STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 7, 2008, in Bartow, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North

Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue is whether Petitioner, may terminate Respondent's employment as an instructional employee based upon the conduct

alleged in the letter from Assistant Superintendent Ron Ciranna to Respondent dated March 3, 2008.

PRELIMINARY STATEMENT

On March 3, 2008, Ron Ciranna, assistant superintendent for Human Resource Services for Petitioner, Polk County School Board (the "School Board") wrote a letter to Respondent, Deana Brown (Ms. Brown). The letter, written on behalf of Superintendent Gail F. McKinzie, informed Ms. Brown that the superintendent was immediately suspending Ms. Brown with pay and recommending that her employment with the School Board be terminated at the School Board's next meeting on March 18, 2008.

The letter recited the following factual allegations against Ms. Brown:

This recommendation is the result of your continued pattern of violating school and district policies that have resulted in disciplinary action. You have previously been suspended on March 22, 2007, April 25,

2007, September 20-26, 2007, February 6-12,

2008 and February 20, 2008. On February 4, 2008, Principal Matt Burkett met with you and gave you the directive that you were not to come onto the campus for any reason during the days that you were being suspended. On February 11, 2008, you delivered a lunch to the paraeducator of your class even after the paraeducator told you not to bring the lunch because she knew that you were not to be on campus.

Additionally, the school secretary provided a statement in which she stated that you asked her "not to let Mr. Burkett know that she was here because she would get in trouble." This blatant disregard of your

supervisor's directive constitutes insubordination.

During the period of February 19 through February 22, 2008, you continued to display a pattern of failing to properly supervise the students under your care. On

February 19, 2008, a paraeducator that was covering your class during your absence, asked to leave your classroom upon your return to the classroom. After she had left your classroom, she turned around and saw three of your Pre-K students behind her.

You obviously were not aware that these students had left the classroom and they were clearly not under your supervision. Again, on February 19, it was brought to the principal's attention that while you were at your computer behind your desk, two of your students could not be seen by you and could have left the classroom as the door to your portable was left wide open. On

February 21, 2008, Mrs. Neal, the assistant principal, walked to your classroom and counted the students and found that one of the students was missing. You and the paraeducator searched for the student for approximately five minutes until the student was found in a bathroom. On

February 22, 2008, two of your students were outside your portable running on the ramp when one of them tripped and fell. They were clearly not under your supervision since they could not be seen by you from the classroom.

The letter next stated the following grounds for termination:

Based upon these facts, it is the Superintendent's opinion that you have intentionally violated The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida by failing to make reasonable efforts to protect a student from conditions harmful to

learning and/or the student's mental and/or physical health and/or safety (Rule 6B- 1.006, FAC). Further, you have continued to engage in ongoing gross insubordination by repeatedly failing to adhere to your supervisor's directives. Progressive discipline, as specified in Article IV of the Teacher Collective Bargaining Agreement, has been followed. The next step of progressive discipline is termination.

Therefore, it is the Superintendent's conclusion that "just cause" exists for your termination as an employee of the Polk County School Board.

On March 7, 2008, the Polk Education Association filed a letter on Ms. Brown's behalf, contesting the factual allegations and requesting an administrative hearing pursuant to

Section 120.57, Florida Statutes. On July 28, 2008, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing.

The matter was scheduled for final hearing on October 7, 2008. At the hearing, the School Board presented the testimony of Matthew E. Burkett, principal of Spook Hill Elementary School ("Spook Hill") in Lake Wales; Sharon Neal, assistant principal at Spook Hill; and Jennifer Baker and Alice Staton, paraeducators1 at Spook Hill. The School Board's Exhibits 1 through 18 were admitted into evidence. Respondent testified on her own behalf and offered no additional exhibits. Joint Exhibit 1, the Teacher Collective Bargaining Agreement between

the School Board and the Polk Education Association, was admitted into evidence.

The Transcript of the hearing was filed at DOAH on October 20, 2008. On October 28, 2008, counsel for the School Board filed an unopposed motion to extend the time for submission of proposed recommended orders, which was granted by

Order dated October 29, 2008. In accord with the Order granting extension, both parties filed their proposed recommended orders on November 7, 2008.

FINDINGS OF FACT

1. Ms. Brown has been employed by the School Board as a teacher for 11 years. She is a member of the Polk Education Association, the collective bargaining unit for teaching personnel; is covered by the collective bargaining agreement between the School Board and the Polk Education Association; and holds a professional services contract with the School Board pursuant to Section 1012.33, Florida Statutes.

2. During the first several years of her employment, Ms. Brown was assigned to Dundee Elementary School as an Exceptional Student Education ("ESE") teacher, working with children classified as severely emotionally disturbed, emotionally handicapped, and varying exceptionalities.

3. When she transferred to Spook Hill, Ms. Brown initially worked in a self-contained varying exceptionalities classroom.

   Three years ago the principal of Spook Hill, Matthew Burkett, requested that Ms. Brown transfer to a new ESE Pre-kindergarten (Pre-K) unit that was being established at the school.2

   Ms. Brown started work in the ESE Pre-K unit at the start of the 2005-2006 school year and has remained there ever since.

