Pursuant to notice, a formal administrative hearing was conducted on November 25, 2008, by video teleconference between Tallahassee and Fort Lauderdale, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).
For Petitioner: Eugene K. Pettis, Esquire
Trisha S. Widowfield, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
For Respondent: Melissa C. Mihok, Esquire
Kelly & McKee, P.A.
Whether Petitioner has just cause to terminate Respondent’s employment based on the alleged conduct.
At its regularly scheduled meeting on May 21, 2008, Petitioner took action to suspend Respondent’s employment as a school nurse and to initiate proceedings to terminate Respondent’s employment. On July 11, 2008, Petitioner filed an Administrative Complaint against Respondent alleging certain facts pertaining to her administration of medication to students and record-keeping while serving as the school nurse at Nova Eisenhower Elementary School (Nova). Based on those facts Petitioner alleges that Petitioner’s conduct establishes the following grounds for the termination of her employment: “Misconduct” (Count 1), “Immorality” (Count 2), “Moral Turpitude” (Count 3), and (lack of) “Professional Competency” (Count 4).
Respondent timely requested a formal administrative hearing to challenge the Petitioner’s proposed action, the matter was referred to DOAH, and this proceeding followed.
At the final hearing, Petitioner presented the testimony of Jill Martinez (office manager at Nova), Veronica Whitsett (office clerk at Nova), Respondent, Maureen O’Keefe (Clinical Nursing Supervisor of Broward County School District), and Marcia Bynoe (Director of Health Education Services of Broward County School District). Petitioner presented 36 sequentially pre-numbered Exhibits, of which numbers 1, 2, 3, 4, 5, 6, 7, 9,
admitted into evidence. Respondent testified on her own behalf, but presented no other testimony. Respondent presented 14 sequentially pre-marked exhibits, of which numbers 1, 6, 12, and
13 were admitted into evidence.
Unless otherwise noted, all statutory references are to Florida Statutes (2007) because the conduct at issue occurred in 2007. References to rules are to the rules in effect when the conduct at issue in this proceeding occurred.
A Transcript of the proceedings, consisting of two volumes, was filed on January 15, 2009. Each party filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.
At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida.
Petitioner employed approximately 30 nurses during the 2007-2008 school year. Petitioner also used the services of other nurses, referred to as “agency nurses”, on an as-needed basis. Petitioner has adopted “The Health Services Manual” and a Standard Operating Procedures Manual containing the policies and procedures applicable to all nurses and to each person
designated by a school principal as a “healthcare designee” pursuant to Section 1006.062, Florida Statutes.
At all times material hereto, Petitioner employed Respondent, who is a registered nurse, as a school nurse pursuant to an annual contract. Respondent was hired as a school nurse beginning March 2007 and was assigned to Whispering Pines Elementary School. Respondent testified without contradiction that she was not provided any training or provided copies of the pertinent policies and procedures when placed at Whispering Pines. Respondent had 12 years of experience as a Registered Nurse when Petitioner first hired her.
WHISPERING PINES
While working at Whispering Pines, Respondent was alleged to have administered an incorrect dosage of medication to a student and to have falsified a student medication record. Respondent denied the alleged charges. The Office of Professional Standards and Special Investigative Unit investigated the allegations.
On November 5, 2007, Joe Melita, Executive Director of Petitioner’s Professional Standards and Special Investigative Unit, issued Respondent a formal letter of reprimand that provided, in part, as follows:
The Professional Standards Committee at its meeting on August 22, 2007, reviewed the
matter of your falsification and malpractice.
After careful review by this committee it has been determined that sufficient factual or legal basis exists to establish probable cause to recommend disciplinary action to the Superintendent regarding this incident. Let this correspondence serve as a reprimand that any future violation will result in a recommendation for further disciplinary action up to and including termination.
. . .
Respondent did not formally challenge the reprimand.
REORIENTATION
Petitioner thereafter assigned Respondent to a reorientation program, consisting of three days of training regarding Petitioner’s policies as to the administration of medications and the keeping of records related to the administration of medications. Respondent was specifically trained in the following topics: “Nurses Requirements Under Florida Statutes Governing School Health,” “School Nurse’s Responsibilities,” “Students’ Health Records – Documentation,” “Medication Administration,” and “Diabetes In-service Training.”
Petitioner thereafter assigned Respondent to work for four days at four different schools under the guidance of four experienced school nurses where she received further training in the application of Petitioner’s policies and procedures.
The reorientation training Petitioner gave Respondent was unprecedented.1
NOVA
On November 7, 2007, after Respondent had undergone
the reorientation described above, Petitioner assigned Respondent to serve as the school nurse at Nova. Petitioner selected Nova because a Nova student (K.W.) had recently been diagnosed with insulin-dependent diabetes. A registered nurse is required to administer insulin injections and to monitor glucose levels of an insulin-dependent diabetic.
