STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS ) COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3047PL

)

DOREEN MAYNARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 22 through 25, and December 10, 11, 14 through 18,

2009, and January 5 through 8 and 19 through 22, and March 22,

23, 25, and 26, 2010, in Fort Lauderdale, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock and Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Doreen Maynard, pro se

1530 Northeast 43rd Street Oakland Park, Florida 33334

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On June 24, 2008, Dr. Eric J. Smith, as Commissioner of Education (COE) issued a seven-count Administrative Complaint (AC) against Doreen Maynard, an instructional employee of the School Board of Broward County (School Board): Count 1: guilty of gross immorality or an act involving moral turpitude, violating section 1012.795(1)(c), Florida Statutes; Count 2: engaged in conduct contrary to the Principles of Professional Conduct for the Education Profession, violating section 1012.795(1)(c); Count 3: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(a); Count 4: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(e); Count 5: misconduct, violating Florida Administrative Code Rule 6B- 1.006(3)(i); Count 6: misconduct, violating Florida Administrative Code Rule 6B-1.006(4)(b); and Count 7: misconduct, violating Florida Administrative Code Rule 6B- 1.006(5)(e). Through counsel Ms. Maynard challenged the COE's action and the allegations in the AC and requested a hearing.

On June 8, 2009, this matter was referred to the Division of Administrative Hearings.

By Order issued on July 22, 2009, the COE was permitted to amend the AC in the instant case (Amended AC), and the final

hearing was canceled. The Amended AC charged Ms. Maynard as follows: Count 1: incompetence, violating section 1012.795(1)(c); Count 2: guilty of gross immorality or an act involving moral turpitude, violating section 1012.795(1)(d); Count 3: upon investigation, being found guilty of personal conduct that seriously reduces her effectiveness as an employee of the school district, violating section 1012.795(1)(g); Count 4: engaged in conduct contrary to the Principles of Professional Conduct for the Education Profession, violating section 1012.795(1)(j); Count 5: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(a); Count 6: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(c); Count 7: misconduct, violating Florida Administrative Code Rule 6B- 1.006(3)(e); Count 8: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(f); Count 9: misconduct, violating Florida Administrative Code Rule 6B-1.006(3)(g); Count 10: misconduct, violating Florida Administrative Code Rule 6B- 1.006(3)(i); Count 11: misconduct, violating Florida Administrative Code Rule 6B-1.006(4)(a); Count 12: misconduct, violating Florida Administrative Code Rule 6B-1.006(4)(b); Count 13: misconduct, violating Florida Administrative Code Rule 6B- 1.006(4)(c); Count 14: misconduct, violating Florida Administrative Code Rule 6B-1.006(5)(a); Count 15: misconduct, violating Florida Administrative Code Rule 6B-1.006(5)(d); Count

16: misconduct, violating Florida Administrative Code Rule 6B- 1.006(5)(c); and Count 17: misconduct, violating Florida Administrative Code Rule 6B-1.006(5)(o). Shortly thereafter, counsel of record for Ms. Maynard withdrew from representation of her.

By Order of Consolidation issued on August 10, 2009, this matter was consolidated with Broward County School Board v.

Doreen Maynard, Case No. 08-1708. Several continuances were granted and numerous motions were ruled upon in this matter. Additionally, material to these proceedings, Ms. Maynard withdrew all defenses relating to her mental/medical condition/health status. The final hearing was held on the consolidated cases. A separate recommended order will be issued in Case No. 08-1708.