4. Most of the children in Ms. Brown's class were classified as educable mentally handicapped, or EMH. Testing showed that they were developmentally delayed, with developmental ages that were typically one to two and one-half years behind their chronological ages. At any given time, there could be as few as four or as many as 12 children in Ms. Brown's class. A paraeducator was assigned to assist Ms. Brown.

5. The ESE Pre-K classroom was a portable with a ramp leading to the front door. The front door had a gate with a pool lock. The pool lock was chest-high to an adult, out of the reach of most small children. Outside the portable was the ESE playground, which was completely fenced, with a gate and lock. The playground contained a swing set and other equipment. A child could not exit the playground without adult assistance. The school bus pick-up area was just outside the playground

   gate.

   
   

6. Between January 22, 2007, and February 12, 2008,

   
   

   Mr. Burkett disciplined Ms. Brown 16 times, through verbal

   warnings, written reprimands, letters of concern, and recommendations to the superintendent for suspensions.

7. The first documented disciplinary action was a "written confirmation of a verbal warning" from Mr. Burkett to Ms. Brown dated January 22, 2007. The letter references "many issues" that had been discussed at a January 19, 2007, conference, stating that Ms. Brown had already addressed several of the issues discussed. Mr. Burkett then wrote:

   I would like to target the issue of "falling asleep" during nap time as a very critical area which must be corrected. You stated that it has happened because you have to model and cuddle with the children to get them to fall asleep and that your para was present. I instructed you to sit up while cuddling the children to sleep and that you must not ever fall asleep. Please know any instance from this point on that jeopardizes the health and safety of the students will result in further disciplinary action.

   
   

8. On February 8, 2007, Mr. Burkett issued a written reprimand to Ms. Brown. The reprimand letter stated that on February 2, 2007, at 12:45 p.m., Mr. Burkett walked through

   Ms. Brown's class to observe. The room was quiet and dark. All the students were lying down, and some of them were already asleep. Mr. Burkett observed that Ms. Brown was lying down with several students. She was not asleep, and she responded when spoken to by Mr. Burkett, who nonetheless felt obliged to issue a written reprimand in light of his prior warning.

9. Ms. Brown signed the reprimand letter, acknowledging receipt, but also wrote the following: "Due to this concern I have quit sitting w/any students. I sit in my chair w/students around my desk. Any parent concerned about their child not napping will be directed to the office (Burkett or [assistant principal Sharon] Neal)."

10. On February 9, 2007, Mr. Burkett issued a "letter of concern" to Ms. Brown regarding conferences held on February 2, 5, and 8, 2007. The letter discussed a number of concerns that had been voiced by parents or school administrators.

    Ms. Brown's high school student assistant had not submitted the required application to obtain volunteer status and would be barred from the classroom until her paperwork was completed. An unauthorized man had been seen in Ms. Brown's class. The man was an old classmate of Ms. Brown's and was helping her to plan a class reunion. Mr. Burkett informed Ms. Brown not to conduct personal business during the school day.

11. A parent observed that Ms. Brown was "always on her cell phone." Ms. Brown had been repeatedly cautioned about cell phone use, and the letter of concern directed her not to have her personal cell phone on her person during the school day. Another parent observed that nap time appeared to last for two hours. Mr. Burkett instructed Ms. Brown that nap time should be only one hour long.

12. The letter of concern also addressed the issue of parents dropping off students to Ms. Brown's class prior to the 7:15 a.m. start of the school day. Mr. Burkett told Ms. Brown that he would intervene on her behalf to stop the children from arriving early, but Ms. Brown stated that she was voluntarily arriving early to take the children and would voluntarily continue to do so.

13. On the same day as the letter of concern,

    
    

    February 9, 2007, Mr. Burkett also issued a "written documentation of a verbal warning" to Ms. Brown. This warning concerned Ms. Brown's having left the campus from 11:30 a.m. to 12:05 p.m. on February 7, 2007, without permission from the school's administration. The letter stated that Mr. Burkett was forced to send the assistant principal, Ms. Neal, to Ms. Brown's classroom to assist with the supervision of the students in

    Ms. Brown's absence.

    
    

14. Ms. Brown's excuse was that she had to take her niece to work at McDonald's. Mr. Burkett's letter of concern emphasized that, whatever the emergency, Ms. Brown was required to make arrangements with the administration before leaving the campus.

15. On March 6, 2007, Mr. Burkett issued a written reprimand to Ms. Brown "for your continued use of your personal cell phone during student contact time." On March 1, 2007,

    Mr. Burkett observed Alice Staton, Ms. Brown's paraeducator, sitting on the swing set holding a child. Ms. Staton yelled across the playground, "Get back in that room." Mr. Burkett saw three of the ESE Pre-K students outside the classroom, running up and down the portable's ramp. The door and gate to the portable were open. Mr. Burkett "corralled" the three students back into the classroom, where he observed three other students in Ms. Brown's chair, swinging it in circles.

16. Mr. Burkett then noticed that Ms. Brown was speaking on her cell phone. She did not notice that Mr. Burkett had entered until he walked all the way across the room toward the students in her chair. According to the written reprimand,

    Ms. Brown then "placed the phone down discreetly and proceeded to use a loud tone of voice instructing the class to clean up."

