Findings Of Fact Stipulated Facts Florida High is a charter school created pursuant to section 1002.33(5)(a)2. Florida High is a public school. Pursuant to section 1002.33(5), FSU is the sponsor of Florida High, has executed a charter agreement with FSUS, and performs the duties listed in the charter agreement. Florida High was originally created as a developmental research school and receives public funding for its operations as set forth in section 1002.32(9). Florida High?s student admissions are governed in part by sections 1002.21 and 1002.33(10)(a). FSUS employees are public employees and are part of the Florida Retirement System. The Public Employees Relations Commission has certified a unit of FSUS? instructional personnel for purposes of engaging in collective bargaining. FSUS teachers are subject to the same instructional certification requirements as those for all of Florida?s public school teachers. In establishing Florida High as a lab charter school, FSU and FSUS drafted a charter agreement. The charter agreement was executed by both parties after holding a public hearing. FSUS adopted the Student Code of Conduct after holding a public hearing. FSUS is subject to Florida?s public records laws as set out in chapter 119. All meetings of FSUS? Board of Directors, unless otherwise exempt, are subject to the requirements of Florida?s Sunshine Act and must be noticed and open to the public. FSUS is subject to the class size requirements of Florida?s public school system. FSUS is required to administer the Florida Comprehensive Assessment Test to all students, and the school is included in the state grading system for public schools and subject to specific repercussions by the Department of Education in the event of a failing grade. FSUS is required to report student assessment data to every parent of a student at the school, the school district, and its Board of Directors, and must maintain a website and post this data as well as follow the State Board of Education?s rules pertaining to public notice of school performance. Florida High?s Director files an annual financial disclosure of financial interest with the Florida Commission on Ethics. FSUS has the status of a “Local Education Agency” allowing it to receive federal funds. Jack Carswell was withdrawn from Florida High in part due to paragraph “k” of the Student Code of Conduct entitled “Withdrawal of Invitation”. Additional Facts Petitioner, Jack W. Carswell, was, until the 2013-2014 school year, a student at FSUS, having attended since 2002. Petitioners, Julie and Scott Carswell are Jack W. Carswell?s parents. Charter schools are public schools, and are part of the state?s program of public education. Charter schools may be sponsored by district school boards in the county over which the district school board has jurisdiction, or by a state university. Charter schools sponsored by a state university are in a separate category known as developmental research (laboratory) schools, or “lab schools.” With certain exceptions not applicable here, there is a limit of one charter lab school per state university. Respondent, FSUS, is a lab school created under the authority of sections 1002.32 and 1002.33. Respondent, FSU, is a state university, and is the sponsor of FSUS. The alleged unadopted rule at issue in this proceeding is found at section VI.K. of the Student Code of Conduct, which provides that: K. Withdrawal of Invitation/Expulsion When a student?s behavior is repeatedly inappropriate to others or continues to exhibit absolute disregard for the conditions of behavior set by the school, a meeting will be held and the Principal may recommend to the Director expulsion or permanent withdrawal of invitation of the student. The Principal/designee may recommend to the Director expulsion or withdrawal of invitation any student enrolled when his or her presence has or tends to substantially disrupt or interfere with the orderly educational process, destroys school property, endangers the health or safety of the student or others or infringes on the rights of others. (1) Withdrawal of Invitation FSUS is a school of choice that extends invitations on an annual or longer basis. The administration will decide the viability of a particular student?s invitation to attend FSUS at the end of each school year. Attendance and disciplinary issues will be considered when making these determinations. If it is decided that a particular student?s invitation should be withdrawn, then the Principal will make a written recommendation to the Director. Parents will be formally notified by the administration of a withdrawal of invitation for the next school year during the summer. Every attempt will be made to notify parents of the withdrawal of an invitation as early as possible in the summer so that arrangements for enrolling the student in their home school can be made. The Director may withdraw an invitation as prescribed in this Code or a parent or guardian may voluntarily withdraw the student. Documentation for withdrawal of invitation is a confidential record between the parents/guardian(s) and the school. Such documentation shall not be included in the student?s permanent record. A student cannot avoid expulsion by withdrawing from school. The only rulemaking authority granted by the Legislature in sections 1002.32 or 1002.33 is that conferred on the State Board of Education to adopt rules on how to form and operate a charter school and how to enroll in a charter school once it is created, which rules are to include a model application form, standard charter contract, standard evaluation instrument, and standard charter renewal contract. §§ 1002.33(21)(b)3.b. and 1002.33(27), Fla. Stat.1/ Charter school systems (see section 1002.33(20)(a)4., section 1002.33(20)(a)6., and section 1002.332) have been designated as “local educational agenc[ies]” for the limited purpose of receiving federal funds. § 1002.33(25), Fla. Stat. As further established in that section, however, “[s]uch designation does not apply to other provisions unless specifically provided in law.”
The Issue Whether the Petitioners have standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes. Whether a school board may delegate the authority to suspend an employee without pay to the superintendent in specific instances for a limited period of time.
Findings Of Fact The Petitioner, COLLIER COUNTY EDUCATION ASSOCIATION, (hereinafter CCEA) is the instructional bargaining unit for teachers in the Collier County School District. The Petitioner, COLLIER SUPPORT PERSONNEL-NATIONAL EDUCATION ASSOCIATION, (hereinafter CSP-NEA) is the certified bargaining agent for the non-instructional employees of the Collier County School District. The above mentioned Petitioners are affiliates of the Petitioner, FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION (hereinafter FTPNEA). As a result of collective bargaining agreements which allow the Petitioners CCEA and CSP-NEA to represent specific categories of employees of the school district, sixty five to seventy per cent of these employees are represented by these associations.. The Respondent SCHOOL BOARD OF COLLIER COUNTY, (hereinafter SCHOOL BOARD) has a rule that delegates the authority to suspend employees wholly or partially without pay to the superintendent. Under Rule No. R-18/81, such a suspension cannot exceed a period of three days, and the superintendent's authority is limited to five situations which have been specifically set forth in the body of the rule. A suspension is authorized only if the superintendent finds that the employee has: a) been absent without leave, b) been insubordinate, c) endangered the health or well-being of a fellow employee or of a student or students, d) willfully neglected duty, e) been intoxicated, consumed an alcoholic beverage, or used a controlled substance (unless prescribed by a physician,) while working. The rule cites Sections 230.23 and 230.33, Florida Statutes, as the authority for the implementation of this delegation process. The rule was adopted can December 17, 1981. Rule No. R-18/81 requires that any employee suspended by the superintendent under this rule be given all due process rights under the Florida Statutes, including those authorized by the Administrative Procedures Act. Pursuant to Rule No. R-18/81, the superintendent has suspended at least two employees in 1988. One of these employees is Mr. Robert Koy, who is represented by the Petitioner, CSP-NEA, in a proceeding currently before the Division of Administrative Hearings in which the employee's substantial interests are being determined. The process and procedures utilized by the Respondent SCHOOL BOARD in its suspension of employees without pay falls within the general scope of interests and activities of all of the Petitioners in this case. A substantial number of the members of the Petitioners CCEA and CSP- NEA are substantially affected by the challenged rule as it involves the disciplinary procedures used by the Respondent SCHOOL BOARD to manage its employees. Such procedures are included in the agreement between the Collier County Public Schools and the Petitioner CSP-NEA, which is in effect from October 1, 1987 through June 30, 1990. This agreement has been admitted into evidence in this proceeding. The relief sought by all of the Petitioners in this proceeding is that Rule No. R-18/81 be declared invalid. This relief is an appropriate remedy for each of the Petitioners to seek on behalf of its members in a rule challenge proceeding.
The Issue Whether the School Board lacked the delegated legislative authority to promulgate School Board Policy 2.57. Whether the challenged portions of School Board Policy 2.57 violate certain provisions of the charter school statute, section 1002.33, Florida Statutes, and State Board Rules, as outlined in Petitioner's Amended Rule Challenge Petitions. Whether the Innovative Rubric Policy 2.57 should be invalidated for enlarging, modifying, and/or contravening the charter statute and also the adopted State Board Education rule(s) and form(s). Whether the budget worksheet referenced in School Board Policy 2.57 is an unadopted rule because it was not attached or incorporated into School Board Policy 2.57 and/or was never specifically adopted by rule. Whether certain provisions of School Board Policy 2.57 violate section 1002.33(6)(h) as outlined in Petitioner's Amended Rule Challenge and Charter Petitions. Whether the prevailing party is entitled to attorneys' fees and costs pursuant to section 1002.33(6)(h) and/or section 120.595, Florida Statutes.
