The Issue Barkley has petitioned for the determination of the invalidity of Section 1101.1.3.2-15.i of the LES Personnel Manual. That section provides standards for disciplinary action when an employee commits the offense designated "falsification of records." The issues, therefore, are whether the standard is a rule as defined in Section 120.52(15) F.S. and whether Barkley is substantially affected by the standard. If the answer to both questions is yes, then it necessarily follows that the "rule" is invalid, as the parties have stipulated that the standard was not adopted as a rule.
Findings Of Fact Earnest O. Barkley, Jr. was employed by the Department of Labor and Employment Security in June 1980, and was continually employed until October 13, 1987. At the time of his separation he worked as a Statistician I, a position within the Florida career service system. During the course of his employment Barkley and other employees were given copies of the LES Standards for Disciplinary Action and were told that these would apply in agency discipline cases. The LES Standards for Disciplinary Action comprise section 15 of a much larger LES Personnel Manual. The Forward to that manual provides as follows: FOREWARD The LES Personnel Manual transmits to Managers, Supervisors and employees, the personnel policies and procedures for staff in the Florida Department of Labor and Employment Security. This manual provides direction and information in the areas of retirement, employment and pay administration, attendance and leave, employer/employee relations, employee benefits, labor relations, training and classification and pay. Further, this manual is to be utilized constructively to better manage and enhance the efficiency of the department's human resources. (Respondent's Exhibit #1) The Forward is signed by former DLES Secretary, Wallace E. Orr. The preamble to Section 15 provides as follows: 15. Standards for Disciplinary Action Included below are standards for the administration of disciplinary actions for various types of offenses. The list includes the most commonly occurring offenses and is not meant to be all inclusive. The disciplinary actions for the listed offenses have been established to help assure that employees who commit offenses receive similar treatment in like circumstances. Within each level of occurrence, a range has been provided to allow the supervisor flexibility in selecting appropriate discipline in order to take into consideration mitigating circumstances. * * * (Joint Exhibit #1) According to Floyd Dorn, DLES Personnel Officer and Ken Hart, Deputy Secretary and former General Counsel for 15 years, the disciplinary standards are utilized for precisely the purposes set out in the Forward and in the preamble. The standards are not considered the legal authority nor the basis on which the agency takes disciplinary action. That authority is found in the statutes and rules governing the Florida career service system. The standards are viewed by the agency as guidelines, with specific actions in each case governed by the unique circumstances. The termination letter dated October 13, 1987, does not reference the standard, but rather cites Rule 22A-7.010(7) F.A.C. as authority for the agency's action. The text of the section at issue reveals a wide range of discretion: Falsification of Records Includes misrepresentation, falsification or omission of any fact, whether verbal or written, on such records as, but not limited to: time and attendance (leave) , employment status, employment application, travel vouchers, and work and production. First occurrence Written reprimand to dismissal Second occurrence 3-day suspension to dismissal Third occurrence Dismissal (Joint Exhibit #1) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.56 and 120.57(1) F.S. Subsection 120.56(1) F.S. provides: (1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. "Invalid exercise of delegated legislative authority" is defined as "... Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: (a) The agency has materially failed to follow the applicable rule making procedure set forth in S. 120.54; * * * Subsection 120.52(8)(a) F.S. (1987) The threshold question, therefore, is whether the LES disciplinary standard is a rule. Section 120.52(15) F.S. defines "rule", with certain exceptions, as "... each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. * * * Citing State Department of Administration v. Stevens, 344 So.2nd 290 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance 346 So.2nd 569, 581 (Fla. 1st DCA 1977), the First District Court in State, Department of Administration v. Harvey, 356 So.2nd 323, 325 (1978) explains the definition: Whether an agency statement is a rule turns on the effect of the statement, not on the agency's characterization of the statement by some appellation other than "rule." The breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," Stevens, [citation omitted] or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't. of Banking & Fin. [citation omitted]. See also Straughn v. O'Riordan, 338 So.2d 832 (Fla. 1976); Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). Some ten years later these cases are still good law. Both parties rely on Harvey, and on two cases decided by the First District Court of Appeal on the same day in 1981. In Department of Highway Safety v. Fla. Police Benevolent Association, 400 So.2nd 1302 (Petition for cert. den. 408 So.2nd 1093), the Highway Patrol's general orders prescribing standards of physical fitness for patrolmen and guidelines for supervisors in assessing discipline were held not to be rules, since, unlike the "bumping" guidelines in Stevens and the minimum training and experience requirements in Harvey, the general orders were "... effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer." p. 1303. In Florida State University v. Dann, 400 So.2nd 1304, the document setting forth procedures for awarding merit salaries and other pay increases was held to be a rule, as the procedures were self-executing and were issued by the agency head for implementation with little or no room for discretionary modification. Under the evidence elicited in this case, the LES Disciplinary Standard is not self-executing; it does not, in and of itself create or adversely affect certain rights; and it does not have the direct and consistent effect of law. Like the Highway Patrol's order prescribing disciplinary guidelines in Police Benevolent Assn., supra, the LES Disciplinary Standard is inchoate and unenforceable without the authority of Rule 22A-7.010(7) F.A.C., and Section 110.227 F.S., governing dismissals of career service employees for cause. 19. Section 110.227(1) F.S. (1986) provides: 110.227 Suspensions, dismissals, reductions in pay, demotions, layoffs, and transfers. Any employee who has permanent status in the career service may only be suspended or dismissed for cause. Cause shall include, but not be limited to, negligence, inefficiency or inability to perform assigned duties, insubordination, willful violation of the provisions of law or agency rules, conduct unbecoming a public employee, misconduct, habitual drug abuse, or conviction of any crime involving moral turpitude. Each agency head shall ensure that all employees of the agency are completely familiar with the agency's established procedures on disciplinary actions and grievances. Rule 22A-7.010(7) F.A.C. provides in pertinent part: Dismissals. A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service. An agency head may dismiss any employee for just cause. Just cause shall include, but not be limited to, negligence, inefficiency, or inability to perform assigned duties; repeated and/or gross substandard performance of assigned duties; insubordination; willful violation of the provisions of law or agency rules; conduct unbecoming a public employee; misconduct, habitual drug abuse, or conviction of a crime involving moral turpitude. Neither statute nor rule specify that falsification of records is just cause. The LES standard therefore, provides guidance to employees and their supervisors that this violation is one that might result in dismissal. This does not, however, make the standard a rule. Depending on the generality of the statute, an agency definition of a statutory term not set forth as a promulgated rule may or may not constitute a "policy" statement. Island Harbour v. Dept. of Natural Resources 495 So.2nd 209, 221 (Fla. 1st DCA 1986). The LES standards satisfy the requirements of Department of Administration Rule 22A-10.003 F.A.C., that agency heads establish "rules and procedures" including ranges of penalties for various types of work deficiencies and offenses to insure reasonable consistency in disciplinary actions. The policy relied upon the agency in this instance is found in the promulgated rules of the Department of Administration and the statute governing dismissals of career service system employees. In each, the non-exclusive examples of just cause are specific enough to compel the conclusion that in certain circumstances falsification of records will constitute just cause for dismissal. Whether those circumstances exist here is a matter for determination in a different proceeding, for rule or no rule, the employee is entitled to a due process hearing de novo on the ultimate question of whether he has been permissibly fired. Rule or no rule, the agency bears the burden of justifying its action. Department of Administration v. Nelson 424 So.2nd 852 (Fla. 1st DCA 1982), and Nelson v. Department of Administration, 424 So.2nd 860 (Fla. 1st DCA 1982). Section 1101.1.3.2.-15.i of the LES Personnel Manual is not a rule and is not subject to the adoption requirements of Section 120.54, F.S. This conclusion determines, as well, the standing of Petitioner in this proceeding. His "substantial effect" flows from the promulgated rules and statute rather than from the broad guidelines found in the personnel manual. Based on the foregoing, it is hereby, ORDERED: That the Petition of Earnest O. Barkley, Jr. be DISMISSED. DONE and ORDERED this 30th day of December, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987. COPIES FURNISHED: Robert Woolfork, Esquire The Murphy House 317 East Park Avenue Tallahassee, Florida 32301 Dan Turnbull, Esquire Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Donna Poole, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152 Liz Cloud, Chief Bureau of Administrative Code The Capitol - 1802 Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the letter dated February 14, 2002, and in the Notice of Specific Charges filed April 3, 2002, and, if so, whether the Respondent should be dismissed from his employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes (2001). Mr. Fullington is employed by the School Board as a journeyman Plumber II, and, prior to his suspension in February 2002, he was assigned to the North Satellite office of the School Board's Maintenance Department. He is represented by the Dade County School Maintenance Employee Committee, which has a contract with the Miami-Dade County public school system ("DCSMEC Contract") effective June 2001 through September 30, 2002.3 Mr. Fullington has worked for the School Board for 19 years; he began in 1983 as a laborer and worked his way up to journeyman plumber, which requires a five-year apprenticeship. In 1994, the School Board suspended Mr. Fullington and initiated proceedings to dismiss him from his employment, alleging that he had committed misconduct in office by forging the signatures of two of his supervisors on school district documents. After an evidentiary hearing, a Recommended Order was entered by a School Board hearing officer, who noted that Mr. Fullington admitted the charges but was remorseful and presented evidence of mitigating factors. The hearing office concluded that Mr. Fullington should not be dismissed from employment and recommended that Mr. Fullington be suspended without pay for four months. The School Board entered a Final Order on August 23, 1995, in which it adopted the hearing officer's Recommended Order and imposed the penalty recommended by the hearing officer. Mr. Fullington was promoted from an apprentice plumber to a journeyman Plumber II in January 1998. Leo Akers has been Mr. Fullington's foreman for seven or eight years.4 According to Mr. Akers, Mr. Fullington's job performance was, until his suspension, adequate, although his work was excellent when he was an apprentice. In Mr. Akers' experience working with Mr. Fullington, he has always performed his job assignments. Mr. Akers has never reported