At hearing, the COE presented the testimony of 18 witnesses, including Ms. Maynard, and entered 43 Exhibits (Petitioner's Exhibits numbered 1 (Ms. Maynard's deposition), 2, 3A through 3S, 4 through 11, 13 through 19, 21, 27, and 35 through 39) into evidence. Ms. Maynard testified in her own behalf and entered 251 Exhibits (Respondent's Exhibits numbered 1, 2, 3, 5 through 19, 21 through 28, 31, 32, 34 through 37, 41,

43 through 52, 54 through 65, 67 through 80, 82 through 100, 102, 103, 105, 106, 107, 110 through 125, 128, 129, 130, 132 through 180, 182 through 198, 200 through 204, 206, 207, 208,

210 through 225, 228, 229, 230, 232 through 243, 246 through

274, 276, 277, 280, 281, and 282) into evidence. Official recognition was taken of ten documents, which were placed on the record.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of 42 volumes, was filed on May 24, 2010. The parties were permitted to exceed the 40- page limit. Several extensions of time to file the post-hearing submissions were granted. Ms. Maynard timely filed her post- hearing submission. The COE failed to timely file its post- hearing submission.1 Ms. Maynard did not object to the COE's post-hearing submission. The COE's post-hearing submission is accepted as filed. The parties' post-hearing submissions were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan.

2. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years.

3. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary).

4. For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher.

5. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary.

6. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years.

7. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary.

8. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for

   termination of employment. A copy of the written reprimand was provided to Ms. Maynard.

9. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings.

10. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred.

    PMPs During the 2006-2007 School Year

    
    

11. Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading

    program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student.

12. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s).

13. The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress.

14. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid.

15. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE.

16. Cypress Elementary had a Reading Coach, Jennifer

    Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students.

17. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school.

18. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though

    Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students.

19. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs

    was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide

    Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction.

20. Ms. Portman directed Ms. Murphins to contact

    
    

    Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted.

21. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals.

22. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with

    Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by

    Ms. Maynard.

    
    

23. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive.

24. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL).

    Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by

    Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns.

    Dr. Harrison provided a copy of both reports to Ms. Maynard.

    
    

25. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time.

26. Also, included in the findings by Dr. Quintana were:

    
    

    1. the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card,

       was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs.

27. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had

    allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations.

28. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible.

29. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison.

30. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs.

31. A finding of fact is made that the directives were reasonable and lawful.

    Interaction with Students and Parents

    
    

32. Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues.

33. Ms. Maynard was heard by staff and teachers yelling at her students.

34. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from

    Ms. Maynard's classroom and had no doors. On one occasion,

    
    

    Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong.

35. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students.

36. Some teachers reported the yelling to Ms. Portman in writing.

37. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to

    Ms. Portman in writing regarding Ms. Maynard yelling at her students.

38. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school.

39. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance.

40. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act.

41. Ms. Portman was not aware that the parent had filed a complaint against her with DOE.

42. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things,

    Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard.

43. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child.

    Interaction with Staff (Non-Teachers)

    
    

44. A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria.

45. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to

    Ms. Williamson with any problems that they had involving the cafeteria.

46. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students.

47. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section.

48. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled

    time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested

    Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class.

49. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson.

    Ms. Williamson felt intimidated by Ms. Maynard.

    
    

50. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed

    to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers.

51. Another cafeteria situation occurred in December 2006.

    
    

    A paraprofessional, who was in charge of the section where

    
    

    Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted.

    Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral.

52. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to

    Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since

    Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed.

53. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals.

    Interaction with Staff (Teachers and Administrators)

    
    

54. Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns,

    Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center.

55. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same

    day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material.

56. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader,

    Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary.

    Ms. Vaughn's personality is to avoid confrontation.

    
    

57. Ms. Vaughn had an agenda for each team meeting.

    
    

    During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team

    meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents.

58. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened.

59. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents.

60. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings.

61. An administrator began to attend team meetings.

    
    

    Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman

    designated Ms. DiVeronica to attend the team meetings.

    
    

    Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice.

62. At one team meeting attended by Ms. Portman,

    
    

    Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention.

    Ms. Portman dismissed the meeting.

    
    

63. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione.

64. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or

    Ms. DiVeronica attended the meetings.

    
    

65. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her

    (Ms. Maynard's) own personal interest, which resulted in long

    conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door.

66. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when

    Ms. Maynard became agitated.

