vs. ) CASE NO. 93-4232
Respondent. )
Pursuant to written notice, a formal hearing was held in this case before Susan B. Kirkland, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 16, 1993, in Miami, Florida.
For Petitioner: Madelyn P. Schere, Attorney
Du Fresne and Bradley, P.A.
Whether Respondent's suspension from employment with the Dade County School Board should be affirmed and whether Respondent should be dismissed from employment with the Dade County School Board.
By letter dated July 22, 1993, Petitioner, the Dade County School Board, notified the Respondent, Jill Cohen, that she was suspended and dismissal proceedings were being initiated against her from all employment by the Dade County Public Schools. By letter dated July 23, 1993, Respondent requested a formal hearing. The matter was referred to the Division of Administrative Hearings on August 2, 1993, for formal proceedings. The case was originally assigned to Hearing Officer Linda M. Rigot, who scheduled the formal hearing for November 16, 1993. On November 4, 1993, Petitioner filed an Unopposed Motion to File Amended Notice of Specific Charges, which motion was granted. The charging document in this case is the Amended Notice of Specific Charges filed October 21, 1993. The parties stipulated to the amendment of paragraph 23 of the Amended Notice of Specific Charges to read, "On or about February 3, 1993,
Respondent sent a student outside the classroom unattended." This case was reassigned to Hearing Officer Susan B. Kirkland, who conducted the formal hearing.
Petitioner's exhibits 1-24 were entered into evidence. Petitioner called Steve Gelin, Patrice Rose Moore, Melanie Revman, Delio Diaz, Evelyn Stephens, and Dr. Joyce C. Annunziata as witnesses at the hearing. Respondent testifed on her own behalf and called Emily Holden and Bonnie Saunders as witnesses.
Respondent's exhibits 1, 2, 6, and 7 were entered into evidence. The parties requested and were granted leave to file post-hearing depositions. Petitioner filed the deposition of Phalande Aluc on January 12, 1994. Respondent filed the deposition of Janice Demergion on January 12, 1994.
No transcript was filed. The parties agreed to file proposed recommended orders within ten days of the filing date of the post-hearing depositions.
Petitioner filed a proposed recommended order on January 18, 1994. Respondent did not file a proposed recommended order. Petitioner's proposed findings of fact are ruled on in the Appendix to this Recommended Order.
Respondent, Jill Cohen (Ms. Cohen), has been a school teacher for fifteen years. At all times material hereto, Ms. Cohen, was employed by Petitioner, Dade County School Board (School Board) as an elementary school teacher under a continuing contract.
At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida.
On April 27, 1989, Ms. Cohen, while employed at Edison Park Elementary School, had to leave her classroom for a personal hygiene emergency. She asked another teacher with whom she shared the classroom to watch her students while she went to the school clinic. The other teacher advised Ms. Cohen that in a few minutes she had to pick the students up at the physical education field. While Ms. Cohen was absent, the other teacher had to leave the classroom to get her own students. With both teachers absent from the classroom, Ms. Cohen's students were left unsupervised.
On May 8, 1989, a conference-for-the-record was held with Ms. Cohen concerning the incident on April 27, 1989, and eleven tardies Ms. Cohen had from January 12, 1989 through May 2, 1989. She was advised that she had a professional responsibility to supervise her students at all times, that leaving students unsupervised was a violation of school and state rules and regulations, and that she was required to report to work on time. Ms. Cohen was told that if an emergency requiring her to leave her class unsupervised arose, she was to notify the administrator so that supervision could be arranged. Additionally, she was advised that future incidents of this nature would result in a recommendation for further disciplinary action.
On January 19, 1990, Ms. Cohen left her students unsupervised. During this unsupervised period, one child allegedly sexually abused another student. Upon returning to the classroom, Ms. Cohen learned of the incident and spanked the alleged perpetrator. Ms. Cohen did not report the incident.
