STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5534

)

DALE DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on March 6-7, 1996, in Largo, Florida.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649

For Respondent: Marguerite Longoria, Esquire

Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675

STATEMENT OF THE ISSUE

This issue in this case is whether just cause exists for the proposed disciplinary action against the Respondent.

PRELIMINARY STATEMENT

Dale Davis is employed as a teacher by the School Board of Pinellas County. By letter dated October 17, 1995, Ms. Davis was notified that the Superintendent would recommend to the School Board that Ms. Davis be dismissed from employment for activities occurring within her classroom and for other reasons set forth in the letter.

The letter notified Ms. Davis of her right to a hearing. She requested a formal hearing and the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the School Board presented the testimony of 14 witnesses and had exhibits numbered 1-11 admitted into evidence. The Respondent presented the testimony of 10 witnesses and testified on her own behalf.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. Proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Dale Davis (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract.

   
   

2. The Respondent has received satisfactory performance evaluations until 1993 when she received an "improvement expected" evaluation in the area of judgement.

   
   

3. During the 1994-95 school year, the Respondent received "improvement expected" evaluations in several areas.

   
   

4. The Respondent attributes her performance difficulties to personal stress related to the illness of her parents, school violence, and teaching classes outside her field of expertise.

   
   

5. On May 30, 1995, the Respondent, while teaching at Boca Ciega High School, received a written reprimand from Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. The letter states as follows:

   
   

   I met with you, Barbara Paonessa, Principal, Allyn Ramker, Assistant Principal and Betty Shields, PCTA Representative on May 11, 1995....The purpose of the conference was to discuss several concerns regarding your failure to follow school and district procedures as well as specific directives given by your supervisor(s).

   I reviewed the following specific concerns which had been reported to the Office of Professional Standards by Ms. Paonessa: you have left students unattended and failed to supervise your students at all times; you have allowed students to come to your class at times other than when they are assigned to you; you have allowed and encouraged a "loose" classroom atmosphere, allowing students to eat and drink, play cards, talk to each other, and watch videos during instructional time; you have transported one or more students in your personal car; you have not followed the established curriculum; you failed to cooperate with the School Resource Officer in the performance of his duties. Ms. Paonessa and I both expressed grave concerns that your conduct has reflected a lack of sound professional judgement and exposes yourself and the district to possible liability.

   You acknowledged the validity of the aforementioned concerns but emphasized that philosophically you could not conform to the expectations described and defined by Ms. Paonessa and me. You stated "I'll do what I have to do by my conscience." I acknowledged that I believed you to be a strong student advocate with a

   great deal to offer. However, I emphasized that you must adhere to school and district policies and procedures and exist within the parameters defined by those policies and procedures.

   This letter of reprimand is for insubordination by your failure to follow the directives of the school administration. In addition, you failed to exercise sound professional judgement by your refusal to adhere to school and district policies and procedures. You are advised to supervise your students at all times, refrain from transporting students in your vehicle, follow the established curriculum for the subject areas you teach, and adhere to all policies of Boca Ciega High School and the school district. Failure to do so could result in further disciplinary action which may include suspension without pay or dismissal.

   
   

6. The letter of May 30, 1995 contains a signature appearing to be that of the Respondent.

   
   

7. The Respondent voluntarily transferred to Largo Middle School as an eighth grade language arts teacher for the 1995-96 school year.

   
   

8. Prior to her transfer to Largo Middle School, the Respondent had taught only high school grades.

   
   

9. On or about September 5, 1995, the Respondent found a letter signed "your neighbor" in a stack of mail.

   
   

10. The letter from the "neighbor" was critical of the Respondent's supervision of her dog, and included vulgar language and threats related to the dog and the Respondent.

    
    

11. On September 6, 1995, the Respondent took the letter to Largo Middle School. She discussed the letter with several students in her TAP ("homeroom") class prior to the beginning of scheduled academic classes, telling them that her dog was missing. Apparently, students were familiar with the Respondent's dog. Some students read the letter.

    
    

12. On September 6, 1995, the Respondent gave her first period class three assignments which she noted on the chalkboard at the front of the school room. Assuming that the students would be familiar with her dog and would be interested in responding to the letter, one of the assignments was to respond to the letter from the "neighbor."