17. Ms. Brown submitted a handwritten response to the letter of reprimand. She did not deny the facts as stated by Mr. Burkett, but offered her justification for this "unexpected" incident:

    A parent called my cell # at the time we were having issues with a student who was screaming & crying. Alice walked this student outside to make the room quieter. She accidentally left door & gate open. I thought she told me she would be outside. I didn't hear the "playground" due to the child screaming. I turned[,] was helping students clean when my cell phone rang. It was a parent checking on her child. I may have been on the phone 2-3 seconds.

    Mr. Burkett had walked in. Alice had eye contact with the outside students & I had eye contact with the ones in the room.

    
    

18. At the hearing, Mr. Burkett testified that, although Ms. Brown's use of her personal cell phone violated the directive of his February 9, 2007, letter of concern, his overriding motivation in reprimanding Ms. Brown was the lack of supervision he observed during the incident. He believed that the children running on the ramp were out of the sightline of either Ms. Brown or Ms. Staton, and he observed that Ms. Brown was so engrossed in her telephone conversation that she did not even see him enter the portable.

19. By letter dated March 14, 2007, Superintendent McKinzie suspended Ms. Brown without pay for a period of one day effective March 22, 2007.3 The grounds for this suspension were the events of March 1, 2007, as recited in Mr. Burkett's written reprimand of March 6, 2007, as well as the following, as stated in Superintendent McKinzie's letter:

    Later that same day [March 1], it was reported to the principal that not only did you use your cell phone again, but you asked the para assigned to your class to "keep watch" for you. This statement was provided for [sic] in writing by another employee and notarized. This action took place immediately after you had just left a conference with Mr. Burkett in which you were given a directive not to have your cell phone in class. The principal discussed with you his concerns regarding student safety and told you that you could not

    provide adequate supervision while on personal cell phone calls.

    
    

20. By letter dated April 18, 2007, Superintendent McKinzie suspended Ms. Brown without pay for one day effective April 25, 2007. The grounds for the suspension were stated as follows in Superintendent McKenzie's letter:

    This action is based on an incident which happened on March 19, 2007. On that date, Principal Matt Burkett was notified that you had allegedly hit a high school student on the campus of Spook Hill Elementary. Your classroom paraeducator witnessed the altercation and attested that you had engaged in an argument during student contact time. She stated that you slapped the student in the face and that she saw you follow the student in your truck off campus. Principal Burkett spoke with you regarding the alleged incident. You admitted that you did slap the student in the face and that you did get in your truck and follow her off campus. By your own admission, you stated that there had been a prior altercation off campus with this particular student.

    
    

    Clearly, you allowed a personal situation to escalate into a violent confrontation on the school campus. Although you did apologize for your actions, your behavior was totally unprofessional and cannot be condoned. Your lack of judgment in this situation jeopardized the safety of the students in your charge. Please remember that teachers are role models for their students and should behave accordingly.

    
    

21. On May 8, 2007, Mr. Burkett wrote a letter of concern to Ms. Brown to inform her of continuing inadequacies that

    Mr. Burkett was observing in Ms. Brown's job performance. The

    letter notes that on March 8, 2007, a Professional Development Plan ("PDP") had been established "to address the learning environment in your classroom." A PDP is a plan to help struggling teachers in areas of inadequate performance. A team of professionals is assigned to work with the teacher to aid in professional development and address the teacher's inadequacies.

22. In his letter of concern, Mr. Burkett noted the following specific PDP items that were "in need of positive change":

    1. Circulate and monitor with appropriate proximity during all activities. (On 3/20 on your observation I marked you for remaining at desk. On 4/15, 4/26, 4/30, and 5/7 as I walked into your room you were sitting behind your desk.)

       
       

    2. Provide structured hands-on activities during outside play. (I have taken photos of your play area, as well as the equipment for outside play activities. They indicate a need to enhance and organize the learning environment.)

       
       

    3. Constantly engage and interact with students. (Please refer to item number one.)

       
       

    4. Daily schedule will be posted. (On 4/26 Mrs. Neal and I addressed the need to post your daily schedule and be certain that times are indicated.)

       
       

    5. IEP's must be in compliance.[4] (I showed you the report in which two of your students were listed as out of compliance.)

       
       

    6. Safety issues will be jointly addressed and teacher will comply with all

       administrative directives. (On 5/4/07 you called for the school resource

       officer. . . . I entered your classroom and observed you talking on your personal cell phone. You have also been tardy to work which is an issue we have addressed in the past.)

       
       

23. On September 5, 2007, Mr. Burkett wrote a letter to Superintendent McKinzie recommending that Ms. Brown be suspended, based on "her history of jeopardizing the safety and welfare of her students" and in light of the following specific incident:

    On August 31st I went into Ms. Brown's Pre-K room and she was not present. I noticed a student tipped over strapped into a high chair. I asked the para-professional where the teacher was and she stated "I do not know." She said the teacher stated she "had to get out." The para also stated she did not place the child in the high chair.

    According to the para the teacher had been gone for about ten minutes. I was in the room for five minutes before the teacher returned. Ms. Brown sent me an email and stated she went to the restroom and laminated some things.

    
    

    I am very concerned because Ms. Brown has explained on several occasions the severity of the needs her students have and the need for more time to have in small group teaching. Therefore, while I understand the need for a bathroom break, I do not understand the need to choose this critical time to laminate.

