Legacy’s monthly financial statements, which reflected a negative cash position for each month between October 2019 and March 2020. The negative cash position classified Legacy as being in a “deteriorating financial condition” under section 1002.345, and required Legacy to submit a Corrective Action Plan (CAP). The School District provided Legacy with notice about the submission of a CAP in November 2019. Legacy prepared a CAP, but the School District determined it was insufficient because it did not identify the specific actions needed to recover from this negative cash position. Legacy did not provide an updated CAP, and the School District forwarded Legacy’s CAP to the Department of Education on December 19, 2019. The Department of Education directed Legacy to prepare a CAP, with a deadline of May 1, 2020, which Legacy timely submitted, with assistance of the School District. As part of the CAP, Legacy plans to reduce salaries over a period of a year, and renegotiate its lease to reduce payments.10 With respect to the lease, which Legacy entered into with Legacy Charter Holdings, LLC, on April 21, 2017, the renegotiation resulted in a temporary reduction of the monthly rent from $41,483.67 per month, to 10 Legacy presented evidence at the final hearing that another charter school in Brevard County, Emma Jewel Charter Academy in Cocoa, Florida, has been required to submit a CAP for the 2014-2015 and 2015-2016 school years, but has never received a notice of termination from the School Board, while Legacy, who is undergoing the CAP process for the first time, received a notice of termination. Legacy contends that this disparate treatment is discriminatory. The undersigned finds that such evidence related to Emma Jewel does not alter the undersigned’s ultimate findings concerning whether Legacy has failed to meet generally accepted standards of fiscal management. $10,000.00 per month, for April, May, and June 2020. Thereafter, in July 2020, the rent increased to $37,941.98 per month.11 Mr. Moreno, the chief financial officer of Building Hope Services, testified, since fall 2018, that Building Hope Services provides back office accounting services for Legacy. His staff assists in the preparation of Legacy’s monthly financial statements, which he reviews. He testified that based on his review of Legacy’s financial statements, its revenues will exceed its expenditures at the end of the fiscal year. Mr. Moreno based this conclusion on the lease adjustment, and that Legacy received through the Small Business Administration (SBA) and USA CARES Act, see 15 U.S.C. § 636, et seq., a Paycheck Protection Program (PPP) loan in the amount of $198,810.00. The PPP loan could be forgivable if the funds received are used for: payroll costs; costs related to the continuation of group healthcare benefits; mortgage interest payments (but not mortgage prepayments or principal payments); rent payments; utility payments; interest payments on any other debt obligations that were incurred before February 15, 2020; and/or refinancing another specific SBA loan. If not, the PPP loan must be repaid monthly in the amount of $8,370.15, commencing November 1, 2020. Mr. Carroll testified that Legacy intends to use the PPP loan proceeds for salaries. It is unclear at best how Legacy needs funds to pay the salaries of its employees as a result of the COVID-19 pandemic, as those funds are derived from FEFP. It is also unclear if Legacy has done so, or whether it will be required to repay the loan beginning in November 1, 2020. Apparently, Legacy’s belief is that the PPP loan operates as a deus ex machina that solves all of its financial problems, and thus should convince the undersigned that the PPP loan cures and excuses the clear and convincing evidence presented 11 The lease originally tied the rent amount to enrollment of students at Legacy. Legacy’s year one enrollment was 165, year two was 235, and year three was 246. Pursuant to an addendum to the lease, the monthly rent was $1,100 per student, but no less than $200,000 in year two, and no less than $449,000 in year three. by the School Board that Legacy, time and time again, failed to meet generally accepted standards of fiscal management. It does not. The undersigned finds that the School Board presented clear and convincing evidence that Legacy failed to meet generally accepted standards of fiscal management. Additionally, the School Board presented clear and convincing evidence that Legacy did not manage public funds in a responsible manner. BACKGROUND SCREENING The School Board contends that Legacy failed to comply with requirements for background screening of its employees and Governing Board members, as set forth in chapter 1012, sections 1002.33(12)(g), 1012.32, 1012.465, 1012.467, and 1012.468, Florida Statutes, and sections 10(I) and (J) of the Amended Charter. As part of the 2019 RSM Review, RSM reviewed a sample of employees and Governing Board members for proper background screening. RSM found that two Governing Board members began their positions on the Governing Board prior to obtaining the required background clearance, two substitute teachers had either inaccurate employment records or did not receive the proper background screening before beginning employment at Legacy, and one teacher was not fingerprinted in a timely manner. Dr. Davis then reviewed all payroll, clearance, and database records for Legacy, and concluded that there were other issues concerning Legacy’s failure to conduct background screening. However, the Termination Notice, which forms the basis of this proceeding, only identifies the five persons analyzed in the 2019 RSM Review, as evidence that Legacy failed to comply with background screening laws. Legacy presented evidence that the School District had accidentally deleted a Governing Board member’s background screening information, but that RSM identified this Governing Board member as not obtaining the appropriate background screening. With respect to the other Governing Board member, the Governing Board approved of this member, and he received his clearance, during the summer months, when students are not normally on campus. Legacy also presented evidence that, with respect to the other four individuals identified in the 2019 RSM Review as not having obtained the required background clearance, the School District had issued a Notice of Default, as required under the section 12(F) of the Amended Charter, and Legacy had cured that default within the time prescribed in the Notice of Default. In fact, the School District issued written notices of satisfaction with respect to these issues. The undersigned finds that the School District has not established, by clear and convincing evidence, that Legacy failed to comply with background screening requirements for its employees and Governing Board members. VIOLATION OF LAW AND BREACH OF CONTRACT The School Board contends Legacy failed to comply with law and/or cure material breaches of terms or conditions of the Amended Charter after receiving the School District’s written notice of noncompliance, and that Legacy failed to promote enhanced success and financial efficiency by aligning responsibility with accountability as set forth in sections 286.011, 1002.33(2), 1002.33(7), 1002.33(9)(c), 1002.33(12)(f), 1002.33(16)(b)1., 1012, Florida Statutes, and sections 1(D)(1)(d)(i), 10(C), and 12(F) of the Amended Charter. Many of the School Board’s contentions made under this sub-category are repetitive of issues raised with respect to the other four sub-categories, such as: Legacy’s pledging its assets as collateral for a short-term loan; Legacy’s untimely submission of monthly financial reports; Legacy’s not providing proper minutes of its Governing Board meetings; the Governing Board’s failure to exercise oversight; and the Governing Board’s failure to implement policies and procedures. The undersigned previously found that the School Board presented clear and convincing evidence to establish these contentions, and further finds that these also constitute a violation of the provisions of the Amended Charter. Section 10(C) of the Amended Charter states that “teachers employed or under contract to the School shall be certified as required by Chapter 1012.” The School Board presented evidence that Legacy employed two teachers who were not certified, and two who worked out-of-field, but not approved by the Governing Board.12 Legacy presented evidence that the two teachers who lacked certification were substitute teachers, who were not required under Florida law to possess a certification. See § 1012.35, Fla. Stat. The School Board presented clear and convincing evidence that two teachers—Jane Anne Burnett and Vilma Perez—taught out-of-field without the Governing Board’s approval. See Fla. Admin. Code R. 6A-1.503(3). Section 1002.33(9)(p)2. provides that each charter school’s governing board must appoint a parent representative “to facilitate parental involvement, provide access to information, assist parents and others with questions and concerns, and resolve disputes.” Section 1002.33(9)(p)3. provides that this parent representative, or his or her designee, must be physically present at each meeting. The School Board presented clear and convincing evidence that Legacy’s appointed parent representative did not attend four meetings in the 2016-2017 school year, 13 of 15 meetings in the 2017-2018 school year, and six of 13 meetings in the 2018-2019 school year, in derogation of section 1002.33(9)(p). Section 1002.33(9)(p)3. also provides that all governing board meetings “must be noticed, open, and accessible to the public.” The School Board presented evidence, as found in the 2019 RSM Review, that between July 2018 and August 2019, Legacy posted 11 public notices on its website, but that four public meeting notices were not available, one meeting notice 12 An out-of-field teacher is one who is certified in a certain area, but teaches in an area outside of his or her certification. See Fla. Admin. Code R. 6A-1.503(1)(c). was “corrupted,” and three meeting notices were not posted on Legacy’s website. The 2019 RSM Review also revealed that of these 11 public notices on Legacy’s website, four were not timely noticed under Legacy’s April 2018 Notice of Meeting Policy, which provided that for all regular meetings, “notice should be given to the public at least seven (7) days prior to the meeting.” The School Board presented clear and convincing evidence that Legacy failed to provide notice of its Governing Board meetings, in derogation of section 1002.33(9)(p)3., and its Notice of Meeting Policy. Section 1002.33(9)(p)1. provides that “[e]ach charter school shall maintain a website that enables the public to obtain information regarding the school … and, on a quarterly basis, the minutes of the governing board meetings.” The School Board presented evidence, as found in the 2019 RSM Review, that two of the 15 meeting minutes sampled between July 2018 and August 2019 did not have any minutes posted to Legacy’s website. The School Board presented clear and convincing evidence that Legacy failed on two occasions to post required meeting minutes of its Governing Board, in derogation of section 1002.33(9)(p)1. Finally, the School District introduced evidence that it had issued 26 notices of deficiency between the date of the Amended Charter and the date of the 2019 RSM Review. The School District found that Legacy had not cured 14 of these notices. The undersigned’s review of these 14 uncured notices reveals that they are duplicative of School Board contentions that the undersigned has already found to be established by clear and convincing evidence. The undersigned further finds that the School Board has established, by clear and convincing evidence, that Legacy has defaulted under section 1(D)(1)(d)(i) of the Amended Charter, which provides that good cause for termination includes the failure to cure a material breach of any term or condition after written notice of noncompliance. The undersigned has not overlooked evidence that, after the April 18, 2018, “90 Day Notice of Termination,” and as the parties executed the Amended Charter, members of the School District, including Assistant Superintendent Archer, requested that Ms. Montford and Mr. Carroll be removed from their positions as principal and Governing Board Member. While the undersigned may agree with Legacy that such a request was an inappropriate invasion of Legacy’s autonomy, the undersigned cannot overlook the overwhelming evidence presented by the School Board of Legacy’s numerous, well-documented issues that support termination of the Amended Charter, or somehow reason away that these numerous, well- documented issues are actually evidence that the School District has a vendetta against Legacy, which Legacy contends.