Nova has a clinic for students with medical needs.
Prior to Respondent’s arrival at Nova, Ms. Whitsett (the office clerk) took care of the medical needs of the students the vast majority of the time. On November 7, 2007, Ms Martinez (office manager) and Ms. Whitsett showed Respondent around the clinic and told her where documents were kept.
Respondent worked at Nova on November 7, 8, and 9, 2007. The Veterans Day holiday was observed on Monday, November 12, 2007. Respondent was absent from work on November 13, 14, and 15. Respondent returned to work on
November 16. Ms. Whitsett tended the clinic during those three days Respondent was absent.
While tending the clinic during Respondent’s absence, Ms. Whitsett noted what she believed to be deficiencies in the medical records maintained by Respondent as to the following
three students: J.M., A.A., and K.W. Ms. Whitsett discussed the matter with Ms. Martinez.
NOVA STUDENT J.M.
An Authorization for Medication/Treatment Form signed by J.M.’ s doctor and his parents reflected that J.M. was to receive two puffs of Albuterol as follows: “at 12:30 all this week and next week until coughing stops.” The order was entered onto J.M.’s Student Medication Log beginning November 5, 2007, as “Albuterol Inhaler 2 puffs by mouth every 4 hours as needed.”
Respondent testified that she did not administer J.M.’s Albuterol on November 8 or 9, 2007, because she called J.M.’s teacher, who informed her that J.M. had not been coughing.
Respondent made no entry on J.M.’s Student Medical Log on November 8 or November 9, 2007. Ms. Whitsett questioned Respondent on November 16, 2007, as to whether the student had been administered Albuterol on November 8 and 9 and she also questioned how J.M.’s Student Medical Log should be documented.
On November 16, 2007, Respondent marked the code letter “R” on J.M.’s Medical Log under the dates of November 8 and November 9 to reflect that J.M. had refused his medications on those dates. Those entries were clearly erroneous. Respondent initialed those entries, but she did not date the entries for November 8 or 9 as being non-contemporaneous
entries. At some undetermined time thereafter, Respondent changed the code letter “R” to the code letter “S” to reflect that the medication was not administered, but that the reason for the non-administration was in the category of “other” as opposed to “refused”. No dates were entered to reflect that the change to J.M.’s Medical Log was a late entry. No explanation as to what Respondent considered to be “other” was documented.
Respondent testified that she was not required to initial and date the non-contemporaneous entries on J.M.’s Student Medical Log. Petitioner’s rule pertaining to the completion of school health forms (Respondent’s Exhibit 13) requires, in relevant part, that “. . . Documentation errors should have a single line through them with the initials of the person striking the error.” For the correction of an entry on the same date reflected on the medical log, Petitioner’s policy would require only that the person making the correction strike through the error, make the correction, and initial the entry. Based on the clear and convincing testimony from Ms. O’Keefe and Ms. Bynoe, the undersigned finds that Petitioner’s policy should be read in conjunction with standard nursing practice, which would require the person making the correction subsequent to the date reflected on the medical log to both initial and date the non-contemporaneous entry. J.M.’s Student Medical Log is misleading because Respondent failed to initial and date the
non-contemporaneous entries reflected under the dates November 8 and 9.
In making her decision not to administer Albuterol to
J.M. on November 8 and 9, Respondent relied on her interpretation of the doctor’s order that the medication could be withheld if the student was no longer coughing. Petitioner’s policies require that the parents or the doctor be contacted if there is any question regarding medication instructions. The doctor’s instruction that the medication is to be administered “all of this week and next week until coughing stops” can be interpreted in more than one way. Consequently, Respondent should have questioned what the doctor intended before she withheld the medication during the first week of its administration.
Respondent did not talk to, observe, or otherwise assess J.M. on November 8 or 9, 2007. The testimony from Ms. O’Keefe and Ms. Bynoe established that standard nursing
protocol required Respondent to physically assess J.M. prior to discontinuing his medication.3
Respondent did not inform J.M.’s parents that he was not administered Albuterol on November 8 or 9. Respondent’s failure to contact the parents on November 8 or 9 violated Petitioner’s policies as set forth in its Medication Administration at School – A Handbook for School Personnel
(Petitioner’s Exhibit3), pages Med – 9 and Med – 29. NOVA STUDENT A.A.
An “Authorization for Medication/Treatment” dated November 5, 2007, and signed by A.A.’s doctor and parents reflect that the patient was to be administered 200 mg. of Furadantin every six hours as need with the following instruction: “after lunch between 12:30 – 1:00.” The order was entered onto A.A.’s Student Medication Log for the week beginning November 7, 2007, as follows: “Furadantin oral 2 teaspoons every 6 hours for 10 days at 12:30 PM.”
