The Issue Whether Petitioner, Cordelia Brown, is eligible to receive a scholarship offered by the 2015 Florida Best and Brightest Teacher Scholarship Program.
Findings Of Fact The Florida Legislature created the Scholarship Program during its 2015 Session. Through the 2015 General Appropriations Act, the Legislature adopted proviso language in Specific Appropriation 99A (“Appropriation 99A”) allocating $44,022,483.00 to “award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT.” See Ch. 2015-232, § 2, 99A, at 27, Laws of Fla. To be eligible to receive the scholarship, Appropriation 99A stated that, “a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment.”2/ Appropriation 99A further provided that an “eligible teacher” was to apply to the employing school district no later than October 1, 2015. Thereafter, each school district was to submit to the Department the number of eligible teachers who qualified for the scholarship by December 1, 2015. By February 1, 2016, the Department was to disburse scholarship funds to each school district for each teacher who was to receive the scholarship. By April 1, 2016, each school district was to pay the scholarship award to each eligible teacher. Appropriation 99A further stated that if the number of eligible teachers exceeded the total appropriated amount ($44,022,483.00), the Department was to prorate the per teacher scholarship amount. On September 3, 2015, Petitioner timely applied to the School Board to receive the scholarship award under the Scholarship Program. On November 11, 2015, the School Board notified Petitioner that it had been determined that she did not qualify for the Scholarship Program. The School Board explained that Petitioner was not a “classroom teacher.” Therefore, she was not eligible to receive the scholarship. Petitioner is a first-year employee with the School Board. The School Board hired her at the start of the 2015-2016 school year. The School Board hired Petitioner as a speech- language pathologist. Prior to working for the School Board, Petitioner taught in Fulton County, Georgia. One factor in her decision to accept the School Board’s offer of employment and relocate to Florida was the Scholarship Program. For the 2015-2016 school year, Petitioner entered into a “Probationary Contract of Employment for Instructional Personnel of the Public Schools” with the School Board.3/ Petitioner holds a two-year, temporary teaching certificate issued by the Department in the area of Speech-Language Impaired. For the 2015-2016 school year, the School Board assigned Petitioner to work as a speech language pathologist at Brentwood Elementary. All of Petitioner’s students were identified as exceptional student education or “ESE” students. At Brentwood Elementary, Petitioner led two class subjects, Speech Therapy and Language Therapy. In her Speech Therapy class, Petitioner addressed her students’ problems with speech and fluency (e.g., stuttering). Petitioner’s Language Therapy class focused on the content of what is being said (i.e., expressive and receptive language). Petitioner instructed students in areas including reading, reading aloud, and analysis. Petitioner instructed a total of 25 students over six class periods. Her classes consisted of small groups of two-to- four students. Petitioner’s students ranged in age from pre- kindergarten through fifth-grade. For her six classes, Petitioner prepared daily lesson plans. Her lesson plans targeted the goals and objectives on each of her students’ individualized education plans. She aligned her lesson plans with Florida state standards. Some of the state standards are general education grade-level standards, and some are specific to speech or language therapy. Each lesson plan included sections addressing “Setting the Purpose for Learning,” “Instruction and Assessment,” “Teacher Supported Guided Instruction,” and “Application.” Petitioner submitted her lesson plans to her assistant principal for a quarterly review. Petitioner was observed and evaluated by her assistant principal using the same form used for evaluating other teachers at Brentwood Elementary. Petitioner was observed and evaluated on criteria related to the instruction she provided to her students as well as the culture of her classroom. The School Board reported that Petitioner is “outstanding” in her role and was doing “a great job” according to the Brentwood Elementary administration. The School Board further relayed that “there is no question that [Petitioner] is an up-and-coming great professional.” The School Board denied Petitioner’s application because it did not consider a speech language pathologist to be eligible for the Scholarship Program. The School Board explained that it understood the term “teacher” as used in Appropriation 99A to mean a “classroom teacher” as that term is defined in section 1012.01(2)(a). The School Board did not believe that Petitioner fit into the definition of a “classroom teacher.” The School Board described a “classroom teacher” as a “person who is in charge of the whole classroom who is doing the daily instructional services to the kids.” In contrast to a “classroom teacher,” the School Board considers speech-language pathology as a type of “related service.” Related services are services provided to exceptional- education students to assist them in accessing and benefiting from classroom instruction. The School Board considers its “classroom teachers” and speech language pathologists to possess different skill-sets, bases of knowledge, and job goals and responsibilities. Speech-language pathologists have a specific role to support other teachers by helping students meet their educational goals. The School Board described Petitioner’s job duties as “therapeutic services.” In general, speech-language pathologists are professionals who assess, diagnose, and provide therapeutic treatment for various speech, language, and hearing disorders. In her role at Brentwood Elementary, Petitioner provided a comprehensive program to her ESE students to treat those students’ specific speech or language impairments. Petitioner’s Speech Therapy and Language Therapy classes were provided to two- to-four students at a time who were evaluated and deemed to have a disability that impacted their educational classroom performance. Petitioner taught her selected students specific skills or coping mechanisms that would allow them to overcome their impairments in order to better access instruction and curriculum. In other words, Petitioner’s focus was to give her students the ability to learn. The School Board further explained that Petitioner’s “lesson plans” are referred to in the therapy setting as “plans of care.” Plans of care are similar in form to lesson plans created by classroom teachers, but they differ in substance. Classroom teachers’ lesson plans set forth strategies for an educator to deliver instruction to an entire classroom. Speech- language pathologists’ plans of care, on the other hand, set forth tailored therapy plans that address an individual student’s specific impairment. In addition, Petitioner’s class roster is referred to as a “caseload.” Furthermore, while the Petitioner’s Speech Therapy and Language Therapy classes were assigned course codes similar to general education course codes, her two classes were specially coded. Petitioner’s students did not receive course credit for attending her classes with the therapy course code designation. Testimony at the final hearing, however, revealed that in an academic setting the goals and responsibilities of a speech-language pathologist have objectives similar to a “classroom teacher’s.” Sonia Figaredo-Alberts, the School Board’s executive director of pupil support services, who is also a speech-language pathologist, recognized that Petitioner “is instructing students with communication disorders.” Ms. Figaredo-Alberts explained that “we, as speech and language pathologists assist with very specific targeted areas . . . we do a very therapeutic intervention. We’re teaching [our students]. There’s no question that our therapy is about teaching that student specific skills . . . in a very thorough and specialized area.” According to Appropriation 99A, the Legislature gave the decision regarding a “teacher’s” eligibility to receive a scholarship to the school districts. Appropriation 99A directed each Florida school district to receive teacher applications for the Scholarship Program and to submit the number of eligible teachers who qualified for the scholarship to the Department. While processing applications, several school districts sent questions to the Department regarding the implementation of the Scholarship Program. In particular, the Department received inquiries regarding who should be considered a “teacher” for purposes of the scholarship. Although the Department administered the Scholarship Program, Appropriation 99A did not grant the Department rulemaking authority. Therefore, the Department did not adopt rules regarding what teachers were eligible for the scholarship. The Department, however, did prepare and issue a memorandum addressing school districts’ commonly asked questions. On July 27, 2015, Hershel Lyons, chancellor of the Division of Public Schools for the Department, issued a memorandum entitled “Guidance on Best and Brightest Teacher Scholarship” (the “Memorandum”) to the Florida School District Superintendents. The Memorandum provided that “[t]eachers eligible for the Best and Brightest Teachers Scholarship Program are classroom teachers as defined in [section] 1012.01(2)(a), F.S., who are employed by Florida school districts, charter schools, or the [Florida School for the Deaf and Blind].” The Department based its interpretation of the term “teacher” on the various classes of employees set forth in section 1012.01(2)(a). The Department determined that the term “classroom teacher” in section 1012.01(2)(a) provided the best definition of the word “teacher” for purposes of the Scholarship Program. On September 4, 2015, Chancellor Lyons issued a second memorandum to School District Superintendents with an attached Frequently Asked Questions document. The Frequently Asked Questions provided, in relevant part: What are the eligibility criteria for the Best and Brightest Teacher Scholarship Program? In order to meet eligibility requirements for the scholarship, the individual must: Be a classroom teacher as defined in section 1012.01(2)(a), Florida Statutes . . . * * * According to section 1012.01(2)(a), F.S., what is the definition of a classroom teacher? Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education and adult education, including substitute teachers. Upon reviewing the Memorandum, the School Board believed the Department confirmed its view that “classroom teachers” were the only individuals eligible for the Scholarship Program. The Department did not follow up to determine whether any school district followed its guidance. The Department did not believe that Appropriation 99A gave it that authority. The Department received the names of 5,332 teachers that the school districts determined were eligible for the scholarship awards. Appropriation 99A directed the Department to act as the fiscal agent for the Scholarship Program. As Appropriation 99A directed, the Department disbursed scholarship funds by February 1, 2016.4/ The Department prorated the scholarship funds so that each eligible teacher received approximately $8,300. Based on the evidence and testimony presented during the final hearing, Petitioner proved, by a preponderance of the evidence that she qualifies for the Scholarship Program. Accordingly, the School Board should take the necessary steps to ensure that Petitioner receives the appropriate scholarship award contained in Appropriations 99A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County, Florida, issue a final order fulfilling its responsibilities under Appropriation 99A, i.e., submitting Petitioner’s name to the Department of Education as a teacher eligible for the scholarship created by the 2015 Florida Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 13th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 13th day of June, 2016.
The Issue The issues are as follows: (a) whether Respondent took "agency action" when it certified the Okaloosa-Walton College Foundation, Inc. as its direct support organization and endorsed the Foundation's decision to sell the Mattie Kelly property; and whether Petitioners have standing to request an administrative hearing on those issues.
