STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LAKE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2029

)

SANDRA OSTEEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on August 15, 1988, in Leesburg, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Walter S. McLin, III

Attorney at Law

Post Office Drawer 1357 Leesburg, Florida 32749-1357

For Respondent: Richard H. Langley

Attorney at Law Post Office Box 188

Clermont, Florida 32711 ISSUES

The issue is whether the Respondent, Sandra Osteen (Osteen), should be dismissed from her employment or otherwise penalized based on the acts and violations alleged in the Superintendent's letters of March 11, 1988, March 21, 1988, and March 30, 1988. Specifically, Osteen is charged with:

NOTE: PAGE 2 OF THIS RECOMMENDED ORDER IS UNAVAILABLE

facts and conclusions of law have been considered. Specific rulings on all proposed findings of fact are made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Ms. Osteen is employed by the School Board as a content staffing specialist in the Exceptional Student Education (E.S.E.) program. Her duties include the placement and monitoring of students in the Leesburg area that are identified as exceptional students. Ms. Osteen is responsible for declaring she student's eligibility for the program and for effectuating placement of those

   students. At times, in her duties as a staffing specialist, Ms. Osteen determines the number of hours of instructions that E.S.E. students are to receive and prepares individual educational plans (IEPs).

   
   

2. As an additional duty, Ms. Osteen is employed as a homebound teacher, carrying out those tasks after the completion of her normal work day which is from 8:00 a.m. until 3:30 p.m. She was the homebound teacher assigned to William (Billy) Vickery during February and March, 1988.

   
   

3. Homebound teachers in the Lake County School System are compensated by submitting a monthly time sheet to the Exceptional Student Education Office. They are paid on an hourly basis cumulative over the month based upon the number of hours actually worked. Payment is only for instructional time with the student, not driving or commuting time.

NOTE: PAGE 4 OF THIS RECOMMENDED ORDER IS UNAVAILABLE

1. The composite of the four (4) different F.T.E. weeks determines the money a particular child earns in the system. Instruction of Billy Vickery by Ms. Osteen from February 17, 1988, through February 29, 1988, would have no impact on the F.T.E. count for the Lake County School System because it was after the count and the window period. There is no window period after the

   F.T.E. week.

   
   

2. The entire staff is notified of the F.T.E. periods as they are published near the beginning of the school year. Teachers typically are not, however, involved in reporting the F.T.E.

   
   

3. Nancy Vickery, Billy Vickery's mother, made a complaint to the Superintendent's office, in early February concerning Ms. Osteen's performance. Ms. Vickery explained that her concern was the amount of time Billy was receiving in homebound instruction. Ms. Vickery knew that Billy was to receive eleven (11) hours from Ms. Osteen weekly.

   
   

4. After Ms. Vickery's conference with the school personnel, she began keeping, at their request, a record of the amount of time Ms. Osteen actually spent instructing Billy.

   
   

5. Subsequently, Ms. Vickery created a summary of her time records and submitted it to the School Board. From February 10, 1988, through February 16, 1988, Ms. Vickery reported that Ms. Osteen spent approximately two (2) hours in homebound instruction of Billy. From February 17, 1988 through February 29, 1988, Ms. Vickery reported approximately three (3) hours by spent by Ms. Osteen in homebound instruction of Billy Vickery.

   
   

6. After Ms. Vickery's complaint, the School Board hired an independent investigator to make a surveillance report of the number of hours that Ms. Osteen was in fact at the Vickery residence from February 17, 1988, through the end of the month.

   
   

7. The surveillance report showed that Ms. Osteen spent two (2) hours and fifty-seven (57) minutes at the Vickery home from February 17, 1988, through the end of the month.

8. Ms. Osteen submitted a time record to the School Board indicating that she had worked a total of forty-four (44) hours during February in the homebound program of instruction of Billy Vickery. Ms. Osteen claimed eleven (11) hours during the week of February 10, 1988, through February 16, 1988, and nineteen

   (19) hours from February 17, 1988, through the end of the month.

   
   

9. Ms. Osteen admitted that she did not put in the hours claimed. In fact, she also admitted not working during the F.T.E. week, February 8, 1988, through February 12, 1988, and not giving Billy Vickery eleven (11) hours a week instruction from February 1, 1988, through February 17, 1988.

   
   

10. The homebound teacher keeps a daily planning book, an attendance register, and a copy of the individual education plan as well as time sheets.

    
    

11. Ms. Osteen conceded that homebound teachers are required to keep an attendance register, but that she used her register as a grade book instead.