    
    

67. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard.

68. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard.

69. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that

    Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and

    strongly encouraged some of the students to go to

    
    

    Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it.

70. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students.

71. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed

    Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable.

72. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard.

    Excessive Emails

    
    

73. Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails.

74. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether

    teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane.

75. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so.

76. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of

    Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary.

    Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails.

77. None of Ms. Maynard's emails threatened teachers, staff, or students.

    Additional Directives

    
    

78. During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance

    and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were

    Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things,

    Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on

    November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan.

79. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in

    Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure."

80. Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent.

81. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the

    directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers.

    Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with

    Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive.

82. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held.

83. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was

    very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct.

    Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave.

84. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed.

85. On January 9, 2007, a Child Study Team (CST) meeting

    was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST.

86. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that.

87. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were

    Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal.

88. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were

    counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting.

89. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation.

90. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional.

91. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for

    Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent,

    regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued.

92. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary.

93. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised

    Ms. Maynard that any further failure to perform consistent with

    the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand.

    After the Written Reprimand of January 17, 2007

    
    

94. Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives.

95. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior.

96. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m.

97. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney.

98. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard.

    Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with

    Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined.

99. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would

    either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to

    Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns.

100. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared.

101. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by

     Ms. Maynard. Among other things, the notice directed

     
     

     Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary.

102. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of

     Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees

     at the meeting included, among others, Ms. Castiglione;

     
     

     Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary.

103. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that

     Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised

     Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number.

104. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on

     January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria;

     (2) yelling at both the principal and assistant principal on

     December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and

     (5) accusing the principal of lying to a parent at a conference.

     
     

105. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation.

106. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without

     Mr. Melita's authorization.

     
     

107. The SIU investigator assigned to the case was Frederick Davenport.

108. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with

     Ms. Maynard in private in the conference room and advised her of

     his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request.

109. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening.

110. Investigator Davenport did not immediately follow

     
     

     Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot.

     After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she

     signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards.

111. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards.

112. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment.

     The Flyer

     
     

113. On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers.

114. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was

     moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials.

     Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium.

115. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area.

116. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there.

117. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer.

118. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the

     following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts.

119. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief.

120. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita.

121. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting.

     Filing Various Complaints with Investigative Agencies

     
     

122. Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations.

123. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints.

     Contract Status

     
     

124. At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract.

125. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.

     Employment Requiring a Teaching Certificate

     
     

126. At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or

     about March 18, 2008.

     
     

     CONCLUSIONS OF LAW

     
     

127. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011).

128. No dispute exists that the COE has the burden of proof to show by clear and convincing evidence that Ms. Maynard committed the offenses alleged in the Amended AC. Dep't of Banking and Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995); § 120.57(1)(j), Fla. Stat.

129. Ms. Maynard committed the alleged violation regarding

     the flyer on April 27, 2009 and the remaining alleged violations in 2006 and 2007.

130. Section 1012.795, Florida Statutes (2007), provides in pertinent part:

     1. 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; . . . or may impose any other penalty provided by law, provided it can be shown that the person:

        
        

        * * *

        
        

        1. Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.

           
           

        2. 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.

        
        

        * * *

        
        

        (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

        
        

        * * *

        
        

        (4)(a) An educator certificate which has been suspended under this section is automatically reinstated at the end of the suspension period, provided the certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate. . .

        
        

        1. A person whose educator certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

           
           

131. Section 1012.795, Florida Statutes (2008), provides in pertinent part:

     1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 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 up to 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; . . . or may impose any other penalty provided by law, if the person:

        
        

        * * *

        
        

        1. Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.

           
           

        2. Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.

        
        

        * * *

        (g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.

        
        

        * * *

        
        

        (j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

        
        

        * * *

        
        

        (4)(a) An educator certificate that has been suspended under this section is automatically reinstated at the end of the suspension period, provided the certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefore and by meeting the certification requirements of the state board current at the time of the application for the new certificate. . .