Findings Of Fact The Foundation was incorporated and first certified as a direct support organization in 1988. The Mattie Kelly property is approximately 13 acres of waterfront property on Choctawhatchee Bay in Destin, Okaloosa County, Florida. It includes the former residence of Mattie Kelly and the real property surrounding the residence. Destin, Okaloosa County, Florida, is a municipality, bounded on the north and west by Choctawhatchee Bay, on the south by the Gulf of Mexico, and on the east by Walton County, Florida. On August 17, 1992, Mattie Kelly executed her Last Will and Testament (will). Article VIII of the will states as follows: I give, devise and bequeath my personal residence located a 1200 Indian Trail Road, Destin, Florida 32541, including all real property surrounding the residence and the sum of Five Hundred Thousand Dollars ($500,000,000) to Okaloosa-Walton Community College for the establishment of the "Mattie Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College." The purpose of the "Mattie M. Kelly Cultural and Environmental Institute of Okaloosa-Walton Community College" shall be: To provide a meeting place for literary societies, fine arts groups, and small performing groups. To provide a location for conferences and seminars offered through Okaloosa-Walton Community College. To provide a location for biology studies and marine science studies associated with Choctawhatchee Bay and the Gulf of Mexico. To provide a location for displaying the coastal heritage of Northwest Florida. The Five Hundred Thousand Dollars ($500,000,000) endowment which forms part of this gift shall be used only for maintenance and operating costs in furtherance of the above purposes, including the perpetual care, maintenance and upkeep of my mausoleum. A Personal Representative's Warranty Deed dated March 6, 1997, conveyed the property to the Foundation. At some point in time, the Foundation decided to sell the property to a real estate developer and entered into a contract to do so. On March 15, 2004, Petitioner Hammet filed a Petition for Administrative Hearing with the Board. The petition questioned whether the Board should support, endorse, and/or not oppose the sale of the property for private real estate development purposes, accept the college president's recommendation about the sale, and certify the Foundation to be operating in the best interest of the state. The Board's March 16, 2004, minutes state as follows in relevant part: ACTION AGENDA DSO Certification/IRS 990 The District Board of Trustees certified that requirements of Direct Support Organization under FS 1004.70 have been met and that the OWCC Foundation is in compliance with the procedures as herein described and accepts Form IRS 990 as submitted. Further, the District Board of Trustees supports and endorses the Foundation Board of Directors in its endeavor to sell the Mattie Kelly Property (Motion: Henderson; Second Rainer. Vote: 6 yes; 2 no (Smith, Wells). Motion carried. On April 22, 2004, the Board referred Petitioner Hammet's petition to DOAH, together with the Board's Motion to Dismiss. DOAH assigned this case DOAH Case No. 04-2049. On June 15, 2004, the Board referred the following to DOAH: (a) Petitioner Coastkeepers' Petition for Administrative Hearing; (b) Petitioner's Motion and Suggestion for Disqualification of Joseph Henderson and James R. Richburg; and the Board's Motion to Dismiss Petition for Administrative Hearing. DOAH assigned the case DOAH Case No. 04-2141. On July 8, 2004, some of Ms. Kelly's relatives filed a suit against the Foundation in Circuit Court. In Count I of the complaint, the relatives sought a declaratory judgment that the Foundation's proposed sale violates Ms. Kelly's will and that the relatives had reversionary rights to the property. In Count II of the complaint, the relatives sought injunctive relief to restrain the Foundation from selling the property to a third party in accordance with a written contract of sale. On April 20, 2005, the Florida Attorney General issued an Advisory Legal Opinion, stating that the Foundation is subject to Florida's Sunshine Law. On May 5, 2005, the Foundation voted to ratify the contract to sell the property and to confirm the prior decision to sell the property. On June 3, 2005, the First Circuit Court entered a "Final Judgment for Defendant" in L. Bernarr Kelly, Carol Kelly and Lowell B. Kelly v. The Okaloosa-Walton Community College Foundation, Inc., No. 2004-CA-405 (Fla. 1st Cir. Ct. June 3, 2005), which states as follows in pertinent part: . . . The Court is convinced by the nature of the Will, and the testimony and evidence that Mattie Kelly had legal advice in her estate planning, that if Mattie Kelly intended for the subject property to be placed in a trust, and if she desired to put restrictions on the subject property to prevent Defendant Foundation from selling it, that she knew how to accomplish this, and that she chose not to do so. The Court finds . . . that Mattie Kelly did not intend to limit or restrict the sale of the subject property in the future to fulfill her desires for the creation of a cultural and environmental institute. . . . The Court finds that the deed dated March 6, 1997, . . . does not contain a reverter clause or language creating any right of reversion. . . . The Court finds that the deed conveyed a fee simple title to the OWCC Foundation with no right of reversion. The Court further finds that this deed was in accordance with the intent of Mattie Kelly at the time she executed her will. The Court finds that Article VIII of the Will which devised the subject property contains no language of trust and no language of reverter, and did not create a charitable trust . . . . The Court further finds that Defendant's proposed sale of the subject property does not include the "mausoleum property." . . . Since the mausoleum property is not being conveyed, the Court finds that the Plaintiffs no longer have standing as to the remaining property, and would deny Plaintiffs relief on this basis, in addition to the foregoing reasons. Therefore, the Court finds for the Defendant, The Okaloosa-Walton Community College Foundation, Inc. and against the Plaintiffs, and ORDERS and ADJUDGES as follows: Defendant Foundation's proposed sale of the subject property is not in derogation of Article VIII of the Last Will and Testament of Mattie Kelly, or the deed which conveyed the subject property to Defendant Foundation. Therefore, Defendant Foundation is not prohibited from selling the subject property, excluding the mausoleum property as described in Addendum #4 to the Contract for Sale and Purchase, in order to fulfill the intent of Mattie Kelly in creating the "Mattie M. Kelly Cultural and Environmental Institute;" however, all monies received from the sale of the subject property, including any matching funds, are to be used in the establishment and operation of the Mattie M. Kelly Cultural and Environmental Institute. [Emphasis added.] On June 8, 2005, Petitioners filed a Joint First Amended Petition for Administrative Hearing, stating as follows regarding standing: Petitioner Hammet's substantial interests will be affected by Respondent's determination because she and her family live within close proximity to the Mattie Kelly property and have often used and enjoyed the property for viewing the coastal heritage of Northwest Florida, and she wishes to continue to use and enjoy the property in the future. The Mattie Kelly property is a special place for Hammet and her family, where they have many pleasant memories and regularly have benefited from this public property being in their neighborhood. Hammet and her family will no longer be able to use and enjoy this accessible public resource if it is sold for private development. Petitioner Coastkeepers' substantial interest will be affected by Respondent's determination because it is a Florida non-profit corporation dedicated to protection of the environment in an area of the Gulf of Mexico Coast that includes Okaloosa and Walton Counties and Choctawhatchee Bay. Preservation of environmentally sensitive lands such as the Mattie Kelly property, and having the Mattie Kelly property as a location for biological studies, marine science studies, and studies of the coastal heritage of Northwest Florida, are vitally important to protecting Choctawhatchee Bay and the interest of Petitioner and its members, who include a substantial number of members who reside in Okaloosa and Walton Counties and have the present intention to use, visit, enjoy, and study biological, marine science and cultural heritage issues associated with Choctawhatchee Bay, the Gulf of Mexico, and the Mattie Kelly property at the Mattie Kelly property. The Mattie Kelly property is ideally suited to provide waterfront environmental education in an otherwise highly urbanized environment, including education of local residents, which is vital to controlling urban runoff, and for highlighting, encouraging, and educating the public of the need to protect Choctawhatchee Bay and the Gulf of Mexico. The Mattie Kelly property would no longer be available for such intended pursuits were the proposed sale of the Mattie Kelly property to private development interest go forward. Moreover, the proposed development of the very property set aside by Mattie Kelly would itself directly contribute to the urban runoff known to be causing problems in Choctawhatchee Bay. Choctawhatchee Bay has many examples of waterfront subdivision development and very little opportunity for environmental protection education in a local setting near where waterfront residential owners already live. These purposes will not be as well-served by educational efforts at OWC's main campus in Niceville, which is not waterfront and miles away from Choctawhatchee Bay. If properly managed, the Mattie Kelly property should be the field trip every school-age child in Okaloosa and Walton County takes, which would be a lasting legacy to Mattie Kelly that would truly be consistent with her express purposes. This opportunity will be forever destroyed if the property is developed as proposed. On June 24, 2005, Respondent filed a Motion to Dismiss Joint First Amended Petition for Administrative Hearing. On July 5, 2005, Petitioners filed a Response to Respondent's Motion to Dismiss Joint First Amended Petition for Administrative Hearing. Neither of the Petitioners holds any title interest in the property.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board enter a final order dismissing the Petitions for Administrative Hearing. DONE AND ENTERED this 22nd day of August, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2005. COPIES FURNISHED: James R. Richburg, President Okaloosa-Walton Community College 100 College Boulevard Niceville, Florida 32578-1295 Joseph D. Lorenz, Esquire 1270 North Elgin Parkway, Suite C-12 Shalimar, Florida 32579 Steven A. Medina, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. 316 South Baylen Street Post Office Box 12308 Pensacola, Florida 32581
The Issue The issues in this case are whether Respondents, as the owner and operator of a charter school or a private school, or both, engaged in fraudulent activity or otherwise ran the school(s) in a manner contrary to the health, safety, or welfare of students or the public; and, if so, whether Petitioner should revoke Respondents' participation in several scholarship programs that provide financial assistance to eligible students who choose to attend private schools.