Findings Of Fact Renaissance is a not-for-profit Florida corporation. Renaissance currently operates six charter schools in the School District of Palm Beach County ("School District") pursuant to charters issued by the School Board: (1) Renaissance Charter School at Central Palm; (2) Renaissance Charter School at Cypress; (3) Renaissance Charter School at Palms West; (4) Renaissance Charter School at Summit; (5) Renaissance Charter School at Wellington; and (6) Renaissance Charter School at West Palm Beach. The School Board is the "sponsor" of the six schools operated by Renaissance in the School District for purposes of section 1002.33. The six schools operated by Renaissance are public schools, by virtue of their status as charter schools, under section 1002.33(1). Charter Schools USA serves as the education services provider or management company for all six of Renaissance's schools in the School District. On April 1, 2015, the School Board held a public workshop on the subject of charter schools, including proposed revisions to School Board Policy 2.57 ("Policy 2.57") entitled "Charter Schools." After the workshop, the School Board reviewed proposed revisions to the rule, Policy 2.57, at a noticed public meeting on April 22, 2015, and approved development of the policy. On May 27, 2015, at a noticed public meeting, the School Board approved adoption of revised Policy 2.57. The May 27, 2015, amendments to Policy 2.57 required, among other things, that charter schools meet a standard beyond the status quo for "innovative learning methods," mandated that every charter contract contain a provision requiring 51 percent of the charter school governing board members to reside within Palm Beach County, and mandated that every charter contract contain a provision precluding new charter schools from being located in the vicinity of a district-operated school that has the same grade levels and programs. The May 27, 2015, amendments to Policy 2.57 also included an attached Innovative Policy Rubric 2.57, which contained the innovative definition and additional standards of innovation which charter school applicants must satisfy. The May 27, 2015, amendments to Policy 2.57 also required a completed budget worksheet in the format prescribed by the School Board from each charter school applicant. The "budget worksheet" referenced in Policy 2.57 is the "Budget Template Tool" developed by the Florida Charter Support Unit. The "budget worksheet" referenced in Policy 2.57 was not specifically identified in Policy 2.57 or attached thereto when it was adopted. The School District requires use of the Budget Template Tool in order to provide charter school applicants notice about everything that is required to prepare a budget and to ensure that the budget includes all necessary information. Charter school applicants who do not use the Budget Template Tool often fail to provide all of the information required to be included in the budget. The School District will review an applicant's budget even if it is not submitted using the Budget Template Tool. Failure to use the Budget Template Tool, in and of itself, will not be a factor in the rating of the "Budget" section of an application or the overall recommendation on an application. On August 3, 2015, Renaissance submitted its application for Renaissance Charter High School of Palm Beach to the District's Charter Schools Department. The application for Renaissance Charter High School of Palm Beach is the only charter application Renaissance has filed in the School District since the revised Policy 2.57 was adopted on May 27, 2015. On or around August 18, 2015, Renaissance requested that the Florida Department of Education ("FDOE") mediate its dispute over the amendments to Policy 2.57. The School Board declined FDOE's request to mediate the dispute. On September 8, 2015, Commissioner of Education Pam Stewart issued a letter to both Renaissance and the School Board confirming that the dispute could not be settled through mediation and providing Renaissance with permission to bring its dispute to DOAH. The District Superintendent recommended that the application for Renaissance Charter High School of Palm Beach be denied and placed it on the consent agenda for the School Board's November 4, 2015, public meeting, with one of the reasons being that the application "failed to meet indicators of School Board Policy 2.57 innovative rubric." At the November 4, 2015, meeting, after deliberation, the School Board voted to deny the application. In its letter dated November 13, 2015, denying the charter application of the proposed Renaissance Charter High School of Palm Beach, the School Board relied, in part, on Policy 2.57 as grounds for denial. On September 7, 2016, Petitioner filed a consolidated challenge that was amended on December 20, 2016. Petitioner is challenging the School Board's adoption and amendments of May 27, 2015, to Policy 2.57 in the Rule Challenge and asserting a violation of the flexibility granted to charter schools for the amended provisions in the Charter Petition.
Conclusions On October 27, 2014, an Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”) entered her ORDER CLOSING FILE AND RELINQUISHING JURISDICTION (“DOAH ORDER”) to the Madison County School Board (the “SCHOOL BOARD” or the “BOARD”) in the above captioned proceeding. A copy of the DOAH ORDER is attached hereto as Exhibit A. The DOAH ORDER indicates that copies were sent to counsel for the SCHOOL BOARD, George T. Reeves, Esq., and counsel for the Petitioner, NEW MILLENNIUM CHARTER SCHOOL, (the “CORPORATION”). The DOAH ORDER was stipulated to by the parties. This matter is now before the SCHOOL BOARD for final agency action.
The Issue Whether Broward County School Board has good cause to non- renew Automotive Technical Charter High School of South Florida, Inc.'s Charter School Agreement.
Findings Of Fact On June 19, 2001, the School Board approved the initial Charter School Agreement that allowed Parkway Academy to open. The original contract was effective for a ten-year period, which ended on June 30, 2011. Parkway Academy was assigned school location number 5181. Parkway Academy serves students from both Broward and Miami-Dade counties. Parkway Academy is located on Broward College Campus and the 2011-2012 school year enrollment was approximately 517 students. Eighty-five students were in Parkway Academy's most recent graduating class and 84 were accepted into college. Charter schools are part of the public school system and are required to follow the same precepts as a public school. During the 2010-2011 school year, the school district conducted a program review of Parkway Academy's Charter to determine if the charter should be renewed. After the first program review conducted during the 2010-2011 school year, the School Board determined that Parkway Academy had academic performance and programmatic deficiencies. As a result of the deficiencies, the School Board only granted Parkway Academy a one-year renewal Charter. Parkway Academy's Charter was renewed for the 2011-2012 school year, permitting the school to operate through June 30, 2012. The Charter Agreement mandated that Parkway Academy "provide educational services in accordance with the terms of [the] charter school agreement." The Charter School Agreement provided the following contractual performance obligations in Section 2.D: "Any non- renewal cancellation or termination of the Charter shall be subject to Section 1002.33(8), Florida Statutes, and the terms of this Charter." Section 2.D.1. of the Charter prohibited Parkway Academy from being designated a "school in need of improvement" for more than two years and provided the following non-renewal provisions: a failure by the School to participate in the state's education accountability system created in section 1008.31 or failure to meet requirements for student performance stated in this Charter. * * * (f) receipt by the School of a state- designated grade of "F" in any Two (2) of Four(4) years or the School is designated as "a school in need of improvement" for more than Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress(AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform to current state law or rules; Section 2.D.1.a of the Charter delineated what constitutes "good cause" for charter termination or non-renewal and read in pertinent part: "Good cause" for termination or non-renewal shall include, but not be limited to, the following: * * * (2) receipt by the School of a state- designated grade of "F" in any Two (2) of Four (4) years or the School is designated as "a school in need of improvement" for more than "Two (2) years [more than Five (5) years of failure to make Adequate Yearly Progress (AYP)], in accordance with the provisions of the No Child Left Behind Act of 2001. A "school in need of improvement" is one that has failed to make Adequate Yearly Progress (AYP) for more than Five (5) years in accordance with the provisions of the No Child Left Behind Act of 2001. The equivalent of an "F" grade is defined as the School receiving less than 395 points for elementary and middle schools and less than 790 for high schools on the Florida Grades issued by the Florida Department of Education. Schools that receive a school improvement designation of "Declining" will also be considered the equivalent to an "F" grade. The foregoing point designations or school improvement ratings shall be amended during the term of this Charter to conform with the current state or rules. * * * (22) any other good cause shown, which shall include without limitation, any material breach or violation by the School of the standards, requirements or procedures of this Charter such as: * * * (c) the School's failure to fulfill all the requirements for highly qualified instructional personnel as defined by the No Child Left Behind Act (NCLB) * * * (t) a failure by the School to fulfill all of the requirements for highly qualified instructional personnel as defined by NCLB Section 11.D of the Charter provided the requirements for teacher certification and highly qualified teachers and read in pertinent part: All teachers employed by or under contract to the School shall be certified and highly qualified as required by Chapter 1012, Florida Statutes and any other applicable state of federal law. Criteria developed by the School for hiring all other staff (administrative and support staff) shall be in accordance with their educational and/or experiential backgrounds that correspond to the job responsibilities they will be expected to perform. If the School receives Title I funds, it will employ highly qualified staff. In compliance with those requirements, the School's teachers shall be certified and teaching in-field and the School's support staff shall have attained at least Two (2) years of college education or have passed an