    
    

13. Prior to beginning the assignment, the Respondent read portions of the letter to the students in her first period class. She did not read the vulgar language to the students, but provided verbal clues indicating she was omitting inappropriate language.

    
    

14. After reading the letter, she instructed the students to write responses to the letter which could be shown to the "neighbor." A student asked whether they were permitted to use vulgar words in their responses. She advised them to express themselves as they saw fit in order to respond to the letter.

    
    

15. At the end of the class period, the Respondent collected the assignments and reviewed the work. A number of the student letters contained

    vulgar and profane language. As was her usual practice, she read some of the work to the class, again substituting verbal clues for the inappropriate language.

    
    

16. Apparently amused by the student work, she and the class laughed at some of the responses as she read them.

    
    

17. During the second period class, the Respondent gave essentially the same assignment. She told the class to express their feelings about the letter, but said she would prefer that they not use vulgar language.

    
    

18. At the end of the class period, the Respondent collected the assignments. A number of the student letters again contained vulgar and profane language. She read the same letters as had been read in the first period to her second period class, substituting verbal clues for the inappropriate language. Again, the Respondent and some of her students were amused by the responses.

    
    

19. During the third period class, the Respondent gave essentially the same assignment. The third period class was composed of honors students.

    
    

20. Again in response to a student inquiry, the Respondent told students to express their feelings, but directed the students to use asterisks or other symbols to substitute for inappropriate words in their responses.

    
    

21. During the third period, a substitute teacher arrived in the Respondent's class. The substitute was to fill in for the Respondent, who had been advised by Principal William Harris to take personal time off in order to resolve a matter regarding her housing situation. Before the Respondent left the school on September 6, 1995, she advised the substitute teacher of the student assignments for the remainder of the day.

    
    

22. The Respondent left the classroom with approximately ten minutes remaining in the third period.

    
    

23. During the fifth and sixth period classes, the substitute teacher carried out the tasks assigned by the Respondent, including reading the letter to the students and having the students write responses.

    
    

24. During the fourth period, another teacher at the school learned of the writing assignment from students who had been in the Respondent's earlier classes. Some students showed their responses to the teacher. The responses contained inappropriate language. According to the teacher, the students claimed the Respondent permitted them to use vulgarity in the responses.

    
    

25. After the fourth period had concluded, the teacher notified Edward Cunningham, the school's assistant principal, of her concern regarding the situation.

    
    

26. At some point during the day, two students approached Dr. Harris, the principal, and advised him of the writing assignment they had received from the Respondent.

    
    

27. Dr. Harris went to the Respondent's classroom and spoke to the substitute teacher. The substitute teacher advised the principal of the Respondent's assignment. Dr. Harris collected the remaining student responses from the substitute teacher and left the room.

28. When Dr. Harris returned to his office, he notified Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. He was advised to discuss the matter with the Respondent upon her return.

    
    

29. The Respondent returned to Largo Middle School on September 11, 1995, at which time she and Dr. Harris discussed the matter.

    
    

30. In meeting with the principal, the Respondent acknowledged reading the "neighbor" letter to the class and assigning the students to respond. She acknowledged telling the students to express themselves as they believed appropriate. The principal requested and received the remaining student responses from the Respondent.

    
    

31. During the meeting on September 11, Dr. Harris advised the Respondent that the assignment was inappropriate because it involved personal matters unrelated to her teaching responsibilities and because she had permitted the students to use inappropriate language in their responses. He directed the Respondent to refrain from discussing her personal life with the students. He directed the Respondent not to discuss the letter with the class and not to respond to any student inquiries made to her about the situation. He directed the Respondent to teach according to the approved curriculum.

    
    

32. On September 13, 1995, Dr. Harris spoke with Dr. O'Howell and advised her as to the result of his discussion with the Respondent. He provided the student responses to Dr. O'Howell, who initiated an investigation into the incident.

    
    

33. On September 21, 1995, Dr. O'Howell met with the Respondent and a representative of the Pinellas County Teachers Association (PCTA). The Respondent acknowledged bringing the letter to school, reading it to students, and assigning them to write responses.

    
    

34. During the meeting, Dr. O'Howell advised that the assignment was inappropriate because it was outside the approved curriculum, because the content of the letter was personal, and because the Respondent had failed to direct the students to refrain from using vulgar language. Dr. O'Howell directed the Respondent not to discuss the situation surrounding the letter assignment or her personal issues with her students.