The Issue Whether Respondent, Latunya Gibbs ("Respondent" or "Gibbs"), committed the violations as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner, BCSB, is located at 600 Southeast Third Avenue, Fort Lauderdale, Florida. BCSB is in charge of the Broward County School District ("the District"). Robert W. Runcie is the Superintendent of BCSB. The Superintendent is statutorily obligated to recommend the placement of school personnel and to require observance with all laws, rules, and regulations. He is authorized to report and enforce any violation thereof, together with recommending the appropriate disciplinary action against instructional personnel employed by the Board. Gibbs is employed by BCSB as a teacher pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. She was first hired by BCSB on August 24, 1993. Gibbs holds a Florida Educator's Certificate in Elementary Education. The Superintendent recommended that Gibbs be terminated from her employment with BCSB. On October 2, 2018, the Board adopted the Superintendent's recommendation. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements through the Board's adoption of the Superintendent's recommendation for termination. Gibbs was assigned as a teacher at MLE for school years 2015-16, 2016-17, and 2017-18. In 2015-16, Gibbs was assigned to teach second grade. On September 2, 2015, she was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. During the 2016-17 school year, Gibbs was assigned to teach third grade at MLE. Gibbs had 18 students in her class. On May 24, 2017, Gibbs received notice of an investigation into an allegation that she falsified records pertaining to student evaluations and achievements for promotion to the fourth grade. These records included student assessments for the Benchmark Assessment System and third grade Portfolios. On June 19, 2017, Gibbs received notice that the investigation was expanded to include an allegation that she submitted falsified documents to utilize FMLA leave and that she falsified a training certificate. Fabricated BAS Assessments The District uses the Fountas & Pinnell Benchmark Assessment Systems ("BAS"). It is used to determine a student's independent, instructional, and frustration reading levels. BAS assessments are conducted one-on-one by the teacher. In part 1 of the assessment, the student reads aloud and talks about the system's leveled fiction and nonfiction books, while the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the text. BAS assessments are done for all students in grade levels Kindergarten through 3, and for those students in grades 4 and 5 who score a one or two on the Florida Standards Assessment ("FSA"). For BAS, there are three assessment periods each school year. The District deadline for the third assessment period was May 26, 2017. MLE set an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met. On May 11, 2017, Gibbs was provided with a substitute so she could have the opportunity to complete BAS assessments. After school on Friday, May 12, 2017, there was a Response to Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz"), MLE's Principal, that she had completed the BAS assessments for two of her 18 students. Gibbs stated that she was confident that she would be able to complete all student assessments by the May 19 deadline, and that she did not need a substitute for an additional day. Gibbs was at school on Monday, May 15, 2017, but then was absent for an extended period. She was absent on May 16 through 19, and 22 through 24. Principal Velez asked Ms. Shamequia Wright ("Wright"), a third grade teacher and union steward, and Ms. Hend Hafez ("Hafez"), an MLE Literacy Coach, to help assess Gibbs' students. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin ("Hennequin"), third grade team lead, entered Gibbs' classroom to look for the students' BAS folders. They could not find the BAS folders, and only found blank scoring sheets. They held up a BAS folder and asked the students where they could find the folders. The students informed Hennequin and Wright that they had never seen the folders. Hennequin and Wright left Gibbs' classroom to get their own materials so they could start assessing students. Wright proceeded to assess Gibbs' students on May 19 and May 22., 2017 On May 23, 2017, Hafez was asked to gather the BAS assessments that Wright had completed. Wright told Hafez that the assessments were on the round table in Gibbs' classroom. Hafez collected the BAS materials from the round table in Gibbs' classroom and provided them to the office. Upon trying to enter the BAS scores into the BASIS system, it was discovered that Gibbs had entered all of the students' scores on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for 16 students on that day. Principal Veliz knew this was an impossible task and, therefore, questioned the validity of the scores. Principal Veliz asked the District for a review. By May 26, 2017, the office had received all of the protocols--the student BAS folders containing the data for all three of the assessment periods--from all of the third grade teachers with the exception of Gibbs. The Assistant Principal, Joan Rosa ("Rosa"), made an announcement over the P.A. reminding all of the teachers who had not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought any of the protocols for any of the three assessment periods to the office. On May 26, 2017, Mildred Grimaldo ("Grimaldo"), Director of Literacy from the District, went to MLE to conduct a review and reassess Gibbs' students. The team conducted a reassessment of five students. Hafez reassessed the remaining students. It was found that the scores entered in BASIS on May 15, 2017, by Gibbs did not align with the reassessments completed by Grimaldo's team or Hafez. Of the 18 students in Gibbs' class, only six scored a three or above on the FSA. Six students scored a two and five students scored a one. One student was absent. Gibbs was scheduled for mandatory BAS training on January 13, 2017, but she did not attend. Gibbs received a verbal reprimand for missing the training. Gibbs received training as part of a calibration conversation that took place on April 4, 2017. The Literacy Coach also had previously shared (November 2016) a link to a Brainshark presentation, which included suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs did not review the Brainshark presentation. Incomplete Portfolios and Falsified Promotion Testing Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1 indicate that any student in third grade who does not meet the reading promotion criteria, which is a two or higher on the FSA, can be promoted to fourth grade based on good cause promotion criteria. The good cause promotion criteria consists of the completion and passing of a third grade Portfolio as an alternative to a passing FSA score. All third grade teachers are required to have their students complete the third grade Portfolio. Student Portfolios are based on work completed by the students in connection with what they are being taught by the teacher. The teachers are to teach the State standards. The Portfolios gauge students' mastery of the reading information standards, reading literature standards, and language standards. There are eight cycles that were put together by the District to help teachers teach the reading information standards, reading literature standards, and language standards. Each cycle has certain tasks that students must complete. The tasks are to be graded by the teachers and kept as part of the Portfolios. The grade is based on a four point system, with one being the worst and four being the best. If a student does not score a three out of four on a particular standard, the student is then given an additional passage and multiple choice test. The student must receive at least a 70% on the multiple choice test to show proficiency in the standard. Scores for the Portfolio tasks as well as the multiple choice test, if necessary, are recorded on a form entitled Third Grade Assessment Portfolio: Cumulative Student Record Form ("Portfolio Record Form"). MLE had an in-house deadline of May 1, 2017, to submit all Portfolios along with the summary sheets. The District's deadline was May 5, 2017. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing the last tasks for the Portfolios. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form indicated a perfect score, four out of four, for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple choice test for every standard for every student. Had a student actually received a perfect score on the tasks, the multiple choice test would have been unnecessary. This raised a red flag for Veliz. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs' box of Portfolios. The box was sealed, almost completely, with duct tape. As a team, Veliz, Hafez, and Rosa opened Gibbs' Portfolio box. They spot checked a few of the students' work and noticed significant discrepancies in what Gibbs recorded and the student product. Hafez and Rosa were asked to review all of Gibbs' students' Portfolios. It took a week to review all of the Portfolios. The team found errors that included, but were not limited to: incorrect grading; the sample answer was provided (i.e., the teacher answer key); missing tasks; missing test items; task given multiple times despite mastery of the task; blank or incomplete tasks; discrepancy in time frame of dates; items done as homework as opposed to class work; missing multiple choice sheets; and the inclusion of non-summative task items. Veliz reached out to Ms. Nicole Mancini, Director of Elementary Learning, to have someone from the District rescore the Portfolios. Dr. Teri Acquavita and Ms. Shellie Gory ("Gory"), supervisors for the District, conducted a District review. There were discrepancies between the District review and Gibbs' grading. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data along with the alternative portfolio multiple-choice assessments. Gibbs submitted the monthly data. Gibbs did not submit the multiple-choice alternative data, and has never submitted the multiple-choice data. However, on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple-choice tests. Gibbs told all of the parents that their students would be promoted. Unfortunately, five of Gibbs' students scored a one on the FSA. The Portfolios should have been used as good cause promotion criteria for those students, but they were too deficient. The students were promoted and placed into intervention programs the following year. Falsified Test Administrator Certificate School year 2016-17 was the first year that the FSA was to be given to students via computer. All MLE teachers were directed by Veliz to complete a Test Administrators' ("TA") Certification Course from American Institutes for Research ("AIR"). The FSA was given on April 27 and 28, 2017. On February 7, 2017, the school was scheduled to take an infrastructure practice test to make sure the school's system had the capacity to handle the testing by computers. On February 6, 2017, Gibbs received assistance from School Counselor, Ms. Gigi McIntire ("McIntire"), and the Micro-Tech, Mr. Osvaldo Hernandez ("Hernandez"), to create her password and receive a link for the infrastructure practice test. Gibbs' class did not take the infrastructure test. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her class had not completed the infrastructure test and the importance of practicing with her students prior to the FSA. During the meeting, Gibbs claimed that she had not been given the link and she had not received the password until the very end because Hernandez had helped all other teachers and left her for last. This was not true, however, because Gibbs received her password and the link on February 6, 2017. Gibbs submitted a TA Certificate on March 13, 2017, which had her name handwritten on it and which did not state a date of completion of the course. The certificate looked as though it was a screen shot from the computer. The certificates that were submitted by all other teachers looked different. They had their names typed on the certificate and the date that the course was completed. Gibbs was supposed to have her students practice taking the test on a computer. The expectation was that students would have done this multiple times before having to take the FSA. On April 24, 2017, Veliz approached some third grade students and asked them how their computer practice test was going. Several students from Gibbs' class stated that they had not practiced yet because their teacher did not know how to log in. Students from other classes stated that they had practiced several times. This alarmed Veliz. Veliz asked McIntire to provide copies of all the TA Certificates. Veliz saw that the only certificate with a name handwritten in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony Nembhard ("Nembhard") confirmed that Gibbs had only used her password to log in on February 6, 2017, and had not logged in at any other time. Nembhard provided Veliz with Case No. 545991, and showed Veliz how to print a report indicating that Gibbs had not completed the course. It was uncovered that a teacher could scroll through the course without actually taking it and get to a "Congratulations!" page that looked like what Gibbs had submitted as her certificate. A screen shot of this page could be printed out. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to assist students in practicing prior to the test. None of the students had any idea how to log in, did not know which browser to use, and every single one of them indicated that it was their first time accessing this practice test. The students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When Gibbs was asked if she had her students do the practice test, Gibbs indicated she had done everything she needed to do. Gibbs' defense, that her printer was not functioning properly to print a complete TA Certificate, is not credible. Gibbs apparently printed a TA Certificate in which everything printed perfectly, except her name, which she handwrote. She offered no explanation for failing to provide instruction to her students on how to utilize the computer so they would be ready to take the FSA. Falsified FMLA Certification of Healthcare Provider Gibbs sought and was granted Family Medical Leave Act ("FMLA") intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave every year thereafter from 2013 to 2015, and was approved by Ms. Marjorie Fletcher ("Fletcher") of the BCSB Leaves Department on each instance. Gibbs submitted a FMLA certificate of healthcare provider form from ARNP Princy Bhat-Bhardwaj ("ARNP Princy"), certifying Gibbs' need for another FMLA leave for the period of November 15, 2015, to November 15, 2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care provider. The frequency and duration section of the form on paragraph 11 were left blank. In order to process Gibbs' leave request, Fletcher faxed this form back to Metcare to request that it fill in the frequency and duration section of the form. The form was faxed back to Fletcher with the frequency and duration section of the form filled in. However, Fletcher noticed that the beginning and ending dates of the certification on paragraph nine, as well as the date of the signature on the bottom of the form, were whited out and written over. Fletcher called Metcare to verify their fax number which was fax-stamped at the top of the form. A person at Metcare could not verify the phone number listed on the top of the form. ARNP Princy confirmed to Fletcher that the handwritten portion of the date of the signature was not her handwriting. ARNP Princy also confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified that if she signs a form, it is her practice to date the form at the same time. According to ARNP Princy, Metcare's procedure for filling out and executing FMLA certifications is directed by the patient. In some instances, they fill out and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is handed back to the patient to submit to their employer. Gibbs submitted another FMLA certificate of healthcare provider from ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29, 2016, to June 10, 2016. On May 23, 2017, legal counsel for Metcare, confirmed to the Leaves Department that it had not completed a FMLA certificate for Gibbs since January 2015. It is evident that one or more FMLA forms submitted on behalf of Gibbs were falsified. However, no evidence was presented that the documents were altered by Gibbs or that they were ever in her possession prior to their submission by someone to the Leaves Department. Although no one other than Gibbs would seemingly have a motive to modify these forms, Gibbs denied falsifying them. While Fletcher certainly had a legitimate basis to question the validity of these forms, there was insufficient evidence to demonstrate that Gibbs knowingly submitted false information to secure ongoing intermittent leave. Prior Discipline Gibbs has prior disciplinary actions consisting of two verbal reprimands and several corrective actions (i.e., summary memoranda). She received a verbal reprimand on January 27, 2017, for failing to attend the scheduled Professional Learning Community on BAS at McNab Elementary on January 13, 2017. She received another verbal reprimand on December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement. Gibbs received received summary memos concerning: the need to attend all scheduled afternoon meetings; the need to promote positive interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period; the need to closely monitor and track student progress; the need to adhere to timelines and complete school-wide assessments in a timely manner; the need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for intentionally exposing students to embarrassment with references to boyfriends and girlfriends; the need the adhere to timelines and complete school-wide assessments in a timely manner; and the need to use guided reading during the reading block. On September 2, 2015, Gibbs was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. The personnel investigation involved two issues. One issue was about conduct that occurred during the 2014-15 school year when she was assigned to Walker Elementary as a VPK teacher. The alleged conduct was that she charged parents a fee if their child was picked up late from VPK and that she planned on charging a fee for the end of school graduation ceremony. The other issue was for conduct that occurred during the 2015-16 school year. It was alleged that on August 26, 2015, she pushed a student out of the classroom and pinched his back. Based on these two incidents, the Education Practices Commission issued a letter of reprimand to Gibbs, which is part of her BCSB personnel file. Ultimate Findings of Fact The evidentiary record overwhelmingly reveals a pattern by Gibbs of misconduct, gross insubordination, incompetence, willful neglect of duty, and violation of school board policies. The evidentiary record amply supports suspension without pay and termination of her employment for just cause.