Findings Of Fact Respondent Silva of South Florida, Inc. ("SSF"), is a Florida nonprofit corporation that, at all times relevant to this case, operated a private school known as New Horizons (the "School"). An employee of SSF, Yudit Silva ("Silva"), served as the School's principal or administrator at all times relevant. The Department of Education ("Department") administers the Gardiner Scholarship Program and the John M. McKay Scholarships for Students with Disabilities Program. See §§ 1002.385 & 1002.39, Fla. Stat. The Department has some administrative responsibilities in connection with the operation of the Florida Tax Credit ("FTC") Scholarship Program as well. See § 1002.395, Fla. Stat. Gardiner, McKay, and FTC scholarships defray tuition and other qualified educational expenses for eligible students who attend private schools in the state of Florida. It is not necessary to make detailed findings about these scholarship programs. There is no dispute that, during the relevant time, the School participated in the three programs mentioned, and was therefore eligible to accept, and did receive, scholarship funds paid on behalf of its students on scholarships. As will be discussed more thoroughly below, the Commissioner of Education possesses the authority to immediately suspend payment of McKay and FTC scholarship funds to a private school if he or she finds probable cause for believing that, inter alia, the school has engaged in "fraudulent activity." In addition, or alternatively, the commissioner may suspend or revoke a private school's continued participation in the McKay and FTC programs for wrongful conduct, including the operation of an "educational institution" by the private school's owner or operator "in a manner contrary to the health, safety, or welfare of the public." Finally, the commissioner may suspend or revoke a private school's participation in the Gardiner Scholarship Program "for a violation of . . . section" 1002.385, Florida Statutes. On March 30, 2017, Petitioner Pam Stewart, as Commissioner of Education (the "Commissioner"), issued an Administrative Complaint against Silva and SSF stating that she had determined there was probable cause for believing that Silva and SSF had engaged in fraudulent activity during the years 2013 through 2016 while operating a charter school known as Pathways Academy K-8 Center ("Pathways"). On May 2, 2017, the Commissioner issued an Amended Administrative Complaint wherein she expanded the original charges with new allegations that, in 2017, Silva and SSF had engaged in fraudulent activity while operating the School. Based on the alleged wrongdoing of Silva and SSF, the Commissioner immediately suspended payment of all scholarship funds to the School and gave notice of her intent to revoke the School's participation in the Gardiner, McKay, and FTC programs. The Commissioner's immediate and intended actions rested substantially on allegations of misconduct that the Broward County School Board ("BCSB") had asserted previously as grounds for terminating the charter school agreement between BCSB and SSF under which SSF operated Pathways. BCSB had given notice to SSF of its intent to terminate this agreement in April 2016, prompting SSF to request a formal administrative hearing. SSF's request had led, in turn, to the initiation of Broward County School Board v. Silva of South Florida, Inc., DOAH Case No. 16-2576 ("Pathways"). Over the course of several days in July and August 2016, Judge Robert E. Meale had conducted the Pathways hearing. In his Recommended Order dated January 9, 2017, Judge Meale had recommended that BCSB terminate SSF's charter. SSF had submitted exceptions to the Recommended Order, but on February 27, 2017, before BCSB had taken final agency action, SSF filed a Notice of Voluntary Withdrawal of Petition for Hearing, stating that SSF planned not to renew its charter and would, instead, close Pathways. BCSB evidently accepted this notice as sufficient to conclude the Pathways litigation, for it failed to issue a final order. The upshot is that Judge Meale's findings of fact never achieved administrative finality.1/ The relevant BCSB allegations, as the Commissioner summarized them in the administrative complaints, were quoted above in the Preliminary Statement. To prove them, the Commissioner relied primarily on two witnesses: Andrew Ramjit and Patrick Reilly. Neither provided evidence persuasive enough to support findings confirming the BCSB allegations. Mr. Ramjit is a former employee of SSF. He worked at Pathways as an assistant principal for a few months in the summer of 2015, between school years. His brief tenure at the charter school was apparently an unhappy one for all concerned, and when Mr. Ramjit left this job, he took with him (i.e., stole) original files belonging to SSF, to use as evidence of the wrongdoing he would accuse SSF of committing. He later filed several complaints against SSF with the Department, which in August 2015 referred the matter to BCSB to investigate, since BCSB was Pathways' sponsor. BCSB assigned the task of conducting the investigation to Mr. Reilly, a CPA who conducts audits for the school district. Mr. Reilly's months-long investigation resulted in findings that were detailed in an Internal Audit Report presented to the school board in March 2016. Mr. Reilly concluded that Mr. Ramjit's allegations were "substantiated" and that BCSB had good cause to terminate Pathways' charter school agreement. BCSB agreed and, as already noted, took steps to do just that. As a witness at hearing, Mr. Ramjit at times came across as a disgruntled ex-employee anxious to settle some scores. Despite the evident bias, however, the undersigned finds Mr. Ramjit's testimony to be more or less believable, as far as it goes. The problem is, Mr. Ramjit's testimony is superficial or conclusory, or both. For example, he asserts that he observed SSF employees "forging" teacher and parent signatures on various documents, but none of these supposedly falsified documents was produced, no forgery "victim" testified, and no expert testimony about disputed signatures was adduced. Mr. Ramjit claims that Silva and another administrator directed him to "artificially lower" teacher evaluation scores——but, really, what does this mean? Mr. Ramjit, who worked at Pathways during the summer months only, could not himself have evaluated any teacher (for he had not been there to observe anyone teach at the charter school), and therefore, he cannot truly have known whether a particular score was "artificial" or not. Mr. Ramjit accuses SSF personnel of spending public funds on goods purchased for private use, but the items in question, insect repellant and plants, are not inherently personal in nature and could reasonably have been purchased for the school, as Silva testified.2/ This testimony, at bottom, does not amount to much. Mr. Reilly's testimony (which was presented in the form of a transcript from the Pathways hearing) has more substance but is deficient in a different way. Mr. Reilly related the granular findings of his investigation, but he, himself, possesses no personal, firsthand knowledge of the facts he had found. In other words, what he knows, he did not witness or experience; rather, he searched for proof, as an investigator does, and reached conclusions based on the evidence obtained. To be sure, if Mr. Reilly's testimony had consisted in relevant part of expert opinions based on hearsay, such opinions might have been competent substantial evidence. His testimony, however, concerned matters of historical fact that did not require expertise to understand (or, at least, not expertise in accounting). Mr. Reilly's testimony, in short, establishes persuasively that he believes the BCSB allegations to be true, but, consisting largely of hearsay, is insufficient to prove to the undersigned the truth of the allegations. The Commissioner alleged that, while working at the School in March 2017, Silva sent a handful of suspicious faxes to the Broward County School District's Office of Exceptional Student Education. These faxes transmitted eight letters, each of which purported to be from the parent of a student receiving a McKay scholarship. The letters were identical (a form, obviously) and unsigned. In them, the parent (or "parent") complained that the district had "illegal[ly]" changed his or her child's "IEP Matrix Level" from "level 4" to "level 1" "without notifying [the parent] and without an IEP meeting." The letter urged the district to "[p]lease change the IEP Matrix Level back to its correct level within 5 business days" and requested that all future communications be in writing "only through email." Without getting into unnecessary detail, the "IEP Matrix Level" reflects the intensity of services provided to a student with disabilities. The higher the level, the greater the number of services required. There is a correlation between the matrix level and the level of funding available under the McKay scholarship program, so that a reduction in the matrix level might affect a student's McKay scholarship. The requests to increase the matrix level from 1 to 4, therefore, might have been prompted by a concern that, without such action, the students in question would see their scholarships diminished. There was nothing wrongful per se about the form letters at issue; sure, the contentions therein that the district had acted illegally and was preventing students from receiving necessary services might have been overblown or mistaken, but ultimately the decision whether to change the matrix level back to 4, as rather politely, if firmly, requested, was the district's alone to make. If there were a wrongful act, it would have been that Silva sent the letters on the parents' behalf without their approval. On this charge, the only nonhearsay evidence of record is the deposition of E.M., a parent who supposedly sent one of the form letters. E.M. disclaimed knowledge of the letter and denied having authorized the School to write and send it for him. At the same time, though, he professed to know nothing about the scholarship programs and freely acknowledged that he relied entirely upon the School to take care of all the paperwork required "to get that money." E.M.'s testimony persuades the undersigned that regardless of whether E.M. had any involvement in the form letter, he certainly would have expected the School to prepare and submit such "paperwork" if the School believed it necessary to "get that money." Based on this evidence, the undersigned cannot find that the School committed fraud. The remaining allegations against SSF and Silva concern several dozen FTC scholarship applications submitted to Step Up for Students ("SUFS"), a nonprofit scholarship funding organization that helps administer the FTC and Gardiner Scholarship Programs. FTC scholarships are intended to benefit students who, without financial assistance, would be unable to attend private school due to low household income. Because household income is an important factor in determining an FTC scholarship award, any knowingly false, misleading, or incomplete representations made in an application that bear on this material fact would constitute an act of fraud——a point that is stressed in the application forms. The Commissioner argues that, in at least 39 applications, Silva falsely represented facts regarding the household income of students of the School. The disputed applications were submitted, online, in several tranches. Six were submitted between 8:28 p.m. and 9:55 p.m. on February 22, 2017. Five were sent on February 24, 2017, between 11:15 a.m. and 3:48 p.m. On the night of March 12, 2017, from 7:20 p.m. through 11:59 p.m., 12 of these applications were submitted, followed by 13 more on March 13, 2017, sent between 9:22 a.m. and 2:53 p.m. A final group of three was submitted on the morning of March 14, 2017, between 11:29 a.m. and 11:52 a.m. Because it is unlikely that 39 parents acting independently would happen to file their applications in bunches like this, the reasonable inference, which the undersigned draws, is that the School's staff coordinated these submissions. SSF and Silva admit, at any rate, that the School's staff assisted the parents with these scholarship applications, providing them with email addresses and computer access. Other details about these applications, however, suggest that the assistance provided by the School's staff was more hands-on than SSF and Silva have admitted. The application asks the parent completing the online form to identify his or her "birth city" as the answer to a security question. Every parent gave the same answer, "miami." While it is doubtful that every parent was, in fact, born in Miami, the truth of this assertion is immaterial. Still, that every applicant typed in "miami" raises an eyebrow; that all of them failed, idiosyncratically, to capitalize the proper name strongly implies a common agency, the most likely being the School——an inference further reinforced by the probability that the School's staff did not know the actual birthplace of every parent, and thus would have found it convenient simply to make Miami the ubiquitous choice by default. Another common denominator of the applications is that every parent reported his or her marital status as, "Single. I have never been married." This emphatic statement of lifelong singlehood seems peculiar, suggesting a common hand, but the response might have been a selection from a dropdown menu, a possibility which undermines the inference. Nevertheless, it would be unusual if, in this group of 39 single parents of young children, not one had ever been married——so unusual, in fact, that the undersigned deems that situation highly unlikely; some of these responses, it is inferred, were untrue. That being said, the materiality of the representation that the parent had never been married is unknown, for the record is silent on this point. Like the ubiquitous answer to the "birthplace" security question, however, the shared response to the martial status inquiry implies a common agency——the most obvious candidate being, again, the School. The evidence reviewed so far supports the inference, which the undersigned has drawn, that School personnel provided assistance to the parents in completing applications for FTC scholarships, including supplying requested information. In so doing, the School made each parent say he or she had never been married, making a representation of fact that was probably false in at least some instances. Because that fact was not shown to be material, however, it cannot be concluded, without more, that the School committed fraud. Unfortunately, there is more. Each parent claimed in the application to have "zero" household income. This was a material representation. Obviously, to be a single parent without any income is to experience extreme poverty. While it is theoretically possible that all 39 of the subject parents were destitute, this is highly improbable,3/ and, not surprisingly, the number of zero- income applications coming from the same private school caught the attention of SUFS, which in due course launched an investigation.4/ Meantime, however, SUFS sent the parents two forms, on paper, to be competed and returned. One was called Verification of Household Composition ("Verification Form"), and the other was titled Statement of No Household Income ("Explanation Form"). The Verification Form needed to be filled out by someone neither related to nor living with the applicant, e.g., a friend or neighbor, who was capable of listing, as requested, the names of all adults and children residing in the applicant's household, together with their respective ages and relationships to one another. On the Explanation Form, the parent (applicant) was required to "explain in the space provided how you are able to pay for rent, food, and clothing, etc." with "a household income of zero ($0.00)." Alternatively, if "the entry of a household income of zero ($0.00) was a mistake," the applicant was to "provide proof of the most recent 30 days of income for each person receiving income in your household." Silva completed, signed, and submitted to SUFS a Verification Form for each of the 39 parents. Every form she signed was dated March 15 or March 17, 2017, except for one dated March 21, 2017. The only adult listed on any of these completed forms is the parent or guardian (applicant). The only other members of the households at issue whom Silva listed are minor children. In other words, to be clear, every household Silva described in these 39 Verification Forms consisted of one parent or guardian plus that adult's minor child or children—— and no one else. Above Silva's signature on these forms is a certificate, printed in boldface, which declares: Under penalties of perjury, I certify that the information presented is true and accurate, the persons listed above are personally known to me and the household as shown above is accurate to the best of my knowledge and belief. I understand that providing false representations constitutes an act of fraud. False, misleading or incomplete information may result in the denial of the scholarship application or revocation of a scholarship award. Each completed Explanation Form that SUSF received bears a signature purporting to be that of the parent or guardian and has the same date as the corresponding Verification Form. On every form, except one, the parent states that he or she is able to survive on zero income because "I live with family members" or similar words to the same effect.5/ Above each signature on these forms is a certificate, printed in boldface, which declares: Under penalties of perjury, I certify that the information presented is true and accurate to the best of my knowledge and belief. The undersigned further understands that providing false representations herein constitutes an act of fraud. False, misleading or incomplete information may result in the denial of the scholarship application or revocation of a scholarship award. As an explanation for how one is able to get by with zero household income, the statement that "I live with family members" can only be read to mean that the income-less person and his or her dependents are residing in (and thus belong to) the household of generous relatives who have the wherewithal to provide financial support for their impecunious kin; otherwise, it would be nonresponsive to the question posed by the Explanation Form. So understood, however, the statement——if true——logically refutes the applicant's assertion that his or her "household income" is zero because the family members supporting him or her must have had an income, which should have been reported and substantiated per the instructions on the Explanation Form. It seems impossible that not one of the 39 applicants noticed that SUFS was interested in household income as opposed to parental income, and thus likely that some of them (assuming any personally completed these forms) would have been aware that their responses (if true) were contradictory and incomplete to the point of being, arguably, fraudulent. But this inconsistency is of passing interest, as it does not necessarily inculpate the SSF, Silva, or the School. A different discrepancy implicates the School in wrongdoing. The statements of household composition in the Verification Forms that Silva signed, all of which describe a household consisting of one adult (the applicant) and his or her minor dependent(s), belie the statements in the Explanation Forms claiming that the applicant lives with, and relies financially upon, his or her relatives——relatives who, in this context, cannot plausibly be understood as being the applicant's minor children. These statements, clearly, are mutually exclusive and, therefore, cannot both be true. If an applicant lived with family members who supported the applicant's family, as represented in every Explanation Form at issue, then Silva provided false information to SUFS in every Verification Form she executed. While a few instances of inaccurate reporting on Silva's part might be written off as honest mistakes, an error rate of 100 percent would suggest that something else was going on. The other possibility that must be considered, however, is that Silva was truthful, and the applicants (unknown to her) were not. In this scenario, the applicants——operating individually or in concert——falsely claimed to be living with family members (presumably to maintain the "zero income" fiction) without informing Silva of this deception. The undersigned regards this latter possibility as incredible. There is no reasonable likelihood that 39 applicants separately decided to commit the exact same fraud using essentially the very same language; such a coincidence is simply inconceivable. As a practical matter, the applicants would have needed to conspire with one another. But to infer such a conspiracy, one must assume that all 39 applicants (not only the one(s) who came up with the scheme) were sufficiently dishonest to participate and disciplined enough to keep their mouths shut about it. These assumptions defy credulity. This is not to say that the statements in the Explanation Forms were likely truthful. To the contrary, the undersigned infers that they were false or intended to mislead. That is, in all likelihood, the applicants' households were, in fact, composed (for the most part) of the persons listed in the Verification Forms, and the false statements of material fact were that the applicants had no household income and were financially dependent upon family members with whom they lived. It is found, further, that Silva, not any applicant(s), was the driving force behind this deception, because, in view of all the circumstances, no other reasonable inference can account for the fact that 39 applicants happened to make the very same false statements in their applications. Whether the parents, or any of them, knowingly participated in Silva's fraudulent scheme is unclear——but is ultimately immaterial for purposes of this case.6/ Ultimate Factual Determinations The greater weight of the evidence establishes that, to increase the chances that the School's students would receive the maximum amount of FTC scholarship funding, Silva engaged in fraudulent activity, to wit: Silva falsely represented to SUFS that 39 FTC scholarship applicants had "zero household income" and were forced, as a result, to live with family members. Silva made these statements of material fact knowing they were false or in reckless disregard of the truth or falsity of the representations, which were in fact false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order revoking Respondents' participation in the McKay, FTC, and Gardiner scholarship programs. DONE AND ENTERED this 11th day of December, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of December, 2017.