A conference-for-the record was held on February 5, 1990, concerning the January 19, 1990 incident and another alleged incident of lack of supervision. Ms. Cohen was again advised that she must provide adequate supervision of her students at all times and that if she had an emergency necessitating her absence, she was to contact the administrator. She was told that any reoccurrence of her failure to supervise her students would be deemed gross insubordination for which further disciplinary action would be recommended. Ms. Cohen was given a letter of reprimand.
In February, 1990, Ms. Cohen was given an alternate work assignment through June, 1990 at Region IV Operations.
The incident of January 19, 1990, was investigated by the Department of Health and Rehabilitative Services.
The same incident was also investigated by the State Attorney's Office which brought charges against Ms. Cohen. As a result of these charges brought by the State Attorney, Ms. Cohen entered into a pre-trial advocacy program.
A conference-for-the-record was held with Ms. Cohen on May 29, 1990, concerning the January 19, 1990, incident.
On September 25, 1990, Ms. Cohen and the School Board entered into a Community Service Agreement, in lieu of suspension, dismissal, or demotion. The agreement included 160 hours of community service, tutoring students, and counseling students.
The Florida Commissioner of Education filed an Administrative Complaint against Ms. Cohen as a result of the January 19, 1990, incident. The Administrative Complaint was resolved with a settlement whereby Ms. Cohen did not contest the allegations that Respondent failed to supervise students and spanked a student as set forth in the Administrative Complaint. As a result of the settlement agreement with Commissioner Castor, Ms. Cohen was given a written reprimand, her state teaching certificate was suspended for eight days, she was placed on three years probation, and was required to undergo psychological evaluation and counseling.
Ms. Cohen received an overall unacceptable performance evaluation for the school year 1989-90.
Ms. Cohen was assigned to the Morningside Elementary School (Morningside) for the 1990-91 school year due to the notoriety stemming from the January 19, 1990 incident.
On June 11, 1991, Ms. Cohen accidently hit a student on the head with a stick. The student did not cry or tell Ms. Cohen that his head hurt. At the time of the incident, there were no physical signs on the student that he had been hit. Later a bump appeared on his forehead.
When the student went home, he told his mother what happened. She called the police. The next day the student's mother, accompanied by a police officer, went to see the school principal. Ms. Cohen had not reported the accidental hitting of the student. The principal first learned of the accident when the parent and police officer met with the principal.
As a result of the accidental hitting of the student, HRS, investigated the allegations and submitted a final report where the investigation was closed without classification.
Ms. Cohen received an unacceptable performance evaluation for the school year 1990-91.
Ms. Cohen was returned to Region IV Operations for alternate work assignment on August 29, 1991.
In lieu of harsher disciplinary action, Ms. Cohen entered into another Community Service Agreement with the School Board on October 8, 1991. Ms. Cohen agreed to perform 200 hours of community service.
On October 22, 1991, Ms. Cohen received a written reprimand relating to the June 11, 1991 incident. She was directed to implement appropriate procedures for dealing with inappropriate student behavior. Ms. Cohen was warned that further such incidents would be considered insubordination and would warrant further disciplinary action.
After a psychological examination, Ms. Cohen was returned to Morningside for classroom duty in either December, 1991, or January, 1992, with conditions of employment which included, among other conditions, acceptable attendance at the work site and adherence to site directives, prescriptive directives and Code of Ethics stipulations.
Ms. Cohen's performance began to improve and she received an acceptable performance evaluation for the 1991-92 school year.
At the beginning of the school year 1992-93, the faculty at Morningside were advised that their students must be supervised and students were not to be left unattended. During the first week of school the teachers were given a faculty handbook, which was discussed at the first faculty meeting.
The Morningside Elementary School Faculty Handbook provides the following pertinent directives:
Discipline: It is the professional responsibility of the teacher to handle routine disciplinary problems. When it becomes necessary for a student to be removed from the classroom, the teacher should seek assistance from the principal, or his/her designee.