equivalent exam. The School may employ or contract with skilled selected non-certified personnel to provide instructional services or to assist instructional staff members as education paraprofessionals in the same manner as defined in Chapter 1012 and as provided by State Board of Education rule for charter school Governing Boards; however, in order to comply with NCLB requirements, all teachers in core academic areas must be certified/qualified based on Florida Statutes and highly qualified as required by NCLB. The School agrees to disclose to the parents of its students the qualifications of instructional personnel hired by the School. Parkway Academy's Charter Agreement for the 2011-2012 school year was signed by the parties on or about March 3, 2011, and went into effect July 1, 2011. The School District conducted its next renewal review of Parkway Academy during the last week of October and first week of November of 2011 to determine if the charter school renewal should go beyond the 2011-2012 school year. Diane Rogers ("Rogers"), Personnel Administrator for the Certification Department, audited and reviewed Parkway Academy's instructors and the courses each instructor was teaching. On or about October 26, 2011, Rogers retrieved teacher assignment information from the Data Warehouse1 and reviewed the instruction assignments and qualifications for the 2011-2012 school year to make a determination if each of Parkway Academy's teachers were certified, teaching in field, out of field, highly qualified, or not highly qualified for the teaching assignments he/she had been given. After completing the teacher review audit, Rogers identified the following five faculty members who lacked appropriate teacher certification: John Ahrens ("Ahrens"), Valerie Cedant ("Cedant"), Jerry Goodbolt ("Goodbolt"), Talondra Ingram ("Ingram"), and Uriel Williams ("Williams"). Rogers found Ahrens was teaching auto mechanics and auto tech but did not have the required Broward certificate. Rogers notified Parkway Academy in November 2011 that Ahrens needed a Broward teaching certificate. Rogers also found that Cedant previously had a temporary certificate, which expired June 30, 2011, and Ingram's temporary certificate had also expired before the 2011-2012 school year. Additionally, Goodbolt was working at the school without ever applying for a teaching certificate. While assessing the Parkway Academy, Rogers also discovered Williams had applied for a certificate from the Florida Department of Education ("FDOE"). FDOE determined his status was ineligible for a Florida educator's certificate in any area. Therefore, Rogers properly categorized Williams as not highly qualified to teach his assignments, Physical Education, Personal Fitness and Health Education, for the school because Williams did not have the basic requirement, a Florida educator's certificate. Rogers also identified the following eight teachers who did not have the required highly qualified2 status when she did her review: Floyd Barber ("Barber"), Cedant, Ingram, Gleandeal Johnson ("Johnson"), Lee Kornhauser ("Kornhauser"), Hyaptia Mata ("Mata"), Roxanna Smilovich ("Smilovich"), and Manage Vincent ("Vincent"). Rogers determined that Cedant was not highly qualified in that Cedant was precluded from the status because she did not have a valid educator's certificate and was also teaching improperly out of field without a valid educator's certificate. Rogers determined that Barber was not highly qualified to teach his assignment, Literature and Arts, since his FDOE certification was in Business Education. Therefore, he was improperly teaching out of field at Parkway Academy. Rogers also found in her review that Johnson had a FDOE certificate in Business Education 6 through 12 but she was assigned to teach Journalism, which requires FDOE certification either in English 6 through 12, Journalism, or English 5 through Therefore, Johnson was not highly qualified to teach Journalism because she was teaching out of field improperly, and she had not met the requirements. Rogers also discovered during her audit that Kornhauser was FDOE certified in Math 5 through 9, which allows him to teach middle school grade level math but he was assigned to teach Business Math and Math for College Readiness, which requires a Mathematics 6 through 12 certification. Therefore, Rogers determined that Kornhauser was not highly qualified to teach his assigned courses and was improperly teaching out of field. Rogers' review of Mata found that she was FDOE certified in Biology 6 through 12, but she was assigned to teach Earth Space Science, Chemistry, and Physics, all three of which required certifications other than Biology. Rogers determined Mata was not highly qualified to teach the three courses and was improperly teaching out of field. Upon review, Rogers found that Smilovich's FDOE certification was in Biology 6 through 12, but she was assigned to teach Earth Space Science, which requires certification in Chemistry, Physics, Earth Space Science, or General Science 5 through 9. Rogers' audit also determined that Smilovich was not highly qualified for her assigned class, and she was improperly teaching Earth Space Science out of field. Rogers' review also found Vincent was FDOE certified in Biology 6 through 12, but Vincent was teaching Chemistry, which requires a certification in Chemistry 6 through 12. Rogers determined that Vincent was not highly qualified for the teaching assignment and was improperly teaching Chemistry out of field. Parkway Academy employed and had the following instructors teaching out of field for the 2011-2012 school year without the proper credential for the core course of instruction they were assigned: Cedant, Ingram, Johnson, Kornhauser, Mata, Smilovich, Vincent, and Williams. Seventeen out of the 52 classes at Parkway Academy were being taught out of field. After discovering the teachers who were teaching out of their fields during her audit, Rogers also checked to determine if Parkway Academy had complied with the requirement to notify the parents that their children had teachers providing instruction out of field. Rogers found that Parkway Academy had only notified parents partially regarding Vincent and Mata. She concluded that the newsletter notification was incomplete for Mata because it listed only one of her areas being out of field, and it failed to notify the parents about the other instructors teaching out of field. Rogers concluded her audit by determining that Parkway Academy did not comply with the Charter School Agreement and laws because the school failed to employ teachers who all had valid teaching certificates, failed to have all of its teachers teaching in the appropriate field, failed to correctly designate teachers who were highly qualified to teach core curriculum subject areas, and failed to correctly notify parents that their children were being taught by teachers who were out of field. Rogers emailed Parkway Academy on or about December 1, 2011, and requested updated information on the status of each deficiency regarding the instructors that lacked the proper certification and/or qualifications that she had discovered during her review. Parkway Academy provided Rogers an email update the next day on each teacher Rogers had listed in the email of December 1, 2011, that was not in compliance, but Parkway Academy never provided Rogers any replacement teachers' names or certifications to verify compliance as she requested. During December 2011, Parkway Academy took the following measures to correct some of the teacher certification and qualification deficiencies. Parkway Academy replaced Cedant, Ingram, and Smilovich with certified, highly qualified teachers. Also, Parkway Academy changed Barber, Johnson, and Kornhauser's core course codes to courses they were certified to teach. Parkway also obtained out of field agreements with Mata and Vincent to teach courses they were not certified to teach while each worked on certification in the area they were teaching. The School Board's Testing and Assessment Department also reviewed Parkway Academy's Charter. Among other things, the Department looked at Parkway Academy's Adequate Yearly Progress ("AYP"), the measure of school performance used to comply with the No Child Left Behind Act of 2001 ("NCLB"). The Testing and Assessment Department found that Parkway Academy did not meet AYP for the latest school year 2010-2011, which was reported after the signing of the renewal Charter School Agreement in March 2011. Additionally, the Department determined that the failure to meet the requirements for student performance for the 2010-2011 school year meant Parkway Academy had failed to make AYP for the following eight consecutive years: 2003-2004, 2004- 2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, and 2010-2011. Parkway Academy's failure to meet the AYP for eight consecutive years earned the school the status of a "school in need of improvement" for more than two years. Parkway Academy failed to operate in compliance with the Charter School Agreement. The Certification Department's audit review report which showed a failure to use instructors that had the proper certification and/or qualifications for a substantial part of the year, combined with the Testing and Assessment Department's review results that concluded the Respondent was a "school in need of improvement" for more than two years due to failing to make AYP for eight consecutive years, caused a recommendation to be made to the School Board to non-renew Parkway Academy's Charter. On March 20, 2012, the School Board voted not to renew Parkway Academy's Charter. A Proposed Non-Renewal of its Charter notice was sent to Parkway Academy. On April 4, 2012, the School Board received Parkway's letter dated April 2, 2012, requesting a hearing upon the proposed Charter non-renewal, which was forwarded to the DOAH. The day of the formal hearing, Ahrens obtained a vocational certificate, which qualified him to teach auto mechanics and auto tech. Kornhauser neither had applied for nor obtained mathematics certification for grades 6 though 12.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board, enter a final order declining to renew the Charter School Agreement for Automotive Technical Charter High School of South Florida Inc., upon both the statutory and contractual grounds of (1) failure to meet the requirements for student performance stated in Parkway Academy's Charter including the school's status as a "school in need of improvement" for more than two years; (2) failure to use instructors having proper certification and/or qualifications; (3) failure to have teachers teaching in their fields; and (4) failure for Parkway Academy to disclose the out of field qualifications to the students' parents. DONE AND ENTERED this 10th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2012.