The Issue The issues in these consolidated cases are as follows: (1) whether Respondents employed Lorene Walker, who had contact with scholarship students and who did not meet the requisite criteria to pass the Level 2 background screening as required by section 1002.421(1)(m) and (p), Florida Statutes (2019), and if so, what is the appropriate remedy; and (2) whether Respondents engaged in fraud in violation of section 1002.421(3)(d) and, if so, whether Petitioner should revoke Respondents' participation in several Florida Scholarship Programs.1
Findings Of Fact Parties, People, and Programs The Department is the government agency charged with administering numerous state scholarship programs pursuant to section 1002.421, Florida Statutes. The Department operates or has administrative responsibilities for the Gardiner Scholarship Program, the John M. McKay Scholarships for Students with Disabilities Program, the Florida Tax Credit (FTC) Scholarship Program, and the Family Empowerment Scholarship Program. See §§ 1002.385, 1002.39, 1002.394, and 1002.395, Fla. Stat. The Gardiner, McKay, FTC, and Family Empowerment scholarships defray tuition and other qualified educational expenses for eligible students who attend charter, private, or other eligible schools in the state of Florida. The Department also operates or administers the Hope Scholarship Program, which provides tuition assistance to victims of school bullying so that they can enroll in another school. See § 1002.40, Fla. Stat. The scholarship funds are awarded to eligible students to be used at eligible schools. The Commissioner is the agency head of the Department and has the authority to revoke or suspend a school's eligibility to receive scholarship monies on behalf of eligible students. The Independent Education and Parental Choice Office, also referred to as the School Choice Office (Office), is a section of the Department which oversees several school choice options outside Florida's public school system. The Office also oversees the administration of various scholarships programs under chapter 1002. The Office is in regular contact with schools that participate in these scholarship programs. Respondents have been operating as private schools for approximately six years. Since the 2013/2014 school year, they have been found eligible and participated in numerous scholarship programs pursuant to section 1002.421. Respondents operate two campuses: (1) School Code No. 4015 located at 1056 North Pine Hills Road, Orlando, Florida (Pine Hills Campus); and (2) School Code No. 8827 located at 5308 Silver Star Road, Orlando, Florida (Silver Star Campus). The Schools serve 40 to 50 scholarship students and receive approximately $200,000 per year in scholarship funds. Judith Shealey is the owner of the Schools. She carries the title of Executive Director, Principal, Headmistress, and/or Owner. Ms. Shealey has family members who are students and teachers at the Schools. Compliance Requirements As explained by RaShawn Williams, the Office, parents, and eligible schools work closely together to access the scholarship funds. The parents apply for the scholarships through the designated agency and enroll their students directly with an eligible school. The school is responsible for enrolling the student in the scholarship program awarded to that student. Essentially, the student must be deemed eligible to receive scholarship funds, and the school must be eligible to receive those scholarship funds. If a private school is deemed ineligible by the Office for participation in a scholarship program, the students at that school do not lose their eligibility for scholarship funds. Rather, they simply cannot use those funds to enroll in the ineligible school. As private school participants in the Florida Scholarship Programs, the Schools were required to register with the State through the submission of a Private School Annual Survey; and then apply for eligibility through the submission of a yearly Scholarship Compliance Form (Compliance Form). The Compliance Form specifies numerous governing statutory requirements including: (1) submitting background screenings for officers, directors, or other controlling persons; (2) certifying all staff with direct student contact have passed an FDLE Level 2 background screening; and (3) terminating or denying employment to all persons who cannot meet this requirement. The Compliance Form is completed by applicant schools online, and then a signed and notarized hard copy is mailed to the Office. The relevant portions of the Compliance Form are found in "Section 4," and involve background checks: * Has each Owner, Operator, and Chief Administrative Officer undergone a Level 2 background screening through the Florida Department of Law Enforcement and submitted the results to the Florida Department of Education in accordance with section 1002.421(1)(m), Florida Statutes? (Reports must be filed with the private school and made available for public inspection). * * * * Have all employees and contracted personnel with direct student contact submitted their fingerprints to the Florida Department of Law Enforcement for state and national background screening in accordance with section 1002.421(1)(m), Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school deny employment to or terminate an employee or contracted personnel with direct student contact if he or she fails to meet the background screening standards under section 435.04, Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school disqualify instructional personnel and school administrators from employment in any position that allows direct contact with students if the personnel or administrators are ineligible under section 435.40, Florida Statutes? A "No" answer on any of the above questions would, if unresolved, result in a private school's ineligibility for scholarship funds. The evidence establishes that the Schools answered "Yes" for sections 4A, 4C, 4D, and 4E on the notarized Compliance Forms that were submitted on December 18, 2018, and December 11, 2019. In addition to certifying the information above on the Compliance Forms every year, an eligible school must submit to the Office screening documentation for directors, principals, board members, administrators, and officers as part of the renewal of participation in the scholarship programs. Screening documentation related to other employees must be maintained by the schools and is usually only reviewed by the Office during an audit or a site visit of the school. There is no dispute that the Schools never listed Lorene Walker as an administrator for the Schools. There is no dispute the Schools never submitted any background screening information for Ms. Walker until specifically requested by the Office in November 2019. Employment of Lorene Walker Lorene Walker was hired by the Schools in 2013.3 She had children and/or grandchildren who attend the Schools. The Schools claim Ms. Walker was hired from an entity known as "Career Source." Although Ms. Walker believed that she had been cleared to work at the Schools, there is no employment file or documentation that she had undergone the Level 2 background screening required by law before being employed at the Schools. Originally, Ms. Walker worked as a "floater." As a floater, Ms. Walker cooked, cleaned, and did whatever the school needed at the time. It is unclear whether she had direct contact with students in this position. 3 Ms. Walker testified she began working there in 2015, but later stated she started in 2013. Ms. Shealey indicated by 2014, Ms. Walker had transitioned into the current position. Regardless, in 2014, Ms. Walker transitioned into a more active role at the Schools. Although the Schools claim in response to the Complaints that she was simply an administrative assistant to Ms. Shealey, the evidence establishes that Ms. Walker was the Administrator for the Schools during the time relevant to the Complaints. She reminded teachers to send out grades, attended meetings, oversaw the lunch program, and prepared school-related and financial documentation. Ms. Walker was also responsible for the Schools' students' enrollment into the scholarship programs. As Administrator, Ms. Walker also had authority, either explicit or implicit, from the Schools' owner, Ms. Shealey, to represent the Schools when dealing with the Office. She worked directly with Ms. Williams on compliance issues, including fire safety, health inspections, and completion of the Annual Survey and Compliance Form for the Schools. Ms. Walker also responded to requests for information from Ms. Williams and others in the Department. It was clear Ms. Walker was integral to the operation of the Schools. Ms. Shealey and Ms. Walker were the only two individuals with access to the Schools' email accounts that were used to correspond with the Department. The emails from one of the email addresses usually contained Ms. Shealey's signature block indicating either the title of "Principal" or "Headmistress." Ms. Walker's signature line identified her title as "Administrator." Before being hired by the Schools, Ms. Walker had been arrested for numerous offenses between 1978 and 2001 in Florida. Although most of these offenses were dismissed, dropped, and/or abandoned, she pled nolo contendere to and was found guilty of a 1994 charge for unlawful purchase of a controlled substance, a second-degree felony in violation of section 893.13, Florida Statutes (1993). The 1994 charge is a disqualifying offense which rendered Ms. Walker ineligible to be a school employee.4 There was no evidence that Ms. Walker had obtained an exemption for this qualification. As noted above, the Schools never disclosed Ms. Walker's importance in their operations in their Compliance Forms. Prior to November 2019, the Schools had never provided any screening documentation for Ms. Walker to the Office as part of the yearly compliance process. Investigation and Complaints On or around October 14, 2019, the Department received a complaint from another state agency concerning possible abuse by an employee of the School at the Pine Hills campus. Although the abuse investigation was handled outside of the Office, the Office opened an inquiry into the Schools' compliance with background check requirements and other issues. Whitney Blake conducted the investigation on behalf of the Office. The first step in this inquiry was a letter from Ms. Blake's supervisor, dated October 25, 2019, requesting (among other things) a list of all employees (including both teachers and other personnel) and results of current FDLE Level 2 background screenings for all employees. 