    
    

12. Ms. Osteen claimed that she used her plan book as an attendance registry, but acknowledged that it did not accurately reflect the days that Billy was instructed.

    
    

13. Ms. Osteen did not keep an attendance record.

    
    

14. Ms. Osteen's plan book is filled in retroactively, meaning that she makes entries for what she had done with Billy, as opposed to planning what she will do. The plan book does not accurately reflect the times or dates spent on the material and Ms. Osteen conceded she filled in the February plan in March with work done partly in March.

    
    

15. Mr. Osteen made retroactive entries in the registry, coordinating it with the plan book, and the registry did not reflect what happened on any particular day.

    
    

16. Ms. Osteen's testimony was confusing and contradictory regarding the actual instruction given Billy, especially in math. From the records presented and Ms. Osteen's testimony, it cannot be determined what actual instruction hours were given to Billy.

    
    

17. Eight (8) witnesses testified either that Ms. Osteen's reputation was that of a truthful person or that they would believe her. Ms. Osteen was described as meticulous, conscientious, thorough and as one who follows the book.

    
    

18. Ms. Osteen expected to be paid for the time that she turned in for February claiming that she planned to complete the work and make up the time before pay day. Ms. Osteen claimed that she did not intend to defraud the school system of any money.

    
    

19. Ms. Vickery kept a time record for Ms. Osteen's visits to the Vickery home from March 1, 1988, through March 11, 1988, noting that Ms. Osteen made one visit for four (4) minutes and one other visit to have Ms. Vickery sign the time sheet.

    
    

20. Ms. Osteen disputed Ms. Vickery's records, claiming that in March she had made up eight (8) hours of the time turned in for February. However, even Ms. Osteen admitted that by the end of the first week in March, she would have owed Billy the eleven (11) additional hours he was entitled to for that week.

21. According to Ms. Osteen's own computations, she still owed Billy ten

    (10) hours from February. Thus, by March 10, 1988, Billy Vickery was behind twenty-one (21) hours in instruction by Ms. Osteen's own admission.

    
    

22. Ms. Osteen's computations are, however, incredible in view of the surveillance report and testimony of Mrs. Vickery. In fact, by March 10, 1988, Billy Vickery was owed at least sixteen (16) hours of instruction for the time period of February 11, 1988 through February 29, 1988, additional hours for the

    F.T.E. week, and eleven (11) hours for the first seven (7) days of March.

    
    

23. The March time records refute Ms. Osteen's claim that she intended to make up the February time. She continued instead to fall further behind with the hours of instruction due.

    
    

24. Ms. Osteen attempted to explain her reporting of hours not spent with Billy Vickery by claiming that if she had not, the child would have been denied his entitlement and the County would have lost its F.T.E. There was no basis in fact for these assertions. Ms. Osteen may have believed this, but was incorrect.

    
    

25. Ms. Vickery kept a child during the month of February that was ill with Scarletina. Ms. Vickery also conceded that Sandy had illnesses during the time that she taught Billy and had advised her that Ms. Osteen's son had pink eye. However, illness is not relevant to the issues of falsification of the time or attendance records.

    
    

26. Ms. Osteen claimed that there was precedence for her falsification of the records, including the fact that she had falsified the time records before for Billy Vickery as well as for another child. Further, Ms. Osteen claimed that School Board personnel falsified records all of the time.

    
    

27. The Lake County School Supervisor of Exceptional Student Education conceded that a teacher on occasion is allowed to swap time, but that the practice was not encouraged. Such a request must be written and signed by both the teacher and the supervisor. That was not done in this case.

    
    

28. Homebound teachers sometimes extend the time sheet forms to include Saturdays and Sundays as well as holidays in order to accurately report hours worked.

    
    

29. Homebound teachers are encouraged to perform the homebound instruction on Monday through Friday and to consider the educational principles that it is better to do small chunks at a time rather than one extended day on a Saturday.

    
    

30. Ms. Osteen had turned in a time sheet the last day of school before Christmas vacation reflecting hours not given at that time for a previous student. Additionally, in 1987, Ms. Osteen had been unable to complete the last week in May for Billy Vickery but turned in the time sheet claiming the hours as she had in the past. Ms. Osteen stated that she went back in June to give the additional instruction and that this procedure was approved by her supervisor.

    
    

31. Apparently, it was common practice in the Lake County School System for IEPs to be corrected by back-dating, obtaining signatures at a later date, and placing check marks in appropriate places.

