The Issue The issues as alluded to in the Statement of Preliminary Matters and as will be more completely described in the course of this Recommended Order concern the question of whether the Respondent has committed offenses as a tenured instructor with the Petitioner, Daytona Beach Community College, which would cause disciplinary action to be taken against her, to include termination?
Findings Of Fact Background Facts Petitioner, Daytona Beach Community College, is an educational institution within the State of Florida charged with the responsibility of providing post-secondary education. To that end, it operates in accordance with the rules of the State Board of Education and State Board of Community Colleges and such rules, procedures and policies as its board of trustees would deem appropriate. Among the responsibilities of that board of trustees would be the hiring and firing of employees, to include instructional staff. See Section 240.319, Florida Statutes. Respondent, Amanda Leavitt, is an employee of the Daytona Beach Community College. She is a tenured faculty member. She holds the position of instructor and has been in a continuing contract position since August 17, 1981. Respondent, in addition to being an instructor, is the program manager in the Dental Assisting Program within the Division of Health, Human and Public Service Occupations of the Daytona Beach Community College. She had been an active member of the faculty until October 8, 1987, when she was suspended based upon the allegations that form the basis of this dispute. That suspension has remained in effect pending the outcome of the proceedings involving the charges at issue. The description of the procedural events that brought about the hearing in this case as set forth in the preliminary matters statement within this Recommended Order are incorporated as facts. The Petitioner, through its charges of October 12 and 23, 1987, has given sufficient notice to the Respondent to allow her to prepare and defend against those accusations. Respondent made a timely request for formal hearing in this case. This case began following complaints made by a number of students undergoing training in the Dental Assisting Program in the academic year 1986- 1987. Specifically, on June 11, 1987, these students, approximately twelve in number, met with the chairman of the Allied Health Department and program manager for the Respiratory Therapy Program, Charles Carroll, to describe their sense of dissatisfaction with certain circumstances within the Dental Assisting Program. Out of that conference, Carroll pursued the matter with Respondent Leavitt, and the Petitioner employed the offices of its internal auditor, Tom Root, to ascertain information about the contentions made by the students. Among other matters being examined by the auditor, was a question concerning the collection of money from the students within the Dental Assisting Program in that academic year, unrelated to the normal fee collections associated with enrollment at the Daytona Beach Community College. In furtherance of his task, the auditor prepared Internal Audit #83, which is constituted of the majority of Petitioner's exhibits. The audit was concluded on September 24, 1987, and contained twelve specific findings. Those findings, which were not favorable to the Respondent, formed the basis of her suspension on October 8, 1987, and underlie the five charges dating from October 12, 1987. Further investigation was done by the auditor subsequent to September 24, 1987, and that continuing investigation and certain conduct by the Respondent which the Petitioner regarded as actionable led to the two supplemental charges of October 23, 1987. Mr. Carroll had given the Respondent certain instructions concerning the allegations made by the students in which he sought the Respondent's assistance in clarifying what had occurred within the program and rectifying any problems that might exist. He was not satisfied with her response, as to the timeliness or the comprehensiveness of her reply to his instructions. The internal auditor in the face of Respondent's remarks about the funding dispute related to the payment of monies by the students sought to verify those observations by the Respondent by contact with members of the Dental Assisting Class in the academic year 1986-1987 and met with a considerable difference of opinion between those students and the Respondent. This led the auditor to believe that the Respondent was being less than candid in her relation of vents, so much so that the audit critical of the Respondent ensued. There is now related a discussion of the specific charges made against the Respondent: Charges 1 and 2 (October 12, 1987) Misconduct in office in the form of collecting and allowing those under your supervision to collect funds from students under false pretenses (i.e. claiming that these funds were lab fees) also the sale by you and those under your supervision of college program supplies, class handouts, and textbooks during the 1985-86, and 1986-87 school years. These collections were in violation of college policies and procedures and also violated the Code of Ethics of the Education Profession in Florida, principle one, concerning instructor's responsibilities for dealing justly and considerately with each student and avoiding exploitation of professional relationships with students. Misconduct in office in the form of the existence of a cash shortage of approximately $400.00 together with a total lack of records as to the disposition of these funds which were collected from dental students during the Fall semester 1986-87 and the improper depositing of some of these funds in an off-campus account during the Fall semester 1986-87. The academic year 1986-1987 was constituted of the Fall semester in 1986, the Winter semester in 1987 and a shortened semester described as a Spring semester in 1987. In that school year Respondent was issued contracts for the period August 18, 1986 through May 1, 1987 and May 5, 1987 through June 29, 1987. This included approximately one week of employment prior to the students coming on campus in the Fall 1986 and two weeks beyond the time of their final exams in the Spring term of 1987. The 1986-1987 Daytona Beach Community College Catalog describing the Dental Assisting Program had a reference to an estimated cost for a "lab kit" as being $50. This was the first time that any such reference had been made in the college catalog. In addition, within the Dental Assisting Student Handbook related to the Dental Assisting Program published for the Fall of 1986, there was a similar reference to the "lab kit .....$50" fee. This had not been referenced in the student handbook for the academic year 1985-1986. The reference for "lab kit.....$50," was again stated in the student handbook for the Winter term 1987. These remarks in the publications concerning the "lab kit $50. " were placed under the auspices of the Respondent. The origins of the reference to the $50 amount came about when the Respondent and another employee of the Daytona Beach Community College, Sharon Mathes, had visited Santa Fe Community College in Gainesville, Florida, and observed that the students in a similar dental assisting program to that of the Daytona Beach Community College program had individual laboratory kits. Respondent and Mathes then discussed that it might be beneficial to have individual laboratory kits for the students in the Daytona Beach Community College program. This individual disbursement in their mind might assist in the preservation of the school's property and teach responsibility on the part of the students. The materials that were to be placed in the kit for the academic year 1986-1987 were purchased through the ordinary purchase order process for the provision of supplies for the Dental Assisting Program at school expense. This was a process in which an inventory check was made and necessary implements to fill out kits for an anticipated student enrollment of 25 participants were purchased. In this planning, a discussion was entered into between Respondent and Mathes concerning the question of whether the students should repurchase those materials that had been paid for through the ordinary expenditures associated with the program. Specifically, Respondent had made mention of the fact of the students buying the contents. However, it was never decided that they would buy those materials based upon a decision made between the Respondent and Mathes. Mathes surmises that it was not decided because the cost of those materials would be in excess of $70-75, an amount which exceeded the "lab kit. $50." The students did purchase the container or art box into which the materials were placed. This purchase was made from the campus bookstore and was not part of the $50 fee. At the commencement of the academic year 1986-1987, their uncertainty remained as to the use of any $50 amount to be collected from each student, reference the "lab kit." Respondent and Mathes had discussed the fact that, if the students returned laboratory kit items and some were missing or broken, that some of the money that had been gained from the students might be used to replace those items and avoid having to issue further purchase orders to be paid for by the Daytona Beach Community College for the replacement of those items that were no longer available for use. It was also discussed that the money might be used to offset other expenses such as costs of graduation, to send a student to a seminar, or possibly establishing a fund for students that may become financially stricken and might not be able to complete the program without financial assistance directed toward their tuition. There had also been discussion of reimbursement of monies not used for these general purposes, but no amount was arrived at concerning reimbursement. In the final analysis, the impression that Mathes was given out of these discussions was that the money would be used in the program and dispensed however it might be needed. In any event, it was determined by the Respondent and Mathes that $50 additional money over and above other fees authorized by the Daytona Beach Community College would be collected for each student participating in the Dental