4 Section 435.04, Florida Statutes, provides the following in relevant part: (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction: * * * (ss) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor. On November 4, 2020, Ms. Walker sent the Department a list of all the Schools' staff, including herself as "Administrator," along with the results of her background screening, revealing her previous disqualifying offense. On November 15, 2019, Ms. Blake attempted to contact Ms. Shealey by phone because she was concerned that Ms. Walker, who was the disqualified employee, was the person sending the information from the School. When she called the Schools and requested to speak with the owner (Ms. Shealey), the person who answered purportedly claiming to be the Schools' owner did not have a distinguishable accent. Ms. Shealey was known to have a strong accent, whereas Ms. Walker did not. Regardless, on this call, Ms. Blake instructed the person on the other end of the phone line that the Schools would need to terminate Ms. Walker immediately because of her disqualifying offense. On that same day, Ms. Blake then sent a follow-up email to the Schools (at both email addresses utilized by the Schools) indicating there were outstanding items that had not been provided as requested in the October 25 letter. She also specifically requested proof Ms. Walker was no longer at the Schools. Specifically, the Department stated: Upon review of the Level 2 background screenings, it was determined Lorene Walker has disqualifying offenses pursuant to section 435.04, F.S. An employee or contracted personnel with direct student contact means any employee or contracted personnel who has unsupervised access to a scholarship student for whom the private school is responsible. To certify compliance with this requirement, please submit a signed statement indicating Lorene Walker's employment at your school has been terminated or that individual's role with your school no longer puts he/she in proximity to scholarship students. Your attention to this in the next five days will preempt any further action on our part. (emphasis added). That same date, November 15, 2019, the Schools emailed one of the items requested by Ms. Blake, an abuse poster, to the Office. Although Ms. Walker testified she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. On November 18, 2019, the Schools sent another item previously requested by Ms. Blake, the teaching qualifications for a teacher, to the Office. Again, although Ms. Walker claimed she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. Ms. Blake did not receive any proof that the Schools had removed Ms. Walker from her position within five days as requested in the November 15 email to the Schools. As a result, on November 22, 2019, Ms. Blake emailed the Schools reiterating the requirements of section 1002.421, and repeating her request for a signed statement that Ms. Walker had been terminated or had no contact with scholarship students. Ms. Blake also added: "Failure to turn in the requested documentation could impact your school's ongoing participation in the Scholarship Program." During this time, Ms. Blake spoke to Ms. Shealey numerous times on the phone regarding the outstanding requests related to another teacher and the signed documentation that Ms. Walker had been removed from her position. Ms. Shealey indicated it would be difficult to remove Ms. Walker due to Ms. Walker's oversight of the school and her familiarity with the scholarship student information. After Ms. Blake did not receive the requested proof of Ms. Walker's removal from the Schools and two other items related to a teacher, the Office issued a Notice of Noncompliance on December 5, 2019. On December 19, 2019, Ms. Shealey sent to Ms. Blake one of the outstanding items related to the teacher by email. There was no mention of Ms. Walker and no signed proof that Ms. Walker had been removed from her position. The next day, Ms. Blake wrote an email to Ms. Shealey indicating that she did not have authority to exempt Ms. Walker from the background screening requirements. She again asked for the outstanding information related to the other teacher and a signed statement indicating Ms. Walker had been removed and no longer had proximity to scholarship students. On December 23, 2019, Ms. Shealey emailed Ms. Blake that the teacher for which there was an outstanding request had resigned and no longer worked for one of the Schools. Ms. Blake responded with yet another request for the signed statement indicating Ms. Walker had been terminated or was no longer in proximity to scholarship students. In response, Ms. Shealey sent an email to Ms. Blake with an attached letter. The letter titled "Termination of your employment" and dated December 9, 2019, indicates that Ms. Shealey terminated Ms. Walker during a meeting held on December 9, 2019. The letter is unsigned. Ms. Shealey indicated in the text of the email that it was the hardest letter she had to write. Being concerned that they had not received a signed statement, Ms. Blake and Ms. Williams requested that a site visit be conducted at the Pine Hills Campus. A visit was scheduled for February 5, 2020, and the Schools were provided notice of the site visit by certified mail, email, and telephone. Additionally, the Schools were provided a checklist of the documents that should be provided to the inspector during the site visit. On February 5, 2020, Scott Earley from the Office conducted the site visit at the Pine Hills Campus. When he arrived, Ms. Shealey was not there and none of the documentation previously requested had been prepared for review. Mr. Earley testified that once Ms. Shealey arrived, she did not know where all the requested documents were, nor could she produce all of them. For example, when asked about a necessary health form, Ms. Shealey indicated that Ms. Walker would know where the document was, but she could not locate it. Mr. Earley did not recall Ms. Shealey stating during the inspection that Ms. Walker was working from home, but she gave Mr. Earley the impression that Ms. Walker's background screening issue had been resolved. Regardless, the Site Visit Staff/Consultant Worksheet filled out for the February 5 site visit does not disclose Ms. Walker as a member of staff or contracted personnel with the Pine Hills Campus. Although Ms. Walker was not at the Pine Hills Campus during the site visit, Mr. Earley believed based on his observations and conversations with Ms. Shealey that Ms. Walker was still employed by the Schools as a director or principal. Almost two weeks later on February 20, 2020, Petitioner filed the Complaints against the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. Even after the Complaints had been served on the Schools, however, it was unclear what Ms. Walker's involvement was with the Schools. There may have been some confusion because Ms. Walker had been seen after her purported termination on campus. Ms. Walker claimed she was on campus only to pick up her children and grandchildren. Testimony from two of the Schools' teachers indicated that they noticed Ms. Walker was no longer at the Schools, but knew she was taking care of the Schools' paperwork from her home. Neither teacher could establish a date certain for when Ms. Walker stopped working on campus and/or when she began working at home. Prior to the filing of the Complaints in these proceedings, there was no evidence that the Schools ever reported to the Office that Ms. Walker had been working from home. Nothing in the Petition filed on March 4, 2020, indicates Ms. Walker was still employed at the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. As part of the March 11 submission, Ms. Shealey sent a signed statement indicating she had not terminated Ms. Walker, but rather "had her work from home." This was the first time Ms. Shealey indicated to the Office that Ms. Walker was still working for the Schools. In the Motion filed April 10, 2020, the Schools indicated they were unaware of the specifics of the Level 2 background screening requirement, and that, once aware, "we took action immediately and terminated the employee in question." There was no indication in the body of the Motion the Schools continued to employ Ms. Walker to work at her home. Attached to the Motion, however, was the same letter submitted on March 11 indicating Ms. Walker was working from home. In the Amended Petition filed on May 15, 2020, the Schools state Ms. Walker was terminated: "I terminated Ms. Lorene Walker due to the Department's information in order to come into compliance with the Florida Department of Education." "I rectified this deficiency by terminating Ms. Walker." "Ms. Lorene Walker was terminated on December 9, 2019, as advised by Whitney Blake." Although the Amended Petition does not explicitly state Ms. Walker continued to work for the Schools at home, it does leave room for this interpretation: "As of December 9, 2019, Ms. Lorene Walker no longer works in the Lion of Judah facility." It is unclear on what date Ms. Walker stopped working from home for the Schools. What is clear is that at the time of the final hearing she was no longer working at the Schools in any location or in any capacity. ULTIMATE FACTUAL DETERMINATIONS The greater weight of the evidence establishes Ms. Walker, in her role as Administrator, should have been disclosed to the Office as an "operator" or "a person with equivalent decision making authority." The Schools were required to send her background screening documentation to the Office as required by the Compliance Form and section 1002.421(1)(p), and they did not. The Schools employed a person with a disqualifying offense in violation of sections 1002.421(1)(m) and 435.04(2)(ss). Specifically, the Schools employed Ms. Walker from 2014 (if not earlier) through December 2019 (if not later) in a position in which she was in the vicinity of scholarship students, knowing that she had been found guilty of a felony and without obtaining or providing documentation related to a Level 2 background clearance. The Schools continued to allow Ms. Walker to remain in a position that placed her in the vicinity of scholarship students after receiving notification of her ineligibility for almost a month (if not more). The greater weight of the evidence establishes the Schools engaged in fraudulent activity, to wit: (1) Ms. Shealey falsely represented to the Office that the Schools complied with Section 4 of the Compliance Form for 2018 and 2019; (2) the Schools falsely obscured Ms. Walker's role at the School and her criminal background; and (3) the Schools failed to honestly disclose Ms. Walker's employment status when they claimed to terminate her on December 9, 2020, but failed to inform the Office that they had retained (or rehired) her to work at home. The Schools made these statements of material fact either knowing they were false or in reckless disregard of the truth or falsity of the representations, which were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (1) upholding the suspension; and (2) revoking the eligibility of Lion of Judah Academy (4015) and Lion Of Judah Academy (8827) to participate in the following Florida Scholarship Programs: John M. McKay Scholarships for Students with Disabilities Program, Florida Tax Credit Scholarship Program, Gardiner Scholarship Program, Hope Scholarship Program, and/or Family Empowerment Scholarship Program. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 3rd day of November, 2020. COPIES FURNISHED: Jason Douglas Borntreger, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32310 (eServed) Judith Shealey Lion of Judah Academy 1056 North Pine Hills Road Orlando, Florida 32808 Shawn R. H. Smith, Esquire Law Office of Shawn R. H. Smith, P.A. Post Office Box 547752 Orlando, Florida 32854 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (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)
The Issue The issue is whether the School Board has just cause to terminate Respondent’s employment.