Mr. Fullington to his superiors for a discipline problem, he has had no difficulties working with Mr. Fullington, and he has received no complaints about Mr. Fullington from his co-workers. Prior to the incidents giving rise to this proceeding, the only disciplinary action taken by the School Board against Mr. Fullington was the four-month suspension in 1995. In June 1997, Mr. Fullington and his co-worker Steven Montgomery were commended by the principal of a Miami-Dade County elementary school, who wrote a letter to Max Metzger, the Director of the North Satellite of the Maintenance Department, praising Mr. Fullington and Mr. Montgomery for their work re- piping the school's broken water system. The principal stated among other things that "[t]he actions, behavior and cooperativeness of these two men deserve great recognition and applause, because our school operation was normal and free of major disruption as they worked." Solicitation for prostitution. Mr. Fullington was assigned overtime work on Saturday, August 18, 2001. When he reported to work at approximately 6:00 a.m., Mr. Akers, his foreman, met Mr. Fullington and told him to drive a School Board van to a plumbing supply house to pick up a load of pipe needed for the job. Mr. Fullington was then to meet Mr. Akers and two other plumbers at the job site, where they were installing the plumbing for a kitchen at one of Miami-Dade County's trade schools. On the way to the supply house, Mr. Fullington initially drove down Interstate 95, but he decided to avoid the traffic and take Second Avenue. As he drove down Second Avenue, he saw a young woman standing on the corner of Northwest 79th Street and Second Court, and he thought he recognized her as someone he knew in high school and from his neighborhood. Mr. Fullington turned the van around and drove back to speak to the woman. He pulled the van over to the side of the street, and he and the young woman engaged in a short conversation. According to Mr. Fullington, the encounter consisted of the following: He approached the young woman in the School Board van and told her that she looked familiar and that he thought he knew her. She responded that he looked familiar, and she asked him what he was doing. He responded that he was working; she responded that she was working, too. Mr. Fullington testified that, when he realized what the woman meant, he began to laugh because he was embarrassed that he had stopped, and he drove away. The young woman was actually Officer Robin Starks, an undercover police officer working on a "prostitution detail," posing as a decoy. During her time with the Miami Police Department vice unit, Officer Starks has participated in at least 200, and maybe more, prostitution details. On August 18, 2001, she was assigned to work on the prostitution detail from 4:00 a.m. to 9:00 a.m., during which time she made five or more arrests. Officer Starks testified that, when she is working as a decoy on a prostitution detail, she does not do anything that would make a person think she was a prostitute: She does not walk provocatively or wave at passers-by but just stands on a corner; she normally wears shorts or a skirt, and she never dresses like a prostitute but always dresses the way she would normally dress at home. She did not recall specifically what she was wearing on August 18, 2001. After the short conversation, Officer Starks turned and walked away from Mr. Fullington, who had remained seated in the van, and he drove away. She gave a signal to another person on the detail that Mr. Fullington should be arrested, and she proceeded to a nearby police vehicle and completed the narrative portion of an arrest affidavit with the following information: While working in an undercover capacity, defendant drove up in a large silver utility van bearing tag 100195 and M-768 affixed on the back of the vehicle. Defendant called this officer over and offered $10.00 dollars for some head. Take down signal was provided, units were notified and the defendant was apprehended.[5] The Arrest Affidavit was not signed by a notary in Officer Starks' presence, and Officer Starks' did not participate further in the events surrounding Mr. Fullington's arrest. According to that portion of the Arrest Affidavit completed by the officer who actually took him into custody, Mr. Fullington was arrested at 7:48 a.m. at Second Avenue and Northwest 75th Street and charged with soliciting to commit prostitution. He was taken in a police car to a substation, and the School Board's utility van was impounded. Mr. Fullington was in a panic after his arrest. The police officer tried to calm him and explained that he would not be put in jail but that he must sign the Arrest Affidavit before he could be released to return to work. Mr. Fullington signed the arrest affidavit, indicating that he would appear in court, and the police officer then told him he would have to pay $1,000.00 to get the School Board's vehicle out of the impoundment lot. The police officer drove Mr. Fullington to a Publix supermarket in his squad car so that Mr. Fullington could get cash from his savings account from the ATM. Mr. Fullington had only $860.00 in his savings account, and the police officer loaned him the additional $140.00. Mr. Fullington paid the $1,000.00 and got the School Board van out of impoundment. Before he left the substation, Mr. Fullington called Mr. Akers and told him he had an emergency and could not pick up the plumbing supplies. Mr. Akers told Mr. Fullington to report to the work site when he had taken care of the emergency. He reported for work at around 11:00 a.m. and told Mr. Akers a totally fabricated story to explain his absence. At the hearing, Mr. Fullington expressed remorse for having told Mr. Akers a lie but explained that, at the time, he was not thinking rationally and did not want anyone to know that he had been arrested for soliciting prostitution.6 On October 2, 2001, the criminal case against Mr. Fullington on the charges of offering to commit prostitution was closed with adjudication withheld and community service. Overtime hours. In accordance with the usual procedure, Mr. Akers completed a Facilities Support Services Weelky [sic] Overtime Report for each of the plumbers working on August 18, 2001, and left the forms at the job site. Each plumber was to sign his form at the end of the day to certify the number of overtime hours he had worked; the forms were then to be submitted to Mr. Akers for his review. Mr. Fullington signed the Weekly Overtime Services form with his name on it, which reflected that, on August 18, 2001, he had worked at the "Dorsey Skill" site from 6:00 a.m. until 4:30 p.m., for a total of 10 hours of overtime. Above his signature, was the following statement: "I certify that the work and hours indicated above are true and correct." It was Mr. Fullington's responsibility to ensure that the correct number of overtime hours was reported on the form. Mr. Fullington also signed a Daily Status Form for Maintenance and Operations on August 18, 2001, that showed that he had worked a total of 10 hours overtime, consisting of one hour of overtime travel and 9 hours of overtime. At the hearing, Mr. Fullington explained that he was so distracted by the events of August 18, 2001, that he signed both forms without looking at them. After Maintenance Department administrators learned that Mr. Fullington had inaccurately reported his overtime hours for August 18, 2001, he was advised that he could submit a Weekly Overtime Report and a Daily Status Report reflecting the number of hours that he had actually worked on August 18, 2001, and that he would get paid for those hours. Mr. Fullington did not submit the corrected forms and has not been paid for the hours of overtime that he actually worked on August 18, 2001. Additionally, Mr. Fullington never asked for, or received, reimbursement from the School Board for the $1,000.00 he paid to recover the School Board van from the impoundment lot. Post Office incident At around 12:30 p.m. on October 31, 2001,7 during their lunch hour, Robert Brown, the District Director of Maintenance Operations for the Miami-Dade County public school system, and Peter Vadas, Mr. Brown's co-worker, stopped at a post office so Mr. Vadas could purchase stamps. Mr. Brown saw a School Board van parked in the post office parking lot, and he waited in the car while Mr. Vadas went into the post office so he could keep the van under observation. After a few minutes, Mr. Vadas returned to the car. While Mr. Vadas was buckling his seat belt, Mr. Brown saw Mr. Fullington walking across the post office parking lot with a letter in his hand. The letter Mr. Fullington picked up was a certified letter from the School Board's Office of Professional Standards. Mr. Fullington was in the post office approximately 10 minutes. Mr. Brown observed Mr. Fullington get into the School Board van, where he sat and read the letter. As he and Mr. Brown sat in the post office parking lot observing Mr. Fullington read his letter, Mr. Vadas telephoned Kenny McFarland to report that Mr. Fullington was at the post office in a School Board van. Mr. McFarland, a Coordinator II at the North Satellite of the Maintenance Department, is a senior administrator who was in the supervisory chain-of-command for Mr. Fullington.8 After reading the letter, Mr. Fullington drove off, and Mr. Brown and Mr. Vadas returned to their office. Mr. Fullington's regular, assigned lunch half-hour was 11:30 a.m. to 12:00 p.m. This time could be changed with permission from his foreman. The post office that Mr. Fullington visited was located approximately 10 miles from the schools at which he was assigned to work that day. Incident involving Mr. Akers. On November 2, 2001, Mr. Fullington picked up his work assignments as usual from the "foreman's table" in the large office in which a number of maintenance foremen had their desks and work areas. At the time, there were perhaps 15 or 20 people in the foremen's office. The paperwork for Mr. Fullington's work assignments was affixed to a clipboard made of aluminum. Mr. Fullington was assigned to work with Steven Montgomery and, as they were walking to the truck with their assignments, Mr. Montgomery told Mr. Fullington that he overheard Mr. Akers telling someone that Mr. Fullington never showed up at a particular school to complete a work order. Mr. Montgomery believed that Mr. Akers was repeating something that someone else had told him about Mr. Fullington, and Mr. Montgomery told Mr. Fullington that he needed to clear up the misunderstanding. Mr. Fullington was upset to hear that Mr. Akers believed he had not completed a work assignment, and he wanted Mr. Akers to know that the information he was repeating was not correct. Mr. Fullington asked Mr. Montgomery to go back to the foremen's office with him so he could resolve the matter immediately. Mr. Fullington and Mr. Montgomery went back into the foremen's office area. Mr. Akers was sitting at his desk, which was made of metal. Mr. Fullington approached the desk and dropped the metal clipboard he was carrying onto the top of Mr. Aker's desk, next to his computer, in such a manner that it made a loud noise. Mr. Fullington began "hollering" at Mr. Akers, saying something about Mr. Akers trying to set him up.9 It was clear to Mr. Akers that Mr. Fullington was upset and angry, but Mr. Akers did not have any idea what Mr. Fullington was talking about. At the time, Mr. Akers felt threatened by Mr. Fullington; he was caught off guard by the outburst and does not recall saying anything in response to Mr. Fullington's accusations. When Mr. Fullington left the foremen's office, he forcefully kicked or pushed open the door to the hallway. Although Mr. Akers considered the incident very serious, he did not report the incident to his supervisor or call the police or security. Another foreman, John DiGregorio, who was in the room at the time of the incident, became nervous during the incident, primarily because of Mr. Fullington's size.10 Mr. DiGregorio immediately called his supervisor, Frank Brighton, whose office was on the floor above that of the foremen. Mr. Brighton came down to the foremen's office and questioned Mr. DiGregorio and Mr. Akers about the incident. Mr. Brighton reported the incident to Mr. Akers supervisor, Anthony Adams. Several days after the incident, Mr. Fullington asked Mr. Akers if he had felt threatened during the incident; Mr. Akers responded in the affirmative, and Mr. Fullington apologized. At the hearing, Mr. Fullington testified that he felt very badly about having raised his