    
    

    Secondly, she left a child in a high chair as a "time out" which is an inappropriate use of the chair. Furthermore, she left the child for an excessively lengthy time and in fact she left the classroom while the child

    was still restrained. As a result of her actions the child turned over in the high chair.

    
    

24. At the hearing, Mr. Burkett conceded that the child's IEP stated that he could be strapped into the high chair for feeding. However, neither Ms. Brown nor Ms. Staton offered affirmative testimony that the child was in fact strapped into the high chair for feeding. Because no testimony or other evidence was presented to contradict the version of events set forth in Mr. Burkett's letter to Superintendent McKinzie and adopted by Mr. Burkett at the hearing, Mr. Burkett's version is credited.

25. By letter dated September 10, 2007, Superintendent McKinzie suspended Ms. Brown without pay for five days effective September 17, 2007, through September 21, 2007, as a "result of your continued lack of attention to the safety and welfare of the students in your charge."5

26. In a letter dated January 25, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended "as a continuation of the progressive discipline section 4.4-1 of the Collective Bargaining Agreement."

    Mr. Burkett noted that Ms. Brown received a verbal warning on February 9, 2007, for leaving campus without permission, and was suspended on April 25, 2007, for an incident that included her

    leaving the campus. Mr. Burkett's letter described the current incident as follows:

    On January 17, 2008, Ms. Brown once again left campus without permission during her contact hours which extend to 3:15 pm. At approximately 2:25 pm transportation contacted the school to ascertain the whereabouts of a Pre-K child because they had a bus at Spook Hill waiting on a student. The teacher placed the child on another bus. However, transportation needed to confirm the child was placed on a different bus before they allowed the bus to leave. As a result of Ms. Brown leaving the campus without informing the administration there was an unnecessary delay in getting vital transportation information regarding what bus the child was placed on by the teacher. Furthermore, there was tremendous stress placed on the office staff as they tried locating and contacting Ms. Brown in order to confirm the child was safely on the bus.

    
    

    In our conference on January 23, 2008, regarding the matter Ms. Brown acknowledged she left campus for a personal matter and that her actions were incorrect and she apologized for the incident. Unfortunately, Ms. Brown chose not to follow clearly stated written instructions from her previous disciplinary actions.

    
    

27. By letter dated January 30, 2008, signed by Mr. Ciranna, assistant superintendent for Human Resource

    Services, Superintendent McKinzie suspended Ms. Brown for five days without pay effective February 6 through February 12, 2008, based on Mr. Burkett's recommendation.

28. In a letter dated February 11, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended for failure to complete her students' progress reports as required by their IEPs. The letter stated, in relevant part:

    I met with Ms. Brown on January 31st, 2008, and asked if she completed progress reports for her students. She replied that she did not have time to complete them. I gave her a directive to complete her student's progress reports and I provided her coverage.

    
    

    On February 1st, 2008, Ms. Brown sent me a letter which stated: "Yesterday when we met you asked me about my progress reports. I spoke from memory and indicated that I was way behind because of the time it takes me to work with my one on one student. Because of the assistance you provided, I was able to review the information and found I was not as far behind as I had indicated." According to a report provided to me by Chris English (Network Specialist) not a single progress report was created by

    Ms. Brown prior to January 31st, 2008.

    
    

    To further understand the severity of this offense it should be noted that Ms. Brown is currently on a Professional Development Plan (PDP) and one of the strategies is written as follows: "All IEP's and IEP notices must be in compliance and correctly written.

    Teacher will provide a one week notice if coverage is needed so she can prepare the IEP." Prior to our meeting on January 31st, 2008, Ms. Brown has never requested coverage to complete progress reports as part of the student's IEP.

    
    

29. In a written response, Ms. Brown stated that she had "asked at least twice in the past for assistance to complete IEP

    paperwork a week in advance and was not provided coverage." While she stated her general disagreement with Mr. Burkett's letter, Ms. Brown did not otherwise contradict any of the specific factual assertions made by Mr. Burkett.

30. At the hearing, Mr. Burkett testified that prior to February 12, 2008, he had a discussion with the School Board's director of employee relations about terminating Ms. Brown's employment, but that Superintendent McKinzie decided to suspend Ms. Brown on this occasion.

31. By letter dated February 12, 2008, signed by

    
    

    Mr. Ciranna, Superintendent McKinzie suspended Ms. Brown for one day without pay effective February 20, 2008, based on

    Mr. Burkett's recommendation.

    
    

32. By letter dated February 29, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be terminated as an employee with the School Board. This recommendation led to the suspension and termination letter of March 3, 2008, the relevant terms of which are set forth in the Preliminary Statement above. Mr. Burkett based his recommendation on "multiple issues extending over the course of the past year," as well as the following specific events occurring during February 2008:

    During Ms. Brown's recent suspension she acted insubordinately by coming on school campus during her suspension. I met with

    Ms. Brown on February 4, 2008, and I gave her a directive not to come on campus for any reason during her suspension days.

    Ms. Brown later called me on the phone and asked if she could come after the school day to do her lesson plans. I again stated to her that she could not be on school campus during her suspension days.