    
    

35. On September 22, 1995, Dr. Harris entered the Respondent's second period class and observed students engaged in pillow-fighting, card playing and socializing.

    
    

36. Dr. Harris discussed the student behaviors with the Respondent, who replied that it was a "free day" on Fridays. Dr. Harris explained to the Respondent that she was expected to teach the eighth grade curriculum every school day and that classroom management procedures were to be in effect at all times. He also told her that card playing was prohibited.

    
    

37. Following the September 22 conversation between the Respondent and Dr. Harris, the Respondent told her classes that Fridays would no longer be "free days" but would be "enrichment days." The evidence establishes that the Respondent's Friday classroom activities remained essentially the same after the change in terminology.

38. On September 25, 1995, Dr. O'Howell met with the Respondent and the PCTA representative. The purpose of the meeting was to execute a settlement stipulation related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment. Disagreeing with certain statements in the settlement documents, the Respondent refused to execute the settlement documents. At that time, Dr. O'Howell again directed the Respondent to refrain from discussing the situation or her personal life with students.

    
    

39. A proposed ten day suspension related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment was forwarded to the School Board. During this period, copies of the student responses to the letter were released to news media representatives by the Petitioner and were the subject of articles in local newspapers.

    
    

40. During a September 27, 1995 conference on an unrelated matter which was attended by Dr. Harris, Mr. Cunningham and the Respondent, the Respondent was again advised to discuss only curriculum matters with students and to refrain from discussion of personal issues.

    
    

41. On October 9, 1995, the Respondent gave her students a journal assignment, directing them to write their feelings about the "neighbor" letter, the response writing assignment and subsequent events.

    
    

42. At some point after being directed to refrain from discussing the situation with students and prior to October 11, 1995, the Respondent received a call at school from someone claiming to represent a national television talk show. The caller expressed interest in having the Respondent discuss the events surrounding the student responses to the letter on the talk show. The Respondent told her classes about the phone call and wrote the talk show representative's phone number on the chalkboard, explaining that she would not go on the show unless her students could accompany her.

    
    

43. On October 11, 1995, the Respondent read an editorial to her students entitled "Teaching hate to eighth graders." The editorial, which had been published in the St. Petersburg Times, criticized the Respondent's behavior regarding the classroom reading of the letter and the related writing assignment, the School Board's response to her assignment, and the writing ability of her students. After reading the editorial to the students, the Respondent instructed her students to write responses to the editorial.

    
    

44. The Respondent did not tell the students how to respond to the editorial. She told them that they might want to show the responses to their parents and, with parental consent, send the responses to the newspaper.

    
    

45. During the second period on October 11, 1995, Dr. Harris observed the Respondent in her classroom holding a newspaper article while her students were writing. Dr. Harris directed Mr. Cunningham to enter the Respondent's classroom and ascertain the situation.

    
    

46. Mr. Cunningham observed the Respondent discussing and assigning students to write rebuttals to the newspaper editorial. Mr. Cunningham observed the Respondent telling students that they could not send their rebuttals to the newspaper without permission from their parents.

    
    

47. Mr. Cunningham also observed some students playing cards and others listening to music while the Respondent read the editorial and gave the assignment.

48. Mr. Cunningham reported his observations to Dr. Harris.

    
    

49. Dr. Harris contacted Dr. O'Howell and advised of the Respondent's classroom assignment related to the editorial. Dr. O'Howell advised she would be coming to the school campus and directed Dr. Harris to retrieve the student responses to the editorial.

    
    

50. Dr. Harris directed Mr. Cunningham to obtain the responses from the Respondent.

    
    

51. Mr. Cunningham went to the Respondent's classroom and asked for the responses. The Respondent refused to turn the materials over to Mr. Cunningham.

    
    

52. Mr. Cunningham advised Dr. Harris of the Respondent's refusal to provide the materials. Dr. Harris contacted the Respondent over the school intercom system and directed the Respondent to come to his office with the materials.

    
    

53. The Respondent came to Dr. Harris' office, but refused to provide the materials.

    
    

54. Dr. O'Howell arrived at the school while Dr. Harris and the Respondent were discussing the issue. Dr. O'Howell requested the materials from the Respondent and she again refused to provide them.