Findings Of Fact Respondent has worked for the Polk County School District (District) in various capacities –- e.g., classroom teacher, physical education instructor, dean of students, assistant principal –- for the past 20 years. Respondent has been an assistant principal for the past 11 years, and at the time of the suspension giving rise to this proceeding, he was an assistant principal at Homer K. Addair Career Academy. Respondent has a Master’s degree in educational leadership from Nova Southeastern University (Nova), and he is certified in that field by the Florida Department of Education (DOE). Respondent is in the District’s “principal pool,” which is the program from which principals are selected for the District’s schools. He has also served as a “teacher recruiter” for the District. Respondent and another assistant principal, Jennifer Dean, started talking about pursuing doctorate degrees together at some point between the summer of 2004 and April 2005.1 Respondent and Ms. Dean are neighbors and close friends. They attend the same church, and their families regularly spend time together. Ms. Dean is the Respondent in the related DOAH Case No. 06-0683. The primary reason that Respondent and Ms. Dean were interested in obtaining doctorate degrees was to enhance their standing in the principal pool so as to give themselves a better chance of being hired as school principals.2 Respondent also believed that a doctorate degree would help him get a teaching position at a college or university. Respondent and Ms. Dean credibly testified that they were unaware that they would be eligible for $1,750 pay supplements from the District if they had doctorate degrees. Respondent and Ms. Dean looked into the doctoral program at Nova and several other traditional universities in the area, but they determined that those programs were not suitable for their needs because of the cost of the programs and the time that it would take them to obtain degrees. Respondent looked into several online universities that offered doctoral degrees, including Belford University (Belford). He learned about Belford through a “pop up” advertisement while he was browsing on the Internet. In September 2005, Respondent sent Ms. Dean an e-mail referring her to Belford’s website and told her that “I think this may be the program for us.” Belford is described on its website as a “virtual university with administration offices located in Humble, Texas,” and according to the website, Belford is accredited by “two renowned accreditation agencies on-line education, namely the International Accreditation Agency for Online Universities (IAAOU) and the University Council for Online Education Accreditation (UCOEA).” Notwithstanding Belford’s accreditations and its characterization of itself as a “virtual university,” Belford’s website includes a number of statements that call into question its legitimacy as an educational institution, such as: “Get a degree for what you already know!”; “No admissions. No attendance. No hassle.”; “Add degrees to your resume in just 7 days and open avenues to promotion and better jobs!”; and “Get all your money back if you do not get approved!” The website explains that to obtain a doctorate degree from Belford, an applicant must have “at least 8 years of work or life experience relevant to [his or her] desired major.” That eligibility requirement “may be satisfied in any of the following ways: prior job experience in any field; previous educational achievements; employer-sponsored training and attendance of workshops; participation in organizations, both professional and non-professional; personal goals, lifestyle, hobbies, and travel; participation in volunteer activities and community service; and independent reading, viewing, listening or writing.” A doctorate degree can be received from Belford “without attending classes or taking admissions anywhere.” Respondent reviewed the information on Belford’s website, and he also contacted Belford by phone to get additional information about its doctoral program and its accreditation status. When he called Belford, Respondent was told that its degrees were accepted “worldwide” but he was told that information as to whether Belford’s degrees were accepted in Florida was “confidential.” Ms. Dean told Respondent that she contacted Lois Schuck, the District’s certification specialist, regarding whether a doctorate degree from Belford would be accepted for certification purposes. Respondent did not have any direct communications with Ms. Schuck on the issue. Respondent relied on Ms. Dean’s representation that Ms. Schuck told her to go ahead and get the degree from Belford and then submit it for a determination as to whether it would be accepted for certification purposes. However, as detailed in the Recommended Order in DOAH Case No. 06-0683, the evidence was not persuasive that Ms. Schuck actually gave Ms. Dean that advice. On or about November 10, 2005,3 Respondent applied for a doctorate degree from Belford by filling out the form on Belford’s website. In the boxes provided on the form, he entered information detailing his education, work, and other life experiences. The information Respondent provided to Belford included his resume, a five-page summary of his life experiences, and the materials that he put together as part of the application process for the principal pool. He did not submit transcripts or other official evidence of his Bachelor’s or Master’s degrees to Belford. Respondent did not attend any classes at Belford, nor did he prepare or defend a dissertation in order to obtain his doctorate degree from Belford. He received the degree based solely on the package of information described above. Respondent testified that the information that he submitted to Belford to obtain his degree accurately reflected his education, work history, life experiences, and other qualifications. The School Board offered no evidence to the contrary and, indeed, its witnesses acknowledged that they had no reason to believe that the information Respondent submitted to Belford was inaccurate.4 Respondent obtained the base-level doctorate degree, which according to Belford’s website costs $549. The degree was issued to Respondent within two weeks of the time that he applied for it, and Respondent was not required to pay for the degree until he was advised by Belford that he would receive the degree based upon the information submitted. A traditional doctorate degree, such as a Ph.D., takes several years to receive, costs thousands of dollars, and involves extensive coursework as well as the preparation and defense of a lengthy dissertation. Respondent’s “official transcript” from Belford reflects that he was awarded a Doctor of Arts degree with a major in educational administration on November 10, 2005. The transcript makes no reference to the fact that the degree was based upon “life experiences” rather than a traditional course of study. Respondent’s transcript includes a grade point average (GPA) of 3.18. Unlike Ms. Dean, Respondent was not interested in a higher GPA, which cost more money. Respondent’s transcript lists eight courses with specific grades -- from “A” to “C+” -- awarded for each course. Respondent testified that he did not attend those courses, and that it was his understanding that the grades shown on the transcript were based upon the information that he submitted to Belford, which reflected the extent of his experience in the areas identified in the course descriptions. On November 29, 2005,5 Respondent and Mr. Dawson met with Ms. Schuck to give her copies of their Belford transcripts for certification purposes. Ms. Schuck was unable to process the transcripts for certification purposes at that time because they did not include the date that the degrees were awarded. She handed the transcripts back to Respondent and Ms. Dean during the meeting and advised them to get her dated transcripts.6 Respondent and Ms. Dean obtained dated copies of their transcripts from Belford, and Ms. Dean sent them to Ms. Schuck through interoffice mail. Ms. Dean testified that she called Ms. Schuck to confirm that she received the degrees and to check on their status. Ms. Dean testified that Ms. Schuck told her that she had received the degrees and that she had given them to Ms. Butler for processing. Ms. Dean passed that information along to Respondent. Ms. Dean’s testimony regarding her conversation with Ms. Schuck was not persuasive. Indeed, the more persuasive evidence establishes that Ms. Schuck never received the dated transcripts, but rather that they were received by Pam Merritt, an administrative assistant in the District’s personnel office. Ms. Merritt put the transcripts in Judy Butler’s in- basket for processing. Ms. Butler’s responsibilities include processing salary changes for District staff. Ms. Butler is not responsible for reviewing transcripts or degrees for certification purposes. That review is done by the District’s certification office and is supposed to occur prior to the transcript or degree being forwarded to the personnel office for purposes of a salary change. Ms. Butler assumed that Ms. Dean’s degree was in her in-basket for purposes of a salary change even though there was no cover letter or other directions with the transcript. She did not see Respondent’s transcript because it had somehow gotten affixed to Ms. Dean’s transcript. Ms. Butler placed Ms. Dean’s salary change on the agenda for the Salary Classification Committee (SCC), and on January 26, 2006, the SCC approved a $1,750 salary supplement for Ms. Dean based upon her Belford doctorate degree. On January 28, 2006, Ms. Butler discovered Respondent’s transcript as she was pulling apart the documents from the SCC meeting for inclusion in a package for the Superintendent to review. On that same date, she e-mailed Respondent congratulating him on the award of his degree and advising him that his degree would be placed on the agenda for the SCC’s next meeting “so that [Respondent] can begin getting the supplement of $1,750.” Respondent assumed from this e-mail (and the representations given to him by Ms. Dean) that the salary change was being processed because his degree had been reviewed by Ms. Schuck and that it had been accepted for certification purposes. However, as noted above, Ms. Schuck had never received the degree. Ms. Butler sent a copy of the e-mail to David Lauer, the District’s assistant superintendent for human relations. Mr. Lauer received the e-mail on January 31, 2006, when he returned to the office. Mr. Lauer knew Respondent, and he was surprised to learn that he had obtained a doctorate degree. He asked Ms. Butler to give him the documentation related to Respondent and Ms. Dean, which she did. Mr. Lauer reviewed the Belford website for approximately 45 minutes and determined that it was a “diploma mill” and that the doctorate degrees obtained by Mr. Dawson and Respondent were “bogus.” Mr. Lauer also spoke with Ms. Schuck and asked her to determine whether Belford is an accredited university for DOE certification purposes. Ms. Schuck did so by e-mailing Mandy Mims, her contact at DOE. Ms. Mims advised Ms. Schuck that “Belford is not accredited by any agency recognized by the U.S. Dept. of Education, so degrees earned would not be appropriate for certification purposes.” Mr. Lauer was “flabbergasted” by the situation, and because he considered the submittal of bogus degrees to be “so serious and so contrary to what we believe in as educators,” he went directly to the Superintendent, Dr. Gail McKinzie, instead of first speaking to Respondent and Ms. Dean to get their side of the story. Mr. Lauer reported the situation to Dr. McKinzie on February 1, 2006. That same day, Dr. McKinzie reviewed the Belford website for approximately an hour and came to the same conclusions as Mr. Lauer regarding Belford and the nature of Respondent’s and Ms. Dean’s doctorate degrees. On February 3, 2006, Respondent was called to a meeting with Dr. McKinzie and Mr. Lauer. Dr. McKinzie told Respondent that she was going to recommend that the School Board fire him because he had misrepresented his professional qualifications though the submission of the Belford degree. The meeting lasted approximately five minutes. Respondent was not given a meaningful opportunity to explain his side of the story at the meeting and, prior to the meeting, Respondent had no indication that the validity of his Belford degree was in question. To the contrary, he was under the impression -- through representations made by Ms. Dean and his interpretation of Ms. Butler’s e-mail -- that his degree had been accepted by the District and DOE. By letter dated February 8, 2006, Dr. McKinzie informed Respondent that she had recommended to the School Board that his employment be terminated. The letter advised Respondent of his right to request an administrative hearing, and Respondent timely did so through a letter dated February 10, 2006. The School Board approved Dr. McKinzie’s recommendation at its meeting on February 14, 2006, and Respondent has been suspended without pay since that date pending the outcome of this proceeding. The negative characterization of Belford and its degrees by Mr. Lauer and Dr. McKinzie is reasonable based upon the evidence of record. For example, in addition to the statements from the website referred to in Finding of Fact 12 that should put a reasonable person on notice that Belford is not a legitimate educational institution, a degree from Belford can be obtained in as little as one week; the applicant is allowed to select his or her GPA, with a higher GPA costing more money; the applicant is not required to pay for his or her degree until after learning that the degree will be issued; the applicant is allowed to select his or her graduation date, with back-dating available at an additional cost; Belford will “introduce [a major] as a new addition to [its] doctorate curriculum” if the major sought by the applicant is not on Belford’s list of majors; Belford does not require transcripts or other proof beyond the applicant’s representations that he or she has received lower degrees (e.g., Bachelor’s and Master’s) prior to awarding a higher degree (e.g., Doctorate); and a base- level doctorate degree from Belford costs only $549.00. It is unreasonable for anyone, and particularly someone like Respondent who has 20 years of experience in the education system, to believe that Belford is a legitimate educational institution or that a doctorate degree from Belford is a legitimate educational degree that would be accepted as such by DOE or the District. Thus, it is inferred that Respondent knew or should have known that a doctorate degree from Belford is not a legitimate educational degree that could be used to enhance his standing in the principal pool or bolster his professional qualifications. Respondent’s conduct was slightly less egregious that Ms. Dean’s because, unlike Ms. Dean, Respondent did not make any affirmative representations to the District about completing a “doctorate program,” and Respondent relied upon Ms. Dean’s representations about the substance of her alleged conversations with Ms. Schuck. Nevertheless, it is clear from the evidence that Respondent was attempting to misrepresent and improperly bolster his qualifications through the submission of a “doctorate degree” from Belford that he knew or should have known was not a legitimate educational degree. Respondent’s decision to purchase a doctorate degree over the Internet calls into question his judgment as well as his respect for the educational process, which, in turn, raises serious doubts about Respondent’s ability to be effective in the school system. Indeed, it is clear from the totality of the evidence -- and particularly the testimony of Dr. McKinzie and Mr. Lauer -- that Respondent’s ability to be an effective leader (as assistant principals and aspiring principals are supposed to be) in the District has been significantly impaired through his submission and continued defense of his Belford degree as a legitimate educational degree.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Polk County School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 21st day of July, 2006, 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 21st day of July, 2006.
The Issue Whether Petitioner, who is employed as an occupational therapist by a local school board, is considered a “teacher” eligible for the 2015 State of Florida Best and Brightest Scholarship Program.
