The Issue Whether the School Board lacked the delegated legislative authority to promulgate School Board Policy 2.57. Whether the challenged portions of School Board Policy 2.57 violate certain provisions of the charter school statute, section 1002.33, Florida Statutes, and State Board Rules, as outlined in Petitioner's Amended Rule Challenge Petitions. Whether the Innovative Rubric Policy 2.57 should be invalidated for enlarging, modifying, and/or contravening the charter statute and also the adopted State Board Education rule(s) and form(s). Whether the budget worksheet referenced in School Board Policy 2.57 is an unadopted rule because it was not attached or incorporated into School Board Policy 2.57 and/or was never specifically adopted by rule. Whether certain provisions of School Board Policy 2.57 violate section 1002.33(6)(h) as outlined in Petitioner's Amended Rule Challenge and Charter Petitions. Whether the prevailing party is entitled to attorneys' fees and costs pursuant to section 1002.33(6)(h) and/or section 120.595, Florida Statutes.
Findings Of Fact Renaissance is a not-for-profit Florida corporation. Renaissance currently operates six charter schools in the School District of Palm Beach County ("School District") pursuant to charters issued by the School Board: (1) Renaissance Charter School at Central Palm; (2) Renaissance Charter School at Cypress; (3) Renaissance Charter School at Palms West; (4) Renaissance Charter School at Summit; (5) Renaissance Charter School at Wellington; and (6) Renaissance Charter School at West Palm Beach. The School Board is the "sponsor" of the six schools operated by Renaissance in the School District for purposes of section 1002.33. The six schools operated by Renaissance are public schools, by virtue of their status as charter schools, under section 1002.33(1). Charter Schools USA serves as the education services provider or management company for all six of Renaissance's schools in the School District. On April 1, 2015, the School Board held a public workshop on the subject of charter schools, including proposed revisions to School Board Policy 2.57 ("Policy 2.57") entitled "Charter Schools." After the workshop, the School Board reviewed proposed revisions to the rule, Policy 2.57, at a noticed public meeting on April 22, 2015, and approved development of the policy. On May 27, 2015, at a noticed public meeting, the School Board approved adoption of revised Policy 2.57. The May 27, 2015, amendments to Policy 2.57 required, among other things, that charter schools meet a standard beyond the status quo for "innovative learning methods," mandated that every charter contract contain a provision requiring 51 percent of the charter school governing board members to reside within Palm Beach County, and mandated that every charter contract contain a provision precluding new charter schools from being located in the vicinity of a district-operated school that has the same grade levels and programs. The May 27, 2015, amendments to Policy 2.57 also included an attached Innovative Policy Rubric 2.57, which contained the innovative definition and additional standards of innovation which charter school applicants must satisfy. The May 27, 2015, amendments to Policy 2.57 also required a completed budget worksheet in the format prescribed by the School Board from each charter school applicant. The "budget worksheet" referenced in Policy 2.57 is the "Budget Template Tool" developed by the Florida Charter Support Unit. The "budget worksheet" referenced in Policy 2.57 was not specifically identified in Policy 2.57 or attached thereto when it was adopted. The School District requires use of the Budget Template Tool in order to provide charter school applicants notice about everything that is required to prepare a budget and to ensure that the budget includes all necessary information. Charter school applicants who do not use the Budget Template Tool often fail to provide all of the information required to be included in the budget. The School District will review an applicant's budget even if it is not submitted using the Budget Template Tool. Failure to use the Budget Template Tool, in and of itself, will not be a factor in the rating of the "Budget" section of an application or the overall recommendation on an application. On August 3, 2015, Renaissance submitted its application for Renaissance Charter High School of Palm Beach to the District's Charter Schools Department. The application for Renaissance Charter High School of Palm Beach is the only charter application Renaissance has filed in the School District since the revised Policy 2.57 was adopted on May 27, 2015. On or around August 18, 2015, Renaissance requested that the Florida Department of Education ("FDOE") mediate its dispute over the amendments to Policy 2.57. The School Board declined FDOE's request to mediate the dispute. On September 8, 2015, Commissioner of Education Pam Stewart issued a letter to both Renaissance and the School Board confirming that the dispute could not be settled through mediation and providing Renaissance with permission to bring its dispute to DOAH. The District Superintendent recommended that the application for Renaissance Charter High School of Palm Beach be denied and placed it on the consent agenda for the School Board's November 4, 2015, public meeting, with one of the reasons being that the application "failed to meet indicators of School Board Policy 2.57 innovative rubric." At the November 4, 2015, meeting, after deliberation, the School Board voted to deny the application. In its letter dated November 13, 2015, denying the charter application of the proposed Renaissance Charter High School of Palm Beach, the School Board relied, in part, on Policy 2.57 as grounds for denial. On September 7, 2016, Petitioner filed a consolidated challenge that was amended on December 20, 2016. Petitioner is challenging the School Board's adoption and amendments of May 27, 2015, to Policy 2.57 in the Rule Challenge and asserting a violation of the flexibility granted to charter schools for the amended provisions in the Charter Petition.
The Issue The issue in the case is whether the Pinellas County School Board may terminate the employment of Minnie L. Moody as a school bus driver.
Findings Of Fact Since 1996, Petitioner has employed Respondent, initially in the Food Services Department and then as a "Plant Operator." Beginning on January 3, 2001, Respondent began working for Petitioner in the Transportation Department as a school bus driver. Respondent is represented by a collective bargaining unit of the Service Employees International Union (SEIU) with whom Petitioner has entered into an agreement. Petitioner has adopted minimum qualifications an applicant must meet to become employed as a school bus driver. Although the job description has changed over a period of years, at all times material to this case Petitioner's minimum qualifications for employment as a school bus driver required as follows: "graduation from high school, possession of GED, or must obtain a GED within one year of being hired." A "GED" is a "general equivalency diploma" which can be earned by persons completing a prescribed course of study and passing a standard examination. The GED is generally regarded as the equivalent of a high school diploma. At the time Respondent began her employment as a school bus driver, she did not meet the minimum qualifications because she had not graduated from high school, did not possess a GED, and was not within one year of obtaining a GED. Pursuant to the collective bargaining agreement between Petitioner and SEIU, a person not meeting the minimum requirements for employment may work in a position as an "intern" for a period of one year with a salary reduction of ten percent below the applicable minimum. An employee seeking employment as an intern enters into an "internship agreement" with Petitioner. The purpose of the internship mechanism is apparently to permit the employee an opportunity to complete certain job-related requirements within the first year of the employment. In January 2001, Respondent executed a one-year internship agreement with Petitioner. The agreement provided as follows: Internships are limited to one (1) year, however; [sic] in some circumstances, the Director of Personnel Relations, or designee, may grant an extension on a case- by-case basis. In June 2001, Respondent entered into an adult education course to prepare for enrollment in a GED program. Towards the end of 2001, Respondent sought and received an internship extension of three months. Because Respondent was attending educational classes, the request was approved, and Respondent continued bus driving through the end of the 2001-02 school year. In the summer of 2002, Respondent was enrolled in basic adult education classes. In August 2002, Respondent sought an additional internship extension. The request was approved, and Respondent drove a school bus for the 2002-03 school year. In February 2004, Respondent was again enrolled in basic adult education classes, and sought an additional internship extension. The request was again approved, and Respondent drove a school bus for the remainder of the 2003-04 school year. Respondent suffered a family tragedy in April 2004 when her son passed away after a long illness. By letter dated July 30, 2004, Petitioner advised Respondent that her internship would expire on August 21, 2004, and that she needed to complete the GED requirement prior to that date. The letter also provided several options to pursue, including other employment prospects with Petitioner, if the GED was not obtained by the expiration of the agreement. The internship agreement between Petitioner and Respondent expired on August 21, 2004, without Respondent's obtaining the GED. By letter dated September 3, 2004, Petitioner advised Respondent that her employment was suspended for failing to meet the minimum qualifications of the position for which she was employed. Because Respondent's progress toward obtaining the GED has been minimal, Petitioner determined that the internship agreement would not again be extended. Petitioner has no written policy regarding how many times an internship agreement can be extended. The witness testifying at the hearing indicated that in determining whether to grant an internship extension to Respondent, Petitioner considered Respondent's progress towards completion of the academic goals as well as personal factors, including the family illness. Since June 2001, Respondent has worked towards, but has not yet obtained, the GED. In order to obtain a GED a student must complete basic education classes prior to entering into the GED course of study. Respondent has worked to improve her reading ability so as to provide skills sufficient to support entry into the GED program, but her reading skill level has shown no marked improvement, and Respondent has not yet begun the actual GED course of study. There is no evidence that Respondent has not performed her duties as a school bus driver in an acceptable manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a school bus driver. DONE AND ENTERED this 11th day of March, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of March, 2005.
The Issue Whether Broward County School Board has good cause to non- renew Automotive Technical Charter High School of South Florida, Inc.'s Charter School Agreement.