Findings Of Fact Background And Overview Respondent was first employed by Petitioner, School Board Of Palm Beach County, Florida (the "School Board"), in 1964 as a teacher. Respondent was promoted to principal in 1971, Assistant Superintendent for the School Board in 1978, and Associate Superintendent of Schools for Planning and Operations on July 1, 1984. Respondent was one of three Associate Superintendents in the Palm Beach County school district. There was also an Associate Superintendent of Instruction and an Associate Superintendent of Administration. Each Associate Superintendent reported to the Deputy Director who reported to the Superintendent. Respondent served as Associate Superintendent of Planning and Operations until he was demoted to principal on November 5, 1991. Respondent served under an annual contract as an Associate Superintendent and maintains a continuing contract as a teacher. While employed as an Associate Superintendent, Respondent never received notice of an allegation of incompetent conduct, was never disciplined, and never received a negative performance evaluation prior to this proceeding. In the Summer of 1991, Respondent was a finalist for the position of Superintendent. The position of Associate Superintendent of Planning and Operations was subsequently abolished effective July 1, 1992. Planning And Operations: Organization And Regular Duties The organization of Planning and Operations has changed in specific regards during the years Respondent was its Associate Superintendent. 1/ For the purposes of this proceeding, however, Planning and Operations employed approximately 1,500 people and was organized and operated in three subdivisions: Growth Management; Facilities Planning and Management; and Personnel Relations. Personnel Relations is not at issue in this proceeding. 2/ Growth Management responsibilities included: identifying school district demographics; determining racial balance; and site acquisition for development of schools and other facilities. Facilities Planning and Management responsibilities included: building new schools; renovations; improvements; and maintenance. Each of the three subdivisions of Planning and Operations was supervised directly by an Assistant Superintendent. The Assistant Superintendents supervised one comptroller and nine directors. Directors had direct responsibility for assistant directors. Assistant directors supervised first-line managers. First-line managers supervised numerous employees who regularly worked on: major school center projects; new school construction; facility design and contract services; facility operations; maintenance and renovations; personnel administration; information management; recruitment and selection; and human resources. Additional Duties In addition to their regular duties, Respondent and other senior administrative supervisors were required by Mr. Thomas Mills, the former Superintendent, to promote and solicit the involvement of members of the local business community in the Palm Beach County school system. The school system faced student overcrowding, a lack of materials, a lack of adequate funding, and a rising drop out rate. Members of the business community were recruited to help raise money for operating expenses and to support a bond issue for which the School Board sought voter approval in 1986. Many members of the local business community were also vendors to the School Board. Respondent was directed by former Superintendent Mills and Dr. James Daniels, the Deputy Superintendent, to contact and network with as many members of the business community as possible. Such activities were considered by former Superintendent Mills to be a high priority. Respondent complied with the directives of the former Superintendent and Deputy Superintendent. The efforts of Respondent and other senior managers proved successful. The business community in Palm Beach County raised funds to supplement the operating expenses of the school system and supported a bond issue for construction of new facilities and capital improvements to existing facilities. In 1986, the majority of registered voters in Palm Beach County approved a Special Referendum authorizing a $678 million bond issue for the construction of educational facilities in the Palm Beach County School District. The School Board established a five year plan for the construction of educational and ancillary facilities (the "five year construction plan"). A portion of the bond money was allocated to capital improvement projects to renovate or remodel existing facilities. Planning and Operations supervised all bond issue projects, including capital improvement projects. In the 1986- 1987 school year, such projects, including capital improvement projects, were supervised by the division of New School Construction. In the Fall of 1987, supervision of capital improvements was transferred to Maintenance and Renovations. Maintenance and Renovations was also organized within Planning and Operations. Approximately 39 new schools were constructed in Palm Beach County while Respondent was Associate Superintendent of Planning and Operations. The total budget for construction of new schools was approximately $550 million. Thousands of construction projects, renovations, and improvement or maintenance projects were performed by Planning and Operations. Approximately $317 million of the authorized bond issue was issued from 1987 through 1989. In addition to the construction of new schools, the School Board approved a plan in 1985 to acquire land and construct four ancillary facilities. The ancillary facilities included a new administrative complex, a central warehouse, and a maintenance and operations facility. Planning and Operations supervised the site acquisition and construction of all four ancillary facilities. Deficiencies In Planning And Operations Deficiencies in the organization and operation of Planning and Operations were well known to both the School Board and Planning and Operations personnel. They were pandemic deficiencies that Respondent could not correct without the approval and financial support of the School Board and the technical assistance of experts. 3/ The School Board retained an outside consultant, Price Waterhouse, to study deficiencies in Planning and Operations and to formulate an improvement program. The improvement program was to be developed in three phases. The first phase identified deficiencies within Planning and Operations on the basis of discussions with department personnel and outside specialists. The second phase would have focused on verifying and prioritizing problems and their impacts. The third phase would have formulated a program for improvement of Planning and Operations. Deficiencies in Facilities Planning and Management were identified in interviews conducted by the accounting firm of Price Waterhouse with directors, assistant directors, and first- line managers. In 1987, Price Waterhouse issued a draft report to the School Board describing the deficiencies found in Facilities Planning and Management (the "Price Waterhouse Report"). 4/ The School Board determined that the Price Waterhouse Report merely told the School Board what was already common knowledge and that further expenditures on a program for improvement with Price Waterhouse would be a waste of money. The School Board knew of the deficiencies in Planning and Operations. The School Board knew that those deficiencies created impediments to the supervision of Planning and Operations. Known deficiencies within Facilities Planning and Management involved: financial procedures and controls; staff performance, including personnel and control; planning of operations and projects; contract administration; construction administration; and organization structure. Deficiencies in financial procedures resulted in budgeting without adequate preparation, historical data, timing, and coordination between departments. Poor cost and schedule accounting for capital improvements, maintenance, and operations made it difficult to capture and report cost information in sufficient detail and in a timely manner. Poor cost controls directly affected the control of operations, decisions to perform work by in-house staff or contractors, and the value received for money spent. Adequate project management tools and policies were not in place to contain costs and adhere to schedules for maintenance, capital improvements, and new construction. Payment of suppliers, contractors, architects, and other vendors was slow, frustrated vendors, and made them reluctant to do work for the School Board. There were deficiencies in staff performance, personnel, and control. Productivity appeared to be low. There was a lack of performance measurement and reporting mechanisms in place to accurately assess productivity. Productivity was significantly affected by: inadequate work planning and coordination; the condition and availability of equipment and materials; logistics; and geographic constraints. Many employees were uncertain as to their responsibilities and corresponding authority, particularly at the first-line manager level. Uncertainty over responsibility and authority undermined the effectiveness of first-line managers dealing with vendors, contractors, and architects. Staffing levels and management span were not adequate to maintain existing facilities and operations, control personnel growth, and prevent duplication of field personnel skills between maintenance and capital improvements. Support resources were weak in technical expertise, administrative staff, reference materials, and computer aided design equipment. Capital improvement, new construction, and maintenance tasks were frequently not scheduled in sufficient accuracy and detail to foresee and anticipate potential problems. Frequent schedule slippage allowed contractors less time to complete construction and meet schedules; adversely affecting productivity, project costs, and the ability to plan for and manage project issues and achieve targeted completion dates. Shortages of materials and supplies often caused project delays. Coordination of work between and within departments failed to determine the optimal sequence in which work was to be performed to maximize the utilization of trade employees and avoid conflicts and rework. Deficiencies in contract administration led to lack of clarification in the responsibilities, requirements, and expectations of parties to contracts. Contract documents and conditions were too vague and resulted in frequent disputes, delays, and occasional change orders. To avoid delays caused by change orders, contractors sometime proceeded without proper authorization at their own risk. The definition of authority and responsibility and the guidelines for quality control and inspection for in-house employees and contractors needed to be improved. Such deficiencies in construction administration resulted in project delays, poor construction, and higher facility life cycle costs. A lack of consistency in procedures and policies for project management exacerbated the deficiencies in construction administration. Deficiencies in organization structure directly affected problems in other areas of Planning and Operations. Continuity of work was lacking on new construction. Project managers changed when responsibility passed from one division to the next; resulting in a start-stop effect on the project and a loss of specific project knowledge. Improvement was needed in communications between and within departments and in upper management support of lower management authority. There was a need for a long range organization structure and staffing strategy which addressed alternatives such as internal staffing and contracted services. The presence of deficiencies described in the Price Waterhouse Report in 1987 was confirmed in 1993 in a Report On Audit Of The Palm Beach County District School Board For The Fiscal Year Ended June 30, 1992 Dated: June 24, 1993 issued by the State of Florida, Office Of The Auditor General (the "Auditor General's Report"). The Auditor General's Report found that deficiencies similar to those described in the Price Waterhouse Report for Facilities Planning and Management also existed in Growth Management. Problems reported in the Price Waterhouse Report and in the Auditor General's Report described a deficient organizational and operational system in which the School Board required Respondent to supervise unprecedented growth and activity. Respondent was required to: supervise a $550 million construction plan involving thousands of projects and four ancillary facilities; 5/ promote involvement of the business community in the school system; and perform the duties he was otherwise required to perform in the absence of the five year construction plan established by the School Board and associated promotional responsibilities. In 1987, the Price Waterhouse Report stated that supervisors and assistant directors were stretched very thin, and their roles needed to be more clearly defined. Communication between and within departments and from directors and similar supervisors was poor. 6/ Many of the deficiencies described in the Price Waterhouse Report and the Auditor General's Report created impediments to Respondent's supervision of Planning and Operations irrespective of his additional duties associated with the five year construction plan. Petitioners' Allegations Petitioners' allegations against Respondent are based on two separate investigations conducted by Petitioners. 