May 16, 2011 20:1 ur,Y 19 Alt: 12

Honorable Lawrence P. Stevenson Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Re: Duval County School Board (DCSB) vs. Rhona Silver DOAH Case No.: 09-2987

Honorable Lawrence P. Stevenson:

1 701 Prudential Drive

Jacksonville, FL 32207 www.duvalschools.org Phone: 904 390 2111

Fax: 904 390 2393

The Duval County School Board has reviewed the record in DOAH case number 09-2987. Following Hearings on February 22, 2011 and April 19, 2011, the Board issued the enclosed Final Order.

If you have any questions regarding this matter, please do not hesitate to contact me. Respectfully,

()v

Sonita Young

Executive Director, Policy and Compliance

Enclosure

Cc: Mary Jarrett

Assistant General Counsel Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

David J. D'Agata

Assistant General Counsel Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

William J. Sheppard

Sheppard, White, Thomas & Kachergus, P.A. 215 Washington Street

Jacksonville, Florida 32202

Clerk of the Division of Administrative Hearings Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

! •

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs.

RHONA SILVER,

Respondent.

_,/

Case No.: 09-2987

FINAL ORDER

On April 13, 2009, the Superintendent of Duval County Public Schools issued to Ms. Rhona Silver a Notice of Termination of her employment as a teacher based on alleged misconduct during the 2008-2009 school year in violation of Florida Department of Education ("DOE") Rules 6B-l.006(3)(a) and 6B-l.006(3)(e), and in violation of Section 1012.795(1)(j) of the Florida Statutes. The Notice of Termination specifically charged Ms. Silver with strapping a four year old autistic student to a "potty chair" for hours at a time over the course of four days. The Notice of Termination also referenced an attached 25- page police report which culminated in Ms. Silver's arrest by the Jacksonville Sheriffs Office ("JSO") for the strapping incident and other alleged acts of child abuse.1

Ms. Silver challenged her termination and, at her request, the above-styled case was opened and a hearing was held by an Administrative Law Judge ("ALJ") assigned by the

1 The Notice of Termination stated: "SUMMARY OF NATURE AND SPECIFICATION OF CHARGE (see attached report for details): According to three adult witnesses, on or about September 8, 2008, you put autistic student, L.P. on a Rifton Chair and used straps that are attached to the chair to hold him on the chair from approximately 9:15 a.m. until 2:00 p.m., releasing him only for lunch. This occurred on four different days. When you were asked by staff why you did this, you said it was your method of potty training. According to the Autism Specialist of Duval County Public Schools, the use of the Rifton Chair as a toileting training devise [sic} is not permitted and that use of the chair must be in the student's IEP. The Autism Specialist said that none of your students have physical disabilities that would require the use of the Rifton Chair."

State of Florida's Division of Administrative Hearings ("DOAH"). In brief, it was the ALJ's mission to determine: (a) whether the charges in the Notice of Discharge were supported by competent and substantial evidence; and (b) whether the termination complied with her due process rights and other protections afforded by the School District's Progressive Discipline Plan, the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941)("Tenure Act"), Chapter 120 of the Florida Statutes, and the Collective Bargaining Agreement between the School District and Duval Teachers United ("DTU").

The 9-day hearing commenced on February 2, 2010. Both parties were represented by legal counsel, and the AU received sworn testimony of dozens of witnesses and thousands of pages of documents into evidence. In light of the testimonial and documentary evidence, the argument of counsel, and both parties' proposed recommended orders, the Administrative Law Judge, the Honorable Lawrence P. Stevenson, issued a 121-page Recommended Order on January 10, 2011.

In his order, Judge Stevenson recommends that the Board enter a final order dismissing the Notice of Termination of Employment, and reinstating Ms. Silver to her position as a contract employee of the district, with back pay and benefits. This Board previously approved those recommendations and reserved ruling on the attorney's fees issues presented and described below.

On January 25, 2011, Ms. Silver filed four Exceptions to the Recommended Order which take exception to Judge Stevenson's rejection of her demand (and earlier-denied motion in the DOAH case) for "reimbursement" of attorney's fees. Ms. Silver also filed with this Board her January 25, 2011 Motion for Clarification (as to back pay and

benefits), and Motion for Reimbursement of Legal Expenses (hereinafter "attorney's fee motion"). The attorney's fee motion asserted the same legal issues as asserted in Ms. Silver's Exceptions. In essence, Ms. Silver's demand for attorneys' fees is based on an argument that DCSB had no reasonable basis to proceed with termination of her employment, and that she is entitled to fees based on three statutes cited in her papers and based on common law. Counsel for the Petitioner filed written responses to Ms. Silver's attorneys' fees exceptions and motion. In addition, the Board has heard argument of counsel at a hearing on these matters held on April 19, 2011.