voice to Mr. Akers in anger. He explained that, at the time, he was under a lot of pressure because the Conference-for-the-Record to discuss the events of August 18, 2001, was scheduled for November 6, 2001, and he was concerned that his job with the School Board was in jeopardy. Mr. DiGregorio, who has been a maintenance foreman with the School Board for 10 years, had never previously seen Mr. Fullington act in any way that could be considered hostile or threatening. Mr. DiGregorio described Mr. Fullington's demeanor as generally gentle and non-threatening. In the years that Mr. Akers has worked with Mr. Fullington as his foreman, the only time Mr. Fullington ever raised his voice in Mr. Akers' presence was during the November 2, 2001, incident. Subsequent to the incident, Mr. Akers did not feel that he needed any protection from Mr. Fullington, they continued their usual good working relationship, and Mr. Fullington's job performance continued to be satisfactory. November 6, 2001, Conference-for-the-Record. On November 6, 2001, Reinaldo Benitez, an Executive Director of the School Board's Office of Professional Standards, held a Conference-for-the-Record with Mr. Fullington to address Mr. Fullington's arrest for offering to commit prostitution, to review his record with the School Board, and to discuss his future employment status with the Miami-Dade County public school system. Mr. Fullington's inaccurate reporting of the overtime hours he worked on August 18, 2001, was also discussed. Mr. Fullington's prior disciplinary record was set forth in the Summary of the Conference-for-the-Record. With the exception of the four-month suspension in 1995, the only disciplinary action taken against Mr. Fullington was a verbal reprimand in 1990 for improper conduct. Mr. Fullington was given an opportunity at the Conference-for-the-Record to consider resigning his position; he refused. The following directives were given to Mr. Fullington on November 6, 2001: Adhere to all M-DCPS School Board Rules at all times, especially 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct. Honor your work hours from 7:00 a.m. to 3:30 p.m. Adhere to all maintenance procedures and regulations at all times. Adhere to the most direct route when traveling from location to location, unless you obtain authorization from your supervisor. Refrain from submitting any fraudulent documents to M-DCPS at any time. Mr. Fullington was advised that dismissal from his employment was a potential disciplinary action. After the November 6, 2001, Conference-for-the-Record, Mr. Vadas, District Director of Maintenance Operations; Max Metzger, the Director of Maintenance Operations at the North Satellite; and James Monroe, Executive Director of Facilities Operations, met and reviewed the data submitted at the conference. As a result of their deliberations, Mr. Vadas sent a memorandum, dated November 13, 2001, to the Office of Professional Standards recommending that Mr. Fullington be terminated from his employment with the School Board.11 No one asked for Mr. Akers' input on the recommendation, discussed the recommendation with him, or explained to him the reasons for the recommendation that Mr. Fullington's employment be terminated. There is no evidence that, prior to his suspension in February 2002, Mr. Fullington violated any of the directives given on November 6, 2001. November 16, 2001, Conference-for-the-Record. On November 16, 2001, Mr. Metzger, held a Conference- for-the-Record, the purpose of which was "to address your [Mr. Fullington's] failure to follow the Maintenance Department's policies and procedures as they pertain to the use of M-DCPS vehicles, your verbal abuse towards your foreperson, and other performance-related issues."12 The administrators at the Conference-for-the-Record discussed a number of the issues with Mr. Fullington, including Mr. Fullington's use of a School Board vehicle to visit a post office on personal business and Mr. Fullington's angry confrontation with Mr. Akers.13 No formal directives were given to Mr. Fullington as a result of this Conference-for-the-Record. Mr. Fullington was, however, reminded of the School Board policy that School Board vehicles are not to be used for personal business,14 of the School Board rules relating to employee conduct and to violence in the workplace, and of several other concerns.15 On January 15, 2002, a meeting was held during which Mr. Fullington was advised of the recommendation that he be dismissed from his employment with the School Board. Mr. Fullington was again offered the option of resigning his position. In a letter dated January 30, 2002, the Superintendent of Schools for Miami-Dade County notified Mr. Fullington that he was recommending to the School Board that, at its February 13, 2002, meeting, it suspend and initiate dismissal proceedings against him for "just cause." A letter to Mr. Fullington dated February 14, 2002, contained confirmation that the School Board had followed the Superintendent's recommendation. Summary Offering to commit prostitution. In the Notice of Specific Charges, the School Board included the allegation that Mr. Fullington "solicited prostitution from an undercover police officer."16 The School Board has, however, failed to establish by the greater weight of the evidence that Mr. Fullington solicited prostitution from Officer Starks. The testimony of Officer Starks and Mr. Fullington has been carefully considered, and there is nothing in either the testimony or the demeanor of Mr. Fullington and Officer Starks or in the other evidence presented on this issue that offers a cogent reason to accept Officer Starks' version of the incident over that of Mr. Fullington. This finding is based on a careful consideration of the totality of the evidence presented in this case relevant to the issue of whether Mr. Fullington solicited prostitution and a careful assessment of the credibility of Officer Stark and Mr. Fullington and of the persuasive value of their testimony.17 Consequently, discipline cannot be imposed on Mr. Fullington based on the allegations in the Notice of Specific Charges that he solicited prostitution. Additionally, the allegations that Mr. Fullington committed the offense while working overtime and while driving a School Board vehicle and that the School Board vehicle was impounded cannot form the basis for the imposition of discipline because the underlying allegation that he solicited prostitution has not been established.18 Reporting incorrect number of overtime hours worked on August 18,2001. In the Notice of Specific Charges, the School Board alleged that Mr. Fullington "falsely reported that he worked ten hours on that date [August 18, 2001]." Mr. Fullington does not dispute that he signed the Weekly Overtime Report and the Daily Status Report on August 18, 2001, certifying that he had worked 10 hours of overtime on that date and that the actual amount of time he worked on that day was not accurately reported on the forms. Even though credence is given to Mr. Fullington's explanation that he was so distraught by the events of August 18, 2001, that he did not look at the number of hours included on the forms, by signing the forms, Mr. Fullington certified that the number of overtime hours shown on the forms was correct. Mr. Fullington, therefore, submitted false information to the School Board, and he was not honest in his dealings with the School Board with respect to the overtime hours he worked on August 18, 2001. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's inaccurate reporting of his hours for August 18, 2001, was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board has failed to prove by the greater weight of the evidence that Mr. Fullington intentionally misrepresented the number of overtime hours that he worked on August 18, 2001. There is no evidence that Mr. Fullington intended to submit inaccurate information or that he engaged in any type of deceitful conduct in an attempt to ensure that he was paid for more overtime hours than he actually worked on August 18, 2001. And, given his many years of employment in the School Board's Maintenance Department, it is reasonable to infer that Mr. Fullington knew that Mr. Akers would have noted the discrepancy before submitting the forms to payroll. Use of the School Board van to go to the post office on personal business. The School Board has proven by the greater weight of the evidence that Mr. Fullington used a School Board vehicle for personal business when he went to the post office at about 12:30 p.m. on October 31, 2001, to collect a certified letter from the School Board. In doing so, Mr. Fullington violated the School Board's policy, set forth in the Maintenance Handbook that expressly prohibits the use of a School Board vehicle for personal business. Under the circumstances, Mr. Fullington committed a minor violation of Maintenance Department policy. Nonetheless, even though a minor offense, Mr. Fullington's use of the School Board's vehicle to go to the post office on October 31, 2001, constitutes the use of his access to School Board vehicles for his personal advantage. There was, however, no evidence presented by the School Board to support a finding that Mr. Fullington's use of a School Board vehicle for personal business on this occasion was so serious that his effectiveness as a School Board employee was impaired, and the totality of the evidence is insufficient to support a factual inference of impaired effectiveness. The School Board failed to present any creditable evidence to support its allegation in paragraph 7 of the Notice of Specific Charges that Mr. Fullington reported that he had worked at Barbara Goleman Senior High School from 7:30 a.m. to 1:00 pm. on October 31, 2001.19 Confrontation with Mr. Akers. Mr. Fullington did not controvert the evidence presented by the School Board that, on the morning of November 2, 2001, he confronted his foreman, Mr. Akers, about a negative comment Mr. Akers reportedly made about Mr. Fullington to other School Board employees; that he was angry and upset; that he shouted at Mr. Akers; and that he angrily and forcefully pushed the door open when he left the foremen's office. The evidence presented by the School Board is also sufficient to establish that Mr. Akers and Mr. DiGregorio perceived Mr. Fullington's behavior as threatening and that Mr. Akers felt fear during the confrontation. The impact of Mr. Fullington's conduct on this occasion is, however, mitigated by the testimony of Mr. Akers that he and Mr. Fullington worked together in a satisfactory supervisor-employee relationship after the November 2, 2001, incident and by the testimony of both Mr. Akers and Mr. DiGregorio that they have never felt threatened by or nervous around Mr. Fullington before or since the November 2, 2001, incident. The School Board has, therefore, established by the greater weight of the evidence that Mr. Fullington committed three offenses: He submitted two forms containing an inaccurate statement of his overtime hours on August 18, 2001; he used a School Board vehicle for personal business; and he confronted Mr. Akers in anger. However, none of the three offenses is inconsistent with the standards of public conscience and good morals or impaired Mr. Fullington's service in the community; none of the three offenses involves the constant or continuing intentional refusal to obey a direct order; none of the three offenses constitutes repeated violations of the law or repeated acts of indiscretion that persisted over an extended period of time, and none of the offenses was so serious that it impaired Mr. Fullington's effectiveness as a School Board employee. In light of Mr. Fullington's 19-year employment record with the School Board, which is marred by only one verbal reprimand and one four-month suspension, these three offenses, whether considered separately or cumulatively, are not sufficient to constitute "just and good cause" to suspend and dismiss Mr. Fullington from his employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Dismissing Counts I, II, IV, and V of the Notice of Specific Charges against Benjamin Fullington; Finding that Mr. Fullington engaged in conduct unbecoming a School Board employee, in violation of School Board Rule 6Gx13-4A-1.21(I); Reinstating Mr. Fullington to his position as a Plumber II with the School Board's Maintenance Department, with full back pay and benefits; and Issuing a written reprimand to be placed in Mr. Fullington's personnel file. DONE AND ENTERED this 30th day of September, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2002.