Findings Of Fact On June 19, 2001, the School Board approved the initial Charter School Agreement that allowed Parkway Academy to open. The original contract was effective for a ten-year period, which ended on June 30, 2011. Parkway Academy was assigned school location number 5181. Parkway Academy serves students from both Broward and Miami-Dade counties. Parkway Academy is located on Broward College Campus and the 2011-2012 school year enrollment was approximately 517 students. Eighty-five students were in Parkway Academy's most recent graduating class and 84 were accepted into college. Charter schools are part of the public school system and are required to follow the same precepts as a public school. During the 2010-2011 school year, the school district conducted a program review of Parkway Academy's Charter to determine if the charter should be renewed. After the first program review conducted during the 2010-2011 school year, the School Board determined that Parkway Academy had academic performance and programmatic deficiencies. As a result of the deficiencies, the School Board only granted Parkway Academy a one-year renewal Charter. Parkway Academy's Charter was renewed for the 2011-2012 school year, permitting the school to operate through June 30, 2012. The Charter Agreement mandated that Parkway Academy "provide educational services in accordance with the terms of [the] charter school agreement." The Charter School Agreement provided the following contractual performance obligations in Section 2.D: "Any non- renewal cancellation or termination of the Charter shall be subject to Section 1002.33(8), Florida Statutes, and the terms of this Charter." Section 2.D.1. of the Charter prohibited Parkway Academy from being designated a "school in need of improvement" for more than two years and provided the following non-renewal provisions: a failure by the School to participate in the state's education accountability system created in section 1008.31 or failure to meet requirements for student performance stated in this Charter. * * * (f) receipt by the School of a state- designated grade of "F" in any Two (2) of Four(4) years or the School is designated as "a school in need of improvement" for more than Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress(AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform to current state law or rules; Section 2.D.1.a of the Charter delineated what constitutes "good cause" for charter termination or non-renewal and read in pertinent part: "Good cause" for termination or non-renewal shall include, but not be limited to, the following: * * * (2) receipt by the School of a state- designated grade of "F" in any Two (2) of Four (4) years or the School is designated as "a school in need of improvement" for more than "Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress (AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform with the current state or rules. * * * (22) any other good cause shown, which shall include without limitation, any material breach or violation by the School of the standards, requirements or procedures of this Charter such as: * * * (c) the School's failure to fulfill all the requirements for highly qualified instructional personnel as defined by the No Child Left Behind Act (NCLB) * * * (t) a failure by the School to fulfill all of the requirements for highly qualified instructional personnel as defined by NCLB Section 11.D of the Charter provided the requirements for teacher certification and highly qualified teachers and read in pertinent part: All teachers employed by or under contract to the School shall be certified and highly qualified as required by Chapter 1012, Florida Statutes and any other applicable state of federal law. Criteria developed by the School for hiring all other staff (administrative and support staff) shall be in accordance with their educational and/or experiential backgrounds that correspond to the job responsibilities they will be expected to perform. If the School receives Title I funds, it will employ highly qualified staff. In compliance with those requirements, the School's teachers shall be certified and teaching in-field and the School's support staff shall have attained at least Two (2) years of college education or have passed an equivalent exam. The School may employ or contract with skilled selected non-certified personnel to provide instructional services or to assist instructional staff members as education paraprofessionals in the same manner as defined in Chapter 1012 and as provided by State Board of Education rule for charter school Governing Boards; however, in order to comply with NCLB requirements, all teachers in core academic areas must be certified/qualified based on Florida Statutes and highly qualified as required by NCLB. The School agrees to disclose to the parents of its students the qualifications of instructional personnel hired by the School. Parkway Academy's Charter Agreement for the 2011-2012 school year was signed by the parties on or about March 3, 2011, and went into effect July 1, 2011. The School District conducted its next renewal review of Parkway Academy during the last week of October and first week of November of 2011 to determine if the charter school renewal should go beyond the 2011-2012 school year. Diane Rogers ("Rogers"), Personnel Administrator for the Certification Department, audited and reviewed Parkway Academy's instructors and the courses each instructor was teaching. On or about October 26, 2011, Rogers retrieved teacher assignment information from the Data Warehouse1 and reviewed the instruction assignments and qualifications for the 2011-2012 school year to make a determination if each of Parkway Academy's teachers were certified, teaching in field, out of field, highly qualified, or not highly qualified for the teaching assignments he/she had been given. After completing the teacher review audit, Rogers identified the following five faculty members who lacked appropriate teacher certification: John Ahrens ("Ahrens"), Valerie Cedant ("Cedant"), Jerry Goodbolt ("Goodbolt"), Talondra Ingram ("Ingram"), and Uriel Williams ("Williams"). Rogers found Ahrens was teaching auto mechanics and auto tech but did not have the required Broward certificate. Rogers notified Parkway Academy in November 2011 that Ahrens needed a Broward teaching certificate. Rogers also found that Cedant previously had a temporary certificate, which expired June 30, 2011, and Ingram's temporary certificate had also expired before the 2011-2012 school year. Additionally, Goodbolt was working at the school without ever applying for a teaching certificate. While assessing the Parkway Academy, Rogers also discovered Williams had applied for a certificate from the Florida Department of Education ("FDOE"). FDOE determined his status was ineligible for a Florida educator's certificate in any area. Therefore, Rogers properly categorized Williams as not highly qualified to teach his assignments, Physical Education, Personal Fitness and Health Education, for the school because Williams did not have the basic requirement, a Florida educator's certificate. Rogers also identified the following eight teachers who did not have the required highly qualified2 status when she did her review: Floyd Barber ("Barber"), Cedant, Ingram, Gleandeal Johnson ("Johnson"), Lee Kornhauser ("Kornhauser"), Hyaptia Mata ("Mata"), Roxanna Smilovich ("Smilovich"), and Manage Vincent ("Vincent"). Rogers determined that Cedant was not highly qualified in that Cedant was precluded from the status because she did not have a valid educator's certificate and was also teaching improperly out of field without a valid educator's certificate. Rogers determined that Barber was not highly qualified to teach his assignment, Literature and Arts, since his FDOE certification was in Business Education. Therefore, he was improperly teaching out of field at Parkway Academy. Rogers also found in her review that Johnson had a FDOE certificate in Business Education 6 through 12 but she was assigned to teach Journalism, which requires FDOE certification either in English 6 through 12, Journalism, or English 5 through Therefore, Johnson was not highly qualified to teach Journalism because she was teaching out of field improperly, and she had not met the requirements. Rogers also discovered during her audit that Kornhauser was FDOE certified in Math 5 through 9, which allows him to teach middle school grade level math but he was assigned to teach Business Math and Math for College Readiness, which requires a Mathematics 6 through 12 certification. Therefore, Rogers determined that Kornhauser was not highly qualified to teach his assigned courses and was improperly teaching out of field. Rogers' review of Mata found that she was FDOE certified in Biology 6 through 12, but she was assigned to teach Earth Space Science, Chemistry, and Physics, all three of which required certifications other than Biology. Rogers determined Mata was not highly qualified to teach the three courses and was improperly teaching out of field. Upon review, Rogers found that Smilovich's FDOE certification was in Biology 6 through 12, but she was assigned to teach Earth Space Science, which requires certification in Chemistry, Physics, Earth Space Science, or General Science 5 through 9. Rogers' audit also determined that Smilovich was not highly qualified for her assigned class, and she was improperly teaching Earth Space Science out of field. Rogers' review also found Vincent was FDOE certified in Biology 6 through 12, but Vincent was teaching Chemistry, which requires a certification in Chemistry 6 through 12. Rogers determined that Vincent was not highly qualified for the teaching assignment and was improperly teaching Chemistry out of field. Parkway Academy employed and had the following instructors teaching out of field for the 2011-2012 school year without the proper credential for the core course of instruction they were assigned: Cedant, Ingram, Johnson, Kornhauser, Mata, Smilovich, Vincent, and Williams. Seventeen out of the 52 classes at Parkway Academy were being taught out of field. After discovering the teachers who were teaching out of their fields during her audit, Rogers also checked to determine if Parkway Academy had complied with the requirement to notify the parents that their children had teachers providing instruction out of field. Rogers found that Parkway Academy had only notified parents partially regarding Vincent and Mata. She concluded that the newsletter notification was incomplete for Mata because it listed only one of her areas being out of field, and it failed to notify the parents about the other instructors teaching out of field. Rogers concluded her audit by determining that Parkway Academy did not comply with the Charter School Agreement and laws because the school failed to employ teachers who all had valid teaching certificates, failed to have all of its teachers teaching in the appropriate field, failed to correctly designate teachers who were highly qualified to teach core curriculum subject areas, and failed to correctly notify parents that their children were being taught by teachers who were out of field. Rogers emailed Parkway Academy on or about December 1, 2011, and requested updated information on the status of each deficiency regarding the instructors that lacked the proper certification and/or qualifications that she had discovered during her review. Parkway Academy provided Rogers an email update the next day on each teacher Rogers had listed in the email of December 1, 2011, that was not in compliance, but Parkway Academy never provided Rogers any replacement teachers' names or certifications to verify compliance as she requested. During December 2011, Parkway Academy took the following measures to correct some of the teacher certification and qualification deficiencies. Parkway Academy replaced Cedant, Ingram, and Smilovich with certified, highly qualified teachers. Also, Parkway Academy changed Barber, Johnson, and Kornhauser's core course codes to courses they were certified to teach. Parkway also obtained out of field agreements with Mata and Vincent to teach courses they were not certified to teach while each worked on certification in the area they were teaching. The School Board's Testing and Assessment Department also reviewed Parkway Academy's Charter. Among other things, the Department looked at Parkway Academy's Adequate Yearly Progress ("AYP"), the measure of school performance used to comply with the No Child Left Behind Act of 2001 ("NCLB"). The Testing and Assessment Department found that Parkway Academy did not meet AYP for the latest school year 2010-2011, which was reported after the signing of the renewal Charter School Agreement in March 2011. Additionally, the Department determined that the failure to meet the requirements for student performance for the 2010-2011 school year meant Parkway Academy had failed to make AYP for the following eight consecutive years: 2003-2004, 2004- 2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011. Parkway Academy's failure to meet the AYP for eight consecutive years earned the school the status of a "school in need of improvement" for more than two years. Parkway Academy failed to operate in compliance with the Charter School Agreement. The Certification Department's audit review report which showed a failure to use instructors that had the proper certification and/or qualifications for a substantial part of the year, combined with the Testing and Assessment Department's review results that concluded the Respondent was a "school in need of improvement" for more than two years due to failing to make AYP for eight consecutive years, caused a recommendation to be made to the School Board to non-renew Parkway Academy's Charter. On March 20, 2012, the School Board voted not to renew Parkway Academy's Charter. A Proposed Non-Renewal of its Charter notice was sent to Parkway Academy. On April 4, 2012, the School Board received Parkway's letter dated April 2, 2012, requesting a hearing upon the proposed Charter non-renewal, which was forwarded to the DOAH. The day of the formal hearing, Ahrens obtained a vocational certificate, which qualified him to teach auto mechanics and auto tech. Kornhauser neither had applied for nor obtained mathematics certification for grades 6 though 12.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board, enter a final order declining to renew the Charter School Agreement for Automotive Technical Charter High School of South Florida Inc., upon both the statutory and contractual grounds of (1) failure to meet the requirements for student performance stated in Parkway Academy's Charter including the school's status as a "school in need of improvement" for more than two years; (2) failure to use instructors having proper certification and/or qualifications; (3) failure to have teachers teaching in their fields; and (4) failure for Parkway Academy to disclose the out of field qualifications to the students' parents. DONE AND ENTERED this 10th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 10th day of August, 2012.