    
    

    On February 11, one of Ms. Brown's five suspension days, it was brought to my attention that she was on campus and delivered lunch to her paraprofessional. I have a statement from Ms. Brown in which she admits she delivered lunch. I also have a statement from the paraprofessional which states, "Yesterday, I called Ms. Brown about the Valentine's list. She called me back and asked if I wanted her to bring us lunch. I told her no and she is not supposed to be on campus. She said it was alright if she went to the office. She called me later again, and told me to come to the back of the lunch room door to get the lunch. . ."

    
    

    Additionally, I have a statement from my secretary in which Ms. Brown asked her "not to let Mr. Burkett know that she was here because she would get in trouble."

    Ms. Brown was previously suspended on March 22, 2007, in part for asking her paraprofessional to "watch out" for

    administration so she could insubordinately use her cell phone. Ms. Brown's actions depict an employee that has an established pattern of deliberate insubordination.

    
    

    Most concerning of all, in a four day span of time between February 19, 2008, and February 22, 2008, Ms. Brown continued to display a pattern of allegations [sic] of child endangerment. The following is a brief description of the incidents:

    
    

    • On February 19, 2008, Mrs. Jenny Baker, a paraprofessional, was covering her classroom so I could serve her notice of suspension

      for February 20th. Mrs. Baker stated that upon Ms. Brown's return to class she asked if she could leave. Since the teacher did not respond Mrs. Baker left the portable to attend to her other duties and noticed three Pre-K students behind her and Ms. Brown was nowhere in sight. It was obvious that these students had left Ms. Brown's classroom without her supervision. Mrs. Baker waited for the other para to return from the buses to escort the kids back into the class.

      
      

    • On February 19, 2008, I went to the classroom at approximately 2:30 (after

      Mrs. Baker had informed me of her concern). I noticed Ms. Brown at her computer behind her desk. The door to the portable was wide open and two students were sitting out of the teachers [sic] view behind the "cubby." These students could have readily left the classroom without Ms. Brown's knowledge. It was previously recommended by Ms. Sherwin (Educational Diagnostician) on February 5, 2008, that "in general, I think rearrangement of your classroom. . . may help. . . . I am particularly concerned with the arrangement that has the area between your door and shelving not visible to you at all times."

      
      

    • On February 21, 2008, Mrs. Neal, the assistant principal, was walking through Ms. Brown's portable. Upon entering she noticed Ms. Brown getting up from her desk. The para was placing a band aid on another child. Ms. Brown stated that she was

      printing progress reports. Mrs. Neal stated the room was "a mess" and she began to straighten a piece of carpeting so the kids would not trip over it and hurt themselves. Mrs. Neal then counted the students and noticed one was missing. "Ms. Brown . . . looked puzzled." The paraprofessional and the teacher began to look for the missing child. She was found by Ms. Brown in the bathroom. The duration of time the child was missing was approximately five minutes.

    • On February 22, 2008, at approximately 10:40 a.m. I was walking the exterminator to the classroom. As we walked up to the portable I noticed the front door wide open and two Pre-K students were on the ramp running. One tripped and fell. I rushed to the gate because I thought he was hurt, but he was already up and running down the ramp again. Clearly, these two students were not able to be observed by Ms. Brown and were not under her supervision or control. The exterminator and I entered the gated area and then Ms. Brown came out yelling for the boys to "get back in here."

    
    

    * * *

    
    

    I am entirely in favor of helping employees grow professionally as can be established by allowing Ms. Brown to create a second Professional Development Plan. However, she has established a pattern of allegations of child endangerment that results in disciplinary action. In addition, her multiple serious violations of school and district policies over the course of time have also established a pattern necessitating disciplinary action. It is for this reason that I am recommending termination pursuant to Article 4.4-1 of the collective bargaining agreement.

    
    

33. As to the February 11, 2008, incident described in his letter, Mr. Burkett testified that Ms. Brown knew that she was not to come onto the campus while under suspension, because he had discussed the matter with her during one of her previous suspensions. Mr. Burkett testified that he was following School Board policy in prohibiting Ms. Brown from entering the campus during her suspension.

34. Ms. Brown testified that as of February 11, 2008, she had never been told not to come on the campus while serving a suspension. Ms. Brown stated that she simply wanted to do something nice for Ms. Staton, her paraeducator, by way of bringing lunch. Ms. Brown had known Ms. Staton since the former was herself a student at Spook Hill.

35. While Ms. Brown's good intentions may be credited, her testimony that no one had told her not to come on campus during a suspension is not credible. Her stealth in bringing lunch to Ms. Staton indicates that she knew she should not be there.

36. Further, Mr. Burkett's letter quotes a statement from Ms. Staton in which she told Ms. Brown that she was not supposed to be on the campus. Ms. Staton testified at the hearing, and Ms. Brown had ample opportunity to question her about the events of February 11, 2008, and her statement to Mr. Burkett.

    However, Ms. Staton was questioned only about the February 21, 2008, incident.

37. Mr. Burkett testified that the February 19, 2008, incidents were of greater concern to him because of the child safety issues involved. Mrs. Baker, the paraeducator who covered the class for Ms. Brown, testified that Ms. Brown was quiet when she returned from her meeting with Mr. Burkett. Ms. Brown sat at her computer. Mrs. Baker announced that she was now leaving the class, but Ms. Brown did not respond.