32. These corrections were made to reflect what actually had happened. Information known not to comport with the facts was not, however, placed on forms. While it is a common practice for employees to make corrections in forms, it is not an accepted practice to create false statements on forms or records.

    
    

33. Witnesses testifying concerning record corrections consistently drew a distinction between falsifying documents and making corrections to reflect what had actually occurred. No falsification of documents was reported.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

35. Osteen is charged with the following violations:

    
    

    Section 232.023 Falsification of attendance records; penalty. - The presentation of reasonable and satisfactory proof that any teacher ... has falsified or caused to be falsified attendance records for which he is responsible shall be sufficient grounds

    for ... dismissal or removal from office.

    
    

    Section 839.25 Official Misconduct. -

    1. "Official misconduct" means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:

       * * *

       (b) Knowingly falsifying ... any official record or official document.

    2. "Corrupt" means done with knowledge that act is wrongful and with improper motives.

    3. Official misconduct under this section is a felony of the third degree ...

       
       

       Section 231.44 Absence without leave. -

       Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board.

       Osteen is also charged with violations of the following rules: 6B-1.006 Principles of Professional Conduct

       for the Education Profession in Florida.

       * * *

       (2) Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's

       certificate, or the other penalties as provided by law.

       * * *

       1. Obligation to the profession of education requires that the individual:

          1. Shall maintain honesty in all professional dealings.

       * * *

       (g) Shall not submit fraudulent information on any documents in connection with professional activities.

       
       

36. Finally, the School Board asserts that the above alleged violations constitute misconduct in office, justifying suspension or dismissal pursuant to Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Criteria for Suspension and Dismissal, Florida Administrative Code. Among other things, Section 231.36(4)(c) allows a teacher to be suspended or dismissed for misconduct in office. Rule 6B-4.009(3), states:

    
    

    Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

37. The School Board has the burden of proving the violations alleged by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 293 (Fla. 1987).

    
    

38. The School Board carried its burden in regard to all of the allegations except as to Section 839.25.

    
    

39. Section 839.25 is a criminal statute and defines the prohibited conduct to be a felony. While conviction of this crime, by a court of competent jurisdiction, would constitute grounds for dismissal, it is inappropriate to use the mere allegation of criminal conduct to justify penal administrative action. Hence it is concluded that the charge that Ms. Osteen violated Section 839.25 should be dismissed.

    
    

40. It is concluded that Ms. Osteen falsified the attendance records on Billy Vickery in violation of Section 232.023. In fact, no accurate attendance records on Billy Vickery for the period of February and March, 1988, exist.

    
    

41. The normal working hours for Ms. Osteen in her position as a content staffing specialist are 8:00 a.m. to 3:30 p.m. The records of Ms. Vickery and the investigator show that Ms. Osteen appeared and taught Billy prior to 3:30 on several occasions. Ms. Osteen was on a separate contract to provide homebound instruction to Billy and this employment was separate from her full-time position as a content staffing specialist. To the extent that Osteen provided homebound instruction at the same time that she should have been performing her duties as a content staffing specialist, she must have been absent from her

    full-time position. Since she was not on authorized leave for that time, Ms.

    Osteen must have been absent without leave. To that extent, it is concluded that Ms. Osteen did violate Section 231.44.

    
    

42. Section 231.36 authorizes suspension or dismissal for misconduct in office. Rule 6B-4.009(3) defines misconduct in office and includes within that definition any violations of Rule 6B-1.006. The violation of Rule 6B-1.006 must be "so serious as to impair the individual's effectiveness in the school system." Here, Ms. Osteen has failed to maintain honesty in her professional dealings by falsifying her time records, her planning records and her attendance records regarding homebound instruction to Billy Vickery. These records are documents kept in connection with Ms. Osteen's professional activities. Ms. Osteen did submit fraudulent information on these documents. Therefore, she did violate Rules 6B-1.006(5)(a) and (g). Her actions were serious and did impair her effectiveness in the school system. A teacher can hardly be effective when she provides only three hours of homebound instruction in a period of time when twenty two hours of instruction should have been given. The record clearly shows that for February and March, 1988, Ms. Osteen got further and further behind in the hours she owed to Billy. In no week did she provide the full eleven hours due to Billy. This misconduct is so serious as to impair her effectiveness. It is concluded that Ms. Osteen did engage in misconduct in office in violation of Section 231.36 and Rule 6B-4.009(3).