Conclusions For Petitioner: Denise Marie Heekin, Esquire Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 6th day of March, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, 10th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent committed any of the acts alleged in Petitioner’s Amended Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Background on Mr. Alden Mr. Alden began working as an educator in 2004 when he was hired to work at the Clark County Alternative School in Athens, Georgia. When that school closed in 2009, Mr. Alden relocated to Clark Central High School. After taking a year off to care for his terminally ill mother, Mr. Alden relocated to Florida and took a position with Gateway High School in Osceola County in 2011.3 In 2017, Mr. Alden took a teaching position with Lecanto High School (“Lecanto High”) in Citrus County, Florida. During the 2018-19 school year, Mr. Alden was an economics and government instructor at Lecanto High. He also taught one section of world history. Allegations by students regarding Mr. Alden’s conduct led to the initiation of an investigation in September of 2018 and the issuance of a written reprimand on September 25, 2018. A second investigation began on May 2, 2019, but was closed on May 9, 2019, due to Mr. Alden’s resignation from Lecanto High. Mr. Alden worked as a sixth-grade world history teacher at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. As explained in more detail below, two incidents during the 2019-20 school year led to Mr. Alden not being recommended for reappointment. 3 Mr. Alden holds Florida Educator’s Certificate 1186313, covering the areas of Educational Leadership, Elementary Education, Gifted, and Social Science, which is valid through June 30, 2022. Findings as to Whether Mr. Alden Referred to Students as “Dumb,” “Stupid,” or Words to that Effect S.H. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. S.H. has a learning disability and reported in September of 2018 to her case manager, Karen Harper, a math teacher at Lecanto High, that Mr. Alden would become angry with her for asking questions. Mr. Alden supposedly displayed that anger by sighing heavily and telling S.H. that she didn’t know what she was talking about.4 S.H. offered the following testimony during the final hearing: Q: Tell us about what your concerns were in Mr. Alden’s class. A: Well, I was – not repeatedly, but I have heard him putting down students. On top of that I was making a statement about something he said and he said that I didn’t know what I was talking about and that I was stupid. Q: Okay. Now, did that bother you what Mr. Alden said to you? * * * A: Yes, sir. Q: When he called you stupid, did he say this in front of other students? A: Yes, sir. Q: What you just told us here today, was that some of what you told Mr. Harper? 4 Ms. Harper also acted as a case manager for a student named A.M., who stated to her that Mr. Alden referred to him as stupid and a failure when he sought assistance from Mr. Alden. Because A.M. did not testify during the final hearing, the portion of Ms. Harper’s testimony concerning A.M.’s allegations is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). A: Yes, sir, * * * Q: Okay. You say he has put you down when asked questions. What do you mean by that? What did he do? What was going on? * * * A: Like anything I would say – and, honestly, it sounded pretty dumb in my mind as well, my questions, but I could understand why he put me down, but it’s still unacceptable. But I was just saying things that provoked it. So. He put me down, like, you know, called me, you know, stupid, tell me I wasn’t – I didn’t know what I was talking about. Like that. Q: Okay. So even if you felt like you asked a dumb question, you didn’t expect him to call you stupid in front of your peers? * * * A: Yes. Because my other teachers don’t do that. Q: Okay. How did that make you feel for him to call you stupid? A: Not good. It just made me feel kind of depressed, like I wasn’t good enough for his class. Just did not feel good about it. Other former students of Mr. Alden’s from the 2018-19 school year did not corroborate S.H.’s testimony. For example, J.S. testified that Mr. Alden implied that particular students were dumb or stupid but never directly said so. However, J.S. did not explain how that implication was expressed. K.S. did not remember Mr. Alden using the words “dumb” or “stupid.” M.M. could not recall any instances in which Mr. Alden demeaned a student. C.S. denied ever observing Mr. Alden disparage a student or call a student “stupid” or “dumb.” B.S. never heard Mr. Alden call a student “dumb” or “stupid” and did not recall Mr. Alden disparaging or embarrassing any students. S.C. never witnessed Mr. Alden disparage or belittle any students and never heard Mr. Alden call any students “stupid” or “ignorant.” M.J. never observed Mr. Alden disparaging any students or call a student “dumb” or “stupid.” R.C. denied ever observing Mr. Alden disparage a student. When asked if he remembered Mr. Alden explaining the difference between “stupid” and “ignorant,” R.C. gave the following testimony: A: I remember the comment. If I believe. I mean, it’s been two years, but to my best knowledge I believe that the comment was made on the note that, as long as you’re – as long as you’re trying and you’re asking questions and you’re trying to be engaged and learn, that you can’t be stupid. But if you’re choosing not to learn and you’re choosing not to try and give no effort, then you’re just ignorant. But you can’t be stupid as long as you try. Q: Okay. And did you ever observe Mr. Alden, you know, directly, call a student stupid or dumb? A: No, sir. Mr. Alden vehemently denied Petitioner’s allegation that he referred to students as “dumb” or “stupid”: A: I spent 15 years in the classroom working with kids that have been disparaged by their community and their families. Came to me using I am stupid as their – as their – as an excuse for not putting effort into their education. They had to – they had been convinced that there was no point in trying because they weren’t – they were going to fail. I spent 15 years, from the minute I walked into the classroom, trying to convince these kids that they were not stupid, that they were, in fact, more than capable and trying to deprogram them from the belief that there was no point in trying. I made, every year, the first day of the – the first day of class I made a point to illustrate to the kids that there was a difference between ignorant and stupid. Because a lot of them conflated those two terms. I would point out that ignorant means you have not learned and stupid means you cannot learn. And to drive the point home, especially with the age group that I worked with, I went into a little conversation about human growth and development and the formation of the prefrontal cortex and that that’s the part of your brain that allows you to make rational decisions and it doesn’t finish forming until your early-to-mid 20s. * * * I also used the secondary working definition of stupidity that ignorant means you don’t know any better and stupid means you know better, but you do it anyway. And I use that to short circuit what a lot of these kids would interpret as a disparaging remark from other adults. That when an adult might say, that was stupid, they weren’t talking about you as a person, they’re talking [about] your actions. * * * Q: How often would you have to have that sort of discussion with your students? A: Well, as I said, I would do it at the beginning of the term, just to sort of begin that deprogramming process. I would also reiterate the lesson at every available opportunity. If I heard a kid say, I’m stupid, I would stop the world and point out to them, no, you’re not, you can’t be. It’s physiologically impossible and all the rest. If I heard a kid disparage another student, say that was stupid or are you stupid or don’t be stupid, I would clarify for both the student making the comment as well as the student the comment was towards, that that’s not how you want to say that. You want to say, that was careless, that was thoughtless, that was reckless. Not that that was stupid. And stress to the student that was – that had engaged in observable behavior that could be defined as a stupid action and say, look, you’re not stupid. You knew better. Think about what you’re doing before you do it. And, you know, you don’t have to worry about people coming to the wrong conclusions. Findings as to Whether Mr. Alden Told His Students That a Class Was Divided Into “Smart” and “Dumb” Sections S.B. was a sophomore at Lecanto High during the 2018-19 school year and had Mr. Alden for world history. When asked about how Mr. Alden seated students in his classroom, S.B. gave the following testimony: A: He would separate the classroom. Smart people would be in the back of the classroom and then the dumber kids, or what he would refer [to as] the kids who failed the test or didn’t make good enough grades, he would put them in the front and refer to them as dumb. Q: How did you know Mr. Alden was putting the smart kids in the back? A: He had said it. Q: And the not so smart or dumb kids in the front? How did you know that? A: He had said it himself. A kid has asked why we were being separated and he just said that he had separated the kids because the smart kids go in the back and the dumb kids go up front, is what I had overheard in the class period. Q: Okay. Did that make you feel any particular way when he would put – separate kids like that? A: Yes. Because that’s not how a teacher should be speaking to their students. So I don’t think that was right. * * * Q: Now, even though you’re in the smart group, did you feel bad for the kids that were in the, what he described, as you say, the dumb group? A: Yes, of course. Because he would always repeat and make it known that those were the dumber kids. Q: Okay. And what did he tell you he based putting the smart kids in the smart group and the dumb kids in the dumb group? How did he – did he tell you how he made that determination as to which kids were going to go in any particular group? A: Usually it would be because of the quiz grades or the test grades that we had received [that] day. J.D. was a senior at Lecanto High during the 2018-19 school year and was one of Mr. Alden’s students. J.D. offered the following testimony about Mr. Alden’s method of seating students: Q: Okay. Let’s start talking about [allegation] 3-A. Tell us what you know about 3-A. A: All right. So 3-A, it says that in the classroom he referred to students as dumb or stupid. I never heard him actually refer to any individual student individually as dumb or stupid, but I know that he did refer to people collectively as not willing to learn. But I do not know that he actually referred to any [ ] particular student as dumb or stupid. Q: Did you hear him use those words toward any group of students as being dumb or stupid? A: Implied, yes. But not directly. Q: Okay. What do you mean when you say implied? A: So, like, in the next part, in 3-B, when he divided the section into smart and dumb students. And smart students were in the back and dumb students were in the front. That did happen and that does imply that he thought that those kids were not as smart as the kids in the back. Q: Okay. So, by the way, were you in either one of those groups? A: Yes, I was. I was in the back. Q: Okay. So, you were in the smart kids’ group; is that right? A: Exactly. Q: Okay. Now, how did you – did you – did that make you feel in any way? How did you know that the smart kids were in the back and the dumb kids were in the front? I mean, how did you know that? A: Because it’s what the other kids were saying. The other kids in the class. It made them feel that the kids in the back were better than they were. And those were – those are words from the students. Like, when I was – so, in the class, I was in the back and me and another student in the back would – we would, you know, bicker and argue. So I asked Mr. Alden to move me to a different setting so that we just wouldn’t bicker and argue anymore. And when I was sitting with those students, they would always refer to me as the smart kid in the group. And it made a distinction. It actually, in a way, segregated the class based on the level of intelligence. * * * Q: Okay. Did Mr. Alden tell you that [was] why he was separating [students] into different groups? The kids who scored well on the exams were put in the back and the kids who didn’t score well, they were put in the front. A: Exactly. That is how he explained it in the beginning of the school year. Q: Okay. And you were talking about the interaction between the kids. Based on the way he had told you all he was segregating you with the kids that scored well in the back and kids that didn’t score well in the front, did that cause some tension or problems between the students in the classroom? A: I wouldn’t say tensions, but it did ostracize people who sat in the front, people who sat in the back. And then when you, like, try to talk to people from a different area, it was, like, you were either below them or above them. Q: Okay. And that was discussions among the students based on where they were placed; is that correct? A: Right. And that is my experience from sitting in a different group. K.S. was aware that Mr. Alden based students’ seat assignments on their class performance. However, he testified that Mr. Alden “never said that we were either stupid or smart in one place or another.” R.C. gave the following testimony about the seating arrangement: Q: How was the seating arrangement in Mr. Alden’s classroom, if you recall? A: It varied. Normally we could sit kind of wherever we want[ed] when we came in. But then, after test days, we would be split into groups where the first row back, if I recall, the highest test grades would be in one area and the lowest test grades in the other. We’d talk and go over the test and then we would be split into groups based on lowest test grades with the highest test grades put together and all mixed out so that everybody could help each other and help each other learn. Q: Okay. And did you find this effective? A: I believe so. Because some days I had a bad test and someone else did better and they could help me. Then if I had a better test and someone else didn’t, I could help them. You got to know everybody in the class better and I feel, again, it was just very productive overall. Q: Did the seating arrangement ever cause you any embarrassment? A: No, sir. C.S. testified that the seating arrangement helped “students that weren’t really doing well on their tests by putting students that had lower grades on tests up in front. That way [Mr. Alden] could do one-on-one with them, if needed.” When asked if the seating arrangement ever caused him embarrassment, C.S. testified that, “I actually really enjoyed it since there would be certain lessons I didn’t understand that well and so being up closer to him, it allowed me to, like, get his attention and be, like, can you help me understand this.” When asked about the seating arrangement in Mr. Alden’s class, B.S. testified that “he just put it to where he thought would be the best for people that needed to learn a little bit better. But it wasn’t like anything like embarrassing or anything like that. Like it was what he thought was the best seating arrangement to do.” S.C. seemed to agree when asked if Mr. Alden ever announced that he was dividing a class “between dumb students and smart students.” However, S.C. testified that no one took any offense and that the seating arrangement never caused him any embarrassment. M.J. did not recall students being seated based on test scores, but she did remember that students who needed more help were placed closer to the front of the classroom so that they could get Mr. Alden’s attention. She denied ever hearing Mr. Alden state that he was dividing a class into smart and dumb sections. Mr. Alden readily acknowledged that he placed students in different sections of his classroom based on test scores during the time in question and had used this method during seven school years: After the first unit test, they were grouped by their test score. So the highest performing students were in the back of the room. They were – my independent learners were in the back of the class. And the lowest scoring kids in the group were my dependent learners and they needed more support from me and I put them in – not necessarily in the first group because the very first group was closer to the door to the classroom. The second and third – the second, third – no, wait. One, two, three. The second, fifth and fourth groups were the ones closest to my desk. And that’s where I arranged the students that needed more help with the content. And sometimes it was a bad test taker or sometimes they were having trouble with the read – with reading comprehension. Sometimes it was an issue with communication with their peers. And having them closer to me allowed me to observe their interactions and, where necessary, step in and provide one-on-one support and determine if I had to address a learning deficiency or if it was a struggle – they were struggling with a particular piece of content. Mr. Adlen denied referring to students as being in “a dumb section or stupid section”: Whenever the students would make comments to that – to that end, I was vehement and immediate in my correction of it. I made – on numerous occasions I would say that the kids in the back of the room might have gotten a hundred percent on the test and the kids in the front of the room might have gotten a 90. That I only have limited amount of space and I can’t put every A in the back of the room. I don’t have enough room to put everybody in the back of the room. So everybody’s got to go somewhere and it -- ending up in the front of the room does not mean you’re low performing. It doesn’t mean you have a poor performance. There’s no such thing as good enough grades. * * * The folks in the front are the folks that need support. The folks in the back are – I’m able to leave to their own devices. Findings as to Whether Mr. Alden Used Profanity in the Classroom S.H. testified that Mr. Alden uses the words “bitch” and “shit” in class. S.C. read from a prior written statement in which he stated that Mr. Alden is “very blunt, uses uncalled for words. He speaks about other students, but doesn’t use specific names, like mistakes they have done. He cusses, such as words as damn, shit and hell. He’s used the n-word before. Does not think before he speaks.” S.B. testified that Mr. Alden “would curse a lot” and used the words “bitch,” “shit,” and “ass.” That made S.B. uncomfortable because she thinks that teachers should not be using such language around students. J.S. testified that Mr. Alden used the words “bitch,” “shit,” and “hell” in class. J.S. added that Ms. Alden expressed his preference for Milton Friedman’s economic theories by stating that John Maynard Keynes “didn’t know shit.” O.L. was a senior at Lecanto High during the 2018-19 school year and was in Mr. Alden’s economics class. She testified that Mr. Alden told a joke5 to a student in which the set-up was “what is the difference between a bitch and a ho?”6 K.S. remembered Mr. Alden using the term “shit” at least a couple of times. He also remembered the joke described by O.L. R.C. testified that Mr. Alden occasionally used profanity in the classroom. However, according to R.C., Mr. Alden did not use profanity in a derogatory manner and did not direct any profanity toward any students. C.S. denied hearing Mr. Alden ever say anything inappropriate. Mr. Alden7 conceded during his testimony that he had a relaxed attitude toward profanity: Q: The Amended Administrative Complaint in 3-C states, specifically, Respondent used profanity in the classroom, including the words bitch, shit and hell. Could you respond to that accusation? A: Incidental profanity was not a thing that I made a big deal about. It was more that the students engaged in it than that I participated in it. I did participate in it, but very infrequently. 5 The Amended Administrative Complaint did not mention the joke at issue, but Mr. Alden did not assert that he was not on notice that testimony regarding the joke would be used to substantiate the allegation that he used profanity in the presence of students. 6 I.G. did not testify at the final hearing but a written statement from her was accepted into evidence as part of Petitioner’s Exhibit 6. I.G. wrote that “Alden said ‘this is a joke’ and asked the class not to tell, because I believe some other students were making jokes about being called a whore, then he said ‘What’s the difference between a whore and a bitch? A whore gets with everyone and a bitch gets with everyone but you.’” Even if I.G.’s statement was offered to prove that Mr. Alden made the statement at issue, I.G.’s statement supplements and corroborates O.L.’s testimony. Accordingly, I.G.’s statement is admissible. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.”). 