No Student is to be removed from a classroom and placed in an area that is unsupervised by a qualified person. . . . (at page 1)
. . .
Supervision of Children: Children should be supervised by adults at all times. Teachers are responsible for walking children to and from physical education. In cases of emergencies, if you must leave students unattended, leave your door open and notify the teacher next door. (at page 3)
. . .
DISCIPLINE PLAN: Staff members are asked to have a discipline plan on file outlining steps taken to ensure understanding of class and school rules, procedures to be implemented when rules are not followed and positive reinforcement strategies. The county approved Assertive Discipline Plan is the preferred plan for all teachers. (at page 4).
. . .
PROCEDURES FOR HANDLING STUDENTS WHO ARE SENT
TO THE OFFICE. In instances where the routine procedures for handling misbehaving students has not been effective, or if the incident is of a more serious nature, i.e., fighting, defiance of authority, vandalism, teachers will call upon the assistant principal, counselor or principal for assistance. (at page 5)
. . .
SOME DON'T'S:
. . .
Put child outside the classroom unsupervised. If a child needs to be excluded from class, send him/her to the office. (at page 7)
. . .
Accidents and Injury Reports - Student:
When a child under your supervision is injured, notify the office and an accident report will be issued. This form must be filled in within 24 hours. (at page 28)
At Morningside the teachers pick their students up at the physical education field at the beginning of the school day and escort them to the classroom. During January and February, 1993, Ms. Cohen was late to work three times, resulting in her students being late to class on those days.
Ms. Cohen had prepared a discipline plan for the school year which plan provided for a student to have time out in another classroom as part of the progressive discipline. Her discipline plan was posted in her classroom, but had not been filed with the school administrator.
Other teachers at Morningside had discipline plans which included time out for students in another classroom. The practice, however, was to not send a child alone. If the teacher or her assistant was unable to accompany the student, the teacher would send two other students to escort the child being disciplined to another classroom. Sometimes the teachers would call the office for assistance.
On February 3, 1993, a student in Ms. Cohen's kindergarten class was coloring in a coloring book. Ms. Cohen took the coloring book away from the student. As a disciplinary measure, Ms. Cohen decided to send the student to another classroom for time out. She did not use the call button to alert the principal that she needed assistance. Ms. Cohen took the child to the door of their classroom and told the student to go to Ms. Holden's classroom.
Ms. Holden's classroom was down the hall from Ms. Cohen's classroom. The doorway to Ms. Holden's classroom was recessed and could not be seen from Ms. Cohen's doorway. Ms. Cohen saw the student go down the hall but did not see her go into Ms. Holden's classroom.
The student did not go into Ms. Holden's classroom, but stood outside and began to cry loudly. A school employee discovered the crying student alone in the hallway and took the student to the office.
Morningside is located close to Biscayne Boulevard near an industrial district and a high crime area, known for prostitution and drug dealing. The school is designed with open corridors and no fencing around the school. Vagrants loiter around the school.
On May 17, 1993, a conference-for-the-record was held to address the February 3, 1993, incident.
Ms. Cohen received a performance evaluation for 1992-93 of unacceptable.
On July 14, 1993, a pre-dismissal conference-for-the record was held with Ms. Cohen to address the pending dismissal action scheduled for the School Board meeting of July 21, 1993.
At the July 21, 1993, meeting the School Board voted to suspend Ms. Cohen and commence dismissal proceedings against her.
The Dade County Public Schools and the United Teachers of Dade have entered into a collective bargaining agreement (Labor Contract) which provides in pertinent part on page 15:
ARTICLE VII - SAFE LEARNING ENVIRONMENT
Section 1. Student Discipline
A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates
progressive disciplinary measures specified in the Code of Student Conduct.
. . .
E. The teacher shall have the authority to remove a seriously disruptive student from
the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to or upon the student's return to the classroom, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Faculty Council/Shared Decision-Making Cadre.