Assisting Program in the 1986-1987 academic year. It was explained to the students the $50 additional cost, a product of the Respondent and Mathes unrelated to authorized collections through the Daytona Beach Community College, was an additional cost item. The students were told that if it were a fee that was too much, they would have the opportunity to drop out of the program. Thus, the fee was presented as a mandatory fee. At the orientation at the beginning of in the academic year 1986-1987, Respondent, and Mathes, participated in the explanation about the $50 charge. The presentation by the Respondent and Mathes pointed out to the students that the $50 extra cost described as "lab kit-$50" was related to materials such as plaster that the students would employ in their course work and to defray expenses associated with graduation. The impression given to the students was that the materials were being rented or leased. The explanation given was that the $50 amount must be paid before graduation. In furtherance of this purpose, Respondent and Mathes continued to pursue the collection of this $50 amount from the students throughout the Fall term 1986. Laboratory fee amounts were collected from 16 students. Nine students paid the amount by check and seven through cash payments. The checks totalling $450 and cash in the amount of $50 was deposited in an off-campus bank account, unauthorized by the Daytona Beach Community College. This account was described with the Sun Bank of Volusia County, Daytona Beach, Florida, as DBCC Student Dental Assistants' Association. Checks by the students were made over to the Dental Assisting Program of DBCC or Daytona Beach Community College. There were $300 in funds collected from the students which had not been deposited into the bank account, and the exact whereabouts of those funds has not been established. The money collected and deposited and that which is unaccounted for had been held in an area of the physical plant related to the Dental Assisting Program to which faculty and students had easy access. Placement of the $50 fees on the grounds of the Daytona Beach Community College included placement in a cigar box in a file drawer and one $50 cash payment was kept or maintained separately in Respondent's desk drawer for what is described on the receipt given to that student as "...for cash." That student was Susan Woodstock. That $50 was part of the $300 which has not been explained in terms of its ultimate disposition. Respondent has contended that these $50 collections were in the way of club dues similar to those that had been collected in years previous for students participating in the Dental Assisting Program, as recently as the academic year 1985- 1986. In that year and other years as well which predate 1986- 1987, the students had paid incremental dues, usually $5 per month, for participation in a club. On the occasion of the academic year 1986-1987, collections for participation in a student club were not made. Therefore, the $50 amounts paid were unrelated to club dues. Having considered the facts in this case, it is evident that the Respondent was aware that the $50 collections from the 16 students were not associated with club dues. Respondent also participated in and condoned the unauthorized sale of X-ray film and pencils to the students in the academic year 1986-1987 and in other school years. These monies were collected in the way of petty cash maintained in envelopes in the Respondent's desk or in a cigar box maintained in another area. No receipts were given concerning the collection of these monies and no records were maintained. Mary Reep, a dental assisting student at Daytona Beach Community College in the academic year 1985-1986 paid $5 for the student handbook associated with that coursework. This handbook should have been provided without paying her program instructors. The payment was made to the Respondent and Mathes who were participating in the sale of the handbook. Reep also observed other people purchase the student handbook in that year. Mathes participated in other sales of handbooks than the transaction with Reep in the academic year 1985-1986, Fall semester. On this occasion, Respondent remarked to Mathes that if the community college knew of this collection of $5 for the handbooks, Respondent would be "fired." This practice of the sale of the handbooks continued in the academic year 1986-1987, at which time a number of students purchased the Fall 1986 student handbook from the Respondent and Mathes. During the time that Mathes had been working in the Dental Assisting Program, this had been the common practice, i.e. the collection of funds for the student handbook. On every occasion, the students had been entitled to be provided a student handbook without charges beyond those authorized by the Daytona Beach Community College. The community college had not allowed for additional charges by faculty placed against the students when distributing the student handbooks. Charge 3 (October 12, 1987) Misconduct in office for your intentional overpayment of assistants for work not performed by them during December 1985 and January 1986. On August 28, 1985, Respondent wrote to Charles Carroll, her supervisor, and asked, among other things, that two instructors be hired to help manage and oversee 24 students. This related to making available two persons who had a familiarity with the University of Florida's dental school, at which the students would be involved in an externship program commencing in January, 1986, or the Winter term of the academic year 1985-1986. In turn, Carroll referred this to his superior, Dr. Lynn O'Hara, describing the transport and involvement in the Winter term. This memo to Carroll from O'Hara is of September 9, 1985. On September 16, 1985, O'Hara wrote a memo to Carroll in which it was indicated that one position could be approved to be shared by two persons, if the hiring did not commence during the Fall term. Nonetheless, Respondent arranged for and took Denise Dorne and Kim Rockey to the dental school in Gainesville, Florida on December 18, 1985, during the Fall semester. No indication was made in the Respondent's request for leave that she would intend to take Dorne and Rockey. Respondent followed this trip by including eleven hours of paid time for the December 18, 1985 trip for Dorne and Rockey on their initial pay request for the month of January, 1986, which was signed by the Respondent. In effect, these two individuals had, contrary to the instructions of the Respondent's superior, been allowed to undertake activities at a time which they were not authorized to participate as employees in the Dental Assisting Program at Daytona Beach Community College. Dorne and Rockey were paid for eight trips made for class participation in the Winter term of 1986 in the externship at the dental school in Gainesville, Florida, as shown in pay requests that were signed and submitted by the Respondent for the benefit of those employees. This action by the Respondent was taken knowing that the two individuals had not attended one of the sessions in Gainesville. This circumstance is mitigated by the fact that the Respondent had the two individuals undertake other assignments of equal value to make up for the nonattendance at the externship session. Charge 4 (October 12, 1987) Willful neglect of duty and misconduct in office for your absence without authorized leave and failure to perform your duties on January 23, 1986 for which you received pay; your failure to teach all classes as indicated on your Load Letter as your teaching responsibility during the Fall semester 1986; and Absence without Leave and failure to fulfill prescribed duties for the period of June 22 through June 29, 1987, for which you received pay. On January 15, 1986, Respondent made request for annual leave for January 24 and 27, 1986, which was approved. She also determined to take leave and was absent on January 23, 1986, without authorization. On January 23, 1986, she was on a ski trip in North Carolina. The fact of her being away from the Daytona Beach Community College is acknowledged in a slip found within the Petitioner's Exhibit 32 in which she says, "I had leave on 1/23/86." This references the reason why she is not seeking to collect money for participation in the externship at the dental school in Gainesville, Florida on that date as discussed in Petitioner's Exhibit 32. Related to this nonattendance, Respondent has been less than forthcoming. Only when confronted with details by way of evidence demonstrating her whereabouts on January 23, 1986, that is, Bannerelk, North Carolina, did she reluctantly acknowledge not being at her job on January 23, 1986. The impression given is that she deliberately took time off from her employment on January 23, 1986 without permission. An item referred to as a Load Letter forms the basis of describing the requirement of an instructor with the Daytona Beach Community College to teach the number of hours and the courses, at the prescribed times as set out in that document. This is the bargain which the instructor makes with the community college. The Fall semester 1986 Load Letter indicates that the Respondent was to teach Class #1671 on Monday morning at 11:00 to 11:53 and Class #1669 on Monday afternoon from 1:00 to 4:53. Contrary to her obligation, Respondent did not teach those classes. Instead, she used Sharon Mathes to teach Class #1671 (dental anatomy) on Wednesday morning and Class #1669 (biomedical sciences) on Monday afternoon at its scheduled time. The reason for changing the dental anatomy class slot was to accommodate the students by not causing them to be confronted with too much in the way of difficult material on Monday, and which would have also placed them in the position of not being prepared for a Tuesday afternoon laboratory which needed a lecture class by way of predicate. Sharon Mathes was paid as an instructor in the Fall 1986 term in her dental materials class, taught on Monday morning. She received a different classification of pay at a lesser rate for the classes taught which had appeared on the Respondent's Load Letter, Class #1671 and Class #1669. Respondent was also paid as the instructor teaching those classes listed on Respondent's