7 As noted in the Preliminary Statement, Mr. Alden is deemed to have admitted using profanity in the classroom. It originated with students in the class using that language without sign of disquiet. They – I remember distinctly one student saying to me, Mr. Alden, I really like your class because you talk to us about real shit. And I was, like, whoa. But he showed no signs that he was aware that he had said something inappropriate and nobody in the class showed signs that it was an inappropriate thing to say. At that point I noticed that it was – it was not an infrequent thing among the students. So rather than make it – I mean, I worked at an alternative school where I dealt with juvenile felons. I worked in a school where we – our number one problem was kids getting into gang fights. So in my career there had just been bigger fish to fry and more important issues to address. So, at Lecanto, when the students informed me, through their behavior, that incidental profanity was not a thing that they were going to get bent out of shape about, I tried to manage it in what I thought was the best way possible. I made very strict rules. Nothing over – nothing more than PG-13. Nothing that you would not hear on commercial television in prime time. And the f-word – never in anger, never towards another person, never used to aggress against another student, never used to disparage or insult another student. And the f-word was forbidden. Mr. Alden denied ever using the n-word. With regard to the testimony that he told a joke with the words “bitch” and “ho,” Mr. Alden offered the following context: I had a senior girl that was in crisis. She was being accused of being a whore by the ex-girlfriend of her current boyfriend. The agitator was a junior. My girl was a senior and she was about to graduate. She was within just a few short weeks of graduating. She came into class [visibly] upset, surrounded by a group of girls who were egging her on and she kept saying she was going to beat her. I tried to intervene to calm her down, kind of talk her off the ledge. * * * So, I did the last thing I could think to do. I just said, hey, do you know what the difference is between a b_ _ and a ho? Because that was the topic that she was upset about. Being called a whore. That got her attention. * * * And I said, so what is the difference. Tell me what the difference is. And it took a little while to kind of talk her through it, but she got the point that it wasn’t about the behavior, it was about the perception of the behavior. That it wasn’t about the person who was acting, it was about the outside observer and their judgment of the person’s behavior. Karen Harper is a teacher at Lecanto High and explained why teachers using profanity in the classroom could be harmful to learning: Q: Now, in your career, do you use those kinds of words in your classroom? A: No. Q: Do you believe – is there any particular reason why you don’t use those words in your classroom? A: It’s not professional. I know that during -- whenever you’re hired, you have to go to – the beginning of school or when you get hired by a county, you have to go through an orientation and they talk about code of ethics and things that they, you know, as a teacher, this is what’s expected of you. And that was just something that was – I know that it’s a code of ethic[s] you shouldn’t be doing that. Q: Well what about just in terms of how – based on what you know about students, how using those kinds – that kind of language impacts students? A: Some students are – you never know. Just like in [the] general population. You don’t know who you’re going to offend, who you’re not going to offend. So it’s best just to avoid it and not say them. * * * Q: Okay. So, but if the teacher wants to characterize a person in a history book as a bitch or something that they did in the context of history as . . . If the teacher, then, wants to say that something that the queen or the king did was shitty, in your professional view, is that an appropriate context to use those kinds of words? A: No. Teachers and students at Lecanto High are prohibited from using profanity. Findings as to Whether Mr. Alden Embarrassed J.S. by Engaging in a Religious Debate and Stating That a Belief of J.S.’s Was “Demonstrably Fallacious” M.M. was a senior at Lecanto High School during the 2018-19 school year, and Mr. Alden was his economics teacher. On a day in early May of 2019, M.M. disclosed to classmates sitting at his table during economics class that he was transgender, and that led to his classmates asking several questions about M.M.’s family life and religious views. When M.M. expressed a favorable view about Jehovah’s Witnesses, J.S. approached the table where M.M. was seated, stood over him, and inserted himself into the conversation. M.M. described the ensuing events as follows: I can’t remember exactly what brought up J.S. joining this conversation. I do remember that I started with saying my own opinion on Jehovah’s Witnesses, stating that it was a truer religion than most that I have viewed. And I remember him walking up to my desk, standing less than a foot over me while I was seated. And I am a very, very short, small man. Very, very scared of many people, especially in high school. He stood over me and he told me right off the bat that I was wrong. And I said, it’s okay, man, no problem. Conversation over. We’re done. And I just acted as if I was going back to my assignment. He was like, no, no, no, you are wrong. And I want to tell you that you are wrong and that Jesus and God are one and the same. And I was, like, okay, that’s your belief, my belief is different. Just, that’s it. He was, like, no, no, man. And I was, like, I don’t want to – I don’t want to deal with someone pushing someone’s beliefs on me right now. You know, I’m in school, I just want to finish my assignment. And he was like, I’m not pushing my beliefs, I’m enlightening you. And as he’s talking to me he is in a way towering over me, is how I viewed it. I’m assuming that Mr. Alden saw that I was getting very uncomfortable and Mr. Alden came to the other side of me, looked at Mr. J.S. and said, you are wrong for doing this to him, you need to back off. And at that point, the conversation diverted, while it was over me, still to J.S. going after Mr. Alden with the same phrases and repeating the exact same argument that he was doing to me. Mr. Alden kindly enough diverted the argument away from my desk and got sort of to the other side of the classroom at that point. J.S. described the events in question as follows: So they were talking about that topic and they were talking – kept talking about, you know, mainstream Christianity. So I walked over there and I wanted to share my belief, since they were already on that topic, to inform them of that in case they were not aware of a different way of thinking, a different way of believing. So I walked over there and I made the comment, I said, did you know that Jesus is God. And after I said that comment, Mr. Alden walked over to me and he said, don’t say that Jesus is God. That’s demonstrably fallacious. And Jesus is God is one of the core beliefs of my faith. The fact that [he] believes that Jesus is God and that God is the Holy Ghost and that all of them are one person is one of the founding principles of what I believe. So in essence, he was saying, don’t say what you believe is true, because it’s clearly and evidently based on something that is false. * * * And after that, he engaged me in a whole debate, trying to prove what I believe to be wrong in front of all of [my] peers. Q: Okay. So his demeanor towards you while he was telling you that what you believe was demonstrably fallacious, what was his demeanor like? A: It was cocky, it was arrogant, it was – it seemed like he thought no one could ever prove him wrong. And even when you tried to use the sources that you draw your faith from, such as the Bible, I was – when we were talking, I was trying to use scriptures that I believe to be doctoral scriptures from the Bible. And he said – he told me that I could not use the Bible because it was inaccurate and false, due to the Council of Nicaea. So he not only was disparag[ing] my faith, but he disparaged the spiritual book that I draw my faith from. Q: Okay. Emotionally how did that make you feel? A: Emotionally, I was embarrassed. I was upset. I was angry. But I was just going to let it -- I was just going to let it go. I was just going to let it roll off – roll off like water on a duck’s back. The undersigned does not credit J.S.’s assertion that he was embarrassed. During his testimony, J.S. presented as a very outgoing and opinionated young man who has no inhibitions about expressing his views and engaging in debates. In fact, J.S. testified that “I am a, you know, I hate to say it, but I am an opinionated person and that tends to get me into discussions based on different topics, such as, you know, politics, opinions, the whole nine yards.” Mr. Alden’s description of this incident corroborates M.M.’s testimony, and his description of J.S. matches the opinion formed by the undersigned: [J.S.] was aggressively opinionated. And I had to remove him from two groups at the request of the members of his groups because he would not acquiesce ever. A big part of the class was they would take quizzes as a collaborative group and they would discuss and debate what was the best evidence for their answers on the quiz. And J.S. would not keep – J.S. would get his opinion on what was the best evidence and he would not hear anyone nay-saying it. So, two different groups of kids said, could you please remove him because we can’t have a debate with this guy. He was also very aggressive about his religious beliefs. And I, on more than one occasion, reminded him that belief is individualized. You cannot require anybody else to agree with your beliefs. If it’s just a matter of a difference of opinion on beliefs, on faith, then you have to agree to disagree. It’s unjust. Otherwise it’s unjust. The particular incident involving M.M. – M.M.’s characterization of the interaction is a lot more intimidating than I thought it was. I just – I just saw J.S. in the back of the room with a group that had asked him to be removed from them. And I stepped up to just sort of reestablish that boundary. That, you know, this is -- this is a group of kids that really doesn’t – they got a problem with you, there’s a personality conflict or something going on here. I had no – I didn’t know that M.M. was feeling bullied at the time. And I – when I stepped to M.M. or when I stepped to J.S., I heard him – all I – I heard him say that Jesus and God are literally the same thing. And I heard M.M. very gently disagreeing, but clearly not wanting to get into a debate – a debate with J.S. I certainly did not want to get into a debate about religious beliefs, so I employed the Socratic method and I just asked J.S., what do you base that on. And J.S. said, I base it on the Bible. And I said, okay. Let me just ask you questions based on your source material and let’s see if we can figure out if that’s an accurate claim. Like, can you make that claim using your own sources. And I just asked him a few simple questions about the biblical nature of God as defined by the Bible and the nature of Jesus as outlined in the Bible and showed the contrast between God of the Bible and the Jesus of the Bible to show him that, okay, that claim, you can’t defend. You can’t make that claim based on the source material. Findings Regarding the Allegation that Mr. Alden Grabbed a Student’s Hair Mr. Alden taught world history at Liberty Middle School in Marion County, Florida, during the 2019-20 school year. K.R.H. was a student at Liberty Middle School that year and had Mr. Alden for eighth-grade history. On approximately October 8, 2019, K.R.H. was walking into Mr. Alden’s classroom and Mr. Alden was positioned near the entrance. K.R.H. had long hair and was wearing it in a ponytail. She testified that Mr. Alden “pulled my hair pretty roughly and it made my head go back a little.” K.R.H. did not say anything to Mr. Alden. However, when she looked back at him, she testified that he was laughing and did not offer an apology. K.R.H. called her parents about the incident, and her father then called the school. Melissa Forsyth, the principal of Liberty Middle School, fielded the call and began an investigation. In addition to interviewing K.R.H., Ms. Forsyth interviewed two other students who witnessed the incident and corroborated K.R.H.’s assertion that Mr. Alden pulled K.R.H.’s hair.8 Ms. Forsyth and her assistant principal viewed security camera footage of the incident9, and Ms. Forsyth discussed the incident with Mr. Alden: And we saw Mr. Alden’s hand go around her ponytail and kind of -- it went up and then her head tilted back as she was walking into the room. Q: Okay. Did you talk to Mr. Alden about that? A: We did. Q: What did he tell you? A: So at first he said that he oftentimes greeted students at the door. High fives, fist bumps, elbows. And he never pulled anyone’s hair. I did take that opportunity and reminded him that there were security cameras in the hallway. And then he said, he swatted at K.R.H.’s ponytail jokingly to flip it and a finger got caught in a tangle. Q: So is it your testimony that when you first talked [to] Mr. Alden about it, he denied ever pulling the student’s hair? A: Yes, sir. Q: And then when you informed him that you had video and you had seen him grab the student’s hair 8 Neither of the alleged witnesses testified at the final hearing. 9 The security camera footage was not offered into evidence during the final hearing. and pull her head back, did he – that’s when he told you what he did was swat at her head? A: Right. I didn’t tell him I saw anything. I just reminded him that there were video cameras in the hallway. Q: Okay. And then that’s when he changed his story about what happened? A: He swatted at her ponytail jokingly to flip it and a finger got caught in a tangle. Q: Okay. Now, is that what you saw when you observed it yourself? A: It did not appear that way. Q: Okay. It appears as you’ve described, that he grabbed her ponytail and pulled her head back; is that correct? A: That it was – that it was around the hand – the hair and then her head tilted back after it went up. While denying that he grabbed and pulled K.R.H.’s ponytail, Mr. Alden testified that his hand accidentally got entangled in K.R.H.’s hair: I was standing at – I was standing in the doorway on the hallway side, greeting students as they came in. The doorway was inset about three feet from the wall. So, if I’m standing in the doorway observing the hallway, I couldn’t clearly see into the classroom. As K.R.H. came in I said, hi, she said hi. And as she – I put my fist out to bump her and as she walked by I – I assume she didn’t see me with my hand out or she was distracted. As she walked by, I swatted at her ponytail, just like, oh, you’re going to ignore me. Okay. Swatted at her ponytail. I wear a ring on my little finger and it got caught – my finger or the ring or some combination got caught in her hair and that’s – that’s why on the camera it appeared to flip up and then get pulled back down because that’s how gravity works. You hit a thing, it’s going to fall back down. Got my finger caught and her head came back and I got my finger out. She kind of jerked. I said, my bad. I couldn’t really say a lot to her because there was another student right in front of me that was in the moment trying to get my attention. So, just – it was just an incidental movement that got taken wildly out of proportion. Findings Regarding the Allegation that Mr. Alden Embarrassed a Student by Touching His Forehead and Saying “Think.” Kayla Palacios was an assistant principal at Liberty Middle School during the 2019-20 school year, and she was conducting a formal observation of one of Mr. Alden’s classes on February 25, 2020. She testified that Mr. Alden was standing at the front of the classroom and directing questions to specific students. When A.C. was unable to answer the question posed to him, Ms. Palacios testified that “Mr. Alden poke[d] A.C. in the forehead with two fingers and A.C.’s head went back.” Ms. Palacios discussed the incident with Mr. Alden later that afternoon and relayed that it is inappropriate for teachers to touch students. According to Ms. Palacios, Mr. Alden “acknowledged it and we moved forward from that conversation.” Because she considered the incident sufficiently significant, Ms. Palacios informed Ms. Forsyth about it the next morning. Mr. Alden described the incident as follows: On this particular day I was being observed, so I wanted to make a good impression on Ms. Palacios. So, I went to A.C. on a difficult question that I was sure he would have the right answer to. And he didn’t. He kind of flubbed the answer a little bit. And when I didn’t give him that immediate, you’re right, he got flustered. And because he was, you know, the teacher’s pet and because he was the guy that always had the right answer, his peers were starting to kind of snicker. There was a little bit of tension between him and the rest of the class that didn’t really bother him, usually. But on this day, when his friends were snickering and he felt like he had it and then realized he hadn’t, he got a little flustered. To try to focus his attention on me and ignore the rest of the class, I very delicately placed two fingers on his forehead, while he was looking up at me. He did not have his head down. He was looking me in the face, trying to figure it out. And I just – and I just – to focus him, stop, think, think about what you’re doing, you know this, you’ve got this. And he did. He came up with the correct answer. And he beamed when he got it right. A.C. did not testify at the final hearing, and there was no evidence as to whether Mr. Alden’s action embarrassed him. Ultimate Findings Regarding Petitioner’s Allegations Petitioner’s first two allegations are closely related. The first alleges that Mr. Alden referred to students as “dumb,” “stupid,” or words to that effect. The second alleges that Mr. Alden told his students that his class was divided into one section for “smart kids” and another for “dumb kids.” Petitioner presented testimony from S.H. and S.D. that clearly supported the first two allegations. Because the other witnesses who testified about these allegations contradicted the testimony given by S.H. and S.D., the undersigned is not left with a firm conviction regarding these two allegations. Thus, Petitioner did not prove the first two allegations by clear and convincing evidence. In contrast, Mr. Alden’s own admission and the witness testimony clearly and convincingly established that Mr. Alden used profanity in the classroom. Moreover, Ms. Harper, a teacher at Lecanto High, persuasively testified why teachers using profanity in the classroom is harmful to learning and would reduce a teacher’s effectiveness. However, there was no persuasive evidence that any students were seriously harmed by Petitioner’s use of profanity. Petitioner also alleged that Mr. Alden embarrassed J.S. by engaging J.S. in a religious debate and telling J.S. that one of his religious beliefs was “demonstrably fallacious.” Even if Petitioner could prove that Mr. Alden characterized one of J.S.’s religious beliefs as “demonstrably fallacious,” Petitioner has not proven that the debate between Mr. Alden and J.S. embarrassed the latter. After having the opportunity to observe J.S.’s demeanor, the undersigned does not credit J.S.’s assertion that he was embarrassed. As for the allegation that Mr. Alden grabbed K.R.H.’s hair and caused her head to be pulled backwards, there is no doubt that one of Mr. Alden’s hands made contact with K.R.H.’s ponytail and caused her head to be pulled backwards. The only question pertaining to this allegation is whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled with it. Other than Mr. Alden and K.R.H, Ms. Forsyth was the only witness to testify about the incident. However, her testimony was based on her observation of security camera footage, and Petitioner did not attempt to move that footage into evidence. As a result, there is no way to ascertain whether the footage was detailed enough for Ms. Forsyth to accurately distinguish whether Mr. Alden grabbed K.R.H.’s ponytail or inadvertently got entangled within it. In other words, the absence of that footage and the absence of testimony from other witnesses at the scene of the incident precludes the undersigned from finding that Petitioner proved this allegation by clear and convincing evidence.10 10 This finding should not be construed as the undersigned accepting Mr. Alden’s version of events. Even if Mr. Alden simply swatted at K.R.H.’s ponytail, he exhibited poor judgment by doing so. He also exhibited poor judgment by using profanity in the classroom. Petitioner also alleges that Mr. Alden embarrassed A.C. by touching A.C.’s forehead and saying “think” when A.C. was initially unable to answer a question. While the evidence clearly and convincingly established that Mr. Alden touched A.C.’s forehead, there was no evidence as to whether A.C. was embarrassed thereby because A.C. did not testify. Accordingly, this allegation was not proven by clear and convincing evidence.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and 14 Rule 6B-11.007 was last amended on December 10, 2019. None of the provisions relevant to the instant case changed. section 1012.795(1)(j) through rule 6A-10.081(2)(a)1., and that Respondent’s educator’s certificate be placed in probationary status for one year. DONE AND ENTERED this 2nd day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2021. Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, 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 May, 2002.