Petitioner’s policy requires that medication be administered within 30 minutes of the prescribed time. In this case, A.A.’s medication should have been administered no later than 1:30 p.m. Petitioner’s policy requires the person administering medication to a student too early or too late to notify the parent.
On November 7, 8, and 9, 2007, Ms. Whitsett and Respondent both worked in the clinic during parts of the day.
On November 7 and 8, Ms. Whitsett administered A.A.’s prescribed medication. On November 7, Ms. Whitsett administered A.A.s’ prescribed medication at 1:50 p.m. Ms. Whitsett could not recall whether she called A.A.’s parent to determine whether she
should administer the medication after the 1:30 p.m. deadline, and there was no documentation that she had done so.
On November 9, after 1:30 p.m., Ms. Whitsett reminded Respondent that A.A. had not been administered the prescribed medication. Respondent testified, credibly, that she thought that Ms. Whitsett was taking care of the administration of medicine to A.A. A.A. was called to the office and Respondent administered the medication to A.A. at 3:00 p.m. Respondent made the following notation on A.A.’s Student Medication Log: “Student called to office for med.,” noted the time as being 3:00 p.m., and initialed the entry.
Respondent testified at the formal hearing that she called A.A.’s mother on November 9 and received permission to administer the medication to A.A. after the 1:30 p.m. deadline.
On November 9, Respondent did not note on any medical record that she had contacted A.A.’s parent and had received permission to administer the medication after the 1:30 p.m. deadline. On December 3, 2007, a pre-disciplinary meeting was held to discuss the deficiencies at issue in this proceeding.
At some point after that meeting, Respondent added the following on A.A.’s Student Medication Log as part of the entry reflecting a date of November 9 at 3:00 p.m.: “Mom was called to inform her that med was not given at 12:30 – 1 [sic] p.m. Mom says it is o.k. to give now.” Respondent signed the entry as “L.
Maddox, R.N.” Respondent did not note the date she made the entry. As reflected above, Petitioner’s policy, when read in conjunction with standard nursing practices, required Respondent to indicate that the entry was non-contemporaneous. Because Petitioner failed to date the non-contemporaneous entry, A.A.’s Student Medication Log was misleading.
NOVA STUDENT K.W.
K.W., the student with diabetes, required that her blood glucose level be checked three times during the school day. On November 16, 2007, Respondent was responsible for K.W.’s glucose checks. Respondent made no entry on K.W.’s Student Medication Log on November 16.
Between November 20 and December 7, 2007, Respondent made entries on K.W.’s Student Medication Log reflecting that she had checked K.W.’s glucose levels at 9:00 a.m., 12:30 p.m., and 3:35 p.m. Respondent did not note these entries to be non- contemporaneous. As reflected above, Petitioner’s policy, when read in conjunction with standard nursing practices, required Respondent to indicate that the entry was non-contemporaneous. Because Petitioner failed to date the non-contemporaneous entry, K.W.’s Student Medication Log was misleading.
Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.4
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).
Because Petitioner seeks to terminate Respondent’s employment and does not involve the loss of a license or certification, Petitioner has the burden of proving the allegations in its Administrative Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School
Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American
Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)
quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
Pursuant to Section 1012.01(6)(a), Florida Statutes, a school nurse falls in the employment classification of
“educational support employee.” Section 1012.40(2)(a) Florida Statutes, provides as follows:
(2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist.
Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the district school superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.
In the event a district school superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement.
Petitioner did not establish whether any collective bargaining agreement sets forth applicable criteria for terminating a school nurse. Petitioner also did not establish whether the School Board has adopted a rule containing such criteria.
In Section VIII of their Joint Prehearing Statement filed November 24, 2008, the parties stated the following as the issues of law to be resolved:
Whether Respondent’s “ conduct constitutes a violation of Fla. Stat.
§1012.33(4)(c); §1012.795(1)(c)(f)(i) [sic];
and Fla. Admin. Code Rules 6B-4.009, 6B- 1.001, and 6B-1.006 (regarding misconduct in office);
Whether Respondent’s “... conduct constitutes a violation of Fla. Stat.
§1012.33(4)(c); §1012.795(1)(c)(f)(i) [sic];
and Fla. Admin. Code Rules 6B-4.009(2) (regarding immorality);
Whether Respondent’s conduct constitutes a violation of Fla. Stat. §1012.33(4)(c);
§1012.795(1)(c); and Fla. Admin. Code Rules 6B-4.009(6) (regarding moral turpitude); and
Whether Respondent’s “... conduct constitutes a violation of School Board Health Services Policy 6305 and Rule 1, Section 464.003 of the Nurse Practice Act (regarding professional competency).