Load Letter. The student evaluations forms related to Class #1671 and Class #1669 taught by Mathes in the Fall term 1986 show the Respondent's name as the instructor providing contact hours with the students in those two classes. Moreover, in a part-time instructional monthly report and salary voucher related to Class #1671, Respondent indicates that she taught this course on Monday morning, when in fact it was taught on Wednesday morning by Sharon Mathes. This part-time instructional report relates to an overload payment beyond the basic salary structure associated with Respondent's duties under contract, which are to teach a load of 15 hours. The first 15 hours of that 17 hours tame under her normal salary structure and included Class #1669. Respondent's protestations that this arrangement in the Fall of 1986 in which Mathes taught classes on the Respondent's Load Letter, Mathes was paid at a rate not commensurate with service as an instructor, evaluations were made by students related to an instructor who did not teach them, Respondent was paid for her normal teaching load and an overload for classes not taught were items contemplated by an accreditation arrangement with the American Dental Association and countenanced by the Daytona Beach Community College are unavailing. These arrangements which Respondent made concerning her responsibilities for teaching in the Fall 1986 were misleading, unauthorized and contrary to her employment agreement with the community college. Charge 5 (October 12, 1987) Gross insubordination for your failure to comply with DBCC Procedure #1091 which requires your cooperation with the College as it attempted to determine the accuracy of the various allegations made against you by the students and the additional matters described above which were discovered by the College Administration during its investigation. In the afore-mentioned meeting of June 11, 1987 between students in the Dental Assisting Program and Charles Carroll, a discussion was entered into concerning the payment of the $50 fees which has been described as the "lab kit- $50." Other complaints were aired as well, leading Carroll to focus on the overall program and the "lab kit" cost in particular. To this end, Carroll contacted the Respondent on the same date and discussed his concerns with her. Following that meeting, among the instructions given by his memorandum of June 15, 1987, Carroll told Respondent to immediately dissolve the student association and to provide a detailed accounting of the disposition of club assets as he had had those described to him by the Respondent. He informed the Respondent that she should operate student club activities under the guidelines established by the Student Government Association on campus. In addition, he asked the Respondent to meet with him before the school year concluded, that is the school year 1986-1987, so that they might review the student handbook and grading policies. Respondent was instructed to bring copies of those materials for his records. Related to the checking account which was associated with the Sun Bank, Respondent explained to Carroll in the June 11, 1987 meeting that checks were outstanding and although she did not indicate that checks would have to be written to conclude other expenses within the academic year, she did describe that those expenses were forthcoming. This discussion about expenses pertains to a check written to K-Mart on June 9, 1987 in the amount of $19.89 for Cross pens for two dentists associated with the Dental Assisting Program in recognition of that association; a check written in the amount of $52.30 to the Belleview Florist on June 9, 1987 for flowers for the graduation dinner for the students in the 1986-1987 class, and a check that would be written to Marker 32 in the amount of $155.35 for costs of the graduation dinners, that check being written on June 12, 1987. The checks of June 9, 1987 cleared the bank on June 11, 1987, and the June 12, 1987 check cleared the bank on June 16, 1987. Ultimately, a balance was left in the account of $127.18. Following the June 11, 1987 meeting, Respondent informed Carroll that she was waiting for the last bank statement before closing out the account. Petitioner's Exhibit 115 is the last bank statement rendered with an ending balance of $130.18 from which $3 was deducted, leaving the balance at $127.18. The ending balance reflects the date June 30, 1987. Prior to the rendering of this bank statement, on June 23, 1987, Carroll had written to the Respondent and told her that it was unacceptable for her to wait for the normal statement of ending balance and expressed his belief that the bank would provide a final accounting upon closure of the account. In this case, the proof is missing on whether the bank would have provided an accounting at the closure of the account following the clearing of the last check on June 16, 1987. As of June 30, 1987, when the account ending balance was established, Respondent was between school years and not under active employment by the Petitioner. She did not take any action to close the account in June and July, 1987. Nor did the Respondent provide a copy of the student handbook; instead, she excerpted three pages from that handbook and gave those to Carroll. Carroll was unable to find the Respondent on campus during the work week June 22 through June 25, 1987, and wrote a memorandum on June 29, 1987 referring to the fact that he had made several attempts to contact her and noting that she was unavailable in her office and not subject to contact at her home. He admonished her about not being in attendance or on authorized leave, and by his remarks referred to the need to discuss urgent matters. In fact, Respondent, as alluded to in Charge 4, was not at her work place June 22 through June 25, 1987 and had not been granted permission to miss that time. On July 15, 1987, beyond the contract year, Respondent was written by Carroll in which he references his correspondence of June 15 and 23, 1987, and complains about the failure to provide evidence that the Student Dental Assisting Association has been dissolved, and that an accounting has been made related to what he refers to as "club assets." He also indicates that he did not feel that the Respondent was cooperating in providing requested information. On July 23, 1987, Charles R. Mojock wrote to the Respondent referring to the fact that he did not believe that the bank account related to the Student Dental Assisting Association was legal, and that he believed it was contrary to State statute and to community college policy, based upon his discussion with others in the administration at the community college. As a consequence, he reminded the Respondent that, the sooner the funds were removed from that account, the easier it would be to settle the matter. He recounts in this memorandum what he believed to be a problem with the Respondent's compliance with the requests related to the account. The memorandum is basically conciliatory indicating that it was not intended to make accusations, but to resolve the problem. Eventually on August 3, 1987, Respondent wrote to Tom Root, the auditor at the community college, and apprised him of her willingness to provide information that he sought upon his return from leave. This return to his job was supposed to occur on August 12, 1987. On August 13, 1987, the Respondent turned over to Root the balance of the funds in the Sun Bank account by cashier's check which was credited to the Community College Foundation account and a receipt given to the Respondent. Those funds were left to be used for the benefit of needy dental assisting students. The amount of cash found within the instructional area of the Dental Assisting Program, was $15.08. Respondent also provided the auditor with an item dated August 3, 1987, on stationary of the Daytona Beach Community College, referred to as a Student Dental Assistant 1986-1987, listing officers and the comment that dues were collected in the amount of $5 per month as the source of revenue. This reference too $5 dues as already found is false. It goes on to state that no fund-raising had been undertaken. It states, "I do not think there were any fund-raising activities." This is taken to mean what the Respondent asserted, according to this document. Under "expenditures," there is a reference to open house refreshments, Halloween party, buffet lunch, gifts for speakers, flowers and cards for classmates, reference books from the book rack, donation of a magnifying glass, graduation flowers and dinners. On August 18, 1987, the internal auditor wrote to the Respondent requesting additional information related to receipts for the funds paid by the students in the 1986-1987 year and bank statements. He opines in this memorandum that the Respondent either was misunderstanding his request or was misrepresenting the way the funds were collected. Respondent replied to the memorandum of August 18, 1987 by a memorandum of August 20, 1987 and through a phone conversation with the auditor. In the memorandum by the Respondent, she indicates that she was unaware that funds were collected by Mathes until after the fact, meaning the $50 collection and that the students had been misled about the intent of the funds in their student account. This contention in the memorandum of August 20, 1987 is patently false and is seen as thwarting the efforts on the part of the auditor to discern the true facts of the matter. Respondent was aware of the $50 fee collection. Other suggestions within the memorandum refer to the fact that she had been told that part of the funds were to be used for replacement of lost items in the lab kit pertaining to the students, and from there came the phrase "lab kit rental." She talks in terms of the fact that the students were aware that the money was being used for name tags, open house, doctor's gifts and graduation. She states that this strongly suggests that the dues were mandatory. She goes on to describe that Ms. Mathes, once she left, had no records of who had or had not paid, and no effort was made to collect unpaid dues, and the fact that this was the obligation of the student treasurer. All of these comments were apparently designed to deflect the attention away from