7/ Petitioners' allegations involve: acquisition of a site for a central warehouse for $3.161 million (the "District Warehouse Site"); acquisition of a site for a west bus compound for $750,000 (the "West Bus Compound"); construction of an addition to a new maintenance and operations building on Summit Boulevard in West Palm Beach for Maintenance and Renovations and Facility Operations and construction of an addition to a north maintenance building (the "Summit Facility"); requests for additional services on form G-604 (the "G-604" issue); acceptance of gratuities from members of the business community who were also vendors of the School Board; and evaluation of two employees. Petitioners' allegations of incompetency primarily involve the five year construction plan and ancillary facilities. Few of the alleged acts of incompetence involve other aspects of Respondent's job performance from July 1, 1984, through November 5, 1991. The District Warehouse Site The School Board determined in 1985 that a need existed for a centralized warehouse site in Palm Beach County. 8/ The School Board determined that approximately 10 acres would be adequate. Since the value of land in Palm Beach County was appreciating, the School Board also approved the policy of former Superintendent Mills that encouraged the acquisition of land for future expansion if the land could be acquired at a desirable price, i.e., "warehousing" land for future use. Respondent had advocated a decentralized warehouse system in which separate warehouse functions would be carried out in various regions of Palm Beach County. Others in Planning and Operations supported the concept of a centralized warehouse site. The centralized warehouse concept was accepted and approved by former Superintendent Mills and the School Board. On October 11, 1989, the School Board purchased approximately 16 acres of real property as a site for a centralized district warehouse. The property was purchased for $3.161 million from KEI Palm Beach Center, Ltd. ("KEI"), a limited partnership in which Mr. William Knight was a limited partner and Knight Enterprises, Inc., a corporation controlled by Mr. William Knight, was the general partner (the "Knight property"). Respondent did not act incompetently and did not violate any statute, rule, policy, instruction, or directive, or circumvent normal acquisition procedures (collectively referred to hereinafter as "applicable standards") with regard to the evaluation and purchase of the Knight property. Respondent neither proposed nor advocated the purchase of a particular warehouse site. Respondent did not propose or advocate the identification, evaluation, selection, and purchase of the Knight property. Respondent showed no favoritism to Mr. William Knight, to his son, Mr. Jim Knight, or to any entity owned by the Knights. Respondent committed no act or omission which impaired his business judgment, compromised his independence, or which was otherwise improper in connection with the acquisition of the District Warehouse Site. Initial Site Selection And Evaluation Prior to the acquisition of the Knight property, the School Board attempted to acquire property owned by Palm Beach County and known as Section 6. Negotiations for the acquisition of Section 6 terminated when Section 6 became unavailable. A site search for the District Warehouse property was conducted by Growth Management. Ten separate sites, including the Knight property, were initially identified and reviewed by a site acquisition team within Growth Management. The site acquisition team was headed by Mr. William Hukill, Assistant Superintendent for Growth Management. The site acquisition team also included Mr. Robert Skakandy, a real estate acquisition coordinator in Growth Management, and Mr. David Williams, Assistant Director of Growth Management. Respondent was not significantly involved in identifying the 10 properties considered by the site acquisition team, including the Knight property. Each property was placed on the list by the site acquisition team because it was within or proximate to the geographical area preferred by the site acquisition team or possessed other targeted location characteristics. 9/ Site selection procedures typically did not involve Respondent. Site selection procedures were described in detail in the Auditor General's Report: . . . upon identification of potential sites, the sites were evaluated by the District's Growth Management Center. A description of each site was presented to the Assistant Superintendent, Growth Management and to the Assistant Director, Growth Management for their review, after which the descriptions were . . . presented to the Superintendent. Following the Superintendent's review, the preliminary site investigations and site descriptions with the Superintendent's recommendation were to be presented to the School Board for their review and approval. (emphasis supplied) Auditor General's Report at 63. Growth Management first considered the Knight property in August, 1988. Mr. Jim Knight communicated the availability of the Knight property to Ms. Linda Howell, a real estate coordinator in Growth Management. Ms. Howell and Mr. Jim Knight conducted further discussions. Ms. Howell identified the Knight property as a potential site and relayed the site information to Mr. Skakandy. The site acquisition team reduced the list of ten sites to a list of three final sites. The Knight property was not one of the three final sites selected. The three final sites were all less expensive than the Knight property. The three final sites were the Riviera Beach site, the Boyton Beach site, and the Farmer's Market site. Feasibility problems developed with each of the three final sites. The Riviera Beach site was sold to another party. The Boyton Beach site was objected to by other staff not on the site acquisition team. It was 15-20 miles south of the center of the county and failed the express criteria for a "central" warehouse. Environmental problems and costs associated with the disposal of building materials caused Maintenance and Renovations to recommend against purchase of the Farmer's Market site. 10/ Reconsideration Of Knight Property On or about January 11, 1989, former Superintendent Mills sent a memorandum to Mr. Hukill indicating that Mr. William Knight had called the Superintendent to express his interest in having the Knight property reconsidered for the District Warehouse Site. Respondent received a copy of that memorandum but was not otherwise involved significantly in the reconsideration of the Knight property. On or about January 20, 1989, Mr. Hukill sent a letter to the former Superintendent indicating that the Knight property was still under consideration and that the Knight property location was quite good under the circumstances. Mr. Hukill indicated that appraisals had been ordered and that a site recommendation would be forthcoming. 11/ The Knight property was reconsidered in accordance with procedures customarily followed in Growth Management. There was no formalized procedure followed in Growth Management for the evaluation of property for site acquisition. Sites were discussed in a free form fashion. Except for a recommendation of the final site selected, written records for recommendations on specific properties were not customarily prepared by staff in Growth Management. 12/ Mr. Hukill made the ultimate decision to add or drop sites from consideration. Acquisition sites were added or deleted from site acquisition lists without notifying Respondent. The Knight property was evaluated by the entire staff in Growth Management. The evaluation of the Knight property included a review of environmental issues, utilities, zoning, and road use. Mr. Jim Knight had more than 20 meetings with Growth Management staff including Mr. Hukill, Mr. Skakandy, and Mr. Williams. Respondent was not significantly involved in those discussions. 13/ The Knight property was recommended by staff because of its suitability for the District Warehouse and because of the unavailability or unsuitability of the first three sites originally selected by the site acquisition team. The Knight property was located in almost the exact center of the county. It was also located on Southern Boulevard, a roadway that runs directly to western communities in Palm Beach County where many new schools were scheduled for construction. Respondent properly relied on staff recommendations for the Knight property in accordance with his customary practice. At no time prior to the time the property was acquired did any employee within Growth Management state to Respondent that the Knight property was not a suitable site or that the purchase of the Knight property would be detrimental to the School Board. Mr. Hukill did not sign the written recommendation for the Knight property. The reason for his refusal, however, had nothing to do with the suitability of the Knight property for the District Warehouse. Mr. Hukill believed, as a philosophical matter, that the School Board should spend its money on schools rather than on additional warehouse sites. Mr. Hukill, in effect, objected to a determination made by the School Board in 1985. Mr. Hukill agreed with the recommendation that the Knight property was suitable based on the marketplace, location, and ease of distribution for servicing schools. Respondent neither identified nor advocated the Knight property. Respondent had no conversations with either Mr. William Knight or Mr. Jim Knight concerning the evaluation of the Knight property as a site for the District Warehouse except as previously described. Except for the price paid for the Knight property, Respondent's involvement in the acquisition of the Knight property was limited to a review of staff recommendations and the acceptance of those recommendations. Additional Acreage The initial search for a District Warehouse site focused on the acquisition of 10 acres of property. However, the Knight property included 16 acres. The additional acreage was purchased to overcome access problems that would have occurred if only 10 acres had been purchased. Unanticipated problems in site selection was one of the deficiencies known to the School Board and discussed in the Price Waterhouse Report in 1987. Engineering involvement frequently did not occur early enough in site acquisition. As a result, sites selected by the site acquisition team required unanticipated expenses, and the full cost of the project was not properly assessed. 14/ The decision to purchase additional acreage was not made by Respondent. Former Superintendent Mills wanted the additional acreage to accommodate future expansion for office space on the warehouse site. The former Superintendent believed that a larger site was desirable to properly accommodate future expansion needs and directed the purchase of the additional acreage. The issue of whether to increase the site for the District Warehouse from 10 acres to 16 acres was discussed at a Superintendent's staff meeting. The former Superintendent, the School Board attorney, Respondent, and a dozen other members of the former Superintendent's staff attended the meeting and participated in the discussion. The decision and recommendation to purchase the additional acreage was made by the former Superintendent. Purchase Price The final purchase price for the Knight property was reasonable and beneficial for the School Board. Respondent was responsible for the final purchase price. Two separate appraisals for the Knight property were obtained by Growth Management in accordance with its customary practice and applicable law. 15/ Respondent did not select the appraisers. They were selected by Mr. Skakandy with the approval of Mr. Williams. The appraisers were qualified and had been used many times in the past by Planning and Operations. The two appraisals for the Knight property differed by $1.00 a square foot. The higher appraisal was for $5.50 a square foot. The lower appraisal was for $4.50 a square foot. 16/ Respondent refused to accept Mr. William Knight's offer to split the difference between the two appraisals and insisted on a sales price of $4.42 a square foot. The price paid for the Knight property was reasonable and less than the lowest appraised value. Contract Negotiations Respondent was not involved in contract negotiations for the Knight property and did not dictate any of the terms of the contract for the purchase of the Knight property; except the final purchase price discussed in the preceding paragraph. Site acquisition personnel typically negotiated site acquisition contracts in concert with the School Board attorney. Site acquisition personnel did not customarily report the status of contract negotiations to Respondent. No established procedure required such