The Issue Whether Respondent violated sections 1012.795(1)(f), (1)(g), and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 1128573, covering the areas of Elementary Education, English, English for Speakers of Other Languages (ESOL) and Middle Grades Integrated Curriculum, which is valid through June 30, 2021. During the 2013-2014 school year, until her voluntary resignation effective June 3, 2015, Respondent was employed as a language arts teacher at Gulf Breeze High School. Since that time, Respondent has been employed as a third-grade teacher at a private Christian academy in Pensacola, Florida. Material Allegations The material allegations upon which the alleged violations are predicated are, in their entirety, as follows: On or about July 19, 2008, Respondent illegally operated a boat while under the influence of alcohol. As a result of conduct, she was arrested and charged with Boating Under the Influence. On or about February 18, 2009, Respondent was adjudicated guilty of Boating Under the Influence. In or around January 2015 through March 2015, Respondent provided a forum where underage students illegally consumed alcohol and/or consumed alcohol in the presence of students. This conduct includes, but is not limited to, instances: in or around February 2015, wherein Respondent provided alcohol to underage students; and on or about March 20, 2015, when Respondent drove to J.H.'s, a student's, home, while under the influence of alcohol, and thereafter, attempted to drive J.H. while so inebriated. On or about April 24, 2015, Respondent illegally operated a motor vehicle while under the influence of alcohol. On or about May 26, 2015, as a result of the aforementioned conduct, Respondent was arrested and charged with DUI-Second Conviction More Than Five (5) Years After Prior Conviction. On or about April 7, 2016, Respondent pled nolo contendere to an amended charge of Reckless Driving; adjudication was withheld. Count 1 Count 1 alleged a violation based upon Respondent having “been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.” The Count was based on the two incidents described in paragraphs 3 and 5 of the Amended Administrative Complaint as follows: Boating Under the Influence -- 2008 On or about July 19, 2008, Respondent was maneuvering a boat onto a trailer at the Navarre Beach boat ramp. Her husband was driving their vehicle, and had backed their trailer into the water. As a result of actions at that time, Respondent was placed under arrest for Boating Under the Influence (BUI), a misdemeanor (her husband was arrested for Driving Under the Influence). Respondent entered a plea of no contest to the BUI offense and, on February 18, 2008, was adjudicated guilty. Subsequent to the final hearing, counsel for Petitioner researched the issue and discovered that the incident occurred prior to Respondent’s initial certification as a teacher. As a result, Petitioner correctly concluded and stipulated “that no disciplinary action should be taken as a result of this conviction.” Driving Under the Influence -- 2015 On April 24, 2015, Respondent and a friend drove, in the friend’s car, to Pensacola Beach for drinks. Respondent left her car in a Publix parking lot. Upon their return, Respondent correctly perceived that she was not fit to drive home. Her phone was dead, so she got into her car and started it in order to charge the phone. She called her son and asked that he come pick her up. At some point after calling her son, Respondent called her soon-to-be ex-husband, from whom she was in the process of a bitter divorce, and engaged in a heated and animated discussion with him. A complaint was called in, and Officer Kidd was dispatched to the scene. Upon his arrival, Officer Kidd observed Respondent in her car, with the engine running, “yelling at someone on the phone.” He noticed a bottle of Crown Royal in the center console. Respondent refused to perform field sobriety tasks. Office Kidd’s observations of Respondent while she was in the car and upon her exiting the car led him to believe that she was impaired. Respondent had been in the car, with the engine running, and was clearly in control of the vehicle regardless of her intent to drive. Although Respondent’s son arrived on the scene to take her home, Respondent was arrested and transported to jail.2/ Respondent was charged with DUI. The charges were reduced, and she entered a nolo plea to reckless driving. The trial judge withheld adjudication. Count 2 Count 2 alleged a violation based upon Respondent having “been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.” The Count was based on the incidents described in paragraph 4 of the Amended Administrative Complaint. March 20, 2015 -- The Garage On or about March 20, 2015, over spring break, Joshua Hartley was at Pensacola Beach with friends, including Respondent’s son. He had his father’s car. Apparently, Joshua’s father, Jon Hartley had been trying for some time to reach Joshua and have him return the car. Joshua and his group of friends had plans to stay at the beach into the evening. Respondent’s son suggested that Respondent, who he knew to be at the beach, could follow Joshua home, and then return him to his friends at the beach. Respondent was called, and she followed Joshua from the beach to his house, a drive of perhaps 15 minutes. When Joshua and Respondent arrived at the house, Mr. Hartley, Ms. Barrett, and a third man were sitting and drinking in the open garage. Other than agreement that Respondent and Joshua showed up at the house at the same time, the description of the events by Joshua Hartley, Mr. Hartley, and Ms. Barrett were so divergent that the three might well have been in different places. Ms. Barnett described the incident as occurring between 8:00 and 8:30 p.m., when it was dark. She testified that Joshua and Respondent pulled up in separate vehicles, and that Mr. Hartley initially approved of Joshua returning to the beach with Respondent as a good deed, since Joshua purportedly indicated that “she’s really drunk.” She indicated that Joshua got into the passenger seat of Respondent’s vehicle, whereupon Respondent put the vehicle in gear, and lurched forward, almost hitting Mr. Hartley’s vehicle. At that time, Ms. Barrett indicated that Mr. Hartley ran down, startled by the driving error, told Joshua that he could not go with her, and offered to let Respondent stay with them until she sobered up. Ms. Barrett further described Respondent as essentially falling out of her bathing suit, barefoot, staggering, with slurred and vulgar speech, and highly intoxicated. After about an hour, and as Respondent was preparing to leave, Ms. Barnett testified that Joshua, who had remained with the adults in the garage since his arrival, went to his room. Ms. Barnett testified that Respondent then excused herself to use the restroom. Ms. Barnett testified that after 15 minutes or so, she went inside, and found Respondent “exiting Joshua’s bedroom.” Her description of the event is not accepted, and her veiled insinuation that something improper occurred -- for which no evidence exists -- did not go unnoticed. Mr. Hartley described the incident as occurring between 6:00 and 7:00 p.m. He testified that Joshua and Respondent arrived at the house in Respondent’s car with Joshua as the passenger. He was “positive” that Joshua was not driving because he was 15 years old and did not have a driver’s license. When they pulled into the driveway, Mr. Hartley testified that he walked down to the vehicle and that Joshua got out of the car. Mr. Hartley was unsure if Joshua stayed in the garage at all, but at most went to his room after a matter of minutes. Respondent joined the adults in the garage. Mr. Hartley indicated that Respondent “looked like she had been at the beach” and, though her speech was not slurred, he could tell she had been drinking because he could smell alcohol and by “the way she was speaking.” His description of Respondent was far from the florid state of intoxication as described by Ms. Barnett. Mr. Hartley offered no description of Respondent’s vehicle lurching forward, Respondent staggering, or of Joshua asserting that Respondent was really drunk. Finally, his concern that “the grown, intoxicated woman [as described by counsel in his question] was in your 15 year old son’s bedroom” was based solely on Ms. Barnett’s description of what she claimed to have seen. Joshua testified that he drove to his house in his father’s black Lincoln Aviator, and that Respondent followed in her white Ford Expedition. It was daylight, around 4:00 in the afternoon. Upon their arrival, Respondent pulled onto the grass next to the driveway. Mr. Hartley was mad, possibly about Joshua having the car, would not let him return to the beach, and sent him to his room within a minute of his arrival. Joshua testified that Respondent was in typical beach attire. He had no complaint as to Respondent’s actions either at the beach or at his house, and did not see her drinking. He did, however, indicate that “they” told him that “she might have been drunk or something.” He testified that after Respondent spent some time with the adults in the garage, she then went inside to use the restroom. Joshua’s door was open, and Respondent stood at the door and apologized if she had gotten him into trouble. She then left. Given the dramatic divergence in the stories of the witnesses, the evidence is not clear and convincing that anything untoward occurred when Respondent agreed to give Joshua a ride to his house to return his father’s car, and offered to return him to his friends at the beach. Though credible evidence suggests that Respondent had alcohol on her breath, there was no evidence that she was “under the influence of alcohol,” that she was not able to lawfully drive a vehicle, or that Joshua suspected that she had been drinking. Ms. Barrett’s more dramatic testimony that Respondent was drunk and staggering, falling out of her clothes, with her speech slurred and profane, and the intimation that she was in Joshua’s bedroom in that condition, is not accepted. The evidence adduced at the hearing was not clear and convincing that, on March 20, 2017, Respondent engaged in personal conduct that seriously reduced her effectiveness as an employee of the district school board. February 15, 2015 -- Mardi Gras There was a good bit of evidence and testimony taken that Petitioner was seen drunk and staggering down the street at the 2015 Pensacola Mardi Gras, and was seen and assisted by students in that condition. However, the basis for the Amended Administrative Complaint was not that Respondent was publically intoxicated, but that she “provided alcohol to underage students.” Pensacola has a Mardi Gras event with a parade and floats. In 2015, “Fat Tuesday” was on February 17. The big 2015 Mardi Gras parade was on Sunday, February 15. Respondent had a group of friends that were in a Mardi Gras Krewe and she had been helping them with the float. She apparently drank a good bit. By the time her friends were ready to join the parade, around noon to 1:00 p.m., Respondent determined that she was drunk enough that she should go to the hotel room the group had rented. Unlike the evidence for the “Garage” incident, the evidence was convincing that Respondent was very intoxicated. Ms. Smith testified that Respondent joined a group of alumni and students at a Subway parking lot where they had gathered to watch the parade. The evidence is persuasive that Respondent came upon the scene by happenstance, and that the parking lot was not her destination. While there, Respondent very likely consumed one or more “Jello-shots.” However, the suggestion that Respondent was in any condition to have brought the Jello-shots with her to the parking lot is rejected. Rather, the evidence supports that the shots were there, and that she partook. It would not have been out of character for Respondent to have taken them and handed them around. Furthermore, the testimony that Respondent was distributing beers to students is, for the same reason, simply not plausible. After a while, Ms. Smith, followed but not assisted by Mr. Brayton, assisted Respondent to her hotel. Respondent was, by this time, in a state colloquially known as “falling-down drunk.” She could not walk unassisted, and at one point laid down on a picnic table. It was at this time that Respondent and Ms. Smith were photographed, a picture that received some circulation. Ms. Smith finally delivered Respondent to her hotel, where Respondent’s son saw them and relieved Ms. Smith of any further duties. Mr. Brayton’s testimony that he thereafter entered Respondent’s hotel room was not supported by Ms. Smith or others. His testimony regarding Respondent’s son and his friends at the hotel was not clear and convincing. January 2015 -- The House Party Amelia Smith testified to an alleged incident in the fall of 2014 in which she was at Respondent’s house and students were having a party in the garage at which students were drinking. There was no allegation in the Amended Administrative Complaint as to any event in the fall of 2014. Ms. Klisart testified to an incident involving students drinking at Respondent’s house around the Martin Luther King holiday, which in 2015 was on January 19. That corresponds to Petitioner’s statement that she returned to her house after an evening celebrating her birthday,3/ to find her son and his friends having a party in the garage at which students were drinking. The allegation in the Amended Administrative Complaint that Respondent provided a forum where underage students illegally consumed alcohol in January 2015 was adequately pled. The evidence supports a finding that Respondent had been drinking when she arrived at her house. The evidence is not clear and convincing that she joined the students in the garage, but she clearly knew the party was ongoing, that it involved high school students, that the students were drinking, and that she made no effort to put a halt to the party. Notoriety of the Incidents The evidence is clear and convincing that the incidents described herein were widely known by students at Gulf Breeze High School, by other teachers, and by the school administration. Counts 3 and 4 Count 3 alleges that “Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” Count 4 alleges “that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to student's mental health and/or physical health and/or safety.” Rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [a student’s] health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, by allowing, if not condoning, student drinking at her home in January 2015, failed to make reasonable effort to protect students from harm.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated sections 1012.795(1)(g) and (1)(j), and rule 6A- 10.081(3)(a). It is further recommended that Respondent be placed on probation for a period of five years, and be required to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 7th day of June, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2017.