the true status of the matter, which included the fact that no student dues were collected in the amount of $5, that the Respondent was thoroughly acquainted with the collection of the $50 fee amounts for use of laboratory materials and graduation, and that the student treasurer had no part to play in the collection of these $50 fees or the deposit of those sums. By contrast, Respondent had been involved in the collection of fees and the endorsement of checks and payment of those fees which were deposited. Furthermore, her disclaimer of having knowledge of what was on the front of the checks she endorsed in terms of the reason for the $50 checks being written, five in number and that she only endorsed the backs without a knowledge of the reason for the checks is incredulous. The facts of this case lead to the conclusion that Respondent did know what those five checks were for. The Respondent was also in possession of Exhibit 42 offered by her at the hearing which showed a list of student signatures reflecting both those who had not paid and subsequent dates of when the students had paid. This exhibit was not revealed to the auditor during his investigation, though such information was sought by the auditor. It only became a matter within his knowledge on February 8, 1988. The memorandum of August 20, 1987 by the Respondent indicates having discussions with the students concerning ways to use the money that had been given for the laboratory kits or fee and the fact that it was decided that a certain workbook referred to as a Core Packet should not be assigned, meaning in the future, but be used as a reference in the future. This Core Packet had been purchased by the students for course work in the amount of approximately $40 and ordered from an off-campus bookstore. Additional copies remained from the order that had been placed with that bookstore, and these were purchased from that store known as the Campus Bookrack, six Core packets in all at the expense of $178.08 taken from the Student Dental Assisting account at the Sun Bank. Contrary to the memorandum and her testimony, the students had no knowledge of this purchase and did not condone it. Neither did the students condone the purchase of a magnifying glass to be used for the sharpening of dental instruments in one of the classes related to this program. The memorandum says the students agreed that a lighted magnifying glass would help them in sharpening instruments, and discussion between Respondent and the students led to the students donating that magnifying glass. No discussion of this nature was held with the students as outlined in the memorandum of August 20, 1987, and described in testimony by the Respondent at hearing. Respondent did spend $47.20 in the purchase of the magnifying light. In summary, Respondent had been involved with the establishment of the $50 extra fee as listed in the 1986-1987 college catalog and in the Fall 1986 and Winter 1987 student handbooks, but she failed to advise the auditor about this or that she was present while it was being discussed with the students at orientation in the Fall of 1986 or that she had endorsed checks comprising the initial deposit of the $50 collections in the bank account. This together with other items as described greatly impeded the efforts of the college at determining the reason for the $50 charge, who was responsible for placing the charge and who among the students had paid the money. The principal manifestation of the impediment was experienced by the internal auditor when all sixteen students who paid the $50 fee held a different and generally consistent viewpoint from that of Respondent concerning the fee and its usage. This lead to additional effort by the auditor in ascertaining the true facts. Charge 6 (October 23, 1987) Gross Insubordination for your willfully altering information related to the College's investigation, which is in violation of DBCC procedure #1091. In support of this charge, the following witnesses; Mr. Robert Schreiber, Mr. Charles Carroll, Mr. Tom Root, Ms. April Pulcrano, and Mr. Charles R. Mojock will testify that they were present (or in telephone contact) during the discussion regarding the possibility of your tendering your resignation. They will refute your statement that you were informed that if you did not resign, "the case would be turned over to the State Attorney for a theft prosecution." They will further refute that you were told "that this was extremely important so that the College could cover the alleged fund shortage from detection by state auditors." On October 8, 1987, counsel for the Respondent wrote to the Board of Trustees of the Daytona Beach Community College and discussed his interest in reconciling the differences between the parties amicably. In that correspondence, there is found the following reference "...Early in the school year, Mrs. Leavitt was notified by several of her superiors that, if she did not resign, her case would be turned over to the State Attorney for a theft prosecution. In addition, she was told that this was extremely important so that the college could cover the alleged fund shortage from detection by state auditors." This is an attorney's attempt to state his client's position and from this event the prosecution seeks to have the Respondent found insubordinate. Having considered the testimony of Charles Carroll, Robert Schreiber and Chuck Mojock, together with the Respondent, there is clearly a difference of opinion about what was said in various meetings between the Respondent and administration officials within the community college. On balance, the exact facts may not be found which describe insubordination for remarks found within correspondence by counsel for the Respondent attributable to his client. Charge 7 (October 23, 1987) Misconduct in office for your use of part- time employees and a student teacher to teach a substantial portion of your assigned instructional load during the Winter of 1987. Specifically, the College will show that the externship program (Section 1667) with local dentists' offices, was conducted totally by Ms. Elizabeth Switch and Ms. April Pulcrano. In addition, Ms. Switch taught Practice Management (Section 1664) and Ms. Pulcrano taught Preventive Dentistry and Nutrition (Section 1665). Ms. Pulcrano will testify (and students enrolled in the Externship course will confirm this fact) that only she and Ms. Switch made visits to the local externship sites, and that Ms. Pulcrano had responsibility for writing up the reports, meeting with students, and assigning grades for this course. Ms. Pulcrano will further testify that you approached her during the first week of the Fall term in this academic year and asked her to teach the Dental Anatomy and Physiology course, but to be paid at the staff assistant pay rate instead of the appropriate adjunct instructional pay rate. The numbers of hours on the Load Sheet pertaining to the Respondent for the Winter term 1987 showed 14 semester hours for which courses are set out. Respondent routinely taught only one of those classes, Chairside Assisting II, on Fridays from 10:00 a.m. until noon. This was two lecture hours and two hours of contact. The remaining four contact hours for laboratory, which equated to two semester hours of the four total hours associated with Chairside Assisting II, Course #1666, were not done by the Respondent. As the Load Letter contemplates, the laboratory was done by an adjunct instructor. On the Load Letter for Winter 1987 and in keeping with the continuing contract entered into on August 17, 1981 and at subsequent times Respondent should have taught the remaining courses reflected on her Load Letter for the Winter semester 1987. One of those courses was Course #1664, Practice Management, a course for which she was entitled to receive an overload payment, according to the Load Letter. Respondent turned in the overload pay sheet for that course certifying that she had taught the class, when in fact Elizabeth Switch, a part- time instructor, taught that class and was paid for her work. In this same term, Winter 1987, April Pulcrano, a student from the University of Central Florida, served as a student teacher in the Dental Assisting Program. She was hired by the Respondent to teach Chairside II laboratories on Monday afternoon and on Wednesday afternoon. She also was made responsible for the externship of students during the Winter semester consisting of her visitations to dental offices where the students had been placed to gain clinical experience as part of their studies at' the community college. Pulcrano's involvement in the externship included administrative paperwork, involving forms of evaluation which the dental offices made of the performance of students who were externed. She summarized and provided grades to the externship students in this program. These activities by Pulcrano were done on a routine basis in which she was primarily responsible for the externship program with assistance one day a week on the part of Elizabeth Switch. The externship program involving six semester hours and 12 contact hours per week in Course #1667 was the responsibility of the Respondent, according to her Load Letter in the Winter term 1987. Respondent had initial contact with this responsibility on the first day that the students were dispatched to various dental offices throughout Volusia County, Florida, and some occasional contact beyond that point. This involvement by the Respondent did not approach the kind of responsibility contemplated by the assignment in her Load Letter. A course on the Load Letter of Winter 1987 related to the Respondent was what is referred to as Prevention and Nutrition, Course #1665. This is a two hour course with two contact hours. This course was taught by Pulcrano and not the Respondent. Respondent did not assist Pulcrano in the laboratory portion of a Chairside Assisting II class, and the Respondent placed Pulcrano into the class without introduction or explanation. As with the circumstance related in Charge 4, the failure to teach courses on the Load Letter pertaining to the Fall semester 1986, Respondent had not been relieved of the necessity to teach her courses reflected in the Load Letter pertaining to the Winter semester 1987.