reports. Contract negotiations for the acquisition of the Knight property were carried out entirely by site acquisition personnel within Growth Management and Mr. Robert Rosillo, the School Board attorney. Negotiations by staff and the School Board attorney for the Knight property were within the scope of normal functions for site acquisition. The School Board attorney did not confer with Respondent during the three months in which contract negotiations for the Knight property were conducted. Respondent never gave the School Board any direction or other information concerning the acquisition of the Knight property. It is the responsibility of the School Board attorney and technical staff in Growth Management to draw acquisition contracts, address zoning requirements, and determine contingencies for closing. Any problems associated with the final contract for purchase of the Knight property were the responsibility of the School Board attorney and staff negotiators. Road Improvements: Allocation Of Costs Between The Parties The contract for the Knight property addressed road improvements, right-of-way, and relocation measures necessary for the use of the property. Engineering drawings reflected the right-of-way issues, the need to relocate water and sewer lines and a lift station, and the need for road improvements. The parties to the contract agreed to share the cost of road improvements proportionally. The contract required the seller to place $70,000 in a separate escrow account to be used to fund the necessary road improvements. While Petitioners now complain that the amount escrowed by the seller was inadequate, the terms of the contract were prepared by the School Board attorney and recommended by Growth Management staff in accordance with long standing practice. In 1987, The Price Waterhouse Report stated that contract documents did not delineate specific responsibilities. The result was confusion, disagreements, and additional costs to the School Board or outside parties. 17/ Adverse impacts from the purchase of the Knight property on October 11, 1989, reflected deficiencies reported in the Price Waterhouse Report in 1987. Those deficiencies were well known to the School Board at least two years before the acquisition of the Knight Property. The School Board chose not to expend additional funds on a program of improvement suggested by Price Waterhouse. Financial Ability Of Seller To Comply With Repurchase Option The contract for the Knight property contained a provision which gives the School Board the right to require the seller to repurchase the property if conditions pertaining to zoning are not satisfied (the "repurchase option"). The repurchase option was drafted by the School Board attorney. A decision not to enforce the repurchase option was made by the School Board, the School Board attorney, and the former Superintendent. If the School Board had elected not to proceed with closing, the contract afforded the seller to right to sue for specific performance. A foreclosure suit was filed against the Knight property a few days prior to the closing on October 11, 1989. Mr. Rosillo discussed the impact of the foreclosure suit on the purchase with former Superintendent Mills. The issue was not discussed with Respondent. The contract did not require the seller to evidence its financial ability to perform the terms of the contract. Nor did the contract require Mr. William Knight to personally guarantee the obligation of the seller under the repurchase option. Temporal Considerations The time required for the evaluation and purchase of the Knight property was reasonable and adequate. The transaction was not "rushed." The evaluation and purchase of the Knight property required approximately 14 months to complete. Once the decision to purchase the property was made, approximately three months were required to finalize the terms of the contract and close the transaction. Even if the evaluation and purchase of the Knight property was rushed, Respondent did not act as an impetus to rush the transaction. Respondent was not significantly involved in the identification, evaluation, and purchase of the Knight property except for the final purchase price. Mr. Jim Knight actively negotiated the transaction with Mr. Rosillo, Mr. Hukill, Mr. Williams, and Mr. Skakandy. The entire transaction was discussed fairly and adequately by Growth Management staff and the School Board attorney. Respondent did not propose or advocate the Knight property. Respondent did not negotiate the terms of the contract to purchase the Knight property except for the final purchase price. Respondent did not decide whether to close the transaction or whether to enforce the repurchase option. Bifurcated Funding For Land Acquisition And Construction The fact that the Knight property was acquired prior to the time that money was available to construct the District Warehouse does not make Respondent incompetent. Property was customarily purchased first and a building constructed out of budget appropriations in subsequent years. In 1987, The Price Waterhouse Report included such practices in its list of deficiencies. The capital budgeting process lacked sufficient coordination, timing, and input. Adequate cost accounting tools were not available. Existing reports lacked sufficient detail, accuracy, and timeliness. Capital improvement funding sources were not clearly identified. The fact that priorities for capital improvements were not easily or accurately tracked was a source of frustration for administrators including Respondent. 18/ Those deficiencies were known to the School Board prior to 1987. In 1987, the School Board chose not to pursue a program of improvement with Price Waterhouse. In 1993, the Auditor General's Report found that originally designated capital outlay moneys had been expended on projects, land purchases, and other purposes which were not contemplated in the 1986 school construction plan. Expenditures not contemplated in the five year construction plan included the District Warehouse Site. 19/ The notice of tax levy for capital improvements had not been prioritized within categories as required by Section 200.065(9)(a), Florida Statutes. Failure to prioritize the projects contributed to delays in undertaking some of the projects at issue. Furthermore, the School Board did not segregate and account for the proceeds and related expenditures of each respective year's levy. 20/ The decision to purchase the Knight property and rely on budget appropriations in subsequent years for construction was made by former Superintendent Mills. The former Superintendent's policy was to purchase land at a reasonable price if there was a future need for the property. Land values in Palm Beach County were appreciating rapidly. The money to construct the buildings on such properties typically came from budget appropriations in subsequent years. The Knight property was purchased for less than its lowest appraised value. 2.10 Gratuities And The Knight Property Respondent went fishing in 1986 and 1987 on Mr. William Knight's fishing boat in St. Thomas, U.S. Virgin Islands, and in Bimini, Bahama Islands. Respondent reported both fishing trips on his annual financial disclosure forms. The two fishing trips did not adversely affect Respondent's business judgment or create the appearance of impropriety. Respondent was not significantly involved in the acquisition of the Knight property in October, 1989. In 1986, Respondent accepted an invitation from Mr. Robert Howell, a member of the School Board at the time, to go fishing in St. Thomas. The invitation was made to Respondent through former Superintendent Mills. The former Superintendent joined Respondent on the fishing trip. Respondent had never met Mr. William Knight before that time. The fishing trip lasted two days. Respondent paid for his own transportation to St. Thomas. In 1987, Respondent and former Superintendent Mills accepted an invitation from Mr. William Knight to fish with their children in Bimini. The fishing trip lasted one day. The West Bus Compound On or about April 24, 1990, the School Board purchased property in Royal Palm Beach for $750,000 (the "West Bus Compound"). The property was purchased from Mr. John Bills. Site selection procedures typically did not involve Respondent. 21/ Respondent did not act incompetently or violate applicable standards with regard to the identification, evaluation, and purchase of the West Bus Compound. Respondent did not propose or advocate the West Bus Compound or the evaluation, selection, and purchase of the West Bus Compound. Respondent showed no favoritism to Mr. Bills, or any entity owned by Mr. Bills. Respondent committed no act or omission which impaired his judgment, compromised his independence, or which was otherwise improper in connection with the evaluation and acquisition of the West Bus Compound. The need for a site to service the western portion of Palm Beach County was identified by Mr. George Baker, the Director of Transportation. Transportation was a division of the Department of Administration. The Associate Superintendent of Administration was Dr. Henry Boekhoff. Respondent had no authority or responsibility over Transportation. The need for a site to service the western portion of Palm Beach County was uncontroverted. Due to westward population migration, several new schools were built in the western regions of the County. Mr. Baker determined that it was not cost effective to transport buses back and forth from compounds in the eastern portion of the County for maintenance and storage. Mr. Baker and Dr. Boekhoff determined that a West Bus Compound would result in significant savings in the operating budget. The need for a West Bus Compound was well known within the school district administration, including Growth Management. Mr. Baker had repeatedly stated to everyone "within earshot" that the need for a West Bus Compound was urgent. Mr. Baker identified a site location in Royal Palm Beach owned by Mr. Bills. Mr. Baker told Mr. Williams, who worked in Growth Management, that Transportation wanted the site owned by Mr. Bills for the West Bus Compound. Mr. Bills was trying to sell his property. Mr. Bills submitted a brochure on the property to Mr. Hukill and other staff in Growth Management. Mr. Hukill recommended the property owned by Mr. Bills to Respondent. Respondent discussed the site with former Superintendent Mills. At Mr. Hukill's request, the former Superintendent authorized Mr. Hukill to proceed with negotiations for the property owned by Mr. Bills. Respondent advised Mr. Williams of the availability of the property owned by Mr. Bills. Respondent instructed Mr. Skakandy to follow normal procedures regarding the West Bus Compound site. The West Bus Compound site was evaluated by Mr. Skakandy and Mr. Williams. They also negotiated the contract for acquisition. Such action on the part of Mr. Skakandy and Mr. Williams was consistent with customary practice within Growth Management and was within the scope of their regular duties and responsibilities. Two appraisals were obtained for the West Bus Compound. The higher appraisal was for $810,000. The lower appraisal was for $703,000. The property was purchased for $750,000. Respondent properly relied on the recommendations and advice of technical staff in Growth Management with respect to the acquisition of the West Bus Compound site. Respondent was never informed by anyone within Growth Management that there were any limitations on the use of the site. Certain zoning and easement requirements reduced the usable area for the site below that originally projected by Growth Management. Mr. Baker recommended the site even though the usable area was less than originally projected. Respondent was not acquainted with Mr. Bills at the time that the West Bus Compound was evaluated and acquired. Subsequently, however, Respondent developed a friendship with Mr. Bills. Respondent never showed any favoritism to Mr. Bills in connection with the West Bus Compound. The Summit Facility On July 1, 1989, employees of Maintenance and Renovations and employees of Facility Operations were housed in a leased facility at 3323 Belvedere Road, West Palm Beach, Florida (the "Belvedere" site). A new ancillary facility was nearing completion in the Fall of 1989. The new facility was located at 3300 Summit Boulevard in West Palm Beach (the "Summit Facility"). The Summit Facility included a second building known as the north building. The landlord for the Belvedere site exercised its rights under the lease to obtain use of the Belvedere site sooner than originally anticipated by the School Board. Electronics employees housed at the Belvedere site were moved to Northshore High School ("Northshore") on a temporary basis until the Summit Facility was completed. Residents of the neighborhood adjacent to Northshore complained to some members of the School Board about increased traffic. The School Board took the matter up at a public meeting during the Fall of 1989. Approval Of Day Laborers In Trades Sections At the public meeting conducted in the Fall of 1989, the School Board specifically authorized Mr. David Lord, Director of Maintenance, and former Superintendent Mills to use day- laborers in the trades sections 22/ to construct additions to buildings at the Summit Facility and to relocate electronics employees from Northshore to the Summit Facility by January 1, 1990. Mr. Lord and the former Superintendent discussed the matter with the School Board in detail. 