    
    

55. The Respondent left the school campus before the end of the day and subsequently notified the Petitioner as to the location of the editorial responses.

    
    

56. By letter of October 17, 1995, the Respondent was notified by the Superintendent of Pinellas County Schools that she was being suspended with pay. The letter also advised the Respondent that the Superintendent was recommending her dismissal from employment. The letter states:

    
    

    My recommendation is based on the fact that on September 6, 1995, you read a "hate letter" you had allegedly received from a neighbor to your classes and directed your students to write a response to the author of the letter as a writing assignment. The letter contained profanity and other inappropriate language and the student responses also contained a great deal of profanity and other inappropriate language. After being directed on September 21, and September 25, 1995, to refrain from discussing this matter with your students, you gave your classes a journal assignment related to your "hate letter". On October 11, 1995, you read an editorial from the St.

    Petersburg Times regarding your situation to your students and assigned them to write a letter of response. You refused to provide the students' letters when directed to do so by three different administrators on October 11, 1995. In addition, you received a district reprimand on May 30, 1995, for insubordination and refusal to adhere to school and district policies. Your actions are a violation of The Code of Ethics and The Principles of Professional

    Conduct of the Education Profession in Florida and School Board Policy 6Gx52-5.31(1)(u)(v), and constitute just cause for your dismissal pursuant to Section 231.36(6)(a), Florida Statutes.

    
    

57. Newspaper articles related to the events described herein were published in the St. Petersburg Times and the Tampa Tribune.

    
    

58. The evidence fails to establish that the Respondent referred to the letter from the alleged neighbor as a "hate letter" during her conversations with students.

    
    

59. The evidence fails to establish that the Respondent actually intended to show the student letters to the "neighbor."

    
    

60. There is no evidence that the Respondent knew the identity of the "neighbor."

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

62. In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's behavior constitutes misconduct in office or gross insubordination sufficient to warrant the Respondent's termination. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990). In this case, the burden has been met.

    
    

63. Section 231.36(1)(a), Florida Statutes, provides that a member of an instructional staff employed under a professional services contract may be dismissed during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude."

    
    

64. Pinellas School Board Policy 6Gx52-5.31(1)(u)(v), provides:

    
    

    The school district generally follows a system of progressive discipline in dealing with deficiencies in employee work performance or conduct. Progressive discipline may include, but is not limited to, verbal or written counseling or caution, written reprimand, suspension without pay and dismissal. The severity of the problem or employee conduct will determine whether all steps will be followed or a recommendation will be made for suspension without pay or dismissal. When there is a range of penalties, aggravating and mitigating circumstances will be considered....

    
    

65. The recommended penalties for insubordination and for misconduct range from caution to dismissal.

    
    

66. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in

    Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. Rule 6B-4.009(3), Florida Administrative Code.

    
    

67. Rule 6B-1.006, Florida Administrative Code, is entitled "The Principles of Professional Conduct for the Education Profession in Florida." In relevant part, the rule states:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learn- ing or to health or safety.

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          (h) Shall not exploit a professional relation- ship with a student for personal gain or advantage.

          
          

68. In this case, by requiring (in the assigned editorial response) and encouraging (in the matter of the talk show) students to participate in the events following the initial publicity surrounding the events of September 6, 1995, the Respondent failed to make a reasonable effort to protect the student from conditions harmful to learning or to health or safety, intentionally exposed students to unnecessary embarrassment or disparagement, and exploited her professional relationship with students for personal gain or advantage.

    
    

69. Publicity surrounding misconduct is not sufficient to support a determination of impaired effectiveness. Tenbroeck v. Castor, 640 So.2d 164 (Fla. 1st DCA 1994). Here, the impaired effectiveness has been caused not by publicity but by the Respondent's behavior in a dispute with her employer.