        
        

        (b) A person whose educator certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefore and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

        
        

        Portions of the 2008 version were effective as of May 28, 2008, and portions were effective as of July 1, 2008. As a result, the 2008 version was effective after the alleged violations, except for alleged violations regarding the flyer.

132. The COE referenced the incorrect statutory provisions of section 1012.795 in the Amended AC, except for the alleged violations regarding the flyer: Ms. Maynard was charged with the statutory provisions that were in effect in 2008, not 2006 and 2007, the relevant time period. The statutory provisions in effect for the relevant time period in 2006 and 2007 were section 1012.795(1)(b), (c), (f) and (i), not section

     1012.795(1)(c), (d), (g) and (j). However, even though there is an erroneous reference to the statutory provisions in the Amended AC, the wording for the charged violations and the violations that should have been charged are essentially the same, the necessary elements of the offenses are alleged, and the proof required for the elements is the same. Consequently, having erroneously referenced the statutory provisions is not fatal and should be treated as a scrivener’s error. Danzy v.

     State, 603 So. 2d 1320, 1322 (Fla. 1st DCA 1992). Moreover, the parties knowingly litigated the instant matter, addressing the necessary elements of the charges in spite of the erroneously referenced statutory provisions.

133. Furthermore, as to the allegations regarding the flyer, the 2008 version of section 1012.795 is applicable.

134. Florida Administrative Code Rule 6B-1.006, titled "Principles of Professional Conduct for the Education Profession in Florida," provides in pertinent part:

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

        
        

     2. 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.

        
        

     3. 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.

           
           

           * * *

           
           

           (c) Shall not unreasonably deny a student access to diverse points of view.

           
           

           * * *

           
           

           1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

              
              

           2. Shall not intentionally violate or deny a student's legal rights.

              
              

           3. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

           
           

           * * *

           
           

           (i) Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

           
           

           * * *

           
           

     4. Obligation to the public requires that the individual:

        
        

        1. Shall take reasonable precautions to distinguish between personal views and those of any educational institution or

           organization with which the individual is affiliated.

           
           

        2. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

           
           

        3. Shall not use institutional privileges for personal gain or advantage.

           
           

           * * *

           
           

     5. Obligation to the profession of education requires that the individual:

        
        

        1. Shall maintain honesty in all professional dealings.

           
           

           * * *

           
           

           1. Shall not interfere with a colleague's exercise of political or civil rights and responsibilities.

              
              

           2. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

           
           

           * * *

           
           

           (o) Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

           
           

135. Florida Administrative Code Rule 6B-1.001, titled

     "Code of Ethics of the Education Profession in Florida," provides:

     1. 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.

        
        

     2. 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 professio87nal growth and will seek to exercise the best professional judgment and integrity.

        
        

     3. 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.

        
        

136. Florida Administrative Code Rule 6B-4.009 provides guidance in the instant case and provides in pertinent part:

     1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

        1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

           
           

        2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

           
           

     2. 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.

        
        

     3. 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.

        
        

        * * *

        
        

        1. 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.

           
           

137. "Gross immorality," as the term suggests, is misconduct that is more egregious than mere "immorality." It is "immorality which involves an act of conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." See Castor v. Lawless, 1992 WL 880829 (EPC Final Order 1992); Turlington v. Knox, 3 FALR 1373A, 1374A (EPC Final Order 1981).

138. "Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated." State ex rel. Tullidge v.

     Hollingsworth, 146 So. 660, 661 (1933)(citations omitted).

     
     

139. "By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Fla. Prof'l Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).

140. Regarding Count 1, the COE failed to establish by clear and convincing evidence that Ms. Maynard was incompetent. Using the definition of incompetency as a guide found at Florida

     Administrative Code Rule 6B-4.009(1), the COE failed to demonstrate incompetency by clear and convincing evidence, although it did demonstrate incompetency by a preponderance of the evidence.