Findings Of Fact Based upon all of the evidence, the following findings of fact are made: At all times material to this proceeding, Petitioner employed Respondent as a school bus driver pursuant to an annual contract. Said annual contract may be terminated for probable cause as set forth in Petitioner's local rule 3.27 (Exhibit P4). Respondent's employment was also subject to a union contract between the Petitioner and the International Brotherhood of Firemen and Oilers, Local 1227. Article 39 of said union contract provides for a formal hearing under Chapter 120, Florida Statutes, when the Superintendent recommends termination of employment for any member of the bargaining unit. Upon employment, Respondent received training in the safe operation of school buses. As part of this training, Petitioner advised Respondent to exercise great caution at railroad crossings. Petitioner instructed Respondent on the correct procedures to follow when approaching and crossing a railroad track. During training, Petitioner provided Respondent with a copy of the Florida School Bus Drivers Handbook (Exhibit 4) which contains written procedures for bus drivers at railroad crossings. This handbook provides that the driver has the ultimate responsibility for the safe operation of the bus. It also contains a mirror provision of Section 316.1575, Florida Statutes, prohibiting anyone from driving through a railroad crossing when the crossing gate is closed or being opened or closed. Respondent's primary responsibility as a bus driver is to transport children to and from school. In the scope of his employment, he drives a bus through a railroad crossing on Forest Hill Boulevard near Interstate Highway 95 (I-95) everyday. On the morning of February 3, 1994, Respondent transported approximately sixty (60) children and two (2) teachers in a school bus on a field trip. Respondent exited I-95 and proceeded in a westerly direction along Forest Hill Boulevard. Respondent approached the railroad crossing on Forest Hill Boulevard near I-95 and stopped. After the bus came to a halt, the crossing lights started flashing and the crossing gate began to descend. Before Respondent proceeded across the railroad tracks, he did not: (a) open the school bus door to listen for the approaching train; (b) observe the signal lights as they started flashing; (c) observe the descent of the crossing gate; or (d) ensure that the passengers were quiet enough for him to hear the approaching train. As Respondent proceeded across the railroad track, the front of the bus struck the crossing gate, shattering it into several pieces. Respondent drove the bus to the other side of the crossing and stopped again before proceeding with the field trip. Two witnesses, concerned for the safety of the school bus passengers, immediately reported the incident to Petitioner's Transportation Department. Petitioner's employees must comply with school board policies and local rules which have been adopted in conformity with Chapter 120, Florida Statutes. Respondent failed to comply with those policies on February 3, 1994, by: (a) failing to open the school bus door before crossing the track; (b) failing to heed the warnings of the flashing lights and descending crossing gate; (c) failing to maintain silence on the bus until it crossed the tracks; and (d) proceeding across the tracks before it was safe to do so. On July 20, 1994, the Superintendent recommended that Petitioner suspend Respondent without pay and terminate his employment for failure to adhere to state law and school board policies governing the safe operation of school buses. On July 20, 1994, Petitioner voted to suspend Respondent without pay and to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that Petitioner enter a Final Order suspending Respondent without pay and terminating his employment due to willful neglect of duty and misconduct in office by failing to follow proper procedures while operating a school bus at a railroad crossing. RECOMMENDED this 6th day of December, 1994, at Tallahassee, Florida. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX TO RECOMMENDED ORDER 94-4679 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statues, on the parties' proposed findings of facts. Petitioner's Proposed Findings of Fact Accepted in substance but modified in Finding of Fact (FOF) Number 1. Accepted in FOF Number 2. Accepted as modified in FOF Number 3 & Number 4. The Prehearing Stipulation references Article 39 of the Union Contract; however, there is no record evidence concerning a grievance procedure. Accepted in substance in FOF Number 5. Accepted in FOF Number 6. Accepted in FOF Number 6. Accepted in substance in FOF Number 7-Number 12. Respondent's testimony that he did not see flashing red warning lights while he was stopped at the crossing is not persuasive competent substantial evidence. Accepted in FOF Number 12. Accepted in FOF Number 12. Accepted; See FOF Number 13 and Conclusions of Law Number 24-27. Accepted in FOF Number 2. Accepted in FOF Number 15-16. Respondent's Proposed Findings of Fact Respondent did not file proposed findings of fact. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813 Wanda Stimpson, Business Agent Fireman & Oilers Local 1227 Post Office Box 449 Boynton Beach, FL 33435 Dr. Monica Uhlhorn Superintendant of Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, FL 33406-5813
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Mr. Denson first became employed with the School District in May 1992 as a helping teacher at a behavioral school. He was transferred to attending the disciplinary room and remained in that position until 1996, when he resigned to take a position at a juvenile prison. The new job fell through, and he became reemployed with the School District in 1997. He remained employed with the School District until May 30, 2005, when he resigned to work in the private sector as an air- conditioner technician. In April 2006, Mr. Denson became employed with the School District as a bus driver. Pursuant to the Support Personnel Association of Lee County Collective Bargaining Agreement (SPALC Agreement), Mr. Denson is an annual contract employee. On or about July 31, 2006, at approximately 1:28 p.m., Mr. Denson was driving school bus number 533 south on Southeast 8th Place in Cape Coral, Florida. He was doing a dry run or practice run of the school bus route for which he had bid to make sure that he could make the trip in the time allotted. There were no students in the bus. Neither the horn nor the radio on the bus was functional. A maintenance crew was working at a residence located at 3138 Southeast 8th Place in Cape Coral. A black Ford F150 truck with a trailer belonging to the lawn maintenance company was parked on the side of the road, blocking the road. As a result, Mr. Denson could not pass the truck with the school bus he was driving. Erick Baker, one of the lawn maintenance workers, was at the trailer putting up some equipment and putting on a backpack, wand-type weed sprayer containing Ortho Weed-B-Gone, a chemical weed killer. The wand of the sprayer is about two feet long and is activated by pressing a trigger. Mr. Denson signaled with his hands for someone to move the truck. Mr. Baker signaled to Mr. Denson, suggesting that he was not the driver and to wait a moment. Mr. Baker began to walk toward the house while spraying weeds. Mr. Denson opened the bus door and yelled that he needed to have the truck moved so he could proceed with his route. Mr. Baker continued to spray the weeds. Mr. Baker may have not heard Mr. Denson because one worker was operating a leaf blower and another was operating a riding lawn mower. Mr. Denson then exited the bus and approached Mr. Baker, who had his back to Mr. Denson. Mr. Baker, with the sprayer wand in his hand, turned toward Mr. Denson. The wand was pointed in the direction of Mr. Denson's face, approximately six to 12 inches away from Mr. Denson's eyes and mouth. Mr. Denson felt threatened, knocked the sprayer away, and struck Mr. Baker in the head. Mr. Baker never sprayed Mr. Denson with the chemicals in the sprayer. Mr. Denson claims that he struck Mr. Baker in self- defense, stating that when Mr. Baker turned around, Mr. Denson told him he needed to get the sprayer out of his face and that Mr. Baker replied that he would "spray Mr. Denson's ass." Mr. Baker denies saying that he would spray Mr. Denson. Mr. Baker's testimony is more credible. The two men fell to the ground with Mr. Denson on top of Mr. Baker. Mr. Denson hit Mr. Baker in the forehead again. Mr. Baker never struck Mr. Denson. Another worker with the maintenance crew grabbed Mr. Denson and pulled him off Mr. Baker. Mr. Denson returned to his bus and used his cell telephone to contact the Transportation West Zone Office of the School District to report the incident. Mr. Baker called the police to report the incident. After the altercation, Mr. Baker told Mr. Denson that he should have sprayed Mr. Denson. Officer B. W. Kearney of the Cape Coral Police Department was dispatched to the scene. Officer Kearney completed an Incident/Investigation Report, indicating that he was dispatched to a battery. In the report, Officer Kearney stated that Mr. Denson admitted punching Mr. Baker; however, Mr. Denson felt he acted in self-defense. Officer Kearney noted that Mr. Baker had no visible injuries and declined medical attention. Mr. Baker did not press charges, and Mr. Denson was not arrested. In response to Mr. Denson's call, Dale Maybin, assistant supervisor of the Transportation West Office, reported to the scene of the incident where he spoke with Officer Kearney. Mr. Maybin later submitted an Investigation Request form along with a written statement to the Department of Professional Standards and Equity. Mr. Denson was informed via certified letter dated August 7, 2006, from the superintendent that he was being suspended with pay pending the outcome of the School District's investigation into the matter. In accordance with Section 7.09 of the SPALC Agreement, a predetermination conference was scheduled with Mr. Denson for October 26, 2006, to review the allegations and to give Mr. Denson an opportunity to respond. Mr. Denson was advised of the conference via certified letter dated October 11, 2006, from Dr. Gregory K. Adkins, executive director of Human Resources and Employee Relations. The letter included a copy of the School District's investigative file. The predetermination conference took place as scheduled and was attended by Mr. Denson and Suzan Rudd, Island Coast FEA Service Unit director. Mr. Denson and Ms. Rudd were given an opportunity to address the allegations. Subsequent to the predetermination conference, a determination was made that probable cause existed to discipline Mr. Denson for his conduct. A certified letter dated October 30, 2006, was sent to Mr. Denson, advising him of the probable cause determination. The letter also advised that a recommendation would be made to the superintendent that Mr. Denson be terminated from his employment with the School District. By letter dated November 8, 2006, Robert J. Coleman, Esquire, advised the School Board's attorney that he had been retained to represent Mr. Denson. A Petition for Termination of Employment (Petition) was prepared, and a copy was forwarded to Mr. Denson's attorney on November 9, 2006. The Petition advised that the matter of Mr. Denson's termination was scheduled to be heard by the School Board on December 5, 2006. On November 13, 2006, Mr. Denson's attorney forwarded a letter to the School Board's attorney requesting a formal administrative hearing regarding the matter of Mr. Denson's termination. On December 5, 2006, the Petition was heard by the School Board. At that time, Mr. Denson was suspended without pay pending the outcome of a hearing to be conducted by the Division of Administrative Hearings. The School Board has a "zero" tolerance policy for threats of violence made by staff of the School District as set forth in Policy 2.71. The School Board has also adopted Policy 4.10, requiring employees of the School District to be in compliance with state and federal laws and with certain ethical standards. School District Administrative Regulation 2.61(1) provides: All employees are expected to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students. All employees are expected to meet the specific standards as described in the Employee Handbook(s), negotiated contracts, the Principles of Professional Conduct for the Education Profession in Florida as described by State Board of Education Rule, and all local State and federal laws.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that just cause exists for termination of the employment of Mr. Denson and dismissing Mr. Denson from his employment as a school bus operator with the School District. DONE AND ENTERED this 18th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2007.
The Issue Whether Petitioner, Volusia County School Board, has good cause to non-renew Respondent?s charter for the Volusia Elementary Charter School as set forth in Petitioner?s Notice of Action to Not Renew the Charter for the Volusia Elementary Charter School Inc.