Findings Of Fact The 2015 Florida Legislature Appropriations Act created the Best and Brightest Teacher Scholarship Program, chapter 2015- 232, p. 27, Item 99A. The eligibility pre-requisites for applying to and being awarded the Scholarship (up to $10,000) were established in the Scholarship. The Scholarship provides as follows: Funds in Specific Appropriation 99A are provided to implement Florida's Best and Brightest Teacher Scholarship Program. The funds shall be used to award a maximum of 4,402 teachers with a $10,000 scholarship based on high academic achievement on the SAT or ACT. To be eligible for a scholarship, a teacher must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment and have been evaluated as highly effective pursuant to section 1012.34, Florida Statutes, or if the teacher is a first-year teacher who has not been evaluated pursuant to section 1012.34, Florida Statutes, must have scored at or above the 80th percentile on either the SAT or the ACT based upon the percentile ranks in effect when the teacher took the assessment. In order to demonstrate eligibility for an award, an eligible teacher must submit to the school district, no later than October 1, 2015, an official record of his or her SAT or ACT score demonstrating that the teacher scored at or above the 80th percentile based upon the percentile ranks in effect when the teacher took the assessment. By December 1, 2015, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall submit to the department the number of eligible teachers who qualify for the scholarship. By February 1, 2016, the department shall disburse scholarship funds to each school district for each eligible teacher to receive a scholarship. By April 1, 2016, each school district, charter school governing board, and the Florida School for the Deaf and the Blind shall provide payment of the scholarship to each eligible teacher. If the number of eligible teachers exceeds the total the department shall prorate the per teacher scholarship amount. The Scholarship does not define the word “teacher.” Petitioner, who timely filed an application for the Scholarship, contends that she is a “teacher” and is therefore eligible for the award. Respondent and Intervenor contend that Petitioner is an occupational therapist, and, as such, she is not considered a “classroom teacher,” which is the target group that the Legislature intended for the teacher scholarship program to cover. Petitioner contends that even if the Scholarship is limited to “classroom teachers,” she meets the statutory definition of a “classroom teacher” and is therefore eligible to receive the Scholarship. It is undisputed that the 2015 Scholarship language is vague as to whether the Scholarship is limited to classroom teachers. In 2016, the Legislature made it clear that the award is intended to only cover “classroom teachers.” Legislation enacted in subsequent legislative sessions may be examined to ascertain legislative intent. See Crews v. Fla. Pub. Emp’rs Council 79, AFSCME, 113 So. 3d 1063, 1073 (Fla. 1st DCA 2013)(citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla. 2006)). Recently, the Governor signed chapter 2016-62, Laws of Florida. Section 25 of chapter 2016-62 enacts section 1012.731, Florida Statutes, the Florida Best and Brightest Teacher Scholarship Program.1/ Section 1012.731(2) provides that the “scholarship program shall provide categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic success.” The Legislature's amendment of the language, just a year after the first appropriation, confirms that the Legislature intended the award to go to "classroom teachers," as defined in chapter 1012. Petitioner was hired by Respondent as an occupational therapist. She has worked as an occupational therapist for Respondent for approximately 17 years. Petitioner does not hold a Florida teaching certificate and her position as an occupational therapist does not require a Florida teaching certificate. Instead, Petitioner is licensed by the Florida Department of Health, which has jurisdiction over ethical violations committed by occupational therapists licensed in Florida. In her position as an occupational therapist, Petitioner reports to Respondent’s director of Pupil Support Services, who supervises all therapists within Sarasota County Public Schools. Petitioner’s stated job goal is “[t]o facilitate the handicapped student’s independent functioning in the school setting.” Petitioner’s performance responsibilities, as set forth in her job description, are to: Conduct appropriate evaluation of students referred for possible exceptional student education needs and prepare reports of the evaluation and findings. Plan intervention and service delivery programs to meet student’s individual needs. Implement and direct interventions essential to meeting targeted students’ needs. Provide information and consultative services to appropriate personnel in support of students with disabilities. * * * Establish schedules for meeting with students, conferencing with parents and assisting in rehabilitation techniques. Provide resources to all stakeholders involved in the evaluation, identification of student needs and rehabilitation of students. Petitioner delivers therapeutic services individually or in a small group setting, in a room assigned to her, or in a classroom, usually at the same time a teacher is delivering instruction to the entire class. Petitioner completes “lesson plans,” which are referred to in the therapy setting as “plans of care.” Plans of care differ in substance from lesson plans prepared by teachers because lesson plans set out a teaching plan for the entire class, whereas plans of care set out therapeutic goals and activities directed to one student that complies with the goals set forth in a student's Individualized Education Plan (IEP). As an occupational therapist, Petitioner is responsible for maintaining a “class roster,” which is referred to in the therapy setting as a “caseload.” Occupational therapists maintain a caseload for student accountability purposes and for Medicaid billing purposes. Petitioner’s therapy sessions are assigned a “700” course code, which correlates in the Florida Department of Education's course directory to “related services.” Joint Exhibit O is an example of courses offered to students by Respondent. The course list includes math, language arts, physical education, science, social studies, art, Chinese, music, and occupational therapy. Petitioner is listed as the “teacher” for the occupational therapy course. Unlike the other listed “teachers,” Petitioner is not instructing students in a subject area; she is delivering a service. See § 468.203(4)(b), Fla. Stat. (2015). Succinctly stated, the difference, in this context, between “occupational therapy” and the other listed “courses,” is that occupational therapy is not a subject area that a student learns about; it is a service that a student receives to help them to achieve independent functioning. Although listed as “course” by Respondent, occupational therapy, as compared to the other listed “courses,” is not a “course” within the meaning of section 1012.01(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County enter a final order finding Petitioner ineligible for the Best and Brightest Teacher Scholarship Program. DONE AND ENTERED this 8th day of April, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2016.
The Issue The issues in this case are: Whether Respondent, Everest University (the "School"), discriminated against Petitioner, Hashim Aboudaya, on the basis of his place of natural origin (Middle Eastern), race (Caucasian), and/or religion (Muslim) in violation of the Florida Civil Rights Act by twice failing to promote Petitioner to the position of associate dean or director of Student Services; and Whether the School retaliated against Petitioner based on his place of natural origin, race, and/or religion by refusing to pay for his doctoral level college courses.
Findings Of Fact Petitioner is a Caucasian male, born in Lebanon and, therefore, of Middle Eastern heritage. He is a practicing Muslim. In July 2003, Petitioner began teaching as an adjunct professor at the School, teaching computer information services and teaching a few classes per year. In or around August 2007, Petitioner was promoted to senior network administrator, a non-teaching position, for the School. At all times relevant hereto, Petitioner served in that position. He currently teaches classes on an as-needed basis also. The School is a private college formerly known as Florida Metropolitan University. There are ten related campuses in the State of Florida, with one being in Melbourne, Brevard County, Florida. The Melbourne campus has two locations, one on Sarno Road and the "main" campus on U.S. Highway 1. Petitioner holds two master's degrees, one in management and one in computer resources and information management, from Webster University in Saint Louis, Missouri. He is pursuing a third master's degree, but it is "on hold" pending his completion of studies in a doctoral program. The doctoral program being sought by Petitioner is in the field of business administration with a major field of study in computer security. The degree is being pursued on-line through Capella University based in Minneapolis, Minnesota. Petitioner's resume indicates that the Ph.D. will be "done in the end of 2007," but it has obviously taken longer than planned. Petitioner has applied for several vacancies listed at the School, but for purposes of this proceeding, the following are relevant: (1) The associate academic dean position advertised in January 2010; (2) The associate academic dean position advertised in April 2010; and (3) The director of Student Services position advertised in August 2009. Associate Academic Dean Positions The following qualifications were specified in the School's job description for the associate academic dean positions. The applicant must: Possess the necessary academic credentials and work related experience mandated by the Company, State accreditation agencies and any other regulatory agency that monitors compliance. Have a minimum of 2 years practical work experience in business or education. Have a minimum of 1 year teaching experience, but The years of experience may be waived at the sole discretion of the college president so long as the incumbent meets the accreditations, State and Federal requirements necessary to hold the position. There was also a job posting (as opposed to a job description) for the associate dean position on a website associated with Corinthian Colleges, Inc. ("CCI"), the School's parent company. That job posting indicated that a master's degree was required for the job and included other requirements not set out in the School's official job description. The college president, Mark Judge, could not verify the accuracy of the job posting. There is no persuasive, credible evidence that the job posting was produced by the School or intended to be used as the basis for filling the associate dean position. The first associate dean position was for the Sarno Road site which housed the School's allied health programs, e.g., medical assistant training, pharmacy technician associate degrees, medical insurance billing and coding, and healthcare administration. Besides the requirements set forth in the job description, the School was looking for someone with health- related experience as well. Terri Baker, a registered nurse, was ultimately hired to fill the associate dean position. Baker had approximately 20 years of experience with the School. During that time, Baker had taught classes in the allied health program, had served as a program director, and was an associate dean at other campuses within the CCI system. Baker does not hold a master's degree, but the job description issued by the School does not require that level of education. The job posting, which appeared in a publication issued by the School, does say that a master's degree is required, but there is no competent and substantial evidence to suggest the job posting supersedes the job description. Notwithstanding her level of schooling, it is clear Baker was a perfect fit for the job. The decision to appoint her, rather than Petitioner, to the position was based on factors other than race, national origin or religion. The second associate dean position was advertised in the Spring of 2010. The job description for that job is the same as the previous associate dean position. However, there are many different duties and expectations associated with the second position. For example, while the first position was related directly to the allied health programs at the School, the second position had a different focus. The person filling this position would be working on the main Melbourne campus, rather than the satellite campus. His or her duties would be directed toward tasks such as transfer of credit analysis, scheduling, and registering new students. The dean would also be responsible for monitoring the School's compliance with accreditation standards and internal audit standards. Betty Williams was hired to fill the second associate dean position. Williams had significant management experience in academic settings. She had served as an academic dean for one of the School's competitors and had extensive knowledge and experience with compliance accreditation standards. As compared to Petitioner, Williams was a much better fit for the position. Her experience would allow her to step into the position and begin working on problems immediately without the necessity of a period of training and acclimation. Director of Student Services Position The director of Student Services was expected to help students who were experiencing hardships in their academic progress. The director would help students who were forced to withdraw from school for financial or other personal reasons. He/she would provide support for students taking online classes and assist students trying to re-enroll into school following dismissal or withdrawal. A close working relationship with students was an important factor in this position. The School's job description listed the following requirement for the director of Student Services position: Bachelor's degree required Minimum of 3 years practical work experience or equivalent training Excellent communication and customer service skills Excellent computer skills The person who ultimately was hired for this position, Stacey Jacquot, was an outstanding employee at the School and had been selected as its Employee of the Year in two different positions. Jacquot is a Caucasian female; neither her religion, nor her place of natural origin was alluded to at final hearing. The hiring of Jacquot, as opposed to Petitioner, for this position was based on Jacquot's experience and background. She had worked in the student services department for the school as both an online coordinator and as a re-entry coordinator. Thus, her experience was directly related to the requirements of the position. Petitioner provided unsubstantiated testimony that by virtue of his teaching a number of classes over the past few years, he has some experience in counseling students concerning their issues. However, even if true, his experience did not match that of Jacquot. Request for Reimbursement for Doctoral Coursework Petitioner alleges retaliation by the School. The specific retaliatory action was the denial of his request to be reimbursed for coursework as he pursued a doctorate degree. In February 2010, Petitioner submitted a request to the School, asking that tuition expenses for his coursework be paid under the School's tuition reimbursement program. The program is set forth in policies maintained by the School and is available to "eligible employees for eligible classes." A benchmark for reimbursable tuition is that the courses being taken enable the employee to be more efficient in a current role or prepare them for a role at the next level of their employment. There are a number of written policies addressing the tuition reimbursement program. Those policies are fluid and have changed from time to time over the past few years. The policies are implemented and overseen by the director of Organizational Development for CCI, Jeanne Teeter. Teeter resides and works in California, corporate home of CCI. It is Teeter's duty to ultimately approve or deny all requests for tuition reimbursement by employees of all of CCI's colleges around the country. Teeter reviewed Petitioner's request for tuition reimbursement pursuant to a preliminary approval by the School's president, Mark Judge. It was Judge's initial decision to approve Petitioner's request, but Judge sent it to Teeter for a final decision. Teeter had never met Petitioner and did not know anything about him, except as found in his personnel file and his application for tuition reimbursement. Teeter, as was her normal procedure, considered the relevance of the degree being sought, not only to Petitioner's current role, but as to potential future roles as well. Because the course work for which reimbursement was being sought related to an advanced degree, a doctorate, Teeter was less inclined to approve it. Approval would necessitate a clear line of sight between the employee's current role to a role that would require a Ph.D. Inasmuch as Petitioner's role as senior network administrator did not require a doctorate and there was no clear line of sight between his present position and that of a professor or management employee requiring one, Teeter declined the request. At the time she made her decision, Teeter was not aware that Petitioner had made a discrimination claim against the School. Her decision, therefore, could not be retaliatory in nature. Rather, she acted in concert with the policies that address tuition reimbursement and made a decision based solely upon those policies. Petitioner appears to be an energetic and hard-working member of the School's staff. His testimony was credible, but was sometimes off the point. Although he is a well-educated person with three college degrees and is pursuing others, it is clear that English is his second language.1/ Petitioner seemed to be sincere in his belief that he was discriminated against, but did not provide persuasive evidence to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hisham Aboudaya in its entirety. DONE AND ENTERED this 21st day of November, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of November, 2011.