    
    

70. As of the meeting of September 25, 1995, the case became an employment dispute between the Petitioner and the Respondent. A recommendation to the School Board for a ten day suspension was pending. The Respondent would have been entitled to an administrative hearing to challenge the suspension. She had already been and was again warned not to discuss the matter with her students. Rather than decline to comment about the matter in her classroom, she involved her students in her fight with her employer. Students were told to write responses to an editorial, encouraged to show the responses to their parents and, with parental consent, mail them to the newspaper. Further, the Respondent told students about the national television talk show inquiry (upon which she had declined to appear without the students) and provided the telephone number for the show. The manipulation of her students in a personal dispute with her employer has resulted in substantially impaired effectiveness as a teacher.

    
    

71. Gross insubordination is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Rule 6B-4.009(4), Florida Administrative Code.

    
    

72. Contrary to clear and reasonable instruction from proper School Board authorities, the Respondent continued to discuss the situation in the classroom and make related writing assignments. The failure to comply with the directive to refrin from such activities meets the definition of gross insubordination and warrants termination of employment.

73. The Respondent suggests that in pursuing her dismissal, the Petitioner is failing to comply with the School Board policy requiring progressive discipline. The evidence fails to support the assertion. After the events of September 6, 1995, a ten day suspension was recommended, but before the suspension was enforced or challenged in an administrative proceeding, the situation was escalated by the Respondent's continuing unwillingness to comply with the directive that she refrain from addressing the dispute in her classroom.

    
    

74. The Respondent asserts that the Superintendent's letter of October 17, 1995 does not address an alleged failure to teach according to the approved curriculum and that related evidence should be disregarded. The October 17 letter references a district reprimand received May 30, 1995, wherein the Respondent was notified that the Respondent's classroom activities, including the failure to teach according to approved curriculum, were unacceptable. Some of the Respondent's behaviors at Largo Middle School, specifically classroom management and the lack thereof, are similar to those for which she has already been reprimanded.

    
    

75. The Respondent asserts that her continued classroom discussions about the events related to the letter were a result of the student's persistent interest in the matter. The Respondent was directed to refrain from discussing the "neighbor" letter and related events. She repeatedly failed to comply with the directive. The student's ongoing interest was at least in part fueled by the Respondent's willingness to include her students in the situation.

    
    

76. The Respondent asserts that her failure to provide the editorial responses upon the request of three administrators was not insubordination, but an attempt to protect the students from potential public release of the information by the Petitioner. The rationale for her action assumes that the alleged insubordination only occurred when she declined to produce the materials for her superiors. The evidence establishes a continuing pattern of insubordination related to her classroom behavior subsequent to the October 11 meeting between Dr. Harris and the Respondent.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the School Board of Pinellas County enter a Final Order terminating the employment of Dale Davis.

DONE and ENTERED this 30th day of May, 1996 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, 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 30th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5534

To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

6-7. Rejected, subordinate.

11, 14. Rejected. The evidence fails to establish that the Respondent referred to the letter as a "hate letter" during these conversations or that students were told their responses would be shown to the "neighbor."

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

5-6, 8. Rejected, subordinate.

9. Rejected, suggested reconsideration of the assignment is not supported by greater weight of the evidence.

1. Rejected, as to the Respondent learning of the problems related to the letter "at some point in the next few weeks," not supported by greater weight of the evidence.

2. Rejected, as to date of referenced conversation, not supported by greater weight of the evidence.

1. Rejected as to alleged changes from "free days" to "enrichment days," not supported by greater weight of the evidence. Further, there is no credible evidence to support the assertion that either "free days" or "enrichment days" were part of any organized and approved curriculum. The greater weight of the evidence establishes that in such days, students were occupied in non-academic pursuits, including physical horseplay, card playing, etc.

2. Rejected, subordinate.

3. Rejected, immaterial.

4. Rejected as to assertion that Respondent avoided discussing the matter "as much as was feasible," not supported by greater weight of the evidence.

5. Rejected as to reason for assigning a journal writing assignment, irrelevant.

6. Rejected as to reason for assigning an editorial response writing assignment, irrelevant.

7. Rejected as to reason for refusal to provide student responses to officials, irrelevant.

24. Rejected, unnecessary.

25-26. Rejected, not supported by greater weight of credible and persuasive evidence.

COPIES FURNISHED:

Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County

301 Fourth Street Northwest Post Office Box 2942

Largo, Florida 34649

Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649

Marguerite Longoria, Esquire Kelly & McKee, P.A.

Post Office Box 75638 Tampa, Florida 33675

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 95-005534

Orders for Case No: 95-005534