Recommendation Based upon the full consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered terminating Amanda Leavitt's employment with the Daytona Beach Community College and providing for the forfeiture of her pay received for January 23, 1986 and January 22, 1987 through January 29, 1987. DONE and ENTERED this 15th day of April, 1988, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4937 Petitioner has offered fact finding in its proposed recommended order. Respondent gave argument but declined to offer fact proposals. Petitioner's facts have been used as subordinate facts with the exception of the following which are rejected for reasons described: Charges 1 and 2: Paragraph 9 is not necessary to the resolution of the dispute. Paragraph 17 is rejected because the evidence was not sufficient to find violations in the years contemplated in Charge 1. Paragraph 18 describes facts which are not contemplated within the charging documents. Charge 6: Paragraphs 3-7 are contrary to facts found. Charge 7: Paragraph 1 is not relevant. Paragraph 3 is not relevant. COPIES FURNISHED: J. Dana Fogle, Esquire FOGLE & FOGLE, P.A. Post Office Box 817 DeLand, Florida 32721-0817 Jason G. Reynolds, Esquire COBLE, BARRIN, ROTHERT, GORDON, MORRIS, LEWIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32020 Dr. Charles Polk, President Daytona Beach Community College Post Office Box 1111 Daytona Beach, Florida 32015 Board of Trustees Daytona Beach Community College c/o J. Dana Fogle, Esquire FOGLE & FOGLE, P.A. Post Office Box 817 DeLand, Florida 32721-0817
Findings Of Fact Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification. Both Petitioner and the sole other applicant met the published/posted threshold qualifications. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3, Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred." In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992. ELLA JANE P. DAVIS, 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 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15. 22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law. Respondent's PFOF: 1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 8, and 13: Rejected as subordinate and unnecessary. 9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order. COPIES FURNISHED: Harry Lamb, Jr., Esquire Perry & Lamb, P.A. 605 E. Robinson Street Suite 630 Orlando, Florida 32801 Marshall E. Wood, Esquire 303 Centre Street Suite 200 Post Office P Fernandina Beach, Florida 32034 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034
The Issue The issue is whether Respondent's tentative decision to attempt to negotiate with Intervenor a contract for services as a construction manager at risk is contrary to statutes, rules, policies, or the request for qualifications, in violation of Section 120.57(3)(f), Florida Statutes.
Findings Of Fact In 2001, Respondent began to investigate various options for the construction of Jensen Beach High School and reconstruction of Port Salerno Elementary School. The recent, sudden departure of Respondent's Director of Facilities and several of his employees left Respondent with few employees sufficiently experienced to deal with a general contractor constructing substantial projects, such as the construction of these two schools. Respondent thus considered the use of a construction manager and construction manager at risk (CMAR) contract. Under these types of contracts, Respondent would hire a construction manager to serve as its representative in entering into contracts with subcontractors and suppliers. Although not relevant to this case, the CMAR contract imposes upon the construction manager greater risks for increased construction costs. Initially, Superintendent Wilcox and School Board Attorney Griffin investigated the CMAR form of contract. After they had decided to recommend the use of a CMAR, on January 14, 2002, Respondent hired Rodger Osborne as the new Director of Facilities, and Mr. Osborne assumed from them the primary responsibility for investigating and later implementing the CMAR procurement in this case. Immediately prior to his employment with Respondent, Mr. Osborne had been the Director of Maintenance and Operations for the Charlotte County School District. In this capacity, Mr. Osborne managed construction, maintenance, and operations for the school district. Among his duties was the procurement of construction contracts. The Charlotte County School District has used the CMAR form of contract seven or eight times. Managing the process, Mr. Osborne borrowed provisions and procedures from various sources, including state statutes and provisions used by Sarasota County. Four days after Mr. Osborne began employment with Respondent, Mr. Griffin submitted a memorandum to the Martin County School Board in which he recommended that it approve the use of a CMAR for the construction of Jensen Beach High School and Port Salerno Elementary School. Eight days after Mr. Osborne began employment with Respondent, the Martin County School Board approved Mr. Griffin's recommendation and authorized Respondent to advertise for applicants to serve as the CMAR for these projects. Mr. Osborne's first task as Director of Facilities was to prepare the legal advertisement. On January 28, 2002--two weeks after Mr. Osborne had started working for Respondent--a local newspaper published the first of three legal advertisements for submittals from interested parties. The advertisement states: MARTIN COUNTY PUBLIC SCHOOLS will select a qualified Construction Manager at Risk under the Consultants' Competitive Negotiation Act to provide preconstruction and construction services for the Port Salerno Elementary Replacement School and Jensen Beach High School. The School District will award both projects to a single Construction Manager at Risk. Firms interested in being considered are requested to submit a letter of interest, resumes of key personnel who would be used on the project, proof of professional liability insurability as required by Martin County Public Schools and a copy of Florida Registration Certification. Each applicant must submit a completed Professional Qualification Supplement (PQS). Copies of the PQS Format and project information are available through the Facilities Department by calling [telephone number omitted]. All data must be current as of date of submission and received no later than 4 P.M. February 15, 2002. Submissions to be received by: Director of Facilities Martin County Public Schools 500 East Ocean Stuart, Fl. 34994 Anticipated award date is, March 19, 2002, with work to begin immediately. Estimated construction cost of $43,500,000. In accordance with School Board Rule 6Gx43-8.01, the Professional Services Selection Committee will rank the top three (3) firms and submit the ranking of firms to the Superintendent and School Board. MARTIN COUNTY PUBLIC SCHOOLS Dr. Sara Wilcox, Superintendent Fifteen potential applicants timely submitted responses to the advertisement. Mr. Osborne supplied each of these applicants a package consisting of another copy of the advertisement and "Guidelines for Selection of Construction Manager at Risk for Martin County Schools" (Guidelines). The Guidelines state: Complete all items of the Professional Qualifications Statement (PQS) for Construction Manager at Risk. Submit not less than three copies of the PQS along with any supporting information to Director of Facilities, Martin County Public Schools, 500 East Ocean, Stuart, Fl 34994. SHORT LIST Within approximately seven (7) days after the submission date of 4 P.M. February 15, 2002, for the purpose of reducing the number of applicants qualifying for interviews to no more than six (6), a short list committee will be formed. The Short List Committee will include one School Board Member, one Superintendent's designee, one representative from Operation Services, one Program Staff Member, the Director of Facilities and Supervisor of Construction. The Director of Facilities will serve as chairperson. The following criteria and point values will be used to determine a number rating for each applicant: Letter of Interest 0 points [PQS] 0 points Certified Minority Business 5 points Location 1-5 points Current Work Load 0-10 points Capability 0-10 points Professional Accomplishments 0-10 points Up to six (6) firms with the highest rankings will be interviewed by the Professional Services Selection (Ranking) Committee. The package supplied to potential applicants contained blank scoring sheets with specific points assigned to different factual scenarios. The package also contained a fact sheet describing each of the schools to be constructed and a set of forms seeking specific information; the forms were part of the Professional Qualification Statement for Construction Manager At Risk (PQS). PQS Paragraph E states: RELATED EXPERIENCE List the three (3) projects in the last five (5) years for which your firm has provided/is providing construction management and/or general contracting services which are most similar in scope to this project. In determining which projects are more related, consider: related size and complexity; how many members of the proposed team worked on the listed project; and how recently the project was completed. List the projects in priority order, with the most related project listed first. The PQS form provides one box that asks for specific information about the three listed projects, such as the size, type of construction, and construction cost. The PQS form supplies another box for a "detailed description of projects." PQS Paragraph F requires the disclosure, for each of the three projects, the owner budget, final budget, schedule status, and impact of firm on the final results. PQS Paragraph G states: PROPOSED TEAM Describe your proposed organization structure for this program indicating key personnel and their relationship to this project and other team