The Issue The issue is whether Respondent's lottery prize is subject to an outstanding debt owed to Petitioner.
Findings Of Fact Respondent applied for a student loan in the amount of $2,500 under the Florida Guaranteed Student Loan Program in an application dated August 8, 1986. Respondent needed the loan to pay the cost of her attendance at Roffler Hair Design College (school) for the period of September 1986 through January 1987. Petitioner guaranteed Respondent's loan. The loan number is 0000522112. Glendale Federal Savings and Loan Association (Glendale) issued the loan proceeds in two equal disbursements. The first disbursement took place on or about September 26, 1986. The second disbursement took place on or about November 7, 1986. Glendale subsequently sold the loan to Student Loan Marketing Association/Student Loan Services (SLS). The loan accrues interest at the rate of eight percent (8%) per year unless Respondent is in deferment status, i.e. attending school on a minimum part-time basis. In this case, Respondent dropped out of school for a period of time in 1987. On or about June 25, 1987, the school returned $632.52 of the Respondent's loan to the lender. This sum represented the unused portion of Respondent's loan. Respondent's account was credited accordingly. The last day that Respondent attended the school was May 27, 1988. By letter dated September 1, 1988, SLS notified Respondent of the repayment schedule for her loan. Her first payment was due on December 27, 1988. Respondent made no payments on the loan to Glendale or SLS. Accordingly, SLS declared Respondent's loan in default and filed a claim dated August 14, 1989, with Petitioner. On February 20, 1992, Petitioner, as guarantor of the loan, paid SLS for Respondent's defaulted student loan. On that date, the claim principal was $1,864.48 ($2,500 less the $635.52 credit) and the outstanding interest due was $469.95. After Petitioner acquired the loan, the outstanding interest was capitalized resulting in a balance of $2,334.43. This sum accrues interest at the rate of eight percent (8%) per year. Respondent made no payment on her loan after Petitioner acquired it until a portion of her lottery winnings was applied to her account. By letter dated August 31, 1998, Petitioner notified the Department of Lottery about Respondent's outstanding defaulted loan in the amount of $3,561.89, including principal and interest. Petitioner requested the Department of the Lottery to transmit a portion of Respondent's prize money to be credited toward Respondent's debt. Thereafter, the Department of the Lottery transmitted $3,561.89 of Respondent's prize money to Petitioner. By letter dated September 14, 1998, Petitioner notified Respondent that it was in receipt of $3,561.89 of her $5,000 lottery prize. Petitioner applied Petitioner's winnings to her outstanding balance. Respondent has applied for and received at least one other loan which is held by the United States Department of Education (USDE) in the Federal Direct Consolidation Loan Program. The loan which is the subject of this proceeding is not the same loan which is held by USDE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner was authorized to apply $3,561.89 of Respondent's lottery prize toward her outstanding debt for a student loan. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of May, 1999. COPIES FURNISHED: Ronald E. Stowers, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dollie M. Tunsil 5813 Pompano Drive Jacksonville, Florida 32211 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on February 5, 2001.
Findings Of Fact In the fall of 1999, Respondent, North Florida Community College (NFCC), advertised for candidates for the position of Vice President for Academic and Student Affairs. Respondent advertised to fill this position by placing an advertisement in local newspapers, as well as in Gainesville, Florida. Additionally, an advertisement for this position was placed in the Affirmative Action Register, which is a publication for minorities, as well as in the Chronicle of Higher Education. The advertisement did not specify a salary and specified an application deadline of November 9, 1999. The position vacancy advertisement included the following: Qualifications include: an earned doctorate from an accredited institution of higher education; at least five years of successful progressively responsible administrative experience in academic programs, preferably at a community college; some previous experience in teaching at the postsecondary level; and/or experience as a counselor or administrator for student services functions, this latter qualification being preferable. Experience in the Florida Community College System is a plus. William Hunter is the Human Resources Director for NFCC. Mr. Hunter was responsible for placing the advertisements for the Vice President's position in the various publications. He is also responsible for ensuring that search committees are appointed, communicating with applicants, determining salaries to be offered to individual candidates based upon an established procedure, and offering positions by telephone to those persons selected. A search committee was appointed by the President of NFCC, Dr. Grissom. There were five members of the selection committee, including Clyde Alexander, NFCC's Athletic Director and Equity Coordinator. Mr. Alexander is African-American. Initially, 51 persons applied for the position. The selection committee narrowed the list of applicants from 51 to eight semi-finalists. Mr. Hunter was instructed to notify each semi-finalist that he/she was selected. He notified each of the semi- finalists by telephone and coordinated interview dates. Mr. Hunter sent a letter to each semi-finalist. The letters informed the candidates of their selection as a semi-finalist, confirmed their interview date and time, and advised them that NFCC would be paying for the travel expenses to Madison, Florida, for the interviews. The letters to the semi-finalists also stated that the salary range was $45,000 to $75,000 per year, "depending on experience." The salary range was established by the college's Board of Trustees. Petitioner is an African-American male. Petitioner was selected as a semi-finalist. Also among the semi-finalists were Dr. Barry Weinberg and Dr. Thomas Eaves, both white males. Interviews were conducted between December 1 and December 9, 1999. Each of the semi-finalists was given a tour of the campus and had an opportunity to meet with various college officials, as well as the President and members of the search committee. After the interviews of the semi-finalists were completed, the selection committee provided a list of finalists to the President.1/ The first choice of the selection committee was Dr. Barry Weinberg, who at that time was employed as Vice President for College Advancement at Rockingham Community College in Wentworth, North Carolina. Dr. Weinberg holds a Bachelor of Science in Education from State University of New York at New Paltz; a Master of Science in Student Personnel Services (Higher Education Administration) from State University of New York at Albany; a Certificate of Continuing Studies in Applied Behavioral Sciences from Johns Hopkins University; and a Doctor of Education in Higher Education Administration from Vanderbilt University. Mr. Hunter offered the position to Dr. Weinberg pursuant to instructions from President Grissom. Despite the letter which informed the semi-finalists that the top of the salary range was $75,000, Mr. Hunter was informed by the President that no applicant could be offered more than $70,000 per year because of a budget shortfall. The salary to be offered to an applicant was based on the application of an established formula to the applicant's experience as follows: subtracting the minimum salary from the maximum salary in the published salary range for the position; dividing that number by (30) to arrive at a multiplier; multiplying the applicant's years of relevant experience (after subtracting the years of experience required to qualify for the position) by the multiplier; and adding the result to the minimum salary in the range. The multiplier for the Vice President's position was $1,000. In applying the salary formula to Dr. Weinberg, Mr. Hunter determined that he had 29 years of relevant experience. He then subtracted the five years required experience, resulting in Dr. Weinberg having credit for 24 years of relevant experience, for purposes of the salary formula. The 24 years of experience was multiplied by $1,000 and added to the published base salary of $45,000. This resulted in the initial starting salary to be offered to Dr. Weinberg to be $69,000. Mr. Hunter had authority from President Grissom to add an additional amount of $2,500 per year in order to attract a candidate, provided that no candidate was offered more than $70,000 per year. Dr. Weinberg did not accept the initial offer of $69,000. Mr. Hunter then offered $70,000, which was ultimately rejected by Dr. Weinberg. Pursuant to direction from President Grissom, Mr. Hunter then offered the job to Petitioner. Petitioner holds a Bachelor's degree in Business Administration from Culver- Stockton College; a Master of Science in Guidance Counseling from University of Nevada; a Doctorate in Counselor Education from the University of Iowa; and holds a certificate from Harvard University in the Management Development Program. Mr. Hunter applied the salary formula by determining that Petitioner had 21 years of relevant experience. He subtracted the five required years of experience resulting in 16 years of relevant experience. After multiplying 16 by $1,000 and adding that to the minimum salary of $45,000, Mr. Hunter offered $61,000.00 to Petitioner. When Petitioner did not accept the offer, he increased the offer to $62,500. Although he was authorized to offer him $63,500, it was Mr. Hunter's understanding, after a telephone conversation with Petitioner, that Petitioner would not accept the job for less than $82,000. Therefore, Mr. Hunter did not bother offering the additional $1,000 to Petitioner. In any event, whether or not Mr. Hunter offered $63,500 to Petitioner, he was not authorized to offer $70,000 to Petitioner, as had been offered to Dr. Weinberg, because of the application of the salary formula to Petitioner. Pursuant to instruction from Dr. Grissom, Mr. Hunter next offered the position to Dr. Thomas Eaves. Dr. Eaves holds a doctorate and lesser degrees from North Carolina State University, and has teaching and related research experience at numerous universities. Mr. Hunter applied the salary formula and determined that Dr. Eaves should be offered $67,000. Mr. Hunter was authorized by the President to an additional $500.00 on top of the $2,5000 salary "sweetener" because the college had been turned down twice. Mr. Hunter called Dr. Eaves and initially offered him $67,000. Ultimately, Mr. Hunter increased the offer to $70,000, which was accepted by Dr. Eaves. Petitioner left Virginia Commonwealth University in July 2001 to work at West Chester University where he is Dean of Undergraduate Studies and Student Support Services. His starting salary at West Chester University was $84,500. His current salary, which was effective July 1, 2002, is $88,500. If Petitioner had accepted the position at NFCC for $63,500, he would have received a five percent pay increase in 2000 to $66,675 per year. However, because of a college-wide salary freeze which has been in place since 2000, Petitioner would not have received any further salary increases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of October, 2003.