Findings Of Fact The non-teaching staff of the University of South Florida (USF) includes both the University Services Personnel System and the Administrative and Professional staff (A & P). The former is a career service personnel system that includes the prohibition against terminating an employee except for cause. A & P employees do not acquire tenure, and A & P employees can be "non- reappointed" at will, subject to applicable personnel procedures and, in the case of some A & P employees, subject to the provisions of a union contract covering those employees. The Petitioner's position is not covered by any union contract. Besides, the union contracts that cover some of the other A & P employees do not affect the "non-reappointment" of A & P employees. USF hired the Petitioner as a coordinator of student affairs on January 29, 1991. This position was and is part of USF's Administrative and Professional staff. It normally is a one-year contract of employment. The Petitioner's initial contract expired on August 6, 1991. The Petitioner's contract was renewed in August, 1991, and again in August, 1992. The last annual contract was to expire on August 8, 1993. On November 23, 1992, USF's Provost, Gerry G. Meisels, wrote the Petitioner a letter advising the Petitioner that USF would not be re-appointing him upon expiration of his contract on August 8, 1993. The letter included reasons for the decision not to re-appoint the Petitioner. The Petitioner's compensation continued through the remainder of his contract. The Petitioner filed a grievance pertaining to USF's notice of non- reappointment. After Step 2 of the grievance proceeding, the Petitioner requested administrative proceedings under Section 120.57, Fla. Stat. (Supp. 1992).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the University of South Florida, enter a final order dismissing the petition for administrative proceedings in this case. RECOMMENDED this 23rd day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 November, 1993. COPIES FURNISHED: Robert G. Walker, Esquire 1432 Court Street Clearwater, Florida 34616 Henry W. Lavandera, Esquire Assistant General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Gerry G. Meisels, Provost University of South Florida 4202 East Fowler Avenue, ADM 226 Tampa, Florida 33620-6100 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
The Issue The ultimate issue in this case is whether Respondents' proposed amendment to Florida Administrative Code Rule 6A-5.030, which would establish procedures and standards governing the submission, review, and approval (or disapproval) of each school district's instructional personnel and school administrator evaluation systems, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent Department of Education ("DOE") is the state agency responsible for administering and implementing educational policy under the direction and control of Respondent State Board of Education (the "SBE"), a collegial body consisting of seven members appointed by the governor. DOE and the SBE will be referred to collectively as "Respondents" except when it is necessary to identify a specific actor. On September 30, 2011, DOE caused a Notice of Development of Rulemaking to be published in the Florida Administrative Weekly ("FAW"), which announced the agency's intent to substantially amend Florida Administrative Code Rule 6B-4.010 so as to establish procedures for the submission, review, and approval of district evaluation systems in accordance with section 1012.34(8), Florida Statutes.1 DOE caused a second Notice of Development of Rulemaking to be published in the FAW on November 23, 2011. This notice informed the public that the procedures for the submission, review, and approval of district evaluation systems would be set forth in an amendment to rule 6A-5.030, instead of rule 6B- 4.010. In addition, three rule development workshops were scheduled to occur between December 12 and December 14, 2011. On February 24, 2012, a Notice of Proposed Rule was published in volume 38, no. 8, of the FAW, pages 804-07, https://www.flrules.org/Faw/FAWDocuments/FAWVOLUMEFOLDERS2012/38 08/3808doc.pdf. The full text of proposed rule 6A-5.030 is included in this notice. Subparagraph (1)(a) of the proposed rule contains a statement that a document entitled "Review and Approval Checklist for Instructional Personnel and School Administrator Evaluation Systems, Form No. EQEVAL-2012" ("Checklist"), is incorporated by reference.2 (The published text of rule 6A-5.030 will be referred to as the "Rule Text" when necessary to distinguish between the Rule Text and any material incorporated by reference.) The Notice of Proposed Rule further advised that the rule would be presented to the SBE for its approval at a meeting on March 27, 2012. By letter dated March 16, 2012, the Joint Administrative Procedures Committee ("JAPC") provided comments on the proposed rule to DOE. On March 26, 2012, Petitioners filed a Petition to Invalidate Proposed Rule with DOAH. At the SBE meeting on March 27, 2012, which constituted the final public hearing on the proposed rule, DOE recommended that the proposed rule be revised to reflect JAPC's comments, and the SBE voted in favor of such revisions. The SBE approved nontechnical changes that modified both the Rule Text and the Checklist. Among the changes was the insertion into the Checklist of an incorporative reference to a document entitled "High Effect Size Indicators (2012)" ("HESI Document"). As a result of the SBE's action, proposed rule 6A- 5.030, as amended, comprises three separate documents: the amended Rule Text, the amended Checklist, and the HESI Document.3 Collectively, these three items will be called the "Rule." Respondents have not caused a notice of change concerning the Rule to be published in the FAW pursuant to section 120.54(3)(d), Florida Statutes. The documents which constitute the Rule can be found, however, online at Florida Department of Education, District Performance Evaluation Systems, http://www.fldoe.org/profdev/pa.asp (last visited Aug. 20, 2012). On March 30, 2012, Petitioners filed an Amended Petition to Invalidate Proposed Rule, which revised their original petition to take account of the changes to the Rule that had been made by the SBE on March 27, 2012.4 Petitioner Karen Peek ("Peek") is a teacher employed by the Okaloosa County School Board. During the 2011-12 school year, Peek taught Language Arts and Science to fifth-grade students who took the Reading and Math portions of the Florida Comprehensive Assessment Test ("FCAT"). A portion of Peek's performance evaluation for 2011-12 school year will be based upon her students' FCAT Reading scores according to the formula approved by the Commissioner of Education pursuant to section 1012.34(7), which formula is mentioned in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations. The Rule requires school districts to make significant changes in their personnel evaluation systems. These changes will affect the evaluation criteria that will be used to measure Peek's level of performance and determine whether she is rated highly effective, effective, needs improvement, or unsatisfactory. A rating of unsatisfactory could be grounds for dismissal. Petitioner Beth Weatherstone ("Weatherstone") is a teacher employed by the Indian River County School Board. During the 2011-12 school year, Weatherstone taught Algebra I to eighth-grade students who were tested on the Math portion of the FCAT during the school year. A portion of Weatherstone's 2011- 12 performance evaluation will be calculated using her Algebra I students' FCAT Math scores according to the formula referenced in the Checklist. The remainder of her performance evaluation rating will be based upon classroom observations conducted according to an evaluation system that will need to conform to the requirements of the Rule. The Florida Education Association (the "FEA") is a professional association of educators and education support employees which works with and through affiliated local unions around the state in representing public school teachers in collective bargaining. The FEA and its local affiliates represent approximately 135,000 member educators in Florida on all matters associated with the wages they earn and how their performance is assessed, in addition to other issues related to their working conditions.
The Issue The primary issue is whether the process used by the Department of Education (Department) for evaluating and ranking the proposals submitted in response to Request For Proposal (RFP) 99-03 for the Florida Comprehensive Assessment Test (FCAT) administration contract was contrary to the provisions of the RFP in a way that was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The RFP for the FCAT describes a five stage process for evaluating proposals. In Stage I, the Department’s Purchasing Office determined whether a proposal contained certain mandatory documents and statements and was sufficiently responsive to the requirements of the RFP to permit a complete evaluation. Stage II involved the Department’s evaluation of a bidder’s corporate qualifications to determine whether the bidder has the experience and capability to do the type of work that will be required in administering the FCAT. Stage III was the Department’s evaluation of a bidder’s management plan and production proposal. In Stage IV, the Department evaluated a bidder’s cost proposal. Stage V involved the ranking of proposals based on points awarded in Stages II-IV. If a proposal did not meet the requirements at any one stage of the evaluation process, it was not to be evaluated in the following stage. Instead, it was to be disqualified from further consideration. Stages II and III of the evaluation process were conducted by an evaluation team comprised of six Department employees: Dr. Debby Houston, Ms. Lynn Joszefczyk, Dr. Peggy Stillwell, Dr. Cornelia Orr, Dr. Laura Melvin, and Ms. Karen Bennett. Dr. Thomas Fisher, head of the Department’s Assessment and Evaluation Services Section, and Dr. Mark Heidorn, Administrator for K-12 Assessment Programs within the Department’s Assessment and Evaluation Services Section, served as non-voting co-chairs of the evaluation team. The focus of this proceeding is Stage II of the evaluation process addressing a bidder’s corporate qualifications. RFP Provisions Regarding Corporate Qualification The FCAT administration contractor will be required to administer tests to approximately one and a half million students each year in a variety of subject areas at numerous grade levels. The FCAT program involves a complex set of interrelated work activities requiring specialized human resources, technological systems and procedures. The FCAT must be implemented annually within limited time periods. The FCAT administration contractor must meet critical deadlines for the delivery of test materials to school districts and the delivery of student scores prior to the end of the school year. In developing the RFP, the Department deliberately established a set of minimum requirements for corporate qualifications that a bidder was to demonstrate in order for its proposal to be eligible for further evaluation. The purpose of the RFP’s minimum corporate qualifications requirements was to limit bidding to qualified vendors who have demonstrated prior experience in successfully administering large-scale assessment projects like the FCAT, thereby providing the Department with some degree of assurance that the winning bidder could successfully administer the FCAT. The instructions to bidders regarding the minimum requirements for corporate qualifications are contained in RFP Section 10, which gives directions on proposal preparation. Section 10.1, which lists certain mandatory documents and statements to be included in the bidder’s proposal, requires that a transmittal letter contain "[a] statement certifying that the bidder has met the minimum corporate qualifications as specified in the RFP." These "minimum corporate qualifications" are set forth in RFP Appendix J. RFP Section 10.2 identifies what a bidder is required to include in its proposal with respect to corporate qualifications. The first paragraph of Section 10.2 directs a bidder generally to describe its qualifications and experience performing tasks similar to those that it would perform in administering the FCAT, in order to demonstrate that the bidder is qualified where it states: Part II of a bidder’s proposal shall be entitled Corporate Qualifications. It shall provide a description of the bidder’s qualifications and prior experience in performing tasks similar to those required in this RFP. The discussion shall include a description of the bidder’s background and relevant experience that qualifies it to provide the products and services required by the RFP. RFP Section 10.2, however, is not limited to a directive that qualifications and past experience be described generally. Instead, Section 10.2, also communicates, in plain and unambiguous terms, that there are specific minimum corporate qualifications a bidder must demonstrate: The minimum expectations for corporate qualifications and experience are shown in Appendix J. There are two separate sets of factors, one set of eight for the developmental contractor and another set of nine for the administration contractor. Bidders must demonstrate their Corporate Qualifications in terms of the factors that are applicable to the activities for which a bid is being submitted -- development or administration. For each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects. (Emphasis added.) Moreover, Section 10.2 singles out for emphasis, in relation to the administration component of the RFP, the importance placed on a bidder’s ability to demonstrate experience processing a large volume of tests: The [bidder’s prior completed] projects must have included work tasks similar to those described herein, particularly in test development or processing a comparable number of tests. The bidder will provide a description of the contracted services; the contract period; and the name, address, and telephone number of a contact person for each of the contracting agencies. This description shall (1) document how long the organization has been providing similar services; (2) provide details of the bidder’s experience relevant to the services required by this RFP; and (3) describe the bidder’s other testing projects, products, and