Findings Of Fact On June 24, 2008, the School Board and Boston Avenue entered into the School Board of Volusia County, Florida Charter for the Academies of Excellence, Inc. (the “Charter”). The Charter, which was a contract between the parties, was effective from July 1, 2008 through June 30, 2012. Pursuant to the Charter, Boston Avenue operates and maintains a pre-kindergarten through fifth grade charter school in DeLand, Florida. The school, which is a Florida public school, opened at the beginning of the Volusia County School District?s (“District”) 2008-2009 school year. The Charter provides that Boston Avenue is a unit of the District, is subject to the supervisory jurisdiction of the School Board, is accountable to the School Board for performance to the extent provided by law, and is subject to the laws of Florida and the rules of the State Board of Education. Florida public schools are subject to “a statewide program of educational assessment that provides information for the improvement of the operation and management of the public schools . . . .” School assessment is largely the result of student achievement assessment, including Florida Comprehensive Assessment Test (“FCAT”) scores, and measures of effective school management. § 1008.22(3), Fla. Stat. The Commissioner of Education is required to issue annual reports that describe student achievement in the state, each school district, and each school. The annual report assigns a grade to each school based on the results of the student achievement assessment scores, student learning gains, and improvement of the lowest 25th percentile of students in the school in reading and mathematics. Section 1008.34(1) establishes the grades and their meaning as follows: “A” - schools making excellent progress. “B” - schools making above average progress. “C” - schools making satisfactory progress. “D” - schools making less than satisfactory progress. “F” - schools failing to make adequate progress. Schools having an enrollment that is less than the minimum sample size do not receive a school grade. During its first year of operation in the 2008-2009 school year, Boston Avenue enrolled fewer than 100 students, which was less than the minimum sample size. It was therefore too small to receive a school grade. 7. For the 2009-2010 school year, Boston Avenue received a grade of “F.” For the 2010-2011 school year, Boston Avenue received a grade of “D.” For the 2011-2012 school year, Boston Avenue received a grade of “F.” Section XI.C.(1) of the Charter provides, in pertinent part, that “[t]his Contract may be renewed provided that a program review demonstrates that the criteria in section 1002.33(7)(a), Florida Statutes, have been successfully accomplished and that none of the grounds for non-renewal established by section 1002.33(8)(a), Florida Statutes, has been documented.” Dr. Parker took the position as the Board?s Coordinator of Accountability and Evaluation in January 2011. When she came to the job, the charter school program review process used a generic template that was applied to every charter school in the district, regardless of whether the areas of review listed on the template were applicable to a specific school?s charter. Dr. Parker modified the template to make it unique to each charter school, using the criteria of each charter to guide the language and structure of the template. Despite the change in the template, which is nothing more than a method of recording results, the charter review process remained essentially unchanged. In October 2011, the District conducted a program review of Boston Avenue to determine if the Charter should be renewed. On December 13, 2011, the Office of Program Accountability and Evaluation submitted its Boston Avenue Charter School Charter Review (“Review”) to the Superintendant of Schools. The Review covered the following topic areas: Curriculum and School Improvement Services, including the 2011 Annual Accountability Report; Facilities Services, Financial Services, including Finance, Budget and Insurance, and Food Services; Human Resources; Technology Services, including Student Accounting Services; Safety and Security; and Transportation Services. Each topic area had contract subtopics that were generally tied to specific Charter requirements and applicable statutory standards. The Review identified a number of areas in which Boston Avenue was deficient. Of the 80 individual contract subtopics, the Review identified 46 that were met, 19 that were partially met, 10 that were not met, and five that were not applicable. On March 22, 2012, Respondent submitted a Charter Review Response and Supplemental Appendix as its response to the December 13, 2012 Review. The evidence suggests that staff did not review or use the Charter Review Response and Supplemental Appendix in its deliberative process leading up to the decision to recommend non-renewal to the School Board. In March 2012, the School Board?s office of Curriculum and School Improvement Services and office of Student Transportation Services prepared supplemental reports to update the status of those subtopic areas that were previously determined to not meet the areas of review, and prepared revised charts that outlined their current status. It was suggested that the additional information set forth in the revised charts should not be considered in this proceeding, as it was generated after the normal review process was concluded. Given the de novo review afforded under the Administrative Procedures Act, the additional information and supplemental reports are pertinent to the consideration of whether the Charter should be renewed, and are considered herein. By its terms, the Charter expired on June 30, 2012. The vote to not renew the Charter was taken on March 30, 2012. A draft version of the Notice was provided as part of the agenda of the meeting. The meeting was attended by, among others, counsel for Boston Avenue and Boston Avenue Principal Nichole Gaw. After a short presentation by its staff and counsel, the School Board voted 5-0 to approve the school superintendant?s recommendation that the Boston Avenue Charter not be renewed. Counsel for Respondent understood the effect of the vote, and indicated to Petitioner that “[w]e will make a decision [whether to request a hearing] within the 14-day time.” The Notice was signed and executed on Friday, March 30, 2012. Petitioner made reasonable efforts to provide the signed Notice to Respondent on March 30, 2012, which efforts included an attempt to hand-deliver the Notice before 5:00 p.m., on that date to the Boston Avenue school building and to the law office of Respondent?s counsel. Both buildings were locked. In addition, efforts to electronically send the Notice to Petitioner were made over the weekend. Although reasonable efforts to effect delivery were made, the evidence is insufficient to prove that Respondent received actual written notice of Petitioner?s decision to not renew the Charter until an envelope containing the Notice was hand-delivered to an authorized agent of Respondent on Monday, April 2, 2012. Monday, April 2, 2012, was 89 days prior to the June 30, 2012, expiration of the Charter. Grounds for Non-Renewal 1. Failure to Meet the Requirements for Student Performance Stated in the Charter The Notice alleged that Respondent failed to meet the objectives for student performance established in the Charter. The Charter included the following measures of student performance: FCAT Testing - Academic Progress Section III.B.(2) of the Charter provides that: Student academic progress will be measured by a growth model as evidenced by standardized tests. Student academic progress will be measured by FCAT under the following standards. The student will have improved his or her FCAT Achievement level one year to the next; or The student will have maintained his or her achievement level as a 3, 4 or 5 from one year to the next; or The student will have remained within FCAT Achievement levels 1 or 2, but will have demonstrated more than one year?s growth on the FCAT developmental scale, applying the Department of Education?s measurement of growth.1/ Reading The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Reading as follows: Fourth Grade FCAT Reading 11.11 percent of fourth-grade students improved their FCAT reading achievement level one year to the next, and an additional 8.33 percent maintained a level five -- the highest level achievable. 80.56 percent of fourth-grade students failed to improve their FCAT reading achievement level one year to the next. 59% of fourth-grade students maintained their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 41% of fourth-grade students failed to maintain their FCAT reading achievement level as a 3, 4, or 5 from one year to the next. 42% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 58% of fourth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Reading 4.76% of fifth-grade students improved their FCAT reading achievement level one year to the next, and an additional 14.29% maintained a level five - the highest level achievable. 80.95% of fifth-grade students failed to improve their FCAT reading achievement level one year to the next. 90% of fifth-grade students maintained their FCAT reading achievement level as a three, four, or five from one year to the next. 10% of fifth-grade students failed to maintain their FCAT reading achievement level as a three, four, or five from one year to the next. 29% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 71% of fifth-grade students at level one or two remained within FCAT reading achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Math The evidence demonstrated that in 2011, Boston Avenue students performed in FCAT Math as follows: Fourth Grade FCAT Math 8.33% of fourth-grade students improved their FCAT math achievement level one year to the next, and an additional 5.56% maintained a level five -- the highest level achievable. 86.11% of fourth-grade students failed to improve their FCAT math achievement level one year to the next. 40% of fourth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fourth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 44% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 56% of fourth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. Fifth Grade FCAT Math 4.76% of fifth-grade students improved their FCAT math achievement level one year to the next. 95.24% of fifth-grade students failed to improve their FCAT math achievement level one year to the next. 50% of fifth-grade students maintained their FCAT math achievement level as a three, four, or five from one year to the next. 50% of fifth-grade students failed to maintain their FCAT math achievement level as a three, four, or five from one year to the next. 60% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but demonstrated more than one-year?s growth on the FCAT developmental scale. 40% of fifth-grade students at level one or two remained within FCAT math achievement levels one or two, but failed to demonstrate more than one-year?s growth on the FCAT developmental scale. FCAT Testing - Academic Progress Conclusion A substantial, and often overwhelming, number of students failed to meet the criteria for academic progress measured by FCAT as established in section III.B.(2) of the Charter. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(2) of the Charter. FCAT Testing - Learning Gains In addition to the foregoing, section XIII.A. of the Charter provides, in pertinent part, that: The School shall be subject to the same accountability requirements as other public schools, including reports of student achievement information that links baseline student data to the School?s performance projections identified in the charter. The charter school shall identify reasons for any difference between projected and actual student performance. The “projections identified in this charter” shall be as follows: (1) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the reading portion of the FCAT; (2) Seventy-five percent (75%) of the students taking the FCAT will earn a learning gain on the math portion of the FCAT; (3) The average score for the students taking the science portion of the FCAT will meet or exceed the District average; and (4) The average score for the students taking the FCAT Writes will meet or exceed the District average. 54% of Boston Avenue students made learning gains on the reading portion of the FCAT in 2011. 44% of Boston Avenue students made learning gains on the math portion of the FCAT in 2011. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student learning gains established in section XIII.A. of the Charter. Other Student Assessment Tests Section III.B.(4) of the Charter provides that: In addition to the State required achievement tests, the School will use a standardized test for assessing students in core subject areas (reading, math, and science) in the Fall in order to get baseline data. The students will then be assessed in the Spring to determine the amount of yearly academic gain. Section III.B.(4) of the Charter governs the administration of the standardized assessment tests, rather than the results of the testing. The Florida Assessment for Instruction in Reading (“FAIR”) is an assessment test for reading proficiency that is provided by the state of Florida. All schools in the District administer the FAIR test three times a year. Boston Avenue met section III.B.(4) for reading by administering the FAIR in grades one through five. The Differentiated Accountability Assessment (“DA Assessment”) is an assessment test for math and science proficiency that was developed by District specialists, and has been used for a number of years. All schools in the District administer the DA test twice per year, in the fall and in the middle of the year. Boston Avenue met section III.B.(4) for math by administering the DA Assessment in grades three through five. Boston Avenue met section III.B.(4) for science by administering the DA Assessment for science in the fifth grade. In contrast to section III.B.(4) of the Charter, section III.B.