    
    

43. As mitigation and in her defense, Ms. Osteen offered several justifications for her actions. These, however, are rejected. It is recognized that Ms. Osteen is viewed by her peers as a conscientious teacher and that, except for her actions in regard to Billy Vickery, her performance as an employee of the school system, especially in her full-time position as a content staffing specialist, has been very good.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lake County enter a Final Order

finding Sandra Osteen guilty of the violations set forth above and dismissing

her from her employment in the school system.

DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

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 7th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2029

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, SCHOOL BOARD OF LAKE COUNTY

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1- 16); 18-39(17-38); 41(39); 42 & 43(40); and 44(41).

2. Proposed finding of fact 17 is unnecessary.

3. Proposed findings of fact 40, 45 and 46 are rejected as being argument and as relating to legal conclusions.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, SANDRA OSTEEN

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1);

   2(1 & 2); 7(8); 10(17); 12 & 13(32); 19 & 20(38); and

   22(39).

2. Proposed findings of fact 3-6 and 11 are unnecessary.

3. Proposed findings of fact 8, 9, 14-18, and 23-26 are subordinate to the facts actually found in this Recommended Order.

4. Proposed findings of facts 27 and 28 are rejected as being argument and as relating to legal conclusions.

COPIES FURNISHED:

Walter S. McLin, III, Attorney at Law Post Office Drawer 1357

Leesburg, Florida 32749-1357

Richard H. Langley, Attorney at Law Post Office Box 188

Clermont, Florida 32711

Freddie G. Garner, Superintendent

The School Board of Lake County, Florida

201 West Burleigh Boulevard Tavares, Florida 32778

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

=================================================================

SETTLEMENT AGREEMENT

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF LAKE COUNTY,

Petitioner,

vs. CASE NO. 88-2029

SANDRA OSTEEN,

Respondent.

/

SETTLEMENT AGREEMENT

Petitioner, School Board of Lake County, and Respondent, Sandra Osteen, hereby stipulate and agree as follows:

1. The Respondent, Sandra Osteen, hereby submits her resignation from her continuing contact with the School Board of Lake County, Florida effective March 23, 1988.

   
   

2. The School Board of Lake County, Lake County, Florida, and through it's Superintendent, Thomas E. Sanders, hereby stipulates and agrees that Sandra Osteen may reapply without prejudice for re-employment by the School Board of Lake County, Florida for the next employment period commencing either July 1989 or August 1989, and further that any application by her for re-employment will be considered without prejudice. At the end of one (1) year re-employment, based upon satisfactory performance by the Respondent, she will be recommended for a professional services contract pursuant to School Board Policy 310(7).

   
   

3. The Respondent, Sandra Osteen, by submitting her resignation from her continuing contact effective March 23, 1988, hereby waives any right for back salary from that date, and further agrees to hold the School Board of Lake County and the Superintendent harmless for any action taken by it and that office in this case.

DATED this 11th day of April, 1989.

SCHOOL BOARD OF LAKE COUNTY

BY:

SANDRA OSTEEN PHYLLIS C. PATTEN, Chairperson ATTEST:

THOMAS E. SANDERS, Superintendent

and Ex Officio Secretary

WALTER S. McLIN III RICHARD H. LAGLEY

McLin, Burnsed, Morrison & Post Office Box Johnson, P.A. Clermont, Florida 32711

Post Office Drawer 1357 Attorney for Respondent Leesburg, Florida 32749

Attorney for Petitioner

CERTIFICATE OF SERVICE

I CERTIFY that a copy hereof has been furnished by mail this 12th day of April, 1989, to the following:

Richard H. Langley Dr. Thomas E. Sanders

Post Office Box 188 School Board of Lake County Clermont, Florida 32711 201 West Burleigh Boulevard

Tavares, Florida 32778

C. A. "Chip" Deems Anna Cowin

Route 6, Box 320 2913 North Porto Bello Avenue

Leesburg, Florida 32748 Leesburg, Florida 32748

Phyllis C. Patten Raymond F. Newman

168 East Lake Joanna Drive 504 Bates Avenue, Apartment B Eustis, Florida 32726 Eustis, Florida 32726

R. Jerry Smith Patrick G. Galbreath

c/o Lake-Sumter Community College School Board of Lake County South Highway 441 201 West Burleigh Boulevard

Leesburg, Florida 32788 Tavares, Florida 32778

WALTER S. McLIN III

McLin, Burnsed, Morrison & Johnson, P.A.

Docket for Case No: 88-002029

Orders for Case No: 88-002029