Section 1012.33, Florida Statutes, pertains to contracts between school boards and instructional staff, supervisors, and school principals. It does not explicitly pertain to non-instructional personnel. In prosecuting Counts 1, 2, and 3, Petitioner relies on Section 1012.33(4)(c), Florida Statutes, which provides as follows:
(c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any school principal, who is under continuing contract may be suspended or
dismissed at any time during the school year; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education. Whenever such charges are made against an employee of the district school board, the district school board may suspend such person without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. . . .
Petitioner also relies on Subsections 1012.795(1)(c),(f), and (i), Florida Statutes, which pertain to the authority of the Education Practices Commission to discipline educators certificates and provides, in relevant part, as follows:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the
educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:
* * *
(c) Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.
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(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
In prosecuting Counts 1, 2, and 3 of this proceeding, Petitioner relies on the following definitions set forth in Florida Administrative Code Rule 6B-4.009:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual’s service in the community.
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.
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(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
In prosecuting Count I, Petitioner relies on Florida Administrative Code Rule 6B-1.001, which sets forth the Code of Ethics of the Education Profession in Florida, as follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
In prosecuting Count 1, Petitioner also relies on Florida Administrative Code Rule 6B-1.006, which sets forth the Principles of Professional Conduct for the Education Profession in Florida and provides, in relevant part,5 as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
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(h) Shall not submit fraudulent information on any document in connection with professional activities.
Petitioner failed to establish that Respondent violated the Code of Ethics in the Education Profession set forth in Florida Administrative Code Rule 6B-1.001, or the Principles of Professional Conduct for the Education Profession as set forth in Florida Administrative Code Rule 6B-1.006.
While it is clear that Respondent made multiple mistakes and failed to follow applicable procedure during her brief tenure at Nova, her conduct did not rise to the level of “misconduct in
office” within the meaning of the definition of the term relied upon by Respondent. Therefore, Respondent should be found not guilty of the violation alleged in Count 1.
Petitioner failed to establish that Respondent’s conduct was inconsistent with the standards of public conscience and good morals. Petitioner failed to prove that the conduct was sufficiently notorious as to bring Respondent or the education profession into public disgrace or disrespect. Petitioner also failed to prove that Respondent’s acts impaired her service in the community. Therefore, Respondent should be found not guilty of the violation alleged in Count 2.
Respondent’s conduct does not approach the level of misconduct described in the definition of “moral turpitude” relied upon by Petitioner. Therefore, Respondent should be found not guilty of the violation alleged in Count 3.
Petitioner established by the requisite standard that Respondent’s performance as a school nurse established a pattern of failing to follow basic nursing protocol, and School Board policy, pertaining to the administration of medicine to school children and the attendant documentation thereof. Immediately after undergoing an unprecedented period of reorientation, Respondent failed to follow accepted policy and protocol. It is concluded that Respondent should be found guilty of the violation alleged in Count 4.
Respondent’s pattern of non-compliance with accepted policy and protocol justifies the termination of her employment.
Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment.
DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2009.
1/ At page 174 of Volume II of the Transcript, beginning at line5, Ms. O’Keefe testified, in part, as follows: “. . . the amount of orientation that Mrs. Maddox received was unprecedented. We have never spent this number of days, hours, and time with a Registered Nurse with the amount of experience that Ms. Maddox had.” Ms. Byone’s testimony corroborated that
of Ms. O’Keefe. See page 220 of Volume II of the Transcript, beginning at line 11.
2/ Petitioner contended that Respondent should have explained on the back of J.M.’s Medical Log why J.M. refused the medication and why Respondent subsequently changed the refusal code from the code letter “R” to the code letter “S”. While such documentation is clearly the preferred practice, the undersigned concludes that Petitioner’s policies did not specifically require that level of documentation.
3/ These witnesses relied, in part, on the definition of the practice of medicine found at Section 464.003(3)(a), Florida Statutes, which provides, in relevant part:
(3)(a) "Practice of professional nursing" means the performance of those acts requiring substantial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences which shall include, but not be limited to:
4/ Respondent presented evidence that another of Petitioner’s employees and an agency nurse had failed to fully comply with Petitioner’s record keeping policies. The fact that Petitioner has not disciplined those employees do not preclude Petitioner from bringing this proceeding against Respondent.
5/ Petitioner did not specify in its pleadings the specific portion(s) of the Principles of Professional Conduct for the Education Profession in Florida it relied upon.
Melissa C. Mihok, Esquire Kelly & McKee, P.A.
Eugene K. Pettis, Esquire Haliczer, Pettis, & Schwamm, P. A. One Financial Plaza
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith Commissioner of Education Department of Education
James F. Notter, Superintendent Broward County School Board
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