(6) is directed to the results of the testing, and provides, in pertinent part, that “[t]he academic progress of students and the School will be evaluated and compared to the rate of progress of the students in the Volusia County School District not enrolled in the School.” Thus, an analysis of the results of the FAIR testing for reading, and the DA Assessment testing for math and science, and their measurement of academic progress, is appropriate for determining whether Respondent met the Charter standards to warrant renewal. Standardized Test for Reading - FAIR The District has established that a student is “proficient” in reading if he or she correctly answers 80% of the questions on the FAIR for their grade level. A demonstration of proficiency in FAIR correlates to a high probability that a student can score at a level three or higher on the FCAT reading achievement test. The FAIR testing for first and second grade is predictive, since there is no corresponding FCAT test, but allows the school and the District to identify targeted areas of need before the students get to third grade where FCAT scores may require a repeat of grade. The Board created four categories of measuring student achievement based on performance on the FAIR testing performed during the year. A student was determined to have “decreased proficiency” if he or she went from proficient to below proficient in reading during the course of the year. A student was determined to have “maintained proficiency” if he or she scored above the 80% correct answer level during the course of the year. A student was determined to have “maintained below proficiency” if he or she scored below 80% correct answer level during the course of the year, but was not falling further behind. Finally, a student was determined to have “improved proficiency” if he or she scored went from below the 80% correct answer level to at or above the 80% correct answer level during the course of the year. First Grade FAIR Reading In first grade, 18% of students improved their proficiency in reading, 51% maintained proficiency, 23% of students maintained below proficiency, and 8% of students decreased in proficiency. With 69% of students reading at a level of proficiency by the end of the year, and with only 8% decreasing in proficiency, Dr. Parker indicated that “first grade isn?t necessarily a huge area of concern.” Second Grade FAIR Reading In second grade, 3% of students improved their proficiency in reading, 9% of students maintained proficiency, 77% of students maintained below proficiency, and 11% of students decreased in proficiency. Thus, 88% of Boston Avenue second grade students were reading below proficiency. Third Grade FAIR Reading In third grade, 11% of students improved their proficiency in reading, 5% maintained proficiency, 78% of students maintained below proficiency, and 5% of students decreased in proficiency. With a total of 83% of students reading below the level of proficiency, and with the FCAT test being administered at the end of the year, Dr. Parker characterized the FAIR results as “alarming.” Fourth Grade FAIR Reading In fourth grade, 3% of students improved their proficiency in reading, 41% of students maintained proficiency, and 56% of students maintained below proficiency. No fourth- grade students decreased in proficiency as assessed by FAIR. Fifth Grade FAIR Reading In fifth grade, 16% of students improved their proficiency in reading, 28% percent maintained proficiency, and 56% of students maintained below proficiency. No fifth-grade students decreased in proficiency as assessed by FAIR. Standardized Test for Math - DA Assessment The DA Assessment test uses the same proficiency standards and categories that were developed for the FAIR. As with the FAIR test for reading, the DA Assessment is designed to be predictive of how students will perform on the FCAT. Third Grade DA Math In third grade, 46% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. No third-grade students decreased in proficiency in math as assessed by the DA Assessment. Fourth Grade DA Math In fourth grade, 41% of students improved from below proficiency to proficiency in math, and 59% of students maintained below proficiency. No fourth-grade students decreased in proficiency in math as assessed by the DA Assessment. Fifth Grade DA Math In fifth grade, 42% of students improved from below proficiency to proficiency in math, and 54% of students maintained below proficiency. One fifth-grade student (4%, as based on a fifth-grade enrollment of 25 students) decreased in proficiency in math as assessed by the DA Assessment. Standardized Test for Science - DA Assessment In fifth grade, 4% of students maintained proficiency in science, 30% of students improved from below proficiency to proficiency, and 65% of students maintained below proficiency. No fifth-grade students decreased in proficiency in science as assessed by the DA Assessment. Failure to Maintain an Acceptable Level of Student Achievement in the State?s Education Accountability System and Other Standardized Testing Paragraphs 1 and 2.a. of the Notice make the school grades earned by Boston Avenue, and the results of the standardized student assessment tests, basis for the non-renewal of the Charter. The FAIR and DA Assessment test results demonstrate that, while some students demonstrated proficiency, the majority of students at Boston Avenue who were administered the non-FCAT standardized assessment testing either maintained below the level of proficiency or decreased in proficiency. Boston Avenue?s receipt of a school grade of “F” in the 2009-2010 school year, “D” in the 2010-2011 school year, and “F” in the 2011-2012 school year, combined with the results of the standardized student assessment tests, demonstrated a lack of student improvement over the course of the past three years. For the 2010-2011 school year, Boston Avenue was one of only two of the 46 elementary schools in the District to receive a grade of “D.” There were no “F” schools for that year. The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 46 elementary schools in Volusia County by a substantial margin. For the 2011-2012 school year, Boston Avenue was one of only two of the 52 elementary schools in the District to receive a grade of “F.” The total scoring based on the results of the assessment testing for that year placed Boson Avenue last among the 52 elementary schools in Volusia County by an even wider margin than the previous year. Section 1002.33(7)(a)12., which governs the standards for issuance of a school charter, provides that the charter may be cancelled during its term “if insufficient progress has been made in attaining the student achievement objectives of the charter and if it is not likely that such objectives can be achieved before expiration of the charter.” Section 1002.33(7)(b)1., provides, in pertinent part, that “[a] charter may be renewed provided that a program review demonstrates that the criteria in paragraph (a) have been successfully accomplished and that none of the grounds for nonrenewal established by paragraph (8)(a) has been documented.” The grade of “F” for the most current year -- meaning that students at the school are failing to make adequate progress -- is strong evidence that the standards for renewal of the Charter have not been met. Thus, in the course of renewing a charter, it was not an error for the School Board to give consideration to the student achievement objectives, even those of a general and non-numeric nature. The evidence in this case, taken as a whole, demonstrates that Boston Avenue failed to meet levels of academic progress that approached even the lowest performing District-operated elementary schools in Volusia County. Based on the foregoing, the undersigned finds that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to meet the objectives for student academic progress established in section III.B.(6) of the Charter, thus constituting a reasonable and valid basis for the non-renewal of the Charter. Comparison with Learning Gains of Similar District Schools Section III.B.(5) of the Charter provides that: To the greatest extent possible, a comparison of learning gains as defined by the State under the Florida A+ Accountability Plan will then be compared with the learning gains of similar district schools with comparable populations using demographic information obtained at www.myflorida.com. Learning gains will be examined as determined by the State based on the percentage of students in the lowest 25% of the School showing improvement of more than one year within level 1 or 2. The state minimum acceptable standard for performance in reading and mathematics by students in the lower quartile is 50% of these students will make a learning gain. The comparator elementary schools were determined by the percentage of students who were receiving free or reduced lunch and the percentage of students classified as a minority at each school. Those criteria are found to be adequate to represent schools with comparable demographic characteristics. Applying those criteria, 14 schools were determined to have “comparable populations” to Boston Avenue. In the 14 elementary schools having comparable populations, an average of 13.3% of students of lowest quartile within FCAT level one or two made learning gains in 2011. At Boston Avenue, 10.7% of students in the lowest quartile within FCAT level one or two made learning gains in 2011. Thus, neither Boston Avenue nor the average of the comparator schools came close to meeting the “state minimum acceptable standard” that 50% of the lower quartile of students within level one or two make more than one year of improvement. Although section III.B.(5) of the Charter set forth the state standard, it is not couched in language that would lend it to being applied as a Charter performance criterion. The fact that FCAT level one and two students at Boston Avenue and the comparative District schools were bunched closely in their levels of improvement, along with the incongruity of applying a standard of performance to Boston Avenue that is not being met by District schools, suggests that the 50% threshold is to be applied as an aspirational goal, rather than a standard for renewal. Thus, Boston Avenue?s failure to meet the “state minimum acceptable standard” set forth in section III.B.(5) of the Charter should not form a basis for non-renewal of the Charter. 3. Failure to Use State Approved Materials in Math Section III.A.(3) of the Charter provides that Boston Avenue?s “math curriculum will utilize a math series by Pearson/Scotts Foresman, or another math series approved by the State.” Paragraph 2.b. of the Notice provides, in pertinent part, that “[Boston Avenue] is using the Saxon math series, which has not been approved by the State. This fact was pointed out to the administration at [Boston Avenue], but they indicated that they did not intend to make any change.” Boston Avenue has used and continues to use the Saxon math series. The Saxon math series is not a math series by Pearson/Scotts Foresman. The State of Florida issues an annual list of approved publishers and materials. The Saxon math series is not on the state-approved list. Mr. Viecelli and Mr. Jackson testified as to their belief in the effectiveness of the Saxon math series, and the reasons for its purchase and use at Boston Avenue. Dr. Parker and others testified as to the Saxon math series incompatibility with the District?s math curriculum map. Regardless of the arguments that can be made for or against the Saxon math series, the Charter is specific as to the math series to be used at Boston Avenue. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent failed to use an approved math series in violation of Section III.A.(3) of the Charter. 4. Failure of the Student Transportation Service to Comply with State Regulations Student transportation services relevant to this proceeding are set forth in Section V.E. of the Charter. That section provides, in pertinent part, that: The transportation will be consistent with the requirements of section 1006.21 through 1006.27, Florida Statutes, as well as Florida State Board of Education Administrative Rules of Transportation section 6A-3.0001 [sic] through 6A-3.037, as may be amended from time to time. * * * All bus operators who have not obtained proper certification from the Sponsor shall not be allowed to transport any of the School's students. The School must also provide the Sponsor with documentation of the thirty (30) day bus inspection required by Florida Administrative Code Rule 6A- 3.0171. The Sponsor reserves the right to inspect the School's buses at any time, with reasonable advance notice (usually 24 hours) so as not to disrupt the School's operation, unless exigent circumstances exist. Failure to comply with these provisions shall constitute "good cause" and the basis for termination of this charter contract. Paragraph 2.c. of the Notice provides, in pertinent part, that: The student transportation service operated by BACS has persistently failed to comply with state regulations. Each year, the District conducts evaluations of the charter schools in the district to monitor compliance with the charter and the law. Each of the last three evaluations of BACS has noted serious violations in their student transportation service. Boston Avenue has provided transportation for its students since the 2009-2010 school year. It maintains a fleet of five buses, three of which operate on Boston Avenue?s three bus routes, and two of which were used as back-ups when needed. The evidence demonstrates that Petitioner provided reasonable advance notice of its inspections as set forth in the Charter. As a result of its October 2011 charter review, the School Board staff determined that Boston Avenue did not have medical emergency plans on its buses for five students who qualified as disabled under Section 504 of the Rehabilitation Act. A "504 Plan" describes the special conditions or non- medical care that a qualifying student may need while on the bus. Thus, the contract provision was determined to be “not met.” By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue did not transport any qualifying students. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain medical emergency plans is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s Bus Stop Safety Check forms were not correctly or completely filled out. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that Boston Avenue?s Bus Stop Safety Check forms were inspected with no errors noted. Therefore, the status of the contract provision was changed to “met.” The alleged failure to maintain correct Bus Stop Safety Check forms is not a sufficient basis for non-renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue failed to meet contract provisions regarding its bus drivers, including requirements for current DHSMV driving history checks, verification of weekly DHSMV updates for one of its drivers, and timely completion of new Category IV driver clearance forms. In addition, the School Board?s School Bus Operator Qualifications Evaluation Worksheet indicated that two of Boston Avenue?s bus operators did not have at least 40 hours of pre-service training, that three of the operators had deficiencies in their otherwise current medical examination certificates, and that the results of the operators? dexterity tests were not noted on their medical examination certificates, resulting in a performance level of 50%. The Performance Determination Worksheet instructed Boston Avenue to submit “a Corrective Action Plan” to remedy the deficiencies. By March 15, 2012, prior to the vote on non-renewal, the compliance charts were revised to indicate that “[a]ll operator records are in order and all are qualified to operate a school bus. The rating for the operators licensure/Qualifications review is 100% where a minimum of 95% is expected.