members. Give brief resumes of key persons to be assigned to the program. The PQS form provides one box for office staff and one box for onsite staff. Each box asks for specific information about the listed key personnel, such as the percentage of time they will be assigned fulltime to the subject projects; their experience in terms of "types of projects, size of projects, [and] project responsibilities"; and "other experience and qualifications relevant to this project." Mentioned in the legal advertisement, although not included in the package, Respondent's Rule 6Gx43-8.01 provides: FACILITIES AND OPERATIONS 6Gx43-8.01 Professional Services Professional Service Contracts between the Board and architects, engineers and surveyors shall follow the following procedures if the basic construction cost for the project is estimated to be greater than $120,000 or if the fee for professional service for planning or study is estimated to exceed $8,500 (except valid emergencies so certified by the Superintendent of Schools): Publicly announce each project indicating: general project description how interested parties can apply Certify firms or individuals wishing to provide professional services while considering: General Services Administration Forms 254 and 255. Past performance Willingness to meet requirements of: time budget availability--planning-- construction ability to furnish required service Firm's workload in relation to job under construction. Volume of work previously awarded to the firm. A committee, comprised of the Superintendent of Schools and/or his/her designee, appropriate staff members, and an annually appointed School Board Members [sic] shall recommend to the School Board a minimum of three (3) "certified" firms or individuals which shall be recommended in order of preference 1, 2, and 3, with the object of effecting an equitable distribution of contracts, providing the selection of the most highly qualified firm is not violated. The School Board, or its designee, shall negotiate a contract with the most qualified firm for professional services at compensation which the School Board, or its designee, determines if fair, competitive, and reasonable. In making such determination, a detailed analysis of the cost of professional services shall be conducted in addition to considering the scope and complexity of the services required for the project. Should the School Board, or its designee, be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a price the School Board, or its designee, determines to be fair, competitive and reasonable, negotiation with that firm shall be formally terminated. Negotiations shall then be undertaken with the second most qualified firm. Failing accord with the second most qualified firm, negotiations shall be undertaken with the third most qualified firm. If unable to negotiate with any of the selected firms, three more firms shall be selected in the order of preference and negotiations will be continued until an agreement is reached. For professional services when the basic construction cost for the project is estimated to be less than $120,000 or planning or study fees estimated to be less than $8,500, the procedure shall be as follows: Follow steps B, C, and D outlined under preceding 1 for purpose of selecting the agency best to accomplish the project. The use of a continuing contract may be approved provided the following provisions are met. A continuing contract is for professional services for projects in which construction costs do not exceed $500,000; or for study activity, the fee for which professional service does not exceed $25,000; or for work of a specified nature as outlined in the contract required by the School Board, or its designee. The contract requires no time limitation but shall provide a termination clause. Footnote: All professional firms are encourage [sic] to submit their statements of qualifications and performance data using Govt. Service Adm. Forms 254 and 255. The submission will be valid for one year beginning July 1. A reminder for this purpose will be made in the form of an annual public announcement. Superintendent Wilcox selected a Short List Committee, whose task was to score the submittals and, based on these scores, select the five applicants that would make presentations to the Professional Services Selection Committee. The Short List Committee comprised Mr. Osborne, chair; Bob Sanborn, Supervisor of Operations; Darrel Miller, Director of Educational Technology; Dr. David Anderson, School Board chair; Tracey Miller, principal of Port Salerno Elementary School; and John Dilworth, Supervisor of Construction. The Short List Committee met on February 21, 2002. After examining the submittals of the applicants in response to the Guidelines, the Short List Committee scored the submittal of each applicant. The highest-ranking applicant received 185 points. Intervenor was ranked third with 160 points, and Petitioner was ranked fourth with 158 points. The Short List Committee selected five applicants to make presentations to the Professional Services Selection Committee. By letter dated February 22, 2002, Mr. Osborne supplied each of the five short-listed applicants with a document entitled, "Interview and Selection for Construction Manager At Risk" (Selection Criteria). The Selection Criteria states that the Professional Services Selection Committee will use the following criteria to "reduc[e] the number of qualified applicants to three . . .": 1. Letter of Interest 0 points 2. Professional Qualification Supplement forms 0 points 3. Certified minority business 5 points 4. Location 0-5 points 5. Current work load 0-10 points 6. Capability 0-10 points 7. Professional accomplishments 0-10 points 8. Schedule & budget 0-10 points 9. Approach and methods 0-10 points 10. Understanding of project 0-10 points 11. Previous work for MCSD 0-10 points 12. Progressive use of technology 0-10 points 13. Warranty period 0-10 points 14. Construction administration 0-10 points The Selection Criteria states: "The Professional Services Selection Committee will present to the Superintendent for approval and presentation to the Board a ranked list of the top three qualifying firms." Separate pages of the Selection Criteria detail the scoring guidelines for each of the scored criteria. For example, the Selection Criteria states under Professional Services Evaluation: "Current and past records of those projects successfully completed which are similar in scope to project(s) under consideration. References listed and check [sic]. Review PQS form." Ratings of 9 and 10 are for "extremely qualified for project"; ratings of 7 and 8 are for "very qualified for project"; ratings of 5 and 6 are for "qualified--experienced with project type"; ratings of 2, 3, and 4 are for "not very qualified--questionable abilities for project"; and ratings of 0 and 1 are for "unqualified--no experience with project type." After sending the February 22 letter, Mr. Osborne called each of the applicants to confirm that each had received the letter. During these conversations, Mr. Osborne informed each applicant that only the applicant ranked first by the Professional Services Selection Committee would make a presentation to the School Board. As Mr. Osborne understood the selection process, the Board would have the final decision whether to accept the top-ranked applicant. If it did so, the School Board would then try to negotiate a CMAR contract with the top-ranked applicant. If the parties could not reach an agreement, the School Board could then try to negotiate a contract with the applicant ranked second by the Professional Services Selection Committee. Superintendent Wilcox, with Mr. Osborne's assistance, selected the Professional Services Selection Committee. The Professional Services Selection Committee comprised Leighton O'Connor, Executive Director of Operations Services and immediate supervisor of Mr. Osborne; Hank Salzler, Assistant Superintendent and designee of Superintendent Wilcox; Ms. Miller; Mr. Dilworth; Dr. Anderson; and Mr. Osborne. On March 5, 2002, Mr. Osborne informed the members of the Professional Services Selection Committee that they would rank the applicants and the top-ranked applicant would make a presentation to the School Board. No member of the committee voiced an objection to the process. After Mr. Osborne had addressed the Professional Services Selection Committee, the representatives of the five short-listed applicants made their presentations. Based on these presentations and the earlier submittals, the Professional Services Selection Committee, on March 5, 2002, ranked Petitioner first with 513 points and Intervenor second with 487 points. Immediately after the meeting of the Professional Services Selection Committee, Assistant Superintendent Salzler visited Superintendent Wilcox and told her that Mr. Osborne had told the committee members that only the top-ranked applicant would make a presentation to the School Board. For professional services contracts, the top three-ranked applicants customarily made presentations to the Board, which would then select the applicant that the Board felt was most qualified. Superintendent Wilcox had thought that the same process would apply to the selection of the applicant with which to negotiate the CMAR contract. Superintendent Wilcox immediately visited Mr. Osborne and informed him that the School Board would want the top three applicants to make presentations. Mr. Osborne replied that he had told the applicants that only the top-ranked applicant would make a presentation to the Board. Superintendent Wilcox told him to telephone the top three applicants and tell them that all of them would be making presentations to the Board, so that the Board could make the final ranking. Later the same day, Mr. Osborne telephoned the top three applicants and informed them of the new procedure. Dr. Anderson had had to