services that are similar to those required by this RFP. (Emphasis added.) The Department thus made clear its concern that bidders demonstrate experience with large-scale projects. RFP Appendix J sets forth nine different criteria (C1 through C9) for the administration contractor. As stated in RFP Section 10.2, "[f]or each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects . . . ." (emphasis added). Appendix J contains a chart which lists for each criterion: (1) a summary of the related FCAT work task, (2) the detailed criteria for the bidder’s experience related to that work task, and (3) the necessary documentation a bidder must provide. Criterion C4 and Criterion C6 include work tasks that involve the use of image-based scoring technology. C4 and C6 are the only corporate qualifications criteria at issue in this proceeding. RFP Provisions Involving Corporate Qualifications for Image-Based Scoring "Handscoring" is the test administration activity in which open-ended or performance-based student responses are assessed. This practice involves a person reading something the student has written as part of the test, as distinguished from machine scoring multiple choice responses (i.e., the filled-in "bubbles" on an answer sheet). There are two types of handscoring: (1) paper-based handscoring, and (2) image-based handscoring. Paper-based handscoring requires that a student response paper be sent to a reader, who then reviews the student’s response as written on the paper and enters a score on a separate score sheet. Image-based handscoring involves a scanned image of the student’s response being transmitted to a reader electronically. The student’s response is then projected on a computer screen, where the reader reviews it and assigns a score using the computer. The RFP requires that the reading and math portions of the FCAT be handscored on-line using imaging technology beginning with the February 2000 FCAT administration. The RFP provides that the writing portion of the FCAT may be handscored using either the paper-based method or on-line imaging technology during the February 2000 and 2001 FCAT administrations. However, on-line image-based scoring of the writing portion of the FCAT is required for all FCAT administrations after February 2001. An image-based scoring system involves complex computer technology. William Bramlett, an expert in designing and implementing large-scale imaging computer systems and networks, presented unrefuted testimony that an image-based scoring system will be faced with special challenges when processing large volumes of tests. These challenges involve the need to automate image quality control, to manage the local and wide area network load, to assure adequate server performance and storage requirements, and to manage the work flow in a distributed environment. In particular, having an image-based scoring system process an increasing volume of tests is not simply a matter of adding more components. Rather, the system’s basic software architecture must be able to understand and manage the added elements and volume involved in a larger operation. According to Bramlett, there are two ways that the Department could assess the ability of a bidder to perform a large- scale, image-based scoring project such as the FCAT from a technological perspective: (1) have the bidder provide enough technological information about its system to be able to model or simulate the system and predict its performance for the volumes involved, or (2) require demonstrated ability through completion of prior similar projects. Dr. Mark Heidorn, Administrator for Florida’s K-12 Statewide Assessment Programs, was the primary author of RFP Sections 1-8, which describe the work tasks for the FCAT -- the goods and services vendors are to provide and respond to in their technical proposals. Dr. Heidorn testified that in the Department’s testing procurements involving complex technology, the Department has never required specific descriptions of the technology to be used. Instead, the Department has relied on the bidder’s experience in performing similar projects. Thus, the RFP does not specifically require that bidders describe in detail the particular strategies and approaches they intend to employ when designing and implementing an image-based scoring system for FCAT. Instead, the Department relied on the RFP requirements calling for demonstrated experience as a basis to understand that the bidder could implement such an image-based scoring system. Approximately 717,000 to 828,000 student tests will be scored annually by the FCAT administration contractor using imaging technology. The RFP, however, does not require that bidders demonstrate image-based scoring experience at that magnitude. Instead, the RFP requires bidders to demonstrate only a far less demanding minimum level of experience using image-based scoring technology. Criterion C4 and Criterion C6 in Appendix J of the RFP each require that a bidder demonstrate prior experience administering "a minimum of two" assessment programs using imaged- based scoring that involved "at least 200,000 students annually." The requirements for documenting a "minimum of two" programs or projects for C4 and C6 involving "at least 200,000 students annually" are material because they are intended to provide the Department with assurance that the FCAT administration contractor can perform the large-scale, image-based scoring requirements of the contract from a technological perspective. Such experience would indicate that the bidder would have been required to address the sort of system issues described by Bramlett. Dr. Heidorn testified that the number 200,000 was used in C4 and C6 "to indicate the level of magnitude of experience which represented for us a comfortable level to show that a contractor had enough experience to ultimately do the project that we were interested in completing." Dr. Fisher, who authored Appendix J, testified that the 200,000 figure was included in C4 and C6 because it was a number judged sufficiently characteristic of large-scale programs to be relevant for C4 and C6. Dr. Fisher further testified that the Department was interested in having information that a bidder’s experience included projects of a sufficient magnitude so that the bidder would have experienced the kinds of processing issues and concerns that arise in a large-scale testing program. The Department emphasized this specific quantitative minimum requirement in response to a question raised at the Bidder’s Conference held on November 13, 1998: Q9: In Appendix J, the criteria for evaluating corporate quality for the administration operations C4, indicates that the bidder must have experience imaging as indicated. Does this mean that the bid [sic] must bid for using [sic] imaging technology for reading and mathematics tests? A: Yes. The writing assessment may be handscored for two years, and then it will be scored using imaging technology. To be responsive, a bid must be for imaging. The corporate experience required (200,000 students annually for which reports were produced in three months) could be the combined experience of the primary contractor and the subcontractors. (Emphasis added.) Criterion C4 addresses the RFP work tasks relating to handscoring, including both the image-based handscoring of the reading and math portions of the FCAT for all administrations and the writing portions of the FCAT for later administrations. The "Work Task" column for C4 in Appendix J of the RFP states: Design and implement efficient and effective procedures for handscoring student responses to performance tasks within the limited time constraints of the assessment schedule. Handscoring involves image-based scoring of reading and mathematics tasks for all administrations and writing tasks for later administrations at secure scoring sites. Retrieve and score student responses from early district sample schools and deliver required data to the test development contractor within critical time periods for calibration and scaling. The "Necessary Documentation" column for C4 in Appendix J states: Bidder must document successful completion of a minimum of two performance item scoring projects for statewide assessment programs during the last four years for which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The "Criteria" column for C4 in Appendix J, like the related work tasks in the RFP, addresses both image-based handscoring of reading and math, as well as paper-based or image- based handscoring of writing. In connection with all handscoring work tasks, "[t]he bidder must demonstrate completion of test administration projects for a statewide program for which performance items were scored using scoring rubrics and associated scoring protocols." With respect to the work tasks for handscoring the reading and math portions of the FCAT, "[t]he bidder must demonstrate completion of statewide assessment programs involving scoring multiple-choice and performance items for at least 200,000 students annually for which reports were produced in three months." In addition, for the reading and math work tasks, "[e]xperience must been shown in the use of imaging technology and hand-scoring student written responses with completion of scoring within limited time restrictions." This provision dealing with "imaging technology" experience self-evidently addresses the reading and math components, because separate language addresses imaging experience in connection with the writing component. The relevant handscoring experience for the reading and math aspects of the program is experience using image-based technology. By contrast, with respect to the work tasks for scoring the writing portions of the FCAT, "the bidder must also demonstrate completion of statewide assessment programs involving paper-based or imaged scoring student responses to writing assessment prompts for at least 200,000 students annually for which reports were produced in three months." (Emphasis added.) Criterion C6 addresses work tasks relating to designing and implementing systems for processing, scanning, imaging and scoring student responses to mixed-format tests within limited time constraints. The "Work Task" column for C6 in RFP Appendix J states: Design and implement systems for the processing, scanning, imaging, and scoring of student responses to test forms incorporating both multiple-choice and constructed response items (mixed-format) within the limited time constraints of the assessment schedule. Scoring of student responses involves implementation of IRT scoring tables and software provided by the development contractor within critical time periods. The "Necessary Documentation" column for C6 in Appendix J states: Bidder must document successful completion of a minimum of two test administration projects for statewide assessment programs during the last four years in which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The Criteria column for C6 in Appendix J states: The bidder must demonstrate completion of test administration projects for statewide assessment programs or other large-scale assessment programs that required the bidder to design and implement systems for processing, scanning, imaging, and scoring responses to mixed-format tests for at least 200,000 students annually for which reports were produced in three months. Experience must be shown in use of imaging student responses for online presentation to readers during handscoring. (Emphasis added.) RFP Provisions Per Corporate Qualifications The procedure for evaluating a bidder’s corporate qualifications is described in RFP Section 11.3: The Department will evaluate how well the resources and experience described in each bidder’s proposal qualify the bidder to provide the services required by the provisions of this RFP. Consideration will be given to the length of time and the extent to which the bidder and any proposed subcontractors have been providing services similar or identical to those requested in this RFP. The bidder’s personnel resources as well as the bidder’s computer, financial, and other technological resources will be considered in evaluating a bidder’s qualifications to meet the requirements of this RFP. Client references will be contacted and such reference checks will be used in judging a bidder’s qualifications. The criteria to be used to rate a bidder’s corporate qualifications to meet the requirements of this RFP are shown in Appendix J and will be applied as follows: * * * Administrative Activities. Each of the nine administration activities criteria in Appendix J will be individually rated by members of the evaluation team. The team members will use the rating scale shown in Figure 1 below. Individual team members will review the bidder’s corporate qualifications and rate the response with a rating of one to five. The ratings across all evaluators for each factor will be averaged, rounded to the nearest tenth, and summed across all criteria. If each evaluator assigns the maximum number of points for each criterion, the total number of points will be 45. To meet the requirements of Stage II, the proposal must achieve a minimum rating of 27 points and have no individual criterion for which the number of points averaged across evaluators and then rounded is less than 3.0. Each proposal that receives a qualifying score based on the evaluation of the bidder’s qualifications will be further evaluated in Stage III. Figure 1 Evaluation Scale for Corporate Qualifications 5 Excellent 4 3 Satisfactory 2 1 Unsatisfactory The bidder has demonstrated exceptional experience and capability to perform the required tasks. The bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks. The bidder either has not established its corporate qualifications or does not have adequate qualifications. RFP Section 11.3 provides that each of the nine corporate qualifications criteria for administration operations in Appendix J (C1 through C9) will be individually rated by the six members of the evaluation team using a scale of one to five. A rating of three is designated as "satisfactory" which means that "[t]he bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks." In order to be further evaluated, Section 11.3 provides that there must be no individual corporate qualifications criterion for which the bidder’s proposal receives a score less than 3.0 (average points across evaluators). Dr. Fisher, the primary author of Section 