As to Ms. Silver's Exception (1), the Administrative Law Judge specifically heard from Ms. Silver and addressed the same arguments. The Board agrees with the hearing officer that these legal fees were incurred in an administrative proceeding and not in a criminal or civil proceeding, and that under Werthman vs. School Board of Seminole County, Florida, attorney's fees are not available under F.S. 1012.26. The subsequent dismissal of the criminal action, a new issue raised in Ms. Silver's attorney's fee motion, does not change this analysis. For the reasons stated by the hearing officer, Ms. Silver's Exception 1 is denied.

In her Exceptions 2 and 3, Ms. Silver's demand for attorney's fees is based on her argument that DCSB had no reasonable basis to proceed with termination of her employment. On that score, the Board notes and agrees with Judge Stevenson's sentiment that "[t]his case was at bottom a matter of witness credibility, complicated by the fact that some witnesses changed their stories, some more than once." The Board also notes Judge Stevenson's "hesitation to conclude that a five-month investigation conducted by a JSO detective, however flawed it appears in retrospect, constituted less than a 'reasonable

inquiry regarding pertinent facts,' or that the School Board's reliance on the results of that investigation was objectively unreasonable ...."' Accordingly, for the reasons stated in the Recommended Order, Ms. Silver's exceptions 2 and 3 are denied. To the extent Ms. Silver's attorney's fees motion asserts a basis for fees under Florida Statutes 120.595 and 120.569, it is denied for the reasons stated above and discussed in detail in the Recommended Order. In addition, the Board denies Ms. Silver's Exception 4 and her attorney's fee motion as to common law claims for attorney's fees. Despite agreement of the parties that the Board does not have jurisdiction to issue an interpretation of law as to Ms. Silver's claim for attorney's fees under common law, both parties asked for a ruling on the attorney's fee motion. Accordingly, to the extent it has jurisdiction to do so, the Board denies the motion for attorneys' fees, including the common law claim for fees. The Motion for Clarification is also denied as the parties have agreed to the calculation of back pay and benefits.2

An independent examination of the entire record before us reveals no reason to disturb the ALJ's recommended disposition of this matter - including his rejection of Ms. Silver's demand for attorney's fees. By extension, the Board denies and rejects Ms. Silver's exceptions and attorney's fee motion based on the same reasoning noted by the ALJ in the recommended order, and provided by Petitioner's Responses to Ms. Silver's motion for attorney's fees.

2 The Board also approved an agreement of the parties, reached after mediation, that the board should pay to Ms. Silver back pay and benefits, including $115,109.92 in back pay, $10,848.97 in benefits relating to health insurance premiums and costs; $15,004 relating to an additional tax burden Ms. Silver incurred; and

$5,720 relating to lost supplemental work assignments, for total compensation of $146,682.89

Therefore, in light of the foregoing, it is ORDERED that:

1. Administrative Law Judge Lawrence P. Stevenson's Findings of Fact and Conclusions of Law are hereby ADOPTED in their entirety and all exceptions to the same are hereby REJECTED and DENIED.

2. The Motion for Reimbursement of Legal Expenses and the Motion for Clarification are DENIED.

3. Administrative Law Judge Lawrence P. Stevenson's recommendation to dismiss the Notice of Termination and reinstate Ms. Silver to her position as a contract employee of the Duval County School Board, with back pay and benefits, is hereby ADOPTED.

Entered this \O\ ay of G \ , 2011.

bc'L

Sch Boar Chairperson

School Board r

Copies to:

Hon. Lawrence P. Stevenson Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Clerk of the Division of Administrative Hearings Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

Fax Filing 921-6847 www.doah.state.fl.us

Michael B. Wedner Deputy General Counsel David J. D' Agata Assistant General Counsel City of Jacksonville Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, FL 32202

(904) 630-1834

(904) 630-1316 (fax)

mwedner@coj.net dagata@coj.net Attorneys for Petitioner

Wm. J. Sheppard, Esq.

D. Gray Thomas, Esq.

Sheppard, White, Thomas & Kachergus, P.A. 215 Washington Street

Jacksonville, Florida 32202 sheppardwhitethomas@att.net Attorneys for Respondent

Docket for Case No: 09-002987TTS

Orders for Case No: 09-002987TTS