At page 88, the Labor Contract provides in pertinent part: Section 3. Workday
The employee workday shall be seven hours and five minutes for employees at the elementary level . . .
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Dade County School Board suspended and seeks to dismiss Ms. Cohen for incompetency, gross insubordination, and willful neglect of duty within the meaning of Section 231.36(4), Florida Statutes.
Rule 6B-4.009, Florida Administrative Code, defines incompetency, gross insubordination, and willful neglect of duty as follows:
(1) Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency . . . .
Such judgment shall be based on . . .
evidence showing the existence of one (1) or more of the following:
(a) Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes) . . .
. . .
(4) Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Section 231.09, Florida Statutes, provides:
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; record keeping; and fulfilling the terms of any contract, unless released from the contract by the school board.
The Dade County School Board adopted Rule 6Gx13-4A-1.21, which provides:
Permanent Personnel RESPONSIBILITIES AND DUTIES
Employee Conduct
All persons employed by the School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.
. . .
Records and Reports
All personnel shall keep all records and shall prepare and submit promptly all reports that may be required by State Law, State Department of Education Rules, School Board Rules, and administrative directives.
. . .
V. Instructional Personnel
Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully . . .
The School Board of Dade County has also promulgated Rule 6Gx13-5D- 1.08, "Procedures for Promoting and Maintaining a Safe Learning Environment," which reads, at page 8, as follows:
Responsibility and Authority of the Teacher
Subject to Florida Statutes and School Board Rules, each teacher or other member of the staff of any school shall have authority for the direction and discipline of students, as assigned by the principal or designee, and shall keep good order in the classroom and in other places in which responsibility for students is assigned.
At page 9, Rule 6Gx13-5D-1.08, provides:
All employees of the Dade County public school system are required to report to the responsible administrator, or designee, . . . disruptive behavior occurring on School Board property.
Rule 6Gx13-5D-1.08, provides, at page 27:
All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . .
In these proceedings the School Board has the burden of proving incompetency, gross insubordination, and willful neglect of duty by a preponderance of the evidence. See Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990) and Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990).
The School Board has proven by a preponderance of the evidence that Ms. Cohen is guilty of gross insubordination and willful neglect of duty. Ms. Cohen has demonstrated a pattern of leaving her students unsupervised, in violation of Dade County School Board Rule 6Gx13-5D-1.08, and directives in the Morningside Faculty Handbook as well as oral and written directives from her superiors. She has demonstrated a pattern of failing to report student accidents and injuries to the appropriate personnel, failing to report for work on time, and failing to report disruptive students to administrators. Ms. Cohen's actions have not been isolated incidents but rather a continuing pattern of conduct since 1989, despite disciplinary measures taken against her for such actions. See Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981).
The School Board has proven by a preponderance of the evidence that Ms. Cohen is guilty of incompetency. She has repeatedly failed to perform duties required by School Board rules and by the Labor Contract. She failed to supervise and to protect the safety and welfare of the kindergarten student she sent to another teacher's classroom by not making sure that the student actually went into the other classroom. She failed to report to work on time on three occasions in January and February, 1993.
Ms. Cohen had been previously disciplined by the School Board and by the Florida Commissioner of Education for similar violations. Ms. Cohen had been advised by the School Board that future violations would result in further disciplinary actions, but Ms. Cohen did not heed the warnings and proceeded with conduct that could place the safety of her students in jeopardy.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Cohen guilty of
incompetency, insubordination and willful neglect of duty, sustaining her suspension without pay, and dismissing her from employment from the School Board of Dade County without back pay.
DONE AND ENTERED this 3rd day of February, 1994, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4232
The following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact.
Madelyn P. Schere, Esquire Dade County School Board
William Du Fresne, Esquire Du Fresne and Bradley, P.A.
Octavio J. Visiedo, Superintendent Dade County School Board
Douglas L. "Tim" Jamerson Commissioner of Education The Capitol
Barbara J. Staros General Counsel Department of Education The Capitol, PL-08
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