23/ At the public meeting, the School Board instructed Mr. Lord to use whatever resources were available to him to make needed capital improvements to the Summit Facility by January 1, 1990. Confusion over when to use contractors or in-house personnel was one of the deficiencies discussed in the Price Waterhouse Report in 1987. Criteria for determining when to perform work on a contract basis and when to perform work in- house were not clearly established. This made planning difficult and increased project costs. 24/ Lack of communication and agreement between project managers and construction personnel concerning time and cost of in-house projects resulted in incorrect decisions concerning the desirability of building in-house or by contract, caused delays, cost overruns. 25/ Comparative cost analyses of in- house and contract maintenance construction were not available. 26/ In 1993, the Auditor General's Report found that established procedures did not provide reasonable safeguards to monitor day-labor projects to ensure that goods and labor were used only for authorized projects. The Auditor General's Report recommended that such procedures be established. 27/ Mr. Lord used day-laborers from his trades sections to make the capital improvements mandated by the School Board in accordance with the School Board's instructions. The work was begun in December, 1989, and completed in March, 1990. Code Violations In 1991, after considerable time for discussion and analysis among attorneys and technical staff within the Department of Education and Planning and Operations, it was determined that some additions to the Summit Facility were not in compliance with applicable safety code regulations. Respondent properly relied on Mr. Lord and Mr. Lord's immediate supervisor for technical compliance with applicable code provisions. Florida Administrative Code Chapter 6A-2 contains the State Uniform Building Code. Part A of Chapter 6A-2 ("Part A") applies in some circumstances, and Part B of Chapter 6A-2 ("Part B") applies in other circumstances. In July, 1990, officials of the Department of Education, Educational Facilities Department, in Fort Lauderdale, Florida, were invited to a demonstration of fire alarms at the Summit Facility. Mr. Russell Smith, Director of Facilities Design, determined that life/safety code violations existed in the two buildings at issue in the Summit Facility. Mr. Smith's determination of code violations was based on the assumption that Part A applied to the capital improvements at the Summit Facility. Mr. Lord had determined that Part B applied to the capital improvements. The capital improvements at the Summit Facility complied with the requirements of Part B but not Part A. Mr. Smith did not report the alleged code violations to Respondent until December, 1990. Respondent directed Mr. Smith to obtain a determination from the Department of Education. Mr. Smith pursued the matter with representatives of the Department of Education as well as Mr. Lord in Growth Management. Ms. Abbey Hairston, General Counsel for the School Board, concluded that there was a strong likelihood that Part B applied. Mr. Lord suggested that an outside consulting firm be retained to determine the applicability of Part A or Part B to the capital improvements at the Summit Facility. Respondent could not have detected the existence of the alleged code violations in the capital improvements to the Summit Facility. Respondent did not have the expertise to make such a determination. Respondent's regular duties and responsibilities did not require that Respondent maintain such expertise, conduct inspections for the purpose of detecting code violations, or correct code violations. Respondent did not act incompetently and did not violate applicable standards with regard to the capital improvements to the Summit Facility. Respondent did not propose or advocate that capital improvements be made to the Summit Facility in compliance with Part B. Respondent properly relied on his staff for technical compliance with applicable code requirements. When Respondent received notice of alleged code violations, Respondent acted in a competent and timely manner. In 1987, The Price Waterhouse Report discussed several deficiencies in staff performance, personnel, and control. The Price Waterhouse Report stated: Internal expertise is limited. Knowledge of specialized areas is limited, project quality suffers, life cycle costs are higher. . . . Training programs and budgets are insufficient, especially with respect to technical and safety training. Employees are not as efficient or effective as they could be. Knowledge of project managers is less than they feel is necessary Project managers are resistant to new management techniques. . . . Inadequate technical library. . . . Price Waterhouse Report, Staff Performance, Personnel And Control, Issues 5, 7, and 9, and corresponding Impacts. In 1993, the Auditor General's Report recommended that: . . . District personnel strengthen procedures to provide that, prior to occupancy in the future, the required approvals for occupancy are obtained to ensure that the facilities meet the prescribed safety standards. Auditor General's Report at 64. Tracking And Reporting Costs The computer codes and accounting approach used to track and report the cost of capital improvements to the Summit Facility complied with applicable standards. The computer codes and accounting approach recorded each transaction and were subject to separate retrieval in accordance with established procedures. Required object, fund, and function codes were used to document the expenditure of funds for the capital improvements to the Summit Facility. In 1987, the Price Waterhouse Report stated: Adequate cost accounting tools are not available. Existing reports lack sufficient detail, accuracy and timeliness. [There is] . . . [n]o ability to manage and control project cost. This results in true project cost being unknown and lack of problem identification on a timely basis. . . . Capital Improvement Requests are not easily or accurately tracked. Priorities are difficult to track and coordinate. This is a source of school administration frustration. . . . Project management tools are not available. Project cost containment suffers. Control and reporting is lacking. . . . Accountability is difficult to enforce. Price Waterhouse Report, Financial Procedures And Controls, Issues 4, 8, and 17, and corresponding Impacts. The day-labor hours billed for additions to the Summit Facility totaled approximately 6,373. In the three fiscal years from 1989 through 1992, approximately 566,853.75 day-labor hours were paid and approximately 454,701.75 were billed. Day-labor hours paid exceeded day-labor hours billed by approximately 112,152 hours. 28/ As the Price Waterhouse Report indicated in 1987, adequate cost accounting tools were not available. The cost accounting and reporting procedures that were in fact utilized for the additions to the Summit Facility complied with available cost accounting procedures. Respondent did not act incompetently and did not violate applicable standards in connection with the method used to track and report the cost of capital improvements to the Summit Facility. Respondent did not propose or advocate any particular accounting procedure. Respondent properly relied on technical staff to track and record the cost of capital improvements to the Summit Facility, and staff properly utilized the accounting tools available to them. Purchase Orders Purchase orders for mezzanine and modular offices were originated by staff in lower levels of Maintenance and Operations. The purchase orders were processed in accordance with normal procedure and approved by Ms. Betty Helser, Director of Purchasing. Ms. Helser was under the supervision of the Associate Superintendent of Administration and was not subject to the authority of Planning and Operations. Planning and Operations had no authority over Purchasing. Respondent did not participate in the purchase order approval process. Respondent was not responsible for that process. Several names were listed on the purchase orders as resource or contact persons in connection with the purchase order. Respondent was not one of those named. Funding Source For Capital Improvements Respondent did not act incompetently and did not violate applicable standards in connection with the funding source for capital projects, including acquisition of the District Warehouse site, the West Bus Compound, and additions to the Summit Facility. Funding sources for such projects were approved by the School Board. The funds used to pay for the District Warehouse, the West Bus Compound, and the Summit Facility were not misappropriated or misapplied. The School Board approved those capital projects and their corresponding budgets. The budget for each capital project provided for the transfer of capital outlay moneys to the general fund. 29/ Taxes had been levied for capital improvements pursuant to Section 236.25(2), Florida Statutes. Funds were transferred from this special millage money and not from general obligation bond money. Such transfers occurred in prior years and were consistent with customary procedure. Moreover, no funds were used for capital projects without the prior knowledge and consent of the School Board. Deficiencies in the budget reporting and control process impeded full consideration by the School Board of the impact of capital projects and budget transfers on the 1986 school construction plan. As a result, originally designated capital outlay moneys were expended on capital projects not contemplated in the 1986 school construction plan. Accordingly, some originally contemplated projects were not undertaken in the five year plan due to lack of funds. 30/ Deficiencies in financial processes and controls reported by Price Water House in 1987 and known to the School Board prior to that time created impediments to proper budgeting and resulted in poor budget quality. In 1987, the Price Waterhouse Report stated: Performance measurement (feedback) needed to assess and improve budget accuracy is lacking. Poor budget accuracy, control, and forecasting [results]. . . . The capital budgeting process lacks sufficient coordination, timing and department input. Budget priorities may not be sufficiently addressed and quality of actual budgets may suffer. Priorities for improvements are defined by construction and remodeling, but they may not be consistent with the school's needs. High priority projects may not be addressed on a timely basis. Price Waterhouse Report, Financial Procedures And Controls, Issues 2, 16, and corresponding Impacts; Price Waterhouse Report, Planning Of Operations And Projects, Issue 9 and corresponding Impact. Projects funded by the capital outlay millage derived under Section 236.25(2), Florida Statutes, were not prioritized within categories in the notice of tax levy as required by Section 200.065(9)(a). Failure to prioritize the projects to be funded by the capital outlay millage contributed to delays in undertaking some of the projects contemplated in the 1986 construction plan. In addition, the proceeds and related expenditures of each year's levy was not segregated and accounted for. 31/ Reports reviewed by the School Board consisted of monthly financial statements containing analyses of revenues by source of funds and analyses of expenditures by function. Status reports showed comparisons of projected revenues designated for the 1986 school construction plan with actual revenues received. Comparisons of projected construction costs anticipated in the five year construction plan with actual construction costs were not available. Like the notice of tax levy, available status reports did not prioritize projects within categories. The failure to prioritize projects and reporting inadequacies constituted some of the pandemic deficiencies known to the School Board prior to 1987 and did not result from Respondent's alleged incompetence. In 1993, the Auditor General's Report recommended several procedures for rectifying deficiencies in the budgeting process. First, quarterly status reports on capital projects should be revised to show the projected costs of projects, current expenditures, and the variances over or under projected costs. Second, proposed budget amendments should include an explanation of the possible effects on capital construction plans and operating budgets. Third, the ". . . Board and the Superintendent. . ." 