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient basis for non- renewal of the Charter. As a result of its October 2011, charter review, the School Board staff determined that Boston Avenue?s bus No. 9601 did not have a required seating chart onboard, and that bus No. 0356 did not have a required orange “No Students Left Onboard” sign in the back window. Mr. Viecelli indicated that the operator had taken the seating chart from the bus to update it on the day of the inspection, and had not yet returned it. He further indicated that the chart was always on the bus when in use. At the time the “no students” sign deficiency was noted, Bus 0356 was the spare, and was not being used to transport students. When Bus 0356 was taken out of service, the manual, including the emergency packet and all of the instructions and signs used to maintain compliance with state and charter requirements, was moved by the driver to the in-service bus. Boston Avenue has since created complete manuals for each of its five buses. By March 15, 2012, prior to the vote on non- renewal, the compliance charts were revised to indicate that “[s]chool buses were checked for a Route sheet, Student Listing, Seating Chart and Crash Management Packet. Each bus had the required documents.” Accordingly, the status of the contract provision was changed to “met.” The alleged failures set forth in this paragraph are not sufficient bases for non-renewal of the Charter. The School Board alleged that, in 2009, Boston Avenue did not use its designated bus loop, and that buses stopped on the roadway behind the school without extending the bus “stop arms” while unloading students. The evidence demonstrates that this alleged deficiency was resolved long before the March 2012 vote on non-renewal, and that the contract provision was “met” as of the December 2011, Charter Review report. The alleged failures set forth in this paragraph are not sufficient basis for non-renewal of the Charter. The December 2011, Charter Review report indicated that the Charter provisions regarding School Bus Inspection Records were “partially met.” However, the report indicated that “[t]he rating for this review is 96.6% where a minimum of 95% is expected. The report indicated no significant or unresolved deficiencies. By March 15, 2012, prior to the vote on non-renewal, the status of the contract provision was changed to “met.” The alleged failure set forth in this paragraph is not sufficient basis for non-renewal of the Charter. The School Board conducts “spot check inspections” of Boston Avenue?s buses to monitor compliance operations and ensure compliance with applicable laws and regulations. As a result of deficiencies found during a spot-check inspection on March 15, 2012, the District requested that Boston Avenue bring its buses to the District facility for full inspection. The inspection revealed 26 total deficiencies; 15 of those deficiencies were repaired on the spot. Of the remaining deficiencies, three were the result of fluid leaks of one kind or another. Each of the leaks was minor, and did not cause the fluid levels in the respective reservoirs to drop below normal, making them difficult to locate. Boston Avenue had previously contracted with a mechanic who was to have repaired the leaks, but was not successful. Boston Avenue changed mechanics, and the problems have been resolved. The evidence demonstrates that all of the operational deficiencies related to Boston Avenue?s transportation services noted in the October 2011, review were met before the School Board?s vote on the renewal of the Charter. The evidence demonstrates that Boston Avenue made substantial efforts to correct the fleet deficiencies, most of which were resolved before the School Board?s vote on the renewal of the Charter. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that the deficiencies in Boston Avenue?s provision of transportation services were so persistent or pervasive as to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. 5. Failure of the Governing Board to Exercise Continuing Oversight Over the Operations of Boston Avenue Paragraph 2.d. of the Notice provides that: The governing Board for BACS has failed to exercise continuing oversight over the operations of the charter school. Section 1002.33(9)(i), Fla. Stat., requires that the “governing board of the charter school exercise continuing oversight over charter school operations.” Several instances establish that the governing board for BACS failed to meet its obligations under that section of the statute. The Charter contains no specific standards pertaining to the requisite degree of oversight necessary to establish compliance with section 1002.33(9)(i). Paragraphs VI.A.10. and of the Charter require that Boston Avenue provide information to the School Board, including internal financial control policies and procedures and copies of internal audits and financial audits prepared by Boston Avenue or on its behalf. Boston Avenue complied with those requirements. Failure to Properly Monitor Expenditures by the Management Company Paragraph 2.d., bullet point one, of the Notice provides, in pertinent part, that “[t]he governing body has failed to properly monitor expenditures by its management company, School Management Solutions, Inc.” School Management Solutions, Inc. ("SMS") is Boston Avenue's school management company. SMS is a contractor that provides payroll, finance, purchasing, human resources, and other services to Boston Avenue. The Financial Services section of the December 2011, Review indicated that two of the 13 financial factors were “partially met,” with the remainder being met or not applicable. As it pertains to the failure to properly monitor expenditures, the Notice cited the audit report, and noted the purchase of “large dollar purchases by SMS prior to Boston Avenue Board approval.” The evidence indicated the expenditure to be for a school bus purchased for $6,500, which exceeded the limit of $5,000 for expenditures by SMS without Board approval. The Boston Avenue Board subsequently approved the expenditure. The audit also noted an SMS employee salary that was billed to Boston Avenue in addition to the SMS management fee. The SMS employee was the food services director, who worked at the school but whose salary was not included in the management fee. The review report indicated that Boston Avenue responded to the School Board?s Summary of Findings, and stated that: The policy has been reviewed and reiterated with the school staff and management company. The Board has been advised to appoint a treasurer or liaison person to more thoroughly review the financial statements and monitor the budget. There was no suggestion that Boston Avenue?s response to the review report finding was determined to be inadequate, or that it would not resolve the issue. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, that Boston Avenue?s alleged failure to properly monitor expenditures by SMS was sufficient to constitute a basis for non-renewal under the terms of the Charter or the standards for non-renewal established in section 1002.33(8), Florida Statutes. Conflict of Interest Resulting from the Management Company Appointing and Recommending Members of the Boston Avenue Board of Directors. Paragraph 2.d., bullet point two, of the Notice provides, in pertinent part, that “[t]the governing board for BACS improperly permitted an official from [SMS] to appoint and recommend members of the Board of Directors, which represents a conflict of interest.” The report of the independent auditors made the statement that “the management company (School Management Solutions, Inc.) has expressed the authority to appoint and recommend members of the [Boston Avenue] Board of Directors, which represents a conflict of interest.” (emphasis added). The report did not provide any detail as to how that expression was made, or by whom. There was no other evidence to support the auditor?s statement, nor was there any evidence that SMS actually appointed or recommended members of the Boston Avenue Board of Directors. Based on the foregoing, it is found that the School Board failed to demonstrate, by a preponderance of the evidence, a conflict of interest as alleged. Failure to Conduct Employment History Checks. Paragraph 2.d., bullet point three, of the Notice provides, in pertinent part, that “[SMS] has not been conducting the employment history checks required by statute before hiring an individual.” The Notice specifically alleged, as the basis for non-renewal: . . . that the required employment history check had not been conducted in the majority of the files reviewed. In a recent site visit, it was found that while a review of the files showed that they now contain a standard reference form, a review of those forms revealed that the majority of the references listed were personal references as indicated on their application, not previous employers as required by the statute. Instead, there was a standard statement - “all references gave positive reviews of the employee and recommend the company hire the employee.” (emphasis added). The Notice did not allege other deficiencies in the employment screening process. Thus, deficiencies related to fingerprint records, criminal background checks, drug screening and the like were not pled as basis for the non-renewal of the Charter, and are not considered herein. Section 1002.33(12)(g)4., provides that: [b]efore employing instructional personnel or school administrators in any position that requires direct contact with students, a charter school shall conduct employment history checks of each of the personnel?s or administrators? previous employers . . . . If unable to contact a previous employer, the charter school must document efforts to contact the employer. Section 1002.33(12)(g)5. provides that “[t]he sponsor of a charter school that knowingly fails to comply with this paragraph shall terminate the charter under subsection(8).” During the October 2011, site visit, the School Board representatives noted that the employee references were not in employee files. Ms. Paige-Pender testified that “there were not the required two phone references, a minimum of two phone references to the last two employers for each employee on file, which is required by Florida Statute.”2/ Mr. Jackson attributed the deficiency to a change in the law, which he understood to previously allow either personal or professional references, but which he believed to have been changed after the opening of Boston Avenue. The Boston Avenue Charter was entered on June 24, 2008, and became effective on July 1, 2008. Section 1002.33(12)(g)4. was enacted in substantially its present form as chapter 2008-108, §14, Laws of Florida, and became effective on July 1, 2008. Thus, the suggestion that employment history checks were not required at the time the Charter was granted and the school was opened is unsupported and not accepted. Mr. Jackson testified that upon being advised of the employment history check deficiency, Boston Avenue and/or SMS contacted each employee?s professional references. Since there is no standard state form for documenting employment checks, SMS documented those checks on a form developed by SMS. Ms. Paige- Pender indicated that her review of the employment history forms demonstrated that many of the references were personal references, and that many employee files did not include information from past employers or documentation of efforts to contact the past employers. While the appearance of the form itself does violate the Charter or state law, Ms. Paige-Pender?s testimony that the forms did not contain the information required was credible, and is accepted. Based on the foregoing, it is found that the School Board demonstrated, by a preponderance of the evidence, that Respondent or its agent failed to conduct employment history checks before hiring personnel or administrators, as alleged, and failed to make its employment history records current after notice of the deficiency. 6. Failure to be in Good Corporate Standing Section X.A. of the Charter provides that Respondent “is a not for profit corporation formed and organized under the applicable laws of the state of Florida, and for the duration of this charter shall take all actions necessary to maintain that status in good standing.” Paragraph 2.e. of the Notice alleged that Boston Avenue failed to maintain its corporate standing under the laws of the state of Florida. At the time of the October 2011, review, Respondent had been administratively dissolved by the Secretary of State, Division of Corporations for failure to file its annual report and fees. On March 22, 2012, the corporate fees were paid, and Respondent was reinstated prior to the March 30, 2012, meeting of the Board at which the proposed non-renewal was considered and approved. Section 607.1422(3), provides that “[w]hen the reinstatement [of an administratively dissolved corporation] is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred.” Based on the foregoing, it is found that the School Board failed to demonstrate by a preponderance of the evidence that Respondent?s corporate standing was a valid basis for the non-renewal of the Charter. 7. Violation of Law in the Operation of Boston Avenue Paragraph 3 of the Notice alleged that Respondent, or its agent, SMS, violated Florida law by failing to conduct employment history checks and by failing to maintain Boston Avenue in good-standing as a not-for-profit organization. Paragraph 3 of the Notice is a reiteration of the allegations contained in paragraph 2.d., bullet point three, and paragraph 2.e. of the Notice, and the findings as to this allegation are those set forth for those paragraphs above. School Board Actions Impairing Performance Respondent has argued that a history of “bad blood” existed between the Board and Boston Avenue that tainted the relationship, and potentially resulted in the artificial lowering of Boston Avenue?s school grades. The evidence indicates that the Board and the District followed established procedures with regard to its actions, which included providing notice prior to conducting transportation inspections, and placing FCAT monitors into all classrooms of school that had received a grade of “F” for the preceding year. The evidence that the monitors acted inappropriately during the testing was not convincing, and in any event was not sufficient to establish that the presence of the monitors was so disruptive as to result in a decline in student performance in their FCAT testing. Limitation on the Grounds for Non-Renewal Respondent?s argument that only items related to student safety may form the basis for non-renewal is not persuasive. The purpose of public schools, including charter schools, is to ensure the academic progress and achievement of their students. It was not outside of the scope of the School Board?s authority to base its decision as to whether to renew the charter on the extent to which the goals for student performance and achievement established by the Charter were met. Ultimate Findings of Fact The standards for academic performance set forth in the Charter were sufficient to allow the School Board to make a reasoned assessment as to whether criteria in the Charter regarding student performance and achievement were met during the period of operation. The evidence in this case demonstrates that Boston Avenue has failed, in virtually every measurable area, to keep pace with the educational standards of schools operated by the District. Respondent?s failure to meet the standards for academic performance and achievement as set forth herein forms a reasonable basis for non-renewal of the Charter. Except for Boston Avenue?s failure to conduct timely and complete employment history checks, the basis for non- renewal identified as “other good cause shown,” either were not proven or would not, standing alone, constitute sufficient grounds for non-renewal. As to the employment history checks, the School Board proved that violation of the charter and Florida statute, in combination with the other areas of non- compliance with the Charter, forms a reasonable basis for non- renewal of the Charter. Based on the evidence and testimony as a whole, the School Board proved, by a preponderance of the evidence, that Boston Avenue failed to meet the criteria for renewal of its Charter, and that its proposed action to deny the renewal of the Charter was not in error.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Volusia County School Board, enter a final order declining to renew the charter school agreement existing between it and Volusia Elementary Charter School, Inc., d/b/a Boston Avenue Charter School. DONE AND ENTERED this 14th day of December, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2012.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