leave the meeting of the Professional Services Selection Committee before it was finished, so, later the same day, he telephoned Mr. O'Connor to learn the results of the voting. Mr. O'Connor informed Dr. Anderson of the three top-ranked applicants and expressed his opinion that the key criterion was not the general ranking that resulted from the guidelines and criteria that Mr. Osborne had developed, but the quality of the personnel who would manage the actual construction. Acknowledging that the School Board would not have adequate time to view the applicants' presentations and evaluate their submittals, Mr. O'Connor asked Dr. Anderson if Mr. O'Connor should undertake an analysis for use by the School Board. Dr. Anderson agreed that such an analysis would be helpful and asked him to prepare one. Mr. O'Connor prepared a 24-page document entitled "Construction Manger [sic] at Risk Finalist Comparisons" (O'Connor Finalist Comparisons). Mr. O'Connor provided the O'Connor Finalist Comparisons to each School Board member prior to the March 19 meeting. The O'Connor Finalist Comparisons introduces a new element to the procurement criteria--cost. The document advises the School Board members that the "number of team members and percentage of time devoted to the project may impact the cost of services." The document also relates, in an unspecified manner, "pre-construction services" to "cost saving alternative." The O'Connor Finalist Comparisons emphasizes some published selection criteria at the expense of others--without regard to their relative point value. Admittedly reflecting only Mr. O'Connor's opinion, the O'Connor Finalist Comparisons states that the "key consideration [sic] for this project" are "pre-construction services," "onsite construction service," and "experiences of assigned project staff." The document adds: "Our architect indicated that the Project Superintendent was the most important team member." The O'Connor Finalist Comparisons analyzes the proposals of the three applicants in terms of two criteria-- "credentials" and experience of selected members of the onsite project team in school construction. The emphasis upon school--construction experience also reflects Mr. O'Connor's opinion--this time clearly without the smallest support in the Guidelines or Selection Criteria, which ask for experience of similar scope, not merely school-construction experience. For Intervenor and Petitioner, the O'Connor Finalist Comparisons compares two employees per job site. For the high school, Intervenor's two employees have handled six school- construction projects, and their credentials consist of one bachelor's of arts degree in business administration. For the elementary school, Intervenor's two employees have handled 12 school-construction projects, and their credentials consist of one of them holding a bachelor's of science degree and master's degree in civil engineering. For the high school, Petitioner's two employees have handled one school, and their credentials consist of one bachelor's of science degree in business administration. For the elementary school, Petitioner's two employees have handled 11 school-construction projects, and their credentials consist of no four-year degrees. In this part of his analysis, Mr. O'Connor does not disclose his rationale for excluding from his analysis other key team members assigned 100 percent to the school projects, such as the two assistant project superintendents for the Jensen Beach High School project. These two persons have handled a total of seven school-construction projects. Interestingly, Mr. O'Connor included a third member of the third applicant's high-school team, and this person was an assistant superintendent. Mr. O'Connor fails to explain why he omitted analysis of project engineers assigned fulltime to the sites. From his charts, Intervenor did not assign such a person to either site, Petitioner assigned one to the elementary school and two to the high school, and the third applicant assigned one to each site. Petitioner's project engineer for the elementary school has handled two school-construction projects, and the sole person identified by name as a project engineer for the high school has handled one school-construction project. Again without explanation, Mr. O'Connor identifies Petitioner's project manager for the high school as someone other than the person whom Petitioner named in its proposal. The person identified by Mr. O'Connor has handled only one school-construction project. Although it is possible that Petitioner had had to change assigned personnel in the month since it first named its anticipated key personnel, nothing in the record indicates that such a change in personnel actually took place. Sometime after March 5, Superintendent Wilcox, Dr. Anderson, and Mr. Osborne informed each of the top three applicants that each of them would make a 20-minute presentation to the School Board and that the Board would use the Selection Criteria for ranking the applicants. On March 19, 2002, at a regularly scheduled School Board meeting, each of the top three applicants made its 20-minute presentation, interrupted by few, if any, questions from Board members. Petitioner's presentation covered the 14 criteria stated in the Selection Criteria. Petitioner complains that its presentation occurred at the end of the evening, long after the presentations of Intervenor and the third applicant, but this occurrence did not confer competitive advantage or disadvantage. Equally without meaning is the contention of Respondent and Intervenor that Petitioner never objected to any change in the procurement criteria. Nothing in the record suggests that Petitioner was ever aware, prior to the March 19 meeting, of the O'Connor Finalist Comparisons. Nothing in the record suggests that Respondent gave Petitioner a point of entry to challenge the changes that Respondent made during the course of this procurement. At no time during the March 19 meeting did anyone present the School Board with the rankings of the Professional Services Selection Committee. At no time during the March 19 meeting did anyone move that the School Board try to negotiate a contract with Petitioner. At the end of the meeting, without any public discussion, each School Board member voted his or her first, second, and third preference. Intervenor received three first-place votes, one second-place vote, and one third-place vote. Petitioner received two first-place votes and three second-place votes. Dr. Anderson, who ranked Intervenor first, announced that the vote was a tie, but that Intervenor should be declared the winner because it received more first-place votes. In response, another Board member moved to rank Intervenor first, Petitioner second, and the third applicant third and authorize Respondent to commence negotiations with Intervenor. The School Board unanimously passed the motion. The procurement documents are unambiguous, although they are less then comprehensive in their treatment of the procurement procedure. Rule 6Gx43-8.01.c provides that a committee shall recommend, in order of preference, three applicants to the School Board, which shall negotiate a contract with the most "qualified" applicant. The legal advertisement states only that the Professional Services Selection Committee shall rank the top three applicants and submit them to the Superintendent and School Board. The Selection Criteria states that the Professional Services Selection Committee will present to the Superintendent for approval and presentation to the School Board a ranked list of the top three "qualifying" applicants. Citing past practices--although none involves the procurement of a CMAR--Intervenor and Respondent contend that the School Board was authorized to re-rank the applicants and begin negotiations with any of the three applicants submitted to the Board. Citing the reference in the Selection Criteria that the Professional Services Selection Committee ranks the top three "qualifying" applicants and the language in the other documents requiring the School Board to negotiate first with the most "qualified" applicant, Petitioner contends that the Board has no right to change the ranking of the Professional Services Selection Committee, but must deal first with the top-ranked applicant. Due to the interpretation of Mr. Osborne, Respondent's interpretation of its rules and procurement documents is clearly erroneous and arbitrary. Until the telephone calls from Mr. Osborne to the applicants on March 5 after Superintendent Wilcox told Mr. Osborne that all three top-ranked applicants would make presentations to the Board, the applicants perceived correctly that Mr. Osborne was in charge of implementing the procedures for this procurement. And, from the start through his meeting with Superintendent Wilcox on March 5, Mr. Osborne consistently understood that the Professional Services Selection Committee would rank the top three applicants, and a committee member or the Superintendent would present to the School Board only the top-ranked applicant, which would then make a presentation to the Board. As Mr. Osborne envisioned the process, the Board could reject the top-ranked applicant and proceed to the second- ranked applicant, although this was unlikely, but the Board could not re-rank the top three applicants, without ever formally rejecting the applicant ranked first by the Professional Services Selection Committee. Mr. Osborne consistently communicated his understanding of the procurement process to the applicants. Mr. Osborne's understanding of the procurement process is the correct interpretation of the procurement documents. Among other things, Mr. Osborne's interpretation of the procurement documents lends meaning to the task of the Professional Services Selection Committee in ranking the top three applicants. Under Respondent's interpretation, the Professional Services Selection Committee