11.3 of the RFP, referred to the 3.0 rating as the "cut score." (Emphasis added.) The RFP’s clear and unambiguous terms thus establish the "minimum threshold" of experience that a bidder "must demonstrate" in its proposal for Criterion C1 through Criterion C9. The "minimum threshold" of experience that a bidder must demonstrate for each criterion is described in Appendix J of the RFP. If a proposal failed to demonstrate that the bidder meets the minimum threshold of experience for a particular criterion in Appendix J, the bidder obviously would not have demonstrated "that it meets an acceptable level of experience and capability to perform the required tasks." Thus, in that setting, an evaluator was to have assigned the proposal a rating of less than "satisfactory," or less than three, for that criterion. (Emphasis added.) The fact that a score less than "3" was expected for -- and would eliminate -- proposals that did not demonstrate the "minimum threshold" of experience does not render meaningless the potential scores of "1" and "2." Those scores may reflect the degree to which a bidder’s demonstrated experience was judged to fall below the threshold. Although some corporate capability minimums were stated quantitatively (i.e., "minimum of two," or "at least 200,000"), others were open to a more qualitative assessment (i.e., "large-scale," "systems," or "reports"). Moreover, a proposal that included demonstrated experience in some manner responsive to each aspect of Appendix J might nevertheless be assigned a score of less than "3," based on how an evaluator assessed the quality of the experience described in the proposal. By the terms of the RFP, however, an average score across evaluators of less than 3 represented essentially a decision that the minimum threshold of experience was not demonstrated. Had the Department truly intended Appendix J to reflect only general targets or guidelines, there were many alternative ways to communicate such an intent without giving mandatory direction about what bidders "must demonstrate" or without establishing quantitative minimums (i.e. "a minimum of two," or "at least 200,000"). RFP Appendix K, for instance, sets forth the evaluation criteria for technical proposals in broad terms that do not require the bidder to provide anything in particular. Even within Appendix J, other than in Criterion C4 and Criterion C6, bidders were to show experience with "large-scale" projects rather than experience at a quantified level. Pursuant to the RFP’s plain language, in order to meet the "minimum threshold" of experience for Criterion C4 and Criterion C6, a bidder "must demonstrate," among other things, successful completion of a "minimum of two" projects, each involving the use of image-based scoring technology in administering tests to "at least 200,000 students annually." Department’s Evaluation of Corporate Qualifications In evaluating Harcourt’s proposal, the Department failed to give effect to the plain RFP language stating that a bidder "must document" successful completion of a "minimum of two" testing projects involving "at least 200,000 students annually" in order to meet the "minimum threshold" of experience for C4 and C6. Dr. Fisher was the primary author of Sections 10, 11 and Appendix J of the RFP. He testified that during the Stage II evaluation of corporate qualifications, the evaluation team applied a "holistic" approach, like that used in grading open-ended written responses in student test assessments. Under the holistic approach that Dr. Fisher described, each member of the evaluation team was to study the proposals, compare the information in the proposals to everything contained in Appendix J, and then assign a rating for each criterion in Appendix J based on "how well" the evaluator felt the proposal meets the needs of the agency. Notwithstanding Dr. Fisher’s present position, the RFP’s terms and their context demonstrate that the minimum requirements for corporate qualifications are in RFP Appendix J. During the hearing, Dr. Fisher was twice asked to identify language in the RFP indicating that the Department would apply a "holistic" approach when evaluating corporate qualifications. Both times, Dr. Fisher was unable to point to any explicit RFP language putting bidders on notice that the Department would be using a "holistic" approach to evaluating proposals and treating the Appendix J thresholds merely as targets. In addition, Dr. Fisher testified that the Department did not engage in any discussion at the bidders’ conference about the evaluation method that was going to be used other than drawing the bidders’ attention to the language in the RFP. As written, the RFP establishes minimum thresholds of experience to be demonstrated. Where, as in the RFP, certain of those minimum thresholds are spelled out in quantitative terms that are not open to interpretation or judgment, it is neither reasonable nor logical to rate a proposal as having demonstrated "an acceptable level of experience" when it has not demonstrated the specified minimum levels, even if other requirements with which it was grouped were satisfied. The plain RFP language unambiguously indicates that an analytic method, not a "holistic" method, will be applied in evaluating corporate qualifications. Dr. Fisher acknowledged that, in an assessment using an analytic method, there is considerable effort placed up front in deciding the specific factors that will be analyzed and those factors are listed and explained. Dr. Fisher admitted that the Department went into considerable detail in Appendix J of the RFP to explain to the bidders the minimums they had to demonstrate and the documentation that was required. In addition, Dr. Orr, who served as a member of the evaluation team and who herself develops student assessment tests, stated that in assessments using the "holistic" method there is a scoring rubric applied, but that rubric does not contain minimum criteria like those found in the RFP for FCAT. The holistic method applied by the Department ignores very specific RFP language which spells out minimum requirements for corporate qualifications. Harcourt’s Corporate Qualifications for C4 and C6 Harcourt’s proposal lists the same three projects administered by Harcourt for both Criterion C4 and Criterion C6: the Connecticut Mastery Test ("CMT"), the Connecticut Academic Performance Test ("CAPT") and the Delaware Student Testing Program ("DSTP"). Harcourt’s proposal also lists for Criterion C4 projects administered by its proposed scoring subcontractors, Measurement Incorporated ("MI") and Data Recognition Corporation ("DRC"). However, none of the projects listed for MI or DRC involve image- based scoring. Thus, the MI and DRC projects do not demonstrate any volume of image-based scoring as required by C6 and by the portion of C4 which relates to the work task for the imaged-based scoring of the math and reading portions of the FCAT. Harcourt’s proposal states that "[a]pproximately 35,000 students per year in grade 10 are tested with the CAPT." Harcourt’s proposal states that "[a]pproximately 120,000 students per year in grades 4, 6 and 8 are tested with the CMT." Harcourt’s proposal states that "[a]pproximately 40,000 students in grades 3, 5, 8, and 10" are tested with the DSTP. Although the descriptions of the CMT and the CAPT in Harcourt’s proposal discuss image-based scoring, there is nothing in the description of the DSTP that addresses image-based scoring. There is no evidence that the evaluators were ever made aware that the DSTP involved image-based scoring. Moreover, although the Department called the Delaware Department of Education ("DDOE") as a reference for Harcourt’s development proposal, the Department did not discuss Harcourt’s administration of the DSTP (including whether the DSTP involves image-based scoring) with the DDOE. Harcourt overstated the number of students tested in the projects it referenced to demonstrate experience with image-based scoring. Harcourt admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 120,000 students with the CMT. In fact, the total number of students tested by Harcourt on an annual basis under the CMT has ranged from 110,273 in the 1996- 97 school year to 116,679 in the 1998-99 school year. Harcourt also admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 35,000 students in grade 10 with the CAPT. Instead, the total number of grade 10 students tested by Harcourt on an annual basis with the CAPT ranged from 30,243 in 1997 to 31,390 in 1998. In addition, Harcourt admitted at hearing that, prior to submitting its proposal, it had conducted only one "live" administration of the DSTP (as distinguished from field testing). That administration of the DSTP involved only 33,051, not 40,000, students in grades 3, 5, 8 and 10. Harcourt itself recognized that "field tests" of the DSTP are not responsive to C4 and C6, as evidenced by Harcourt’s own decision not to include in its proposal the number of students field tested under the DSTP. Even assuming that the numbers in Harcourt’s proposal are accurate, and that the description of the DSTP in Harcourt’s proposal reflected image-based scoring, Harcourt’s proposal on its face does not document any single project administered by Harcourt for C4 or C6 involving image-based testing of more than 120,000 students annually. When the projects are aggregated, the total number of students claimed as tested annually still does not reach the level of "at least 200,000;" it comes to only 195,000, and it reaches that level only once due to the single administration of the DSTP. Moreover, even if that 195,000 were considered "close enough" to the 200,000 level required, it was achieved only one time, while Appendix J plainly directs that there be a minimum of two times that testing at that level has been performed. The situation worsens for Harcourt when using the true numbers of students tested under the CMT, CAPT, and DSTP, because Harcourt cannot document any single image-based scoring project it has administered involving testing more than 116,679 students annually. Moreover, when the true numbers of students tested are aggregated, the total rises only to 181,120 students tested annually on one occasion, and no more than 141,663 tested annually on any other occasion. Despite this shortfall from the minimum threshold of experience, under the Department’s holistic approach the evaluators assigned Harcourt’s proposal four ratings of 3.0 and two ratings of 4.0 for C4, for an average of 3.3 on C4; and five ratings of 3.0 and one rating of 4.0 for C6, for an average of 3.2 on C6. Applying the plain language of the RFP in Sections 10 and 11 and Appendix J, Harcourt did not demonstrate that it meets an acceptable level of experience and capability for C4 or C6, because Harcourt did not satisfy the minimum threshold for each criterion by demonstrating a minimum of two prior completed projects involving image-based scoring requiring testing of at least 200,000 students annually. Harcourt’s proposal should not have received any rating of 3.0 or higher on C4 or C6 and should have been disqualified from further evaluation due to failure to demonstrate the minimum experience that the Department required in order to be assured that Harcourt can successfully administer the FCAT program. NCS’s Compliance With RFP Requirements Even though the NCS proposal did not meet all of the mandatory requirements, and despite the requirement of Section 11.2 that the proposal be automatically disqualified under such circumstances, the Department waived NCS’s noncompliance as a minor irregularity. The factors in C4 and C6 were set, minimal requirements with which NCS did not comply. For example, one of the two programs NCS submitted in response to Criteria C4 and C6 was the National Assessment of Educational Progress program ("NAEP"). NAEP, however, is not a "statewide assessment program" within the meaning of that term as used in Criteria C4 and C6. Indeed, NCS admitted that NAEP is not a statewide assessment program and that, without consideration of that program, NCS’s proposal is not responsive to Criteria C4 and C6 because NCS has not have submitted the required proof of having administered two statewide assessment programs. This error cannot be cured by relying on the additional experience of NCS’s subcontractor because that experience does not show that its subcontractor produced reports within three months, and so such experience does not demonstrate compliance with Criteria C4. The Department deliberately limited the competition for the FCAT contract to firms with specified minimum levels of experience. As opined at final hearing, if the Department in the RFP had announced to potential bidders that the type of experience it asked vendors to describe were only targets, goals and guidelines, and that a failure to demonstrate target levels of experience would not be disqualifying, then the competitive environment for this procurement would have differed since only 2.06 evaluation points (out of a possible 150) separated the NCS and Harcourt scores. Dr. Heidorn conceded that multiple companies with experience in different aspects of the FCAT program -- a computer/imaging company and a firm experienced in educational testing -- might combine to perform a contract like the FCAT. Yet, that combination of firms would be discouraged from bidding because they could not demonstrate the minimum experience spelled out in the RFP. Language in the RFP, indicating the "holistic" evaluation that was to be applied, could have resulted in a different field of potential and actual bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Education, enter a Final Order rejecting the bids submitted by Harcourt and NCS for the administration component of the RFP. The Department should then seek new proposals. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1999. COPIES FURNISHED: Karen D. Walker, Esquire Holland and Knight, LLP Post Office Drawer 810 Tallahassee, Florida 32302 Mark D. Colley, Esquire Holland and Knight, LLP Suite 400 2100 Pennsylvania Avenue, Northwest Washington, D.C. 20037 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Paul R. Ezatoff, Jr., Esquire Christopher B. Lunny, Esquire Katz, Kutter, Haigler, Alderman, Bryant and Yon, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32302-7741 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether cause exists to suspend Respondent for 60 days without pay.