The Issue The issues are whether the Department of Education’s (Department) decision to deny Petitioner’s application for capital outlay funding for the 2017-2018 school year is in conflict with Florida Administrative Code Rule 6A-2.0020(4)(b), as amended effective August 13, 2017, and is, therefore, based on an unadopted rule; and whether the Department’s decision to deny the application should be determined under the prior version of the rule.
Findings Of Fact Petitioner is a not-for-profit public charter school located in Ocoee, Florida, serving approximately 260 students in kindergarten through grade five. The school opened in the 2012-2013 school year, but did not receive a school grade until 2014-2015. That year, it received a grade of “B.” It received a grade of “D” in 2015-2016 and a “D” in 2016-2017. Since school year 2015-2016, Petitioner has been operating under a School Improvement Plan, approved and reviewed by its sponsoring school district, the Orange County School District. A School Improvement Plan is a plan designed to improve academic performance and is required when a charter school receives a grade of “D” or “F.” See § 1002.33(9)(n)1., Fla. Stat. (2016). The Department is the agency charged with the responsibility of administering capital outlay funds for charter schools pursuant to section 1013.62, Florida Statutes.1/ Charter school capital outlay funding is a source of funds for charter schools, which must meet eligibility criteria set forth in section 1013.62. The funds can be used only for specific purposes set forth in the statute, such as the purchase of real property, construction of school facilities, purchase of vehicles, computer equipment and software, insurance for school facilities, and renovation and repair of school facilities. See § 1011.71(2), Fla. Stat. Petitioner has used the funding “for subsidizing or supplementing [its] rent.” If funds are appropriated by the Legislature, each year the Department is required to allocate capital outlay funds to eligible charter schools. The allocation is based on the number of students in the school. In school year 2017-2018, charter school capital outlay consisted of a combination of state and local funds, which included both a state appropriation and revenue resulting from the discretionary millage level levied by local school districts under section 1011.71(2). The state appropriation for charter school capital outlay for that year was $50 million. In order to receive capital outlay funds, a charter school must satisfy a number of criteria, one of which is that the school must have “satisfactory student achievement based on state accountability standards applicable to the charter school.” § 1013.62(1)(a)3., Fla. Stat. A school’s budgetary concerns are not a consideration in the approval process. Rule 6A-2.0020 governs eligibility for charter school capital outlay funds and implements the statutory requirement for satisfactory student achievement. The previous version of the rule, effective December 15, 2009, stated, in part: (2) The eligibility requirement for satisfactory student achievement under Section 1013.62, F.S., shall be determined in accordance with the language in the charter contract and the charter school’s current school improvement plan if the school has a current school improvement plan. A charter school receiving an “F” grade designation through the state accountability system, as defined in Section 1008.34, F.S., shall not be eligible for capital outlay funding for the school year immediately following the designation. Under this version of the rule, a charter school that received an “F” grade was automatically ineligible for capital outlay funding. A school that received any grade other than an “F” was evaluated based upon satisfaction of performance metrics in the charter school contract and the School Improvement Plan, if there was one. Therefore, capital outlay funding was not guaranteed to any charter school under the former version of the rule. The 2016 Legislature amended section 1013.62 to change eligibility criteria for charter school capital outlay funding, although the section of the statute relating to satisfactory student achievement was not amended. The goal of the Legislature was to raise academic standards required of charter schools in order to qualify for capital outlay funding. In order to comply with these statutory changes, the Department proposed revisions to rule 6A-2.0020. These proposed revisions also included changes to the criteria for determining satisfactory student achievement that would be required in order to be eligible for capital outlay funds. Rule development began in May 2016, and the Department anticipated that the amended rule would go into effect before school year 2016-2017. The Department determined that revisions to the satisfactory student achievement portion of the rule were necessary in order to be consistent with the Department’s overall approach to school quality and accountability, which included the adoption of new standards and assessments. Based on a review of the school grading statute, and the definition of a “D” school as one that is making less than satisfactory progress, the Department determined that a school earning an “F” or two consecutive grades below a “C” was not consistent with the requirement for satisfactory student achievement. The proposed rule was approved by the State Board of Education at the September 2016 board meeting, but was later withdrawn for further revision. On February 28, 2017, the Department published a Notice of Proposed Rule, proposing that, beginning in school year 2017- 2018, a charter school with two consecutive grades below a “C,” as well as a single “F” grade, would be ineligible for capital outlay funds. The amended portion of the rule that addresses satisfactory student achievement and which is at the heart of this dispute, states as follows: Satisfactory student achievement under Section 1013.62(1)(a)3., F.S., shall be determined by the school’s most recent grade designation or school improvement rating from the state accountability system as defined in Sections 1008.34 and 1008.341, F.S. Satisfactory student achievement for a school that does not receive a school grade or a school improvement rating, including a school that has not been in operation for at least one school year, shall be based on the student performance metrics in the charter school’s charter agreement. Allocations shall not be distributed until such time as school grade designations are known. For the school year 2016-17, a charter school that receives a grade designation of “F” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Beginning in the school year 2017-18, a charter school that receives a school improvement rating of “Unsatisfactory” shall not be eligible for capital outlay funding. The words, “Beginning in the school year 2017-18,” were included in the rule to make it clear that the new criteria for satisfactory student achievement would not apply to schools in school year 2016-2017, but instead would apply to schools applying for funding for the school year 2017-2018. These changes were approved by the State Board of Education on March 22, 2017, or before charter schools began submitting applications for funding for the following school year. Due to a third-party challenge of the new rule, however, it did not become effective until August 13, 2017. Fla. Ass’n of Indep. Charter Sch. v. Fla. Dep’t of Educ., Case No. 17-1986RP (Fla. DOAH July 21, 2017), aff’d, 2018 Fla. App. LEXIS 8802 (Fla. 1st DCA June 21, 2018)(per curiam). The Department requires charter schools to submit an application for capital outlay funding each year and requires the sponsoring school district to review the application and make a recommendation regarding eligibility. The applications are filed with the Department using a web-based system known as the Charter School Portal. The Commissioner of Education then makes the final decision as to whether the school has satisfied all eligibility requirements. For the school year 2017-2018, applications for charter school capital outlay funding were due by July 7, 2017, and each sponsoring school district was required to review and recommend its charter schools’ capital outlay plans by July 28, 2017. For school year 2017-2018, 582 applications were submitted for review by the Department. Petitioner began receiving capital outlay funding in school year 2015-2016. It also received funding for school year 2016-2017. Funding in those two years was based on the old rule. Because Petitioner expected, but was not guaranteed, to get capital outlay funding again in 2017-2018, it planned its budget for the upcoming school year with those funds included. Had its application been approved, Petitioner would have received approximately $68,000.00 in capital outlay funding. On June 27, 2017, or three months after the rule was adopted by the State Board of Education, Petitioner submitted its application for charter school capital outlay funding. The Department did not inform Petitioner by separate written notice that the new rule would apply to all capital outlay applications for school year 2017-2018.2/ On July 13, 2017, the Orange County School District recommended that Petitioner be eligible for capital funding. Based on the amended rule, which became effective on August 13, 2017, Petitioner was determined ineligible for capital outlay funding for the 2017-2018 school year, as its two most recent school grades from 2015-2016 and 2016-2017 were lower than a “C.” This determination was consistent with the language in the revised rule, which stated clearly that the rule would apply “Beginning in the school year 2017-18.” In making this determination, the Department applied the rule in a prospective manner, beginning with the 2017-2018 school year, but it used the two most recent school grades (2015-2016 and 2016-2017) to determine eligibility for capital outlay funds. Petitioner was one of approximately a dozen schools that were impacted adversely by the change in the rule. On August 29, 2017, the Department sent an automated email to Petitioner stating that the school was ineligible for capital outlay funds. The email informed Petitioner that the basis for the denial could be accessed on the web-based system that the school used for filing its application. Petitioner also was notified of the denial of capital outlay funds by letter dated October 30, 2017, and yet a third time in an amended letter dated February 2, 2018. The last paragraph in the amended letter reads as follows: After review of your Charter School Capital Outlay Plan, submitted for 2017-18 school year, it has been determined that your school is ineligible to receive charter school capital outlay fund. According to Rule 6A- 2.0020(4), Florida Administrative Code, beginning in the 2017-18 school year, a charter school that receives a grade designation of “F” or two (2) consecutive grades lower than a “C” shall not be eligible for capital outlay funding. Therefore, Kids Community College Charter does not meet the requirements for charter capital outlay funding for the 2017-18 school year, as the school received two consecutive grades lower than a “C” [in school years 2015-2016 and 2016-2017]. Petitioner contends that because the letter conflicts with the terms of the amended rule, it constitutes an unadopted rule and cannot be used as the basis for denying its application. In the same vein, Petitioner argues that the most reasonable interpretation of the rule is that only school grades earned beginning in 2017-2018 and beyond can be used to satisfy eligibility for capital outlay funds. This interpretation of the rule, however, would mean that charter schools with any grade designation, including “Fs,” could receive funding in school years 2017-2018 and 2018-2019. Also, it would effectively delay implementation of the new academic standards for two years. In short, if Petitioner’s interpretation is accepted, the new eligibility criteria could not take effect until school year 2019-2020. This is contrary to the Department’s interpretation of the rule, which determines eligibility for capital outlay funds based on the new criteria beginning in school year 2017- 2018. The Department’s interpretation of the rule is as or more reasonable than the interpretation offered by Petitioner. On February 23, 2018, Petitioner filed its request for an administrative hearing to contest the Department’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a final order denying Petitioner’s application for capital outlay funding for the school year 2017-2018. DONE AND ENTERED this 9th day of August, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2018.