The Issue The issues in this case are: whether Respondent's intent to award a contract to Intervenor for an immediate response notification system pursuant to Request for Proposal 2007-01 (the RFP) was contrary to Respondent's governing statutes, rules, policies, and solicitation specifications and whether Petitioner has standing to protest the intended award.
Findings Of Fact The Florida legislature designated funds in the amount of $1,500,000 in Specific Appropriation 116 of House Bill 5001, the 2006 General Appropriations Act (Specific Appropriation 116) for pilot implementation of an immediate response notification system in seven Florida school districts. The appropriation provided: Funds for School Safety/Emergency Preparedness are provided for pilot implementation of an immediate response information system in one large, two medium, and four small school districts. The system will serve to enhance the safety of school children in emergency situations, such as impending hurricane and severe weather, fire, bomb threat, homeland security and other critical school safety events. The system must be real-time and multi-lingual with the ability to notify parents of emergency and non-emergency situations in at least ten different languages through email, telephone, and other communication devices. The Department of Education shall competitively bid this project in accordance with the provisions of chapter 287, Florida Statutes. To allow for early implementation, all funds shall be under contract no later than September 15, 2006. The Department issued the RFP on or about September 1, 2006. Pertinent portions of the RFP provided: PROPOSALS ARE DUE BY: 2:30 EST, ON SEPTEMBER, 15, 2006. ESTIMATED POSTING BEGINS SEPTEMBER 25, 2006, AND ENDS SEPTEMBER 28, 2006. [Cover Sheet] The Department is seeking qualified vendors to provide pilot implementation of an immediate response notification system to be piloted in seven (7) Florida school districts. Additional school districts may be added in subsequent years based on appropriations and periodic performance reviews. The Proposer must have a notification system that currently exists. The system must have undergone rigorous field testing and evidence must be provided to demonstrate successful implementation for similar school districts. The Proposer must have demonstrated the ability to coordinate and integrate all components of the system. The proposed system shall not require the school districts to purchase or lease any additional hardware or software or infrastructure upgrade to obtain the service. The pilots will be in one large, two medium, and four small districts. For purposes of this proposal a large district would be any district with over 150,000 students, a medium would be any district of 50,000-100,000 students and a small district would have up to 50,000 students. [Page 29] The State's performance and obligation to pay under this contract are contingent upon an annual appropriation by the Legislature. [Page 11] Any protest concerning this solicitation shall be made in accordance with Sections 120.57(3) and 287.042(2) of the Florida Statutes and chapter 28-110 of the Florida Administrative Code. Questions to the Procurement Office shall not constitute formal notice of a protest. It is the Buyer's intent to ensure that specifications are written to obtain the best value for the State and that specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. [Page 16] Any person who is adversely affected by the specifications contained in this RFP must file the following with the Department . . . A written Notice of Intent to Protest within seventy-two (72) hours after posting of this RFP specifications, and The Formal Written Protest by petition and Protest Bond in compliance with Section 120.57(3), Florida Statutes, within ten (10) days after the date on which the written Notice of Protest is filed. Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. [Page 19] A responsive proposal is a proposal submitted by a responsive and responsible vendor which conforms in all material respects to the solicitation. A responsive and responsible vendor is a vendor that has submitted a proposal that conforms in all material respects to the solicitation and who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good-faith performance. Material requirements of the RFP are those set forth as mandatory, or without which an adequate analysis and comparison of proposals is unreasonable or impossible, or those which affect the competitiveness of proposals or the cost to the State. Proposals may be rejected if found to be irregular or non- responsive by reasons that include, but are not limited to, failing to utilize or complete prescribed forms, modifying the proposal requirements, submitting conditional proposals or incomplete proposals, submitting indefinite or ambiguous proposals, or executing forms or the proposal sheet with improper and/or undated signatures. Proposals found non- responsive will not be considered. Proposers whose proposals, past performance or current status do not reflect the capacity, integrity or reliability to perform fully and in good faith the requirements of the Contract may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP, and which proposers are responsible. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. [Page 21] The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. [Page 25] REFERENCES: (ATTACHMENT 3) Provide at least three (3) references, which demonstrate efforts comparable to the one described in the RFP. Provide a list of school districts and other venues where this technology is currently in use. The Department reserves the right to contact the references regarding the services provided. [Pages 27-28] ATTACHMENT '3' WORK REFERENCES Provide the following reference information for a minimum of three (3) similar school districts or other venues where services of similar size and scope have been completed. [Page 37] Proposals will be evaluated and graded in accordance with the criteria detailed below. a. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding the project, qualifications, approach and capabilities, to assure a quality product. Only those proposals that are found to meet the verification of Section 4.2 Mandatory Submittal Documents will have the technical proposal evaluated. For this purpose, evaluators will consider a Proposer's description and explanation of the proposed products and services as described in the proposal and the supporting documents. The proposal evaluation committee, acting independently, will assign ratings of the quality of the proposed technical solutions to the work tasks specified in the RFP. Of these ratings the high and the low score will be discarded and the remaining scores averaged. The following point system is established for scoring the technical proposals: . . . Qualifications and Experience including rigorous testing of the system (10 [points]). . . Price Proposal Price analysis is conducted through the comparison of price quotations submitted. By submitting a proposal, Proposers agree to serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. Only proposals that are found to meet the mandatory minimum requirements and which receive an average rating of seventy (70) or more points for the Technical Proposal will have the cost proposal evaluated. The Department will determine if a cost proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. Any cost proposal that is incomplete may be rejected by the Department. Cost analysis is conducted through the comparison of price quotations submitted. A total of 20 points is possible. The fractional value of points to be assigned will be rounded to two decimal points. The criteria for price evaluation shall be based on the following formula: (Low Price/Proposer's Price) x Price Points=Proposer's Awarded Points [Pages 32-33] The price proposal must be submitted on the form provided as Attachment '4'. [Page 29] ATTACHEMENT '4' VENDOR'S BID SHEET We propose to provide the services being solicited within the specifications of RFP 2007-01. All work shall be performed in accordance with this Request for Proposal, which has been reviewed and understood. It is also understood that the Proposer will serve the seven (7) districts selected by the Department even if the total cost for the districts selected will exceed the amount of the Appropriation. DESCRIPTION TOTAL COST____ PRICE PER STUDENT $ /per student [Page 38] NTI did not file a protest concerning any of the specifications of the RFP within 72 hours of the issuance of the RFP. Addendum No. 1 to the RFP was issued on or about September 8, 2006, to provide answers to questions submitted by vendors during a question and answer period. Addendum No. 1 was the only addendum to the RFP and provided an answer to a question submitted by Roam Secure, Inc. (Roam Secure) regarding pricing. The question and answer provided: Q. Our pricing is based on total number of users. Because there is a significant amount of up front work involved, i.e. server setup, network optimization, data import, registration customization, and training, it is not feasible for us to supply a solution based on a few users. As such we are hoping that [the Department] will allow us to provide a total price for this RFP based on unlimited number of users for the 7 districts. Would that be acceptable to [the Department]? A. This would be acceptable, as the RFP states the vendor will serve the entire population of the seven districts chosen by the Department of Education. The large district will have more than 150,000 students, the two medium districts will range between 50,000 students and 150,000 students and four small districts will include districts with student populations of up to 50,000. See page 29.5.0 Scope of Services in the RFP. Addendum No. 1 did not address how the Department was going to compare a total price with a per student price as set out in the original RFP. The RFP does not specify what process the Department would have used to determine whose cost proposal would be the lowest or how the Department would determine the number of cost points to be awarded when there is a mix of per student prices and total prices. The Department had not determined which school districts would participate in the pilot program prior to the submission of the proposals and, as of the date of the final hearing, it was still not determined which school districts would participate. The deadline for receipt of proposals in response to the RFP was September 15, 2006, at 2:30 p.m. The Department received ten proposals in response to the RFP. The Department determined that six of the ten proposals submitted did not meet the mandatory requirements of the RFP. The Department's Selection Committee evaluated proposals submitted by NTI, US Netcom, TechRadium, and Roam Secure. Based on the RFP tabulation posted by the Department on September 29, 2006, NTI received the highest technical points of all the proposers. The technical points that were awarded by the Department's Selection Committee were as follows: NTI 89 points US Netcom 84.4 points TechRadium 80.6 points Roam Secure 67.4 Roam Secure's proposal was disqualified, and its cost proposal was not evaluated because it failed to receive an average rating of 70 or more points for its technical proposal as required by Section 6.1 of the RFP. By submitting a proposal, all proposers agreed to provide the services being procured through the RFP for a price of no more than $1,500,000 regardless of the districts selected by the Department or the number of students in such districts. TechRadium submitted a proposal to provide the requested services for $1.95 per student. US Netcom submitted a cost proposal of $3.00 per student and included a charge of $135.00/hr for [a]dditional customization [that] may be required to meet some of the application requirements." NTI submitted a cost proposal as follows: PRICE PER STUDENT Large District shall not exceed $2.60/per student Medium District shall not exceed $3.00/per student Small District shall not exceed $3.00/per student. SUPPORT FEE $1,000/per district $100/per site/per district The Department determined that NTI's cost proposal was non-compliant. The Department awarded TechRadium 20 cost points for a total score of 100.6 and awarded US Netcom 13 cost points for a total score of 97.4. At the final hearing, the Department represented that it now considered US Netcom's cost proposal as non-compliant, but, as of the date of the final hearing, the Department had not posted its intent to determine US Netcom's proposal non-compliant. In response to the RFP requirement that the proposers provide at least three references, "which demonstrate efforts comparable to the one described" in the RFP, TechRadium listed the Klein Independent School District, Northwest Indiana Educational Service Center, and Goose Creek CISD. The Klein Independent School District has a total population of less than 50,000 students. The software license agreement between TechRadium and the Klein Independent School district states that the authorized number of seats is 37,000.1 The Goose Creek Consolidated Independent School District has a total student population of less than 25,000. The contract between TechRadium and Goose Creek Consolidated Independent School District provides for 21,500 authorized seats. The contract between TechRadium and the Northwest Indiana Educational Service Center provides for 185 authorized seats, but TechRadium has provided services to approximately 90 individuals annually in the Northwest Indiana Educational Service Center. The Department reserved the right to contact the references listed in the proposals. None of the references of any of the proposers was contacted by Department during the evaluation process to verify the experience of the proposers with systems comparable to the one required by the RFP. The Department considered the listing of the references sufficient if the references included some school districts. On September 29, 2006, the Department posted its intent to award the contract arising out of the RFP to TechRadium. On October 4, 2006, NTI filed a Notice of Intent to Protest the Department's intent to award the contract to TechRadium. NTI filed its Formal Written Protest and Petition for Formal Administrative Hearing on November 7, 2006. The protest was accompanied by a bond which satisfied the requirements of applicable statutes and the RFP. NTI is not contesting whether TechRadium has the infrastructure or capacity to fulfill the pilot program requested in the RFP. No funds allocated for School Safety/Emergency Preparedness in Specific Appropriation 116 were under contract on or before September 15, 2006. NTI was aware of Specific Appropriation 116 prior to the Department's issuance of the RFP. NTI did not object to the time limitations for opening bids or posting the rankings until it filed its formal written protest on October 13, 2006. NTI was aware of the time limitation of which it now complains more than 72 hours prior to the filing of its formal written protest. Prior to the issuance of the RFP, Michael Arnim, the Director of Sales at TechRadium, sent e-mails to school districts in Florida containing multiple untrue representations regarding the pilot project. Mr. Arnim had misunderstood some conversations he overheard at the TechRadium office in Texas and thought that TechRadium had been awarded the pilot project. He sent e-mails to some of the school districts stating that the Commissioner of Education could verify that TechRadium would be providing the notification systems for the pilot project and requesting the school districts to send letters of intent on the school districts' letterhead indicating the school districts wanted to participate. When the Department brought the e-mails to the attention of others at TechRadium, Mr. Arnim was reprimanded, and no further representations were made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding the contract for an immediate response notification system pursuant to RFP 2006-01 to TechRadium. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S ___________________________________ SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings 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 this 9th day of January, 2007.