    Mrs. Baker walked out to the gate. When she started to close the gate, she looked behind her and saw three children who had followed her out of the class. Ms. Brown was still in the classroom, apparently unaware that the children had walked out.

38. Mrs. Baker saw that Ms. Staton was outside placing another child on a school bus. On her way back into the classroom, Ms. Staton took charge of the three children who had followed Mrs. Baker out the door. Mrs. Baker returned to the main office. When Mr. Burkett asked how things had gone, she reported the incident to him.

39. Ms. Brown testified that she did not recall the incident. Mrs. Baker's version of this incident is credited.

40. After receiving the report from Mrs. Baker,

    
    

    Mr. Burkett was concerned for the children. He went to the class and saw Ms. Brown sitting at the computer behind her desk, and two students sitting out of her view though the door to the portable was wide open. Mr. Burkett testified that experts from the School Board had already come into the portable and discussed the room set-up with Ms. Brown, particularly the fact that there were obstacles to her having a clear line of vision from the desk to the door. A bookshelf that extended from the "cubbies" blocked her view of the doorway. Mr. Burkett noted that the two children could have walked out of the classroom without Ms. Brown seeing them.

41. Ms. Brown testified that the two students in question rode the last bus from the school. Ms. Staton had already left the classroom to go on bus duty. Ms. Brown left the door open so that she could see the bus as it came around the side of the portable. The two students sat there playing as Ms. Brown worked at her desk. No one else was in the classroom.

    Ms. Brown could hear the children as she worked and testified that she could have heard them go out of the room because the front ramp squeaks. She also could have seen them through the windows.

42. Ms. Brown was adamant that she knew the children in her class and she knew where these two children were, sitting there waiting on their bus. This was their daily routine, and there was nothing unusual about this day other than

    Mr. Burkett's entrance.

    
    

43. Ms. Brown testified that Mr. Burkett said nothing about his concerns for the children's safety at the time. The only discussion was "something about the cubbies." Mr. Burkett came to the room the next morning and said the cubbies had to be moved. He and Ms. Brown moved the cubbies before the children arrived, making the door more visible from Ms. Brown's desk.

44. Ms. Brown testified that the room had been arranged the same way since school started in August and that she was concerned because consistency is vitally important to students

    who are functioning at the level of 18 to 24 months of age. Any change to their environment can throw off their routines and cause them to have bad days. Ms. Brown did not believe that moving the cubbies was necessary.

45. As to the events of February 21, 2008, assistant principal Sharon Neal testified that she went to observe

    Ms. Brown's classroom on that date. As she walked in, Ms. Neal saw Ms. Brown sitting at her computer. She asked Ms. Brown how many students were in the class, and was told that all the students were present. Ms. Neal counted the students, then recounted them. Then she told Ms. Brown and Ms. Staton that if everybody is here today, then someone is missing.

46. Ms. Brown and Ms. Staton began to count, then began searching the room. After a minute or two of searching, they wondered if perhaps Student D. was in the bathroom.6 They opened the bathroom door and found Student D. Ms. Neal discussed with Ms. Brown and Ms. Staton what could have happened with the child going missing for a period of several minutes.

47. Ms. Brown testified that when Ms. Neal stated that a child was missing, she responded that the child had to be somewhere in the classroom. She knew this because the front door was equipped with a buzzer that went off when the door was opened, and Ms. Brown's desk was next to the back door. She and

    Ms. Staton scanned the portable and quickly concluded that the child must be in the bathroom.

48. Ms. Brown testified that Student D. was a very large child whose functional age was eight months. She wore pull-up diapers, though it was becoming difficult to find diapers to fit the child. Ms. Brown and the child's mother had been working diligently on potty training the Student D. This was the first time she had gone to the bathroom on her own.

49. Ms. Staton confirmed their surprise at finding Student D. on the potty, because they did not believe her capable of going to the bathroom alone. Ms. Staton conceded that neither she nor Ms. Brown knew where the child was before Ms. Neal noted that a student was missing.

50. As to the events of February 22, 2008, Mr. Burkett testified that there had been an insect problem in the portable, and therefore an exterminator had been called. As Mr. Burkett walked the exterminator down to the classroom, he noticed the door of the portable was "wide open." Two Pre-K students were running down the ramp, and one of them tripped and fell.

    Mr. Burkett was concerned for the student's safety, but the child popped up and started running again. Mr. Burkett estimated that another 30 seconds passed before Ms. Brown came out of portable, "yelling for the kid to get back inside."

    Mr. Burkett noted that this was yet another incident in which

    "the door was open, the kids were on the loose, and not properly supervised."

51. Ms. Brown testified that the students were working at their regular daily schedules when the phone rang in the classroom. The school secretary was calling to tell Ms. Brown that Mr. Burkett and the exterminator were on their way to spray the classroom. The secretary told Ms. Brown that she needed to have the children out of the portable by the time Mr. Burkett and the exterminator arrived. Ms. Brown and Ms. Staton began trying to quickly move the students out of the portable.