The Issue Whether Petitioner has “just cause” to terminate Respondent’s employment as a bus operator due to incompetency and/or misconduct, for violation of Subsection 1012.33(1)(a), Florida Statutes; and for violations of School Board Policies 5.02, 5.03, and/or 5.29.
Findings Of Fact The School Board of Lee County, Florida (Petitioner) is the duly-authorized entity responsible for providing public education in Lee County, Florida. Dennis Osterbrink (Respondent), has been employed with Petitioner since September 21, 2006. Respondent has maintained his qualifications and is currently assigned as a bus operator in Petitioner’s transportation department. Respondent’s employment is governed by the agreement between the Support Personnel Association of Lee County (SPALC) and Petitioner. In October 2007, Respondent was operating a school bus route which transported students to and from Alva Elementary/Middle School. At that time it was reported to Transportation Supervisor Joe Howard that Respondent had claimed to a Sheriff’s deputy and other school board employees that the students on his bus were all “gang members” and were using gang signs and drugs. Following an investigation into the incident, Respondent was removed from the Alva Elementary/Middle School route for the remainder of the 2007-2008 school year. Respondent was then placed on a route driving students to and from East Lee County High School (ELCHS). In the Fall of 2008, Respondent, while assigned an ELCHS route, was making disparaging remarks about the students on his route. Respondent was counseled by Joe Howard about the comments he was making concerning the students. He was also counseled about an incident where he initiated his route too early and, as a result, only picked up four students, when the route typically had in excess of 30 students. Following the incidents involving the students from ELCHS, in early October 2008, Respondent went into the office of Robert Morgan, Director of Transportation East and alleged that Joe Howard, Respondent’s immediate supervisor and an African- American, was a “cell leader” of the “Black Panthers” political organization, and that he was recruiting students on his bus and in the school to plan a revolution. Respondent brought Morgan to Howard’s work space and showed him a picture of a black panther, that Howard had leaning against his cubical. Respondent offered this example as evidence of Howard’s affiliation with the Black Panthers. Respondent insisted to Morgan that the School District should contact the Federal Bureau of Investigation (FBI) and Homeland Security regarding Howard because he was collecting money from students as a “cell leader” of the Black Panthers, and was a danger to the community. Examination of the photograph revealed that the panther was shown in its natural habitat, with no indications of a political or any other message or insignia on it. Respondent offered no other proof to support his allegations. As a result of Respondent’s unsupported allegations, Respondent was removed from the East Lee County route, from under the supervision of Howard, and also from the Buckingham Compound and placed at the Six Mile Cypress Transportation compound. Howard’s testimony is credible that the picture of the panther in his office had no meaning, other than possibly as a school mascot. In addition, it is found that Howard is not a security risk to the School District or to the community. This is particularly the case since Howard served 21 years in the military and was honorably discharged and has worked more than 18 years for Petitioner as an exemplary employee. On March 30, 2009, Respondent was involved in a minor traffic mishap in the parking lot of the Six Mile Cypress Transportation compound with Linda Leamy, a fellow bus operator. Leamy is an African-American. After work, while backing out of a parking space, Respondent backed into Leamy’s car as it was passing by Respondent’s parking spot. Respondent’s vehicle struck the driver’s side rear door of her car. Leamy testified that she has been a bus operator for nine years and up until March 30, 2009, had never had dealings with Respondent. Following the collision, Leamy got out of her car to check the damage and to check to see if Respondent was injured or not. Respondent immediately began to disparage her by calling her a “stupid idiot.” Respondent used the term “bitches,” which was directed towards Leamy as he yelled at her. A crowd began to gather at the scene of the collision because Respondent was raising his voice. At that time, Leamy called dispatch and a supervisor came and escorted Respondent away from the scene. On May 15, 2009, Respondent was in the driver’s lounge at the Six Mile Cypress Transportation compound, and as he walked by a group of co-workers, he thought he heard another co- worker, Chrishaundra Phillips, say something derogatory directed towards him. Phillips is also African-American. Leamy was seated at a table nearby but was not involved. Respondent approached Phillips and said, “I know what you said.” Respondent then became irate, and slammed his hand on the table where Leamy was seated, and stated to her, “We can take care of this right now, let’s take it outside.” Respondent then stated, “I will defend myself against you people . . . .” Leamy stood up and asked everyone to witness Respondent’s actions. Respondent then stormed toward the exit door, which was not blocked, but yelled at another co-worker Vonetta Vickers, also an African-American, to “get out of my fucking way.” Respondent then called all the employees in the lounge a “bunch of gangsters” and stated, “Don’t push me or I’ll push back.” Morgan was called to handle the situation. Respondent’s irrational actions on May 15, 2009, were similar to his actions on March 30, 2009, and caused Leamy to be “scared,” and also to feel as though Respondent had it “out for her.” The testimony by several witnesses is reliable that on May 15, 2009, Respondent, while engaged in the confrontation in the drivers lounge, was using several types of racial remarks, including, “You people need to go back to where you came from, back to the housing projects; what are you going to do, get your gangs to beat me up?” Respondent also used the phrase, “all you black people” and the word “nigger” during his tirade. On August 10, 2009, while under suspension, Respondent was permitted to engage in bidding for a route for the 2009-2010 school year. While attending the bidding session, at Dunbar High School, Respondent informed Morgan that while walking through the parking lot, two black males drove passed him in a car, smoking cigars and made a shooting gesture towards him. When Morgan checked on the two students, he discovered that they were band members who were on campus as members of the marching band. There was no evidence presented to substantiate Respondent’s claims that they had threatened him. Respondent’s bizarre and racially motivated behavior continued. In late September 2009, Respondent filed a petition in the Circuit Court seeking a restraining order against both Leamy and Howard. Respondent alleged that Leamy tampered with his mail box; that she was in a gang; and that she was in the Black Panthers organization and had showed him some kind of weapon during the bidding. Respondent alleged that Howard threatened him in a parking lot; that he would have Respondent shot to death by two individuals; that his mailbox was tampered with; and that Howard was stalking him and was having others under his control stalk him. Both petitions were dismissed by the court. At a predetermination conference held on October 14, 2009, Respondent indicated that he was being terrorized by African-Americans and that Petitioner and its staff were complicit in this terrorism. He requested that Petitioner report all of the activities that he had alleged in the past to the United States Department of Homeland Security and the FBI. Respondent indicated that he was undergoing psychological and psychiatric counseling because of all of the “racial issues” he was dealing with, but failed to offer specifics regarding such treatment. Dr. Gregory Adkins, Chief Human Resources Officer, testified that Respondent’s testimony at the predetermination conference was “quite alarming.” He concluded that Respondent was not being specifically targeted by anyone and that Respondent was making “outlandish claims” that racism somehow runs through everything. Dr. Adkins stated that he questioned Respondent’s mental stability. Respondent was rated as effective in his annual performance assessment at the end of the school years 2006-2007, 2007-2008, and 2008-2009. Respondent was recommended for retention in his position, although two of his routing supervisors expressed concern about his communication skills with co-workers. The testimony is clear that Respondent is displaying irrational, paranoid behaviors while on the job, and should not be around students. It is apparent that Respondent cannot effectively supervise students while they are under his care on a school bus. Respondent has a severe problem coping or interacting with ethnically diverse people, which is characterized by his paranoid behavior, as outlined by the incidents highlighted above in this case. Respondent was thoroughly advised of his right to present testimony in his own defense, but he declined to testify in his own behalf. In addition, the testimony of the other witnesses presented by Petitioner was credible and persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County, enter a final order holding that just cause exists for termination of the employment of Respondent for violation of School Board Policies 5.02(2), (4) and 5.29(1); and that Respondent should be dismissed from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of June, 2010.