The Issue The issue is whether Petitioner is entitled to receive an allocation of affordable housing funds from the Florida Housing Finance Corporation as a result of the alleged improper scoring of another applicant's application during the 2001 funding cycle.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida limited partnership that is engaged in the business of developing affordable housing projects. FHFC is a statutorily-created public corporation. It is the State's designated "housing credit agency," and it is responsible for the allocation of tax credits and the distribution of other funds for the development of affordable housing projects. FHFC is administratively housed in the Department of Community Affairs (DCA), and it is governed by a nine-member board. Eight members of the board are appointed by the Governor; the ninth member of the board is the Secretary of DCA, who serves in an ex officio capacity. FHFC Programs The programs administered by FHFC include the State Apartment Incentive Loan (SAIL) Program and the Low-Income Housing Tax Credits Program (Housing Credits Program). The funds from the SAIL Program are used to provide low-interest loans to developers. The funds come from various sources of state revenue, and the loans are typically secured by a second mortgage on the property on which the affordable housing project is developed. The Housing Credits Program is governed by federal law, namely Section 42 of the Internal Revenue Code. The program provides dollar-for-dollar federal tax credits to developers that can be used over a 10-year period so long as the related affordable housing project satisfies the requirements of the Internal Revenue Code throughout that period. The tax credits can be, and often are sold or "syndicated" by the developer in order to generate the funds necessary to construct the project. Each state receives an annual allotment of tax credits from the federal government to be used in its Housing Credits Program. For 2001, Florida's allocation of tax credits was approximately $23.9 million, of which approximately $20.7 million was available for allocation. FHFC received requests totaling approximately $81.3 million in the 2001 funding cycle for the available $20.7 million in tax credits Some of the available tax credits are apportioned by FHFC into a "set-aside" for projects in small counties. Only projects located in small counties compete for the tax credits in the small county set-aside. For 2001, the small county set-aside was $1,739,586.90, and FHFC received requests for those funds totaling approximately $5.5 million. FHFC Evaluation Process Because the funds requested from the SAIL Program and the Housing Credits Program typically exceed the available funds (as was the case in 2001), FHFC has established a competitive application process through which the applications are evaluated, scored, and ranked. The applications are first reviewed for all of the "threshold" items identified in the application forms and FHFC’s rules. If an application does not have all of the threshold items, it is rejected. By contrast, the failure to include non- threshold items or the failure to provide complete, consistent, and accurate information in the format and location prescribed in the application forms results in the application not receiving the full amount of points available or the imposition of a penalty that reduces the overall score given to the application. Next, FHFC staff reviews all of the applications that were not rejected for omitting a threshold item. That review results in a “preliminary score” for each application, which is provided to all of the applicants. Then, there is a 10-day period in which applicants may challenge FHFC's preliminary scoring of their application or the preliminary scoring of any other applicant's application. Such a challenge is called a Notice of Possible Scoring Error (NOPSE). FHFC provides each applicant the NOPSEs relating to its application as well as a statement of FHFC's position on the NOPSE. The applicants are then given a period of time -- referred to as the "cure period" -- to submit additional documentation, revised forms or other information they deem appropriate to address the issues raised in the NOPSEs, FHFC's comments on the NOPSEs, and/or FHFC's preliminary scoring of the application. The additional submittals are referred to as "cures." After the cures are submitted, the applicants again have an opportunity to bring deficiencies in competing applications to FHFC's attention. The mechanism for doing so is a Notice of Alleged Deficiency (NOAD). After reviewing the cures and any NOADs, FHFC staff prepares a revised score for each application. This score is referred to as the “pre-appeal score.” Along with the pre-appeal scores, each applicant is given notice of its right to challenge its score through a formal administrative proceeding at the Division or through an informal proceeding before a hearing officer appointed by FHFC. Most applicants opt for an informal hearing because, as a result of the time constraints imposed by the funding cycle, those who opt for a formal hearing will not be funded until a subsequent cycle if they prevail at the hearing. After all of the informal hearings are completed and any scoring adjustments are made based upon the results of those hearings, the applications are ranked based upon their “post- appeal scores.” The post-appeal scores and rankings are approved by the FHFC board and are used to award the available funds. The standards and procedures for ranking applications for tax credits are set forth in the Qualified Allocation Plan (QAP). The QAP is required by the Internal Revenue Code and it is adopted and incorporated by reference in FHFC's rules. Among other things, the QAP establishes the priority of applications which receive the same scores. That priority is established through two "tie-breakers." The first tie-breaker is whether the application is in Group A or Group B, and the second tie-breaker is a random lottery number assigned to the application prior to the final rankings. The group into which the application falls is determined based upon the Corporation Funding per Set-aside Unit (CFSU) amount identified on Form 10 of the application. Group A includes the 65 percent of the applications that have the lowest CFSU amounts. Applications in Group A receive priority over applications in Group B in the event that the applications receive the same final score. For applications in the same group with the same score, priority is given to the application with the lower lottery number. 2001 Combined Cycle Generally The 2001 funding cycle was referred to as a "combined cycle" because it combined the SAIL Program, the Housing Credits Program, and another program not implicated in this case called the Home Investment Partnership Program (HOME Program), into a single application and review process. The application package for the 2001 Combined Cycle included 23 numbered forms, not all of which were applicable to every applicant. The applications submitted in the 2001 Combined Cycle, including those submitted by Petitioner and TWC, were reviewed and scored in accordance with the procedures described above. Relevant Forms Form 1 of the application is entitled "Applicant and Development Data." Page 10 of Form 1 includes the following statements: The Applicant and all Financial Beneficiaries understand and agree that full points will be awarded only in the event that all information required by each form is provided in accordance with the Application requirements. Failure to provide complete, consistent and accurate information in the format and location prescribed by the Application will result in a REDUCTION OF POINTS OR REJECTION OF THE APPLICATION as indicated on each form. Only information contained within the Application will be considered for purposes of points awarded or appealed. . . . . Form 5 of the application is entitled "Local Government Contributions." Page 1 of Form 5 states that: Each applicable verification form must have an Original signature by one of the designated signatories indicated on the appropriate verification form. Zero points will be awarded if Applicant uses the incorrect form or if the form is not signed by one of the designated signatories. Separate verification forms are included in Form 5 for the different types of local government contributions. There are separate verification forms for grants (Form 5, page 6), fee waivers (Form 5, page 7), loans (Form 5, page 8), tax exempt bond financing (Form 5, page 9), “other contributions” (Form 5, page 10), and exemptions from ad valorem taxation (Form 5, page 11). The verification form for fee waivers states that “[n]o credit will be given for fee waivers unless the computations by which the total amount of each waiver is determined accompanies this verification form in the Application.” That same language is not included on the verification form for "other contributions”; however, that verification form includes a sentence stating that “[t]he amount of this contribution was calculated as shown behind the tab labeled ‘Form 5, Exhibit .’” The verification form for “other contributions” also includes the following statement: THIS FORM MUST BE SIGNED BY THE MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, CHAIRPERSON OF THE CITY COUNCIL/COMMISSION OR CHAIRPERSON OF THE BOARD OF COUNTY COMMISSIONERS. . . . . OTHER SIGNATORIES ARE NOT ACCEPTABLE. THE APPLICANT WILL NOT RECEIVE CREDIT FOR THIS CONTRIBUTION IF THE VERIFICATION FORM IS IMPROPERLY SIGNED AND/OR DOES NOT HAVE AN ORIGINAL SIGNATURE IN THE ORIGINAL APPLICATION. Form 6 of the application is entitled "Local Government Planning Efforts." Pages 2 and 3 of Form 6 are the verification forms for any affordable housing incentives being offered for the project by the applicable local government. Both pages include the following statement: This form must be signed by the MAYOR, CITY MANAGER, COUNTY MANAGER/ADMINISTRATOR, OR CHAIRPERSON of the CITY COUNCIL/COMMISSION OR CHAIRPERSON of the BOARD OF COUNTY COMMISSIONERS. OTHER SIGNATORIES ARE UNACCEPTABLE. ZERO POINTS WILL BE AWARDED. . . . . The application and all of these forms are adopted and incorporated by reference in FHFC's rules. Applications Submitted by Petitioner and TWC Petitioner submitted an application for an allocation of $561,000 in tax credits and for an award of funding under the SAIL Program for its proposed Ochlocknee Pointe development in Gadsden County. Petitioner's application was designated by FHFC as No. 01-131CS. A competing application for $890,000 in tax credits was filed by TWC for its proposed Windsong II development in Columbia County. TWC's application did not seek funding under the SAIL Program. TWC’s application was designated by FHFC as No. 01-125C. Neither Petitioner nor TWC applied for funds under the HOME Program. Because of their locations, the applications submitted by Petitioner and TWC were competing for the tax credits available in the small county set-aside. There were also seven other applicants competing for the tax credits in the small county set-aside. Alleged Deficiencies in TWC's Application and Initial Scoring by FHFC Staff Form 5 of TWC's original application indicated that the project had not received any local government contributions. As a result, the original application did not include any executed local government contribution verification forms. Form 6 of TWC's original application did not identify any affordable housing incentives being offered by the local governments. As a result, the original application did not include any executed verifications forms for such incentives. As part of its cure submittals, TWC submitted a revised Form 5 and a revised Form 6. The revisions were made because TWC had received verification of local government contributions and affordable housing incentives. The revisions included executed verification forms for Form 5 (page 10)1 and for Form 6 (pages 2 and 3). The verification forms at issue in this proceeding were executed by Dale Williams; the title listed for Mr. Williams was County Coordinator. A letter signed by Mr. Williams was included along with the “other contributions” verification form (Form 5, page 10). The letter was on the letterhead of the Board of County Commissioners of Columbia County and includes the words "County Coordinator" under Mr. Williams name and signature. The letter was designated as and included in the cure submittal behind a tab marked "Form 5, Exhibit A." The letter states that "Columbia County will provide the installation of roadway turn lanes at Branford Highway to service Windsong II Apartments for a contribution equivalent to a total value of $102,000." The letter does not include any calculations showing how the “total value of $102,000” was computed, and no such calculation was included elsewhere in TWC's cure submittals. There is nothing in TWC’s cure submittals that explained the nature of the County Coordinator position or stated that Columbia County does not have a County Manager/Administrator designated as such. TWC was not awarded four points on Form 6 because County Coordinator was not specifically listed along with “City Manager, County Manager/Administrator, or Chairperson of the City Council/Commission or Chairperson of the Board of County Commissioners” as an authorized signatory for that form. For that same reason, TWC also was not awarded any points on Form 5 for the $102,000 local government contribution referred to in Mr. Williams' letter. That contribution was worth 7.64 points. TWC was also penalized 1.5 points on Form 5 because no documentation was provided showing how the "total value of $102,000" was calculated for the local government contribution described in Mr. Williams' letter. These scoring determinations were made by Debra King, the FHFC staff person who reviewed TWC’s application and cure submittals, and they were concurred in by Ms. King’s “scoring partner.” Scoring Appeals by Petitioner and TWC FHFC completed the scoring process for the 2001 Combined Cycle on August 1, 2001, when it advised the applicants of their pre-appeal scores. TWC's pre-appeal score was 608.86, which included the penalty and point reductions described above. Petitioner's pre-appeal score was 620.5, which included a 1.5 point penalty for Petitioner’s failure to specify a unit of measurement on Form 7. TWC and Petitioner both requested informal hearings to challenge their pre-appeal scores. Those hearings, which are commonly referred to as “scoring appeals,” were conducted by hearing officers appointed by FHFC. At the informal hearing on TWC’s scoring appeal, FHFC conceded that Mr. Williams was an authorized signatory for Forms 5 and 6 because, as the "County Coordinator," Mr. Williams was the de facto County Manager/Administrator for Columbia County. FHFC also conceded that documentation relating to the computation of the $102,000 in roadway improvement being contributed by Columbia County was not necessary because it was a lump-sum contribution. FHFC agreed to re-score TWC's application in light of those concessions. The concession that Mr. Williams was an authorized signatory was based upon FHFC staff's review of the job description for the County Coordinator position and the organizational chart for Columbia County attached to TWC's Petition for Informal Administrative Hearing as well as phone calls that FHFC staff made to Columbia County after receiving that information to confirm that the county did not have a County Manager/Administrator designated as such. The concession that a document showing how the local government contribution was calculated was based upon FHFC staff’s review of excerpts from prior applications that were attached to TWC’s Petition for Informal Administrative Hearing. Those applications apparently received full points for their “other contributions” even though they did not include detailed calculations for the contributions; however, almost all of the excerpts showed at least a general breakdown of the items which made up the total shown on the verification form. As a result of FHFC's concessions, the hearing officer concluded that the TWC’s scoring appeal was "moot" and she issued a Recommended Order which contained no findings of fact or conclusions of law. The hearing officer's Recommended Order, which FHFC adopted in toto as its Final Order, recommended that TWC's application "be rescored to reflect the removal of the 1.5-point penalty to Form 5; to add 7.64 points to Form 5; and to add 4 points to Form 6." The net effect of that rescoring was that TWC's application received a post-appeal score of 622. Petitioner did not fare as well in its scoring appeal. The hearing officer made the following findings of fact with respect to the 1.5-point penalty assessed based upon Petitioner's failure to specify the unit of measure on Form 7: Form 7, Page 11, is entitled "Local Government Verification that Development is Consistent with Zoning and Land Use Regulation." On Page 11 of Form 7, there is a requirement to state the "Size of Parcel (acreage, number of lots, or square footage)." In its Revised Page 11 of Form 7 [Petitioner], in response to that requirement entered the numbers "9.99" without any accompanying unit of measure. It is clear from a review of other pertinent parts of the application that the appropriate unit of measure to accompany the number "9.99" is "acres." Further, its [sic] reasonable to conclude on the face of [Petitioner's] Revised Page 11 of Form 7, when read in conjunction with the entire application . . . , that the number "9.99" refers to acres. (Citations omitted). Despite those findings, the hearing officer recommended that the 1.5-point penalty be affirmed. That recommendation was based primarily on the following conclusion of law: The instructions on Page 11 of Form 7 require a unit of measure be appended to the number of units placed in the answer blank. While it may be true that such a result is particularly frustrating to the applicant in light of the reality that its omission has created no confusion or inconsistency nor diminished the accuracy of the application, [FHFC] has nevertheless adopted rules requiring strict compliance with regard to providing complete information in the format and location prescribed by the instructions on the forms. That rule cannot be ignored. Thus, the failure of [Petitioner] to include a unit of measure on its Revised Page 11 of Form 7 is an error that does result in a single 1.5-point penalty. FHFC adopted the hearing officer's findings of fact, conclusions of law, and recommendation in toto as its Final Order, and Petitioner did not seek judicial review of the Final Order. As a result, Petitioner's pre-appeal score of 620.5 became its post-appeal score. Petitioner's application was in Group B, and its lottery number was 68. TWC's application was in Group A, and its lottery number was 27. Thus, in the event that Petitioner and TWC received the same final score, priority for funding would be given to TWC. If Petitioner's application had received a higher score than TWC's application, then Petitioner's application would have been in the "funding range" and Petitioner would have received an allocation of tax credits for its project. If Petitioner had received the tax credits, it would have also received SAIL funding. The record does not reflect the total amount of tax credits and SAIL funding that Petitioner would have received; however, if TWC's application was moved below Petitioner's application on the final funding list (Exhibit R2), then $339,164.90 in tax credits would have been available to Petitioner after the higher-ranked applicants were fully funded.2 Additional Facts Established at the De Novo Final Hearing in this Case The $102,000 “total value” for the roadway improvements referred to in Mr. Williams' letter is reasonable. Indeed, the itemized cost-estimate prepared by professional engineer Greg Bailey in the design phase for the improvements was $106,064. The $102,000 in roadway improvements cannot be characterized as a lump-sum contribution. As Mr. Bailey’s cost- estimate shows, the improvements include 16 components such as paving, grading, and drainage; and a cost-per-unit and an estimated quantity is listed for each component. At the time Mr. Bailey prepared the cost-estimate, he was working for C&W Land Trust. Accordingly to one of the documents in TWC’s application (Form 7, Exhibit A), C&W Land Trust was the landowner from whom TWC acquired the property where its Windsong II project will be located. Mr. Bailey provided the cost-estimate to the county engineer for Columbia County for his use in evaluating bids submitted for the construction of the roadway improvements. The county engineer forwarded a memo to Mr. Williams on June 14, 2001, stating that the construction cost for the improvements “is estimated to be $102,000.00.” Requiring documentation to support the calculation of a local government contribution is important because it helps prevent an applicant from “gaming” the system in order gain an advantage in the scoring of its application. For example, where the contribution is based upon a per-unit amount, the calculations help to ensure that the number of units committed by the applicant as a basis for the local government contribution is the same number of units committed by the applicant in the application to FHFC. Documentation showing the calculation of the $102,000 local government contribution referenced in Mr. Williams letter is equally important because without such documentation there was no way for FHFC to determine during its review whether that figure is a reasonable estimate of the cost of the roadway improvements which are being contributed by Columbia County. It is necessary for FHFC to be able to make such a determination because the points awarded to the applicant for the contribution are based in large part on the amount of the contribution. At the time that TWC submitted the verification forms and letter signed by Mr. Williams, Columbia County did not have a position called County Manager or County Administrator. The County Coordinator position was the de facto County Manager/Administrator. The County Coordinator was appointed by the Board of County Commissioners to "administer all programs and to ensure that County government operates efficiently and effectively." The County Coordinator reported directly to the Board of County Commissioners and, among other duties, the position supervised all department heads (except the head of Public Works Department) and provided "direction, leadership and supervision to all County Department heads." Presently, Columbia County has a County Manager and Mr. Williams serves in that position. The job duties for the County Manager position are virtually identical to those of the County Coordinator position. Indeed, even though text of the position description no longer excepts the Public Works Department from Mr. William’s supervision, the county’s organizational chart still shows the Public Works Department outside of Mr. Williams chain of command.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Housing Finance Corporation issue a final order which determines that Petitioner is entitled to an allocation/award of tax credits and SAIL funds in the next available cycle. DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. S 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 30th day of March, 2004.