52. Ms. Staton secured the women's purses, then went outside to unlock the shed on the playground as instructed by the secretary. Meanwhile, Ms. Brown was lining up the children to proceed out the door. Ms. Brown turned momentarily to get diapers from the changing table. As she turned, two of the children took off and ran out the door.

53. Ms. Brown testified that these were two boys who were prone to running away. She knew who they were because she could hear them laughing. She turned and ran to the door and called their names. When she got to the ramp, Mr. Burkett was helping one of them up from where he fell.

54. Ms. Brown testified that it usually takes from five to ten minutes to line up the children, get the diapers and other supplies, and proceed out the door as a class even when the move

    is planned, and she has Ms. Staton to help with the children. In this situation, she was moving the children on short notice, and Ms. Staton was busy securing the purses and unlocking the shed.

55. There is no real contradiction between Mr. Burkett's and Ms. Brown's versions of this incident, save for

    Mr. Burkett's estimate that 30 seconds passed between the time the student fell on the ramp and Ms. Brown appeared at the door of the portable. It is found that Mr. Burkett's estimate of the time is likely exaggerated due to his dismay at the situation and that Ms. Brown in all likelihood came out the door only a few seconds after the boys.

56. Ms. Brown's version of events, while credible, calls her judgment into question. She described a somewhat frantic decampment from the portable, as if she believed Mr. Burkett would order the exterminator to begin spraying whether or not the children were out of the classroom. There is no reason to believe that Mr. Burkett would not have preferred a slow but orderly procession to the scene he encountered.

57. Except where noted in the above findings of fact, Ms. Brown did not contest the factual allegations made against her. Ms. Brown's defense was twofold. First, the great majority of incidents cited as grounds for discipline were run of the mill occurrences in a Pre-K ESE classroom. Second, the

    sheer number of disciplinary actions establish a concerted effort by Mr. Burkett to build a record against Ms. Brown by seizing any opportunity to find fault with her job performance.

58. As to her first defense, Ms. Brown testified as follows regarding the four incidents described in Mr. Burkett's letter recommending termination:

    Those are things that can happen at any moment at any time in an ESE Pre-K classroom. There's children that pull away from their teachers, their parents. These children are sent to our room to get some structure, and to help them to cognitively, socially, behaviorally develop, because they are delayed in all that development.

    
    

59. Ms. Brown's point is valid as to some of the disciplinary incidents cited in the termination letter. The February 19, 2008, incident essentially involved a difference of opinion between Mr. Burkett and Ms. Brown. He believed that she should have the children in her line of vision at all times.

    She believed it was safe to be able to hear what the two children were doing and testified that this had been her daily practice all year. The February 21, 2008, incident was a matter of Student D. unexpectedly taking the initiative to go to the bathroom alone. The February 22, 2008, incident involving the exterminator was simply a matter of two students bolting for the door as soon as Ms. Brown's back was turned, something that could happen at any time with a group of Pre-K children.

60. Ms. Brown is correct when she argues that the events of February 19 through February 22, 2008, standing alone, would provide slim grounds for the dismissal of a veteran ESE teacher. However, these events were not the sole factual basis for the School Board's decision to terminate Ms. Brown's employment.

    The termination letter makes clear that the School Board considered these events to be emblematic of a long history of Ms. Brown's "pattern of failing to properly supervise the students under your care." The termination letter references all of Ms. Brown's previous suspensions and, expressly, references Ms. Brown's insubordination in entering the campus during her suspension despite Mr. Burkett's directive that she was not to come onto campus for any reason during that time.

61. Ms. Brown had been suspended five times between March 14, 2007 and February 12, 2008. The March 14, 2007, suspension was for insubordination regarding the use of her personal cell phone. The April 18, 2007, suspension was for a physical altercation with a high school student, followed by Ms. Brown's leaving the campus in pursuit of the student. The September 10, 2007, suspension was for the inappropriate use of a high chair for student discipline, resulting in the student's falling while strapped into the chair. The January 30, 2008, suspension was for leaving the campus for personal reasons,

    without permission or notice to the administration, resulting in

    confusion as to whether a student was on the correct bus. The February 12, 2008, suspension was for Ms. Brown's failure to complete student progress reports.

62. The events of February 19 through February 22, 2008, must be viewed in light of Ms. Brown's disciplinary history since at least her first suspension on March 14, 2007. In that light, these relatively minor events indicated to Mr. Burkett and the School Board that Ms. Brown's performance showed no prospects of improving. A consistent theme throughout

    Ms. Brown's disciplinary history, in addition to her continuing insubordination, was her failure to adequately supervise the children in her care. The fact no child was seriously injured in any of these events was fortuitous, not a reason to minimize or overlook Ms. Brown's often casual approach to minding these very young ESE students. The School Board had taken every disciplinary action available to it under the Teacher Collective Bargaining Agreement, including multiple suspensions short of moving for termination.

63. This last point addresses Ms. Brown's second argument, that the number of disciplinary events indicates a vendetta on the part of Mr. Burkett. No evidence was offered that

    Mr. Burkett bore any personal animus toward Ms. Brown. The evidence indicated that Ms. Brown was under additional scrutiny because of her disciplinary history. The evidence further

    indicated that Mr. Burkett made reasonable effort to assist Ms. Brown in improving her performance, including the establishment of a PDP and the appointment of a team of professionals to observe her class and offer advice.