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1 through 47 below1/: Bob Gualtieri is the duly-appointed sheriff of Pinellas County, Florida. Sheriff Gualtieri is in command of the operations of the PCSO and is responsible for providing law enforcement and corrections services within Pinellas County, Florida. Sheriff Gualtieri is authorized to impose discipline in accordance with the Civil Service Act, upon PCSO members/employees who are found to have violated rules or regulations of the PCSO. At all times pertinent to this case, Respondent was employed by the PCSO as a Deputy Sheriff. As a Deputy Sheriff, Respondent was charged with the responsibility of complying with all applicable state laws and PCSO rules, regulations, and standard operating procedures. Respondent is familiar with the General Orders and standard operating procedures with respect to the PCSO generally, and in detention and corrections specifically. Respondent has been employed by the PCSO for approximately 24 years. Respondent has been employed as a deputy with the Detention and Corrections Bureau approximately nine years. [Lt.] Darrell Spiva is assigned to the Administrative Investigations Division of the PCSO. [Lt.] Spiva investigated concerns raised by Respondent's supervisors arising from a Christmas party that Respondent had for inmates who were under her supervision at the jail. In the Correction and Detention Bureau of the PCSO, Respondent's primary function is to ensure the care, custody and control of inmates. Respondent's specific responsibility is to supervise the inmates in the area of the jail where Respondent is assigned during a particular shift. As part of Respondent's job duties in her assignment as a deputy, Respondent is required to conduct well-being checks every 30 minutes, at a minimum, on each inmate in Respondent's assigned area. Respondent is required to document the completion of the well-being checks. Completion of the well-being checks is required to be documented in the official records of the PCSO using the jail's inmate management system. The inmate management software is commonly referred to as "JIMS." Respondent is familiar with a memorandum issued on April 11, 2011 (Memorandum), by Sheriff's Gualtieri's predecessor, Sheriff Coats, directed to all detention and corrections personnel regarding proper care, custody, and control of inmates. The subject line of the Memorandum reads, "automatic 30 day suspension without pay." The Memorandum was understood by Respondent to emphasize that in order to carry out the PCSO's legal and ethical responsibilities, it is imperative that deputies check on inmates. Deputies are to check on inmates in accordance with accreditation standards and requirements of the General Orders of the Sheriff. The Memorandum explained that there had been a pattern of violations by deputies not completing the required checks. The Memorandum indicated that deputies had not been completing the required well-being checks and then falsifying records to reflect they had completed the checks. According to the Memorandum, a new minimum penalty of 30-days unpaid suspension would be imposed for future violations. According to the Memorandum, the new minimum penalty was to be effective on April 11, 2011. On December 2, 2011, Respondent was assigned to supervise an area within the jail's central division designated "Pod 4C4." Pod 4C4 contained 16 cells on two levels around a common area on the lower level. During Respondent's shift, Pod 4C4 contained somewhere between 48 to 60 female inmates. The pod is designed to be managed by the direct supervision of a single deputy. The deputy is stationed at a work area within the pod. The work area is located in the front of the pod on the lower level. A person standing on the lower level of the pod cannot see into all the cells on the upper and lower level without moving up to the upper level and walking throughout the pod. There are certain recessed areas--vestibules, bathrooms, etc.--that are not entirely visible unless a deputy walks around the pod. It would not be a complete well-being check if Respondent did not go to the upper level of the pod. It takes somewhere under five minutes for a deputy, if not interrupted, to make the walk that constitutes a well-being check. On Respondent's overnight shift, which would have been from 6:00 p.m. on December 22, 2011, to 6:00 a.m. on December 23, 2011, Respondent made computer entries to indicate that she had performed well-being checks at certain times. JIMS records indicate that Respondent made well-being checks on the days in question at 1837 hours, 2054 hours, 2123, 2151, 2225, 2246, 0024, 0049, 0118, 0147 and 0218 hours. Pursuant to the Sheriff's General Orders the Administrative Review Board (ARB) met, reviewed the disciplinary file, questioned the Respondent, gave the Respondent an opportunity to make a statement and subsequently determined that based on the preponderance of the evidence, Respondent had violated the Sheriff's rules. General Order 10-2 covers disciplines and ranks certain offenses. General Order 10-2 ranks offenses from Level 1 to Level 5. Level 1 offenses are the least severe, and Level 5 offenses are the most severe. The General Orders set forth a procedure for assigning points for each sustained violation. According to the number of points, there is a corresponding table that indicates the range of punishment. The ranking of certain offenses, the procedure for assigning points for each sustained violation and the range of punishment are all set by the General Orders. The point total for the two sustained violations found by the ARB in Respondent's case is 60. The discipline range for a violation resulting in 60 disciplinary points is from a minimum of a seven-day suspension up to, and including, termination. Sheriff Gualtieri imposed a suspension of 30 days, or 240 hours, without pay against Respondent. The imposed suspension of 30 days, or 240 hours, without pay is the penalty provided for as a minimum in the Memorandum. Respondent did not make any correcting entries to document that well-being checks she intended to complete were never made. If Respondent made entries in the Sheriff's official records that well-being checks were performed and the well-being checks were not made, these recorded entries are false. Although the JIMS system indicated that Respondent made well-being checks at the times set forth in paragraph 34 above, video surveillance confirmed that Respondent did not actually make several of the well-being checks as indicated. Respondent admits that she logged each of the 11 entries into JIMS and that she failed to conduct well-being checks for the times entered at 2123, 2225, 0049, 0118, 0218 and 0244 hours. According to Respondent, the established practice in Pod 4C4 is to note in JIMS that a particular well-being check was done prior to actually conducting the check. Following this practice, Respondent should have conducted the well-being checks within a reasonable time after entering the times into JIMS; but she did not. Because Respondent failed to conduct the well-being checks as required, this failure resulted in the JIMS entries being false. Respondent asserts that she was distracted during the times in question because she was thinking about Christmas and her mom's 95th birthday. Respondent assertion of being distracted is not credible. If Respondent was able to repress her distracting thoughts long enough to make six entries in JIMS attesting to well-being checks that she intended to do, then she should have also been able to curb those same distracting thoughts long enough to actually conduct the required well-being checks. Respondent admits that there was no emergency or disturbance among the inmates that physically impeded here ability to complete the required checks, and in the absence of such circumstances, Respondent should have completed each of the checks. Respondent intentionally failed to conduct the well- being checks at issue, and she knowingly caused false entries to be made in the JIMS tracking system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Pinellas County Sheriff's Office, enter a final order finding that Respondent, Dolores Taylor, violated General Order 3-1.1, Rules and Regulations 5.4 and 5.14(c), and suspending Respondent for a period of 30 days (240 hours) without pay. DONE AND ENTERED this 10th day of September, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2012.
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2015.