32/ should develop written management reporting guidelines. Finally, the School Board should re- examine the remaining bond plan projects to ensure that they reflect current needs. G-604s: Requests For Additional Services Respondent did not act incompetently and did not violate applicable standards with regard to the use of requests for additional services or change orders on form G-604. Requests for additional professional services or for change orders are made on form G-604. Palm Beach County requires that such requests be reviewed by the School Board. Respondent never attempted to hide requests for architectural services from the School Board or to prevent their review by the School Board. In August of 1986, Mr. Hukill wrote a memorandum to Respondent requesting that directors be allowed to review and approve appropriate requests for additional services in an amount no greater than $20,000 per request and then submit the G-604 to the School Board for subsequent review. Respondent approved the procedure requested by Mr. Hukill. Two weeks later, Mr. Larry Mione, Contract Administrator, erroneously wrote a memorandum to four assistant directors authorizing requests for additional services of up to $20,000 per request without the need to have such requests subsequently reviewed by the School Board. As a result of the erroneous memorandum from Mr. Mione, some G-604s were approved by directors and were not subsequently reviewed by the School Board. This practice was in derogation of the memorandum issued by Respondent. When the discrepancy was discovered, several investigations were ordered by former Superintendent Mills and Deputy Superintendent Daniels. There were approximately 30 people at staff meetings two times a month. All of them review School Board reports. None of them discovered the discrepancy in the conflicting memoranda until after the violations had occurred. Respondent was not charged with wrongdoing or incompetence and was not found incompetent. An independent outside consultant confirmed the need for the G-604s and the procedure authorized by Respondent. Gratuities Former Superintendent Mills established a policy that required all senior administrative personnel, including Respondent, to promote the involvement of members of the business community in the school system. The policy was designed to obtain the aid of business in solving problems such as overcrowding, lack of materials and text books, a lack of funding, and an increasing drop out rate. The policy was a high priority for former Superintendent Mills. Respondent performed the duties required under the policy established by former Superintendent Mills. Respondent entertained members of the business community and was entertained by them. The gratuities accepted by Respondent generally involved free lunches, dinners, and golf outings. Policy Directive Respondent's activities did not violate the policy directive of former Superintendent Mills. Former Superintendent Mills knew of Respondent's activities and approved of those activities. Upper management was encouraged to socialize with members of the business community, including contractors and architects, in an effort to get them involved in solving problems facing the school system. Business Judgment And Impropriety Respondent's business judgment was not adversely affected by his association with vendors of the school system. Respondent's association with such members of the business community did not create the appearance of impropriety. The award of contracts to vendors was the responsibility of Purchasing. Purchasing was under the control of Dr. Boekhoff, the Associate Superintendent of Administration. Ms. Helser was the Director of Purchasing. Respondent did not have the authority to influence decisions made in Purchasing. Incompetence Respondent carried out the policy directive of former Superintendent Mills competently with no adverse affect on his business judgement and without the appearance of impropriety. The business community became actively engaged in solving problems of the school district. Companies such as Motorola, Pratt Whitney, and IBM provided opportunities for speakers to address employees to promote the bond issue. The bond issue was approved by the voters. A program known as "Cities in Schools" was developed as a business partnership to prevent drop out. Funds were raised for programs and materials. Respondent did not improperly promote a particular vendor or product in connection with the business of the School Board. Respondent never violated any administrative directive or established standard of conduct of the Department of Education. Evaluations 128. The Amended Petition For Demotion alleges that Respondent was incompetent in evaluating two employees. Those employees were Mr. Goode and Mr. Hukill. No credible and persuasive evidence was submitted by Petitioners to support their allegations in this regard. Attorney Fees And Costs The parties' request for attorney fees and costs are addressed in the Conclusions of Law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order finding Respondent not guilty of any of the allegations in the Amended Petition For Demotion, award Respondent back salary with applicable interest for the entire period of his demotion, immediately reinstate Respondent to a salary level comparable to that received as Associate Superintendent of Planning and Operations in accordance with Section 231.36(6)(b), Florida Statutes, dismiss the request to return Respondent to annual contract status under Section 231.35(4)(c), and maintain Respondent on continuing contract. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 23rd day of July, 1993.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent holds Florida teaching certificate number 339068, covering the area of elementary education which is valid through June 30, 1993. The Respondent was employed as a teacher by the Broward County School Board through January 1983. In June 1981, the Respondent misrepresented her credit and bankruptcy history, and submitted an erroneous Social Security number and birth date to the Broward Schools Credit Union. After obtaining an account under false pretenses, the Respondent made application and received loans from the Credit Union. The Respondent also applied for and received a Master Card credit card from the Credit Union. The Respondent failed to make adequate payments on these obligations. On February 1, 1983, a default final judgement was entered against the Respondent in the amount of $12,274.22 in the Broward County Circuit Court. The judgment resulted from her failure to honor the obligations of two promissory notes and a Master Card Agreement between the Respondent and the Credit Union. On June 27, 1983, a final judgment as to unliquidated damages was entered against the Respondent in Broward County Circuit Court. The Court found that the Respondent intentionally misrepresented her credit status and other information to the Credit Union for the purposes of obtaining credit. The Court held: The facts and circumstances reflect consistency in a scheme or artifice on the part of the defendant to prepare and publish to Plaintiff materially false written statements as to her creditworthiness with wrongful intent and for purposes of misleading Plaintiff Credit Union in the extension of monies and credit. Such actions were willful, wanton, and do outrage this Court by the clear reflection of an obvious disregard for any intent to repay the indebtedness reflected under the various credit transactions herein with Plaintiff Credit Union. A punitive judgment award of $100,000 was entered against the Respondent. On September 30, 1987, the Petitioner filed an Administrative Complaint against the Respondent. The complaint charged that the Respondent fraudulently obtained membership with the Broward Schools Credit Union and submitted false statements in order to obtain credit. The complaint further alleged that the Respondent issued a worthless check to a merchant. The September 1987 Administrative Complaint further alleged that the Respondent's conduct violated Section 231.28, Florida Statutes, and Rule 6B-1.006, F.A.C., in that she had been guilty of an act of moral turpitude; had been involved in conduct which seriously reduced her effectiveness as an employee of the school board; had failed to achieve the highest degree of ethical conduct; and had failed to maintain honesty in all professional dealings. The Respondent received the complaint, but failed to file an Election of Rights form. The EPC declared the Respondent to be in default and heard the case on August 25, 1988. The EPC's Final Order of September 4, 1988, adopted the findings of fact and conclusions of law set forth in the complaint. The EPC revoked the Respondent's teaching certificate for one year and further ordered that the Respondent be placed on two years probation. The terms of probation required that the Respondent submit quarterly reports of her teaching performance, and that she make restitution to the Broward Schools Credit Union. The Respondent subsequently filed a Motion to Vacate and set aside the Final Order, claiming that she did not receive the Administrative Complaint. The EPC denied the Respondent's Motion to Set Aside. In its February 11, 1988 order, the EPC found that the Respondent had received the complaint as evidenced by her signature on the certified mail receipt. The Education Practices Commission is authorized by law to take disciplinary action against a teaching certificate. The EPC is further authorized to impose probation upon a certificate holder and may report an individual for a violation of the Florida Administrative Code for failure to comply with probation. Karen Wilde is the Executive Director of the Education Practices Commission. As part of her duties she administers the probationary terms imposed upon educators by the EPC. In her position as administrator of the EPC, Dr. Wilde stated that the EPC's order required full restitution of the debt owed to the credit union within the period of probation. Following the period of revocation, the Respondent became employed at Rochelle Elementary School in the Polk County School District in September 1989. By letters dated November 1, 1989 and February 28, 1990, Dr. Wilde advised the Respondent that her probationary period would begin upon her employment date of September 12, 1989 and continue through September 12, 1991. The letters further informed the Respondent that her conditions of probation required her to submit reports of her teaching performance, and make full restitution to the Broward Schools Credit Union. The Respondent initially failed to submit her performance reports as required. The EPC reported the Respondent to Professional Practices Services for investigation of her noncompliance. The Respondent subsequently complied with EPC's request and submitted her performance reports. On April 17, 1991, Respondent was notified that she must submit written verification of restitution to the Broward Schools Credit Union. The letter informed the Respondent that her probation could not be terminated until all of the requirement of the probation had been satisfied. On September 20, 1991, the Respondent was again notified that her probation requirements would not be completed until the Respondent submitted written verification of her full restitution to the Credit Union, and that failure to submit proof of restitution by October 12, 1991, would result in a report of her noncompliance being submitted to the Professional Practices Services. The Respondent failed to submit any proof of restitution to the EPC by October 12, 1991. As of this date, Respondent has not submitted any evidence of her complete or partial payment of the obligation. Between 1985 and 1991, the Respondent had no contact with the Credit Union nor did she attempt to make payments on the final judgment. The Credit Union refused to accept Respondent's offer of payments which was made in 1991, because of the amount of the judgment. The Respondent and the Credit Union eventually agreed to a payment plan. The Respondent made a down payment of $200.00 on December 10, 1991, and agreed to make monthly payments of $125.00. Since then, the Respondent has made payments of $125.00 in January, March, April, July, August, November, and December of 1992. As of January 12, 1993, the Respondent has paid approximately $1,000 toward the $12,000 compensatory damage portion of the judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Janice Anderson, be found guilty of violating Section 231.28(1)(h), Florida Statutes, and Rules 6B-1.006(5)(o), F.A.C. It is further, RECOMMENDED that the Education Practices Commission revoke the Respondent's teaching certificate for two (2) years. If at the end of the two year period the Respondent has made complete restitution of the compensatory damages portion of the final judgment to the Credit Union, she shall be eligible to reapply for certification. If the Respondent has not made complete restitution to the Credit Union, the period of revocation shall remain in effect until the restitution is complete. It is further, RECOMMENDED that if and when recertified, the Respondent shall be placed on ten (10) years probation with the EPC under such terms as the Education Practices Commission deems appropriate. DONE and ENTERED this 25th day of February, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of February, 1993.