64. The number of disciplinary events indicates, if anything, forbearance on the part of Mr. Burkett and the School Board, imposing multiple suspensions rather than moving precipitously to the final step of termination. The evidence did not establish that Mr. Burkett was motivated by anything other than the desire to ensure the safety of the students at Spook Hill.

    CONCLUSIONS OF LAW

    
    

65. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.33(6)(a), Florida Statutes.7

66. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining

    Ms. Brown. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

    School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

67. Ms. Brown is an instructional employee as defined by Subsection 1012.01(2), Florida Statutes. The School Board has the authority to suspend or terminate instructional employees pursuant to Subsections 1012.22(1)(f) and 1012.33(6)(a), Florida Statutes.

68. The standard for termination of instructional personnel is "just cause," pursuant to Section 4.4 of the School Board's collective bargaining agreement with the Polk Education Association and Subsection 1012.33(1)(a), Florida Statutes.

69. Subsection 1012.33(1)(a), Florida Statutes, provides, in pertinent part: "Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty . . ., or [conviction of a] crime involving moral turpitude." The School Board in this case has argued that Ms. Brown's "misconduct in office" and "gross insubordination" constitute just cause to terminate her employment.

70. Florida Administrative Code Rule 6B-4.009(3) and (4) provides:

    1. 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.

       
       

    2. 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.

    
    

71. Florida Administrative Code Rule 6B-1.006 provides, in relevant part:

    (1) The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    
    

    * * *

    
    

    1. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

    
    

72. Section 4.4-1 of the Teacher Collective Bargaining Agreement provides for progressive discipline, from verbal warning through dismissal. Section 4.4-1 is set out in full at Endnote 3, supra.

73. Ms. Brown was in charge of an ESE Pre-K classroom.

    
    

    The ESE portable was self-contained and surrounded by fencing that prevented the children from departing the school grounds. Ms. Brown argued that the relative safety of the surroundings rendered de minimus her multiple failures to properly supervise the children in her class.

74. Ms. Brown's argument did not persuade Mr. Burkett at the time these events ocurred and was not persuasive in this tribunal. Ms. Brown's class consisted of young children whose developmental age lags behind their chronological age. Developmentally, some of these children were less than one year old. There were sufficient opportunities for these children to injure themselves within the fencing of the ESE facility as to require constant attention and supervision.

75. Based on all of the evidence, it is concluded that Ms. Brown did not make reasonable effort to protect the students' physical safety at all times. These occurences were frequent and continued to occur in spite of the Spook Hill administration's efforts to assist Ms. Brown to improve her effectiveness and despite repeated suspensions. The evidence establishes that Ms. Brown's effectiveness as a teacher has been impaired.

76. The evidence further establishes that Ms. Brown engaged in a pattern of gross insubordination. She refused to follow Mr. Burkett's direct instructions to cease using her cell phone on the campus during school hours and to stay off the campus during her suspensions.

76. The School Board has met the progressive disciplinary procedures required by the Teacher Collective Bargaining Agreement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board enter a final order terminating the employment of Deana Brown as a teacher at Spook Hill Elementary School.

DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2009.

ENDNOTES

1/ Article IX of the Teacher Collective Bargaining Agreement employs the term "paraeducators," and therefore the term is used in this Recommended Order.

2/ It should be noted that prior to becoming an administrator, Mr. Burkett spent three years as an ESE teacher, and thus brought some specialized knowledge to bear in his critique of Ms. Brown's job performance.

3/ The letter noted that the suspension "constitutes the third step in progressive discipline as stated in Article 4.4-1 of the

Teacher's Collective Bargaining Agreement. The referenced provision of the Teacher's Collective Bargaining Agreement provides:

Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with the teacher. (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference; (3) suspension without pay for up to five days by the Superintendent and (4) termination.

4/ An IEP, or Individualized Education Program, is a written statement for a child with a disability that sets forth the child's current levels of academic achievement and functional performance, measurable annual goals to meet the child's educational needs, and a detailed plan for the achievement of those goals. See 20 U.S.C. § 1414(d).

5/ On September 17, 2007, Mr. Burkett sent a follow-up letter to Superintendent McKinzie to convey new information, namely his discussion with Nancy Skelly, a senior ESE manager for the School Board. Ms. Skelly had stated that the high chair was listed on the IEP as equipment used to assist in the child's needs during meal time, not as a means of physical restraint for behavior management. Mr. Burkett reiterated his recommendation that Ms. Brown be suspended. By letter to Ms. Brown dated September 18, 2007, Superintendent McKinzie upheld the previously imposed five-day suspension without pay.

6/ Though no witness explicitly stated the bathroom's location, the relevant testimony leads to the inference that the bathroom was inside the portable classroom. If Student D. had found her way out of the classroom to a separate bathroom, Mr. Burkett and Ms. Neal would surely have reported that fact.

7/ Unless otherwise indicated, references to the Florida Statutes are to the 2008 edition.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

Dr. Gail F. McKinzie

School Board Superintendent 1915 South Floral Avenue Bartow, Florida 33830

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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.

Docket for Case No: 08-003686TTS

Orders for Case No: 08-003686TTS