performs a useless act when, in addition to naming the top three applicants, it ranks them. Respondent's departure from this procedure at the moment of decision clearly violates the standards governing this procurement. Exacerbating the situation is the O'Connor Finalist Comparisons. This document distorts the Selection Criteria by omitting many criteria, reassigning weights among other criteria, and adding two criteria--cost and school-construction experience. This document distorts Petitioner's qualifications by its arbitrary selection of personnel for comparison purposes. Presumably, Respondent and Intervenor resist the inference that the O'Connor Finalist Comparisons influenced any of the School Board members. The administrative law judge infers that the document influenced one or more members; given the close outcome of the vote, the administrative law judge infers that the document was a material factor in the selection of Intervenor. These inferences are supported by numerous facts, including the following. The School Board chair, Dr. Anderson, endorsed the preparation of the document. Dr. Anderson preferred Intervenor over Petitioner. The O'Connor Finalist Comparisons appears to be the only document presented to School Board members that was not part of the formal procurement process. The School Board members did not extensively discuss at the meeting the merits of the three applicants before voting. Petitioner tried to elicit testimony from the School Board members, but at Respondent's request, the administrative law judge entered a prehearing order denying Petitioner the opportunity to compel testimony from any of them except Dr. Anderson, who had served on the Professional Services Selection Committee. The inference of materiality is eased by the magnitude of the distortions contained in the O'Connor Finalist Comparisons as to the Selection Criteria and Petitioner's qualifications and the closeness of the Board vote; the extensive distortion contained in the O'Connor Finalist Comparisons means that it was material if it had even the slightest influence on one of the School Board members. Under these facts, Petitioner proved that Respondent's selection of Intervenor was contrary to Respondent's rule, Respondent's policies (as stated by Mr. Osborne), and the other procurement documents. Under these facts, Petitioner proved that the deviations from Respondent's rule, Respondent's policies, and the other procurement documents rendered the selection of Intervenor clearly erroneous, contrary to competition, and arbitrary. As a remedy, Petitioner contends that Respondent should commence negotiations with Petitioner. However, by the time Respondent issues a final order, six months will have passed since each applicant submitted a proposal. The ability of applicants to meet various criteria, such as the availability of key personnel, may have changed dramatically. Also, contrary to Petitioner's contention, this procurement is not fundamentally flawed due to bad faith or favoritism. The change in procurement procedures was indisputably due to an innocent, mutual mistake among Respondent's employees. The newly hired Mr. Osborne intended to handle the procurement his way, and Dr. Anderson, Superintendent Wilcox, and District staff intended Mr. Osborne to handle the procurement their way. Nothing in the record suggests that the O'Connor Finalist Comparisons is anything more than Mr. O'Connor, as Mr. Osborne's supervisor, injecting himself into a process that was not going as smoothly as Mr. O'Connor would have liked. Relying on the advice of an architect, Mr. O'Connor belatedly rewrote the procurement criteria to emphasize school-construction experience and cost; it is easy to indulge the presumption that Mr. O'Connor was motivated by a desire to help Respondent, not an applicant. Absent other evidence in the record, Mr. O'Connor's distortion of Petitioner's qualifications, which was not of the same magnitude as his distortion of the procurement criteria themselves, may presumably be attributed to haste or carelessness, rather than favoritism toward Intervenor.
Recommendation It is RECOMMENDED that the Martin County School Board enter a final order setting aside the proposed decision to enter into negotiations with Intervenor to provide services as a construction manager at risk in the construction of the Jensen Beach High School and Port Salerno Elementary Replacement School and restart the procurement process, if Respondent still seeks to proceed with these projects under this construction method through a competitive procurement. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002. COPIES FURNISHED: Dr. Sara Wilcox, Superintendent Martin County School Board 500 East Ocean Boulevard Stuart, Florida 34994-2578 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Gary M. Dunkel, Esquire Susan Fleischner Kornspan, Esquire Greenburg Traurig, P.A. 777 South Flagler Drive, Suite 300 East West Palm Beach, Florida 33401 Douglas G. Griffin, Esquire School Board of Martin County 500 East Ocean Boulevard Stuart, Florida 34994 Joseph Ianno, Jr., Esquire Michael Winston, Esquire Carlton Fields, P.A. Post Office Box 150 West Palm Beach, Florida 33402-0150
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the Petitioner committed the violations alleged in the Respondent's Petition dated June 11, 2008, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duties of operating, controlling, and supervising all free public schools within the School District of Palm Beach County, Florida. Art. IX, § 4(b), Fla. Const; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Scott has been employed as a teacher with the School Board since 1986. She is a member of the Palm Beach County Classroom Teachers Association and is subject to the terms of the Collective Bargaining Agreement Between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association ("Collective Bargaining Agreement"). At the times material to this proceeding, Ms. Scott taught business classes at Palm Beach Central High School ("Palm Beach Central"). In 2006, Ms. Scott was charged with shutting a student into a windowless, unventilated closet and leaving him there "for a time estimated to be between ten (10) minutes by you and fifty (50) minutes by the student and other witnesses."2 The superintendent of schools recommended to the School Board that Ms. Scott be suspended without pay and her employment terminated. The termination was subsequently rescinded, and Ms. Scott's discipline for this incident was reduced to a 38-day suspension without pay. During fourth period on February 1, 2008, Ms. Scott was teaching a course in computing for colleges and careers. While she was taking attendance, several students were causing their computers to "beep." As a result, Ms. Scott sent a few students outside the classroom, into the hallway. She sent another student to the storage room that connected her classroom to the classroom next to hers and told the student to step inside and shut the door. The student was a male who was 17 years of age at the time of the final hearing. The storage room was approximately 10 feet wide and 15 feel long. The student remained in the storage room for approximately 10 minutes, during which time the lights in the storage room were off. The storage room had two doors, neither of which had windows, and Ms. Scott could not see the student while he was in the storage room. After approximately 10 minutes, Ms. Scott opened the storage room door and told the student he could leave the storage room.3 The student did not consider his being sent into the dark storage room a "big deal," and he did not report the incident to his parents, to another teacher, or to the school administration.4 On February 15, 2008, a student reported the incident to a teacher, who reported it to an assistant principal, who reported it to another assistant principal, who reported it to the principal, Burley Mondy. Mr. Mondy reported the matter to the School Board police and requested that a formal investigation be initiated. Mr. Mondy also removed Ms. Scott from the Palm Beach Central campus on February 15, 2008, and she was given an alternate assignment in the Palm Beach County School District's office. After the investigation was completed, the matter was subject to an administrative review; a pre-disciplinary meeting was held with Ms. Scott in attendance; and the matter was reviewed by the School Board's Employee Investigation Committee. Based upon the recommendation of the Employee Investigation Committee, the superintendent of schools recommended to the School Board that Ms. Scott be suspended without pay and that proceedings be initiated to terminate her employment. The School Board approved this recommendation at its June 4, 2008, meeting. The evidence presented by the School Board is sufficient to establish that, by sending a student into a dark storage room for approximately 10 minutes, Ms. Scott exercised extremely poor professional judgment and that her actions posed a potential risk to the student's physical and mental health and safety. The School Board failed to present any evidence to establish that Ms. Scott's sending several students into the hall during class constituted poor professional judgment or posed a potential risk to the students' physical and mental health and safety. The School Board also failed to present any evidence to establish that Ms. Scott's effectiveness in the school system was impaired by the incident at issue, and it is not reasonable to infer from Ms. Scott's conduct that her effectiveness was impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order dismissing the Petition filed against Rutha Scott, immediately reinstating her, and awarding her back pay for the period of her suspension, as provided in Section 1012.33(6)(a), Florida Statutes. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 16th day of February, 2009.