The Issue The issues are whether Respondent threw a chair at one student, missed him, but hit a desk that impacted and injured another student; if so, whether such conduct constitutes a violation of section 1012.27(5), Florida Statutes (2018), or any of the various School Board Policies (Policies) or Department of Education rules (Rules) discussed below; and, if so, whether Petitioner's termination of Respondent is consistent with the provision of progressive discipline set forth in the Collective Bargaining Agreement for the period, July 1, 2017, through June 30, 2020 (CBA).
Findings Of Fact Respondent is a 61-year-old teacher holding educator certificates in middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior discipline. Since 2012, Respondent has taught at Turning Point Academy, which is an alternative school operated by Petitioner. The students at Turning Point Academy have been expelled from, or repeatedly disciplined at, other schools and range in age from 14 to 17 years old. In December 2018, 90 to 95 students were enrolled in the school, but absences, usually unexcused, averaged about 40% each day. The school building is organized with several classrooms opening onto a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student behavior. In each common area are restrooms and an eating area. The BIA serving Respondent's common area on the date in question had ten years' experience as a BIA and 22 years' prior experience as a sheriff's deputy. Respondent has been fully trained in appropriate interactions with students and classroom management. Respondent's evaluations for 2016-18 were all "Effective"; her evaluation for 2019 was "Highly Effective." However, the assistant principal of the school was dissatisfied with Respondent's classroom management skills. In response to what he viewed to be an excessive number of office referrals, the assistant principal had recently directed Respondent to take care of the behavior problems herself and had assigned her to take a two-part program on classroom management. The assistant principal also directed Respondent to use the school's system of assigning tally marks for good and bad behavior. Absent seriously inappropriate behavior, the tally system requires three bad tally marks before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general, but it is unlikely that the two student disrupters at the center of the incident on December 20, 2018, were deterred by the prospect of a few (more) bad tally marks. During the 2018-19 school year, Respondent taught math to students in sixth through eighth grades. The class at issue was a 100-minute, eighth-grade math class that took place late on the day of December 20, 2018, just before winter break. Midway through the class, which was attended by six students on that day, three students began acting up. Respondent promptly intervened, and one of the students returned to his work. However, the other students left their assigned seats without permission. One student ran toward the back of the classroom, and the other student ran toward the front of the classroom, where Respondent was situated at her desk in the corner opposite from the corner at which the door to the common area was located. The students were yelling profanities and tossing paper in the air--some of both of which were directed at Respondent. One or both of the students demanded to know where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded Respondent's space, as he ran behind her desk in the narrow space between her desk and the whiteboard, where he seized a marker, taunted Respondent that he had the marker, and wrote the word, "fuck," on the whiteboard. The class was equipped with a buzzer to summon the BIA, but the buzzer was located by the classroom door on the opposite side of the room from Respondent's desk. It is unclear if it occurred to Respondent to tell another student to hit the buzzer, but she never did so and had never previously done so. Instead, Respondent leaned over the depth of her desk-- about three feet--and grasped a lightweight chair with a plastic back and seat and metal legs. She shoved or pushed the chair briskly across the tile floor in the direction of the student who had rushed her desk, even though he was now careening toward the classroom door along the front of the classroom in the space between the whiteboard and the first row of desks. The chair missed the fleeing student, but struck the wall under the whiteboard with sufficient force that it ricocheted into the desk of a student who was seated, watching this incident unfold. The chair caused the desk to topple onto the right knee of the student. In his deposition, the injured student testified that, in addition to the ice applied to the knee immediately after the incident, the only treatment that his knee required was a couple of weeks' rest. The next day, the injured student was back at school walking without favoring the injured knee. The assistant principal directed Respondent to telephone the injured student's parent and inform her what had happened, suggesting that the assistant principal considered the injury minor--or else, from a liability perspective, he would have made the call himself, rather than assign the responsibility for making the call to the staffperson who had caused the injury. Respondent made the assigned call to the injured student's parents--and, on her own, several others during the winter break to check on the child whom she had accidentally injured with the shoved chair. In her initial statement, Respondent stated that she had thrown the chair, rather than shoved it along the floor. The injured student testified that Respondent threw the chair above the height of the desks, but desks did not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair. Other student testimony indicated that the chair did not rise above the tops of the desks. More importantly, Respondent remained behind her desk, and the chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it with any force at all. The proof establishes no more than that Respondent leaned across her desk and gave the chair a hard shove across the front of the classroom in the direction of the fleeing student. It is difficult to understand why Respondent would state that she had thrown the chair, if she had not thrown the chair in the common sense of the word, "throw," which is "to propel through the air by a forward motion of the hand and arm."1 Clearly, when she gave the statement to the school police investigator shortly after the incident, Respondent remained overwhelmed 1 Merriam-Webster online dictionary, https://www.merriam-webster.com/dictionary/throw. by what had happened to her in her classroom. Also, as demonstrated at the hearing, Respondent's language skills are not so highly developed that she would invariably differentiate between throwing a chair in the air and shoving a chair along a floor. Two key witnesses establish Respondent's condition during and immediately after the incident. According to the BIA, who saw Respondent a few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA that she had been afraid when the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging student was a classmate. Immediately after testifying to this fact, the injured student added that he had overheard the two disruptive students at lunch discussing school shootings--a highly sensitive issue in schools today and even more so in December 2018, only a few months after the Parkland shootings. Respondent claims that she acted in self-defense. There are two problems with this claim. First, objectively, Respondent did not act in self- defense, because, by the time that she shoved the chair, the student was running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is not inconceivable that, in her fearful or panicked state, she formed a plan of action that, by the time she executed it, was a fraction of a second after the rushing student had turned to run across the front of the classroom. The second problem is the belated emergence of Respondent's claim of self-defense, months after the incident took place, but there are a couple of explanations. As noted above, Respondent's claim of self-defense is a little bit of a mislabeling. Perhaps the two students' outrageous behavior caused Respondent to feel that she needed to defend herself; without doubt, this behavior caused Respondent to react in fear and even panic. Perhaps Respondent did not find even the self-defense label for her claim until represented by counsel. Clearly, Respondent omitted numerous important details concerning the behavior of the two disruptive students in her initial statement--again, not surprisingly, as she was still overwhelmed by what had happened to her and that she had accidentally injured an innocent student--in fear, not in anger. Interestingly, when Respondent finally presented the additional details, the assistant principal rejected them as Respondent's "changing her story." This dismissal betrays Petitioner's misconception of the case, whose center is not the changed fact of the specific action that Respondent applied to the chair, but to her state of mind when she applied the action to the chair. Regardless of whether she had thrown the chair high in the air or shoved it along the floor, Respondent had been driven by the two disruptive students to a state of utter fear and likely panic. To the assistant principal and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences, emails, and witness statements filling Petitioner's file, there is no thoughtful analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student. To the contrary, Petitioner has ignored strong evidence on this crucial issue from two witnesses--one of whom is disinterested and exceptionally experienced and competent at reading demeanors, collecting evidence, and analyzing evidence. And this evidence clearly establishes the reaction of an older woman in a state of fear or panic, not anger. Nor did student testimony, besides from the injured student, support Petitioner's theory of the case. The deposition testimony of these students was of little value because it was vague or guarded. During a particularly unproductive deposition of one of the disruptive students, likely the one who rushed Respondent,2 the following exchanges occurred: Q: Okay, Mr. O, I want to make something very clear that we're not here today because of anything that you did. You're not in trouble or you're not here because you did something wrong. A: Uh-huh. Q: Okay. We just are trying to get some information and to see if you have any recollection of some events that occurred-- A. All right. Q: last school year in December. Do you recall giving a statement to school police about a situation that happened in Ms. Larson's class, a chair that was thrown? A: (Shakes head) Q: You don't? Say yes or no. A: No, ma'am. Q: All right. One moment please. Do you recall giving a statement to school police that you were getting papers off Ms. Larson's desk when a chair was thrown at another student? A: No. Who this go to? Q. Pardon me? A. Who this go to? Q. What is your question? A. Who do all this go to? 2 It is hard to identify individual students due to the redactions and absence even of students' initials in the Petitioner's investigative paperwork. Q. It's going before a judge in a case, a different case. A. I'm saying, so why do I got something to do with this? Q. Because you gave a statement to the school police. You were in class the day that Ms. Larson threw a chair and hit a student in his knee. A. I gave a statement? * * * [After the student refused to waive reading and signing]: Q. Okay. So we will have [the transcript] sent to Ms. Richardson. A. So this something that I got to go to court for? Q. Well, probably not. We might use your deposition instead of … . Remember, this has nothing to do with you. A. I thought-- Q. This is all about Ms. Larson. A. A deposition like when you get send sent to a program. Deposition of G.O., pp. 10-11 and 16-17. At bottom, Respondent found herself in a very bad situation not at all of her making. In a blatant attempt to reduce the classroom to utter chaos, rather than to cause a mere disruption, two students unfortunately seem to have succeeded in momentarily terrorizing a teacher into incoherence. Neither the school police officer nor any of Petitioner's supervisory employees saw the need to contact outside law enforcement. A document mentions a child protective investigator by name, but the record does not suggest that she pursued an investigation. The prevailing thinking among Petitioner's representatives seems to have been that Respondent was neither negligent nor reckless and that she did not intend to hurt the injured student, whose parents did not wish to pursue the matter due to the negligible injury. Understandably, no one seems to have analyzed the situation from the perspective of the actual target of the chair--the fleeing student--as such an exercise would have uneasily cast the real perpetrator as the victim. But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had thrown the chair high in the air and, more importantly, its assumption that Respondent had acted in anger.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the charges set forth in the Administrative Complaint and reinstating her with full back pay. DONE AND ENTERED this 2nd day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2020. COPIES FURNISHED: Jean Marie Middleton, Esquire V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 (eServed) Nicholas A. Caggia, Esquire Johnson & Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Thomas L. Johnson, Esquire Law Office of Thomas Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed)