The Issue Whether Respondent committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Petitioner, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correction services within Pinellas County, Florida. Respondent, Gina Hubbard, was a classified employee of the Pinellas County Sheriff's Office (PCSO) where she worked as a certified detention deputy for approximately nine years until her termination on May 19, 1998. The incident that gave rise to Respondent's termination occurred on the evening of October 30, 1997, at Respondent's residence. On that date, at least three officers with the Pinellas Park Police Department responded to a call and went to Respondent's residence for a check on her welfare. Two of the officers positioned themselves outside the residence near the garage, where they believed that Respondent was located. The third officer was stationed across the street from Respondent's residence. Shortly after the officers arrived at Respondent's residence and while stationed at their posts, the officers heard a gunshot from inside the garage. After the gunshot, the officers maintained their positions for approximately five minutes, apparently listening for any activity in the Respondent's residence or garage. After hearing no activity, one of the officers banged twice on the garage door with a flashlight in an effort to determine Respondent's condition. Immediately thereafter, a shot was fired from Respondent's garage and exited through the garage door near the area where the officer had banged the flashlight. This shot came within two feet of the two officers standing immediately outside the residence. It was later determined that Respondent Hubbard was the person who discharged a firearm twice within her residence on the evening of October 30, 1997. Based on the aforementioned incident, Respondent was arrested on November 10, 1997, for aggravated assault, even though she was never charged or convicted of this offense. However, as a result of the October 30, 1997 incident, on April 24, 1998, Respondent pled nolo contendere to violating Section 790.10, Florida Statutes, which prohibits the improper exhibition of a dangerous weapon and is a misdemeanor. In connection with this incident, Respondent also pled nolo contendere to violating Section 790.19, Florida Statutes, which prohibits shooting into a building and is a felony. The court withheld adjudication, but as a result of her plea, Respondent was placed on four years probation and prohibited from carrying a firearm. Based on the aforementioned incident and matters related thereto, the PCSO conducted an internal investigation. As a part of the investigation, Respondent gave a sworn statement. As a part of her sworn statement, Respondent admitted that she was guilty of the above-cited criminal offenses. Moreover, during her sworn statement, Respondent also admitted that she violated PCSO Rule C-1, V, A, 005 obedience to laws and ordinances and Rule C-1, V, C, 060, relating to standard of conduct. After completion of the PCSO internal affairs investigation, the Chain of Command Board considered the evidence and based on its findings, recommended that Petitioner charge Respondent with engaging in conduct unbecoming a public servant and violating rules of the PCSO and terminate her employment. Specifically, Respondent is charged was violating the following PCSO rules: Rule C-1, V, A, 005, relating to obedience to laws and ordinances (Level Five Violation); Rule C-1, V, C 060, relating to Standard of Conduct (Level Three Violation). Respondent's violations were found to constitute Level Three and Level Five infractions and resulted in a cumulative point total of 65. At this point total, the recommended disciplinary range is from a seven-day suspension to termination. As a result of these violations and the underlying conduct which is the basis thereof, Respondent's employment with the PCSO was terminated on May 19, 1998. In the instant case, termination is an appropriate penalty, is within the PCSO guidelines, and is consistent with the long-standing policy of the PCSO and state law. There is an absolute policy at the Sheriff's Office to not hire applicants or retain any employees who are on probation for felony offenses, whether or not adjudication is withheld. The policy is applied to correctional officers, as well as civilian personnel of the PCSO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Pinellas County Sheriff's Office Civil Service Board enter a Final Order: (1) finding Respondent guilty of engaging in conduct unbecoming a public servant and violating PCSO Rules C-1, V, A, 005 and C-1, V, C, 060; and, (2) upholding the termination of Respondent's employment as detention deputy with the PCSO. DONE AND ENTERED this 2nd day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1999. COPIES FURNISHED: Leonard J. Dietzen, III, Esquire Powers, Quaschnick, Tischler, Evans & Dietzen Post Office Box 12186 Tallahassee, Florida 32317-2186 Robert W. Pope, Esquire 2037 First Avenue, North St. Petersburg, Florida 33713 Jean H. Kwall, Esquire Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500 B. Norris Rickey Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 33757
The Issue The issue in this case is whether Jorge L. Garcia (Respondent) is entitled to elect to be exempt from the workers' compensation insurance coverage requirements of chapter 440, Florida Statutes (2010).1/
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. An exemption is a method by which a corporate officer becomes exempt from the workers' compensation insurance coverage requirement of chapter 440. See § 440.05, Fla. Stat. The Department shall certify a corporate officer's election to be exempt from the workers' compensation insurance coverage requirement of chapter 440, if the election to be exempt meets the statutory criteria of section 440.05. See § 440.05, Fla. Stat. A corporate officer or director is ineligible for an exemption if he is affiliated with "a person who is delinquent in paying a stop-work order and penalty assessment order issued pursuant to s. 440.107, [Florida Statutes]." § 440.05(15), Fla. Stat. Respondent has been listed as a corporate officer of ACSOCF with the Division of Corporations in the annual reports filed on October 1, 2007, and thereafter. Tempmaster was incorporated in Florida on March 30, 1989. Tempmaster's Articles of Incorporation contain provisions whereby shareholders may remove directors. Respondent was listed as a director of Tempmaster in the Articles of Incorporation filed with the Division of Corporations on March 30, 1989, and on the annual corporation reports filed from February 5, 1990, through December 18, 2006. Tempmaster filed its last annual report with the Division of Corporations on December 18, 2006. No annual report or other documents identifying the company's directors were filed with the Division of Corporations after December 18, 2006. On February 5, 2007, the Department issued a Stop-Work Order and Order of Penalty Assessment (Division of Workers' Compensation Case No. 07-054-D4) on Tempmaster. On February 19, 2007, the Department issued the Amended Penalty Order on Tempmaster. The Amended Penalty Order assessed a total penalty of $6,332.42 on Tempmaster in Case No. 07-054-D4. The Stop-Work Order, penalty assessment, and reinstating orders were not served on Respondent and were not in effect against Respondent individually. On February 20, 2007, Respondent, on behalf of Tempmaster, executed a Payment Agreement Schedule for Periodic Payment of Penalty with the Department in Case No. 07—054-D4. On February 20, 2007, the Department served an Order of Conditional Release from Stop-Work Order to Respondent, as a director of Tempmaster in Case No. 07-054-D4. Tempmaster became delinquent in paying the penalty assessment order against it on October 1, 2008, when it ceased making payments in accordance with the Payment Agreement Schedule for Periodic Payment of Penalty. Tempmaster, whose principal address was located at 199 North Goldenrod Road, Suite B, Orlando, Florida, 32807, was administratively dissolved by the Division of Corporations on September 14, 2007, and had ceased doing business and winding up its corporate affairs by the first quarter of 2009. In the first quarter of 2009, Respondent and John Saccone (Mr. Saccone), the only two shareholders of Tempmaster, agreed that the corporation would cease to exist; that they would cease being directors, officers, shareholders, and employees; and that their relationship to Tempmaster was ended. On April 13, 2011, Respondent filed an Election of Exemption with the Department as a corporate officer of ACSOCF. On April 20, 2011, the Department issued a Notice of Denial of Respondent's Election of Exemption, stating: . . . JORGE L GARCIA is an affiliated person of TEMPMASTER HEATING & COOLING INC against which a Stop-Work Order and an Order of Penalty Assessment was served and is still in effect. Accordingly, JORGE L GARCIA is ineligible for an election of exemption and the Notice of Election to be Exempt application for JORGE L GARCIA is hereby Denied. The Department provided no other basis for the denial of Respondent's exemption. On July 11, 2011, Respondent filed his officer/director and registered agent resignations from Tempmaster with the Division of Corporations. No credible evidence was presented that Respondent or anyone from Tempmaster disputed the Stop-Work Order when it was issued in 2007. In fact, Respondent, on behalf of Tempmaster, executed the payment plan to resolve the Stop-Work Order on February 20, 2007. On February 20, 2008, the Department reinstated Tempmaster's Stop-Work Order for failure to make its periodic payments. This Stop-Work Order was rescinded on March 25, 2008, when Tempmaster brought current its payments. On September 4, 2008, the Department again reinstated Tempmaster's Stop-Work Order for failure to make its periodic payments. This Stop-Work Order was rescinded on October 3, 2008, when Tempmaster brought current its payments. Although Respondent's Election of Exemption indicated that Tempmaster had ceased to exist as of the first quarter in 2009, no credible evidence or testimony was presented that the Department was notified at that time (2009) of this development. On June 3, 2009, the Department reinstated Tempmaster's Stop-Work Order for failure to make its periodic payments. However, following the June 2009 Stop-Work Order, no additional payments were received, and Tempmaster was in default of its obligation. At that time, Respondent remained an officer or director of Tempmaster, based on his own failure to take any steps to notify the Department of a change. As of June 3, 2009, the unpaid balance of the penalty assessment against Tempmaster was $3,732.76. This amount was due immediately when the June 2009 Stop-Work Order was issued. As of the date of this hearing, the balance remained unpaid. A corporate officer may elect to become exempt from the workers' compensation insurance coverage requirements of chapter 440 by complying with the election of exemption methodology set forth in section 440.05. If the election of exemption meets the criteria of section 440.05, then the Department is required to issue a certification of the election to be exempt to the officer. See § 440.05(3), Fla. Stat. No credible testimony or evidence was submitted (or stipulated to) that Tempmaster ever provided documentation or notification to the Department that it had ceased operations in the first quarter of 2009. Additionally, neither its officers nor directors notified the Department until April 2011 that Tempmaster was dissolved, and, then, it was only when Respondent filed his Election of Exemption for another entity and inserted a statement regarding Tempmaster. Respondent's April 2011 statement reads: I, Jorge Garcia, am not affiliated with Tempmaster Heating and Cooling, Inc., as shown by the attached Secretary of State record. Tempmaster Heating and Cooling, Inc., was dissolved on September 14, 2007, and has not been in existence since then. My affiliation with Tempmaster Heating and Cooling, Inc., ceased on September 14, 2007 when the corporation was dissolved. Therefore, I request the processing of my Notice of Election to be Exempt. Respondent apparently took the position that his affiliation with Tempmaster ended in September 2007. Yet he and the other shareholder, Mr. Saccone, met in early 2009 to dissolve the corporation.2/ Three months later, on July 11, 2011, Respondent submitted two resignations to the Division of Corporations: one as the registered agent for Tempmaster and the second as a director for Tempmaster. These actions ended Respondent's affiliation with Tempmaster. However, this actual cessation of Respondent's affiliation with Tempmaster was well after his April 13, 2011, Election of Exemption was filed with Department. Although there was some discussion about Respondent being granted two prior exemptions by the Department, one in 2007 and another in 2009, there was no credible testimony or evidence presented to establish the dates on which Respondent applied for those exemptions. If Tempmaster had been in compliance (or without a stop-work order) in 2007 when Respondent applied, there would be no bar to the Department granting the exemption. The same is true for the 2009 exemption. There was a period of time between January 2009 and June 3, 2009, when Tempmaster was in compliance. Thus, Respondent's posturing that he should be granted this exemption because he had two prior exemptions granted is baseless. The Department reviewed Respondent's Election of Exemption to determine his eligibility to elect the exemption. The Department's Coverage and Compliance Automated System (CCAS) reflected that Respondent was an officer of a corporation that remained delinquent in paying a stop-work order and order of penalty assessment, which made him ineligible for the exemption. Further, no credible evidence was presented that reflected Respondent notified the Department of his cessation from Tempmaster, save for the documentation admitted at hearing, which was after the fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, finding that Jorge L. Garcia is ineligible for an election of exemption under section 440.05. DONE AND ENTERED this 30th day of November, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2011.