141. Hence, the COE failed to demonstrate that Ms. Maynard violated section 1012.795(1)(b).

142. As to Count 2, the COE demonstrated by clear and convincing evidence that Ms. Maynard committed gross immorality. Ms. Maynard's conduct of downgrading the school and the administration and name-calling her students was inconsistent with the standards of public conscience and good morals. Her conduct was intentional and went beyond mere poor judgment.

     Ms. Maynard's conduct, as to the community, caused the parents of her students to feel disrespect for her and impaired her service in the community.

143. However, the evidence is not clear and convincing that Ms. Maynard committed a crime or her actions constituted a crime, thereby, failing to demonstrate an act involving moral turpitude. See Fla. Admin. Code R. 6B-4.009(6).

144. Hence, the COE demonstrated by clear and convincing evidence that Ms. Maynard's conduct constituted gross immorality, violating section 1012.795(1)(c).

145. Regarding Counts 3 through 17, the facts overlap and are interrelated. Ms. Maynard's conduct caused her to lose

     respect and confidence of her colleagues, of students, and of parents; and her conduct amounted to harassment which created a hostile, or intimidating environment. Her conduct included: agitation with and yelling at her students, colleagues, administrators, and paraprofessionals; name-calling of students; expressing agitation and yelling in meetings; monopolizing team meetings with her own concerns; identifying problem-behavior students to parents who were not the parents of the students; making negative comments about the school and administration to parents; and sending excessive emails. Additionally, her conduct toward the students was harmful to learning and/or the student's mental health and exposed the students to unnecessary embarrassment or disparagement. Also, as to the public, the flyer set forth intentional distortion or misrepresentation of the facts concerning the PMPs or Title I documents and why the employees moved to new positions within the school system.

     Further, as to Ms. Maynard's colleagues, the flyer made malicious or intentional false statements about the employees.

146. The COE failed to demonstrate by clear and convincing evidence that Ms. Maynard unreasonably denied a student access to diverse points of view.

147. The COE failed to demonstrate by clear and convincing evidence that Ms. Maynard intentionally violated or denied a student's legal rights.

148. The COE failed to demonstrate that by clear and convincing evidence that Ms. Maynard harassed or discriminated against any student on the basis of race, color, religion, sex, age, national or ethnic origin, handicapping condition, or social and family background and/or that she failed to make a reasonable effort to assure that each student was protected from harassment or discrimination.

149. The COE failed to demonstrate by clear and convincing evidence that failed to take reasonable precautions to distinguish between personal views and those of Cypress Elementary or the School Board. The evidence was clear and convincing that Ms. Maynard was expressing her own views, not of Cypress Elementary or the School Board.

150. The COE failed to demonstrate by clear and convincing evidence that Ms. Maynard used her privileges as a teacher for personal gain or advantage.

151. The COE failed to demonstrate by clear and convincing evidence that Ms. Maynard failed to maintain honesty in all her professional dealings. The evidence demonstrates that she actually believed what she was professing.

152. The COE failed to demonstrate by clear and convincing evidence that Ms. Maynard sought reprisal against any individual for reporting an allegation of a violation of the Florida School Code or Florida Board of Education Rules. The evidence

     demonstrates that Ms. Maynard filed a complaint with DOE against Ms. Portman, regarding the PMPs, before Ms. Portman requested the SIU Investigation, and continued by filing complaints with the public investigative agencies. Further, the evidence demonstrates that Ms. Maynard actually believed that violations had been committed against her and that the violations were within the investigative authority of the public agencies. The evidence is not clear and convincing that Ms. Maynard filed complaints with the public investigative agencies because

     Ms. Portman's reporting the alleged violations.

     
     

153. Hence, the COE demonstrated by clear and convincing evidence that Ms. Maynard violated section 1012.795(1)(f) and (i), Florida Statutes (2007), and section 1012.795(1)(j), Florida Statutes (2008).

154. Further, the COE demonstrated by clear and convincing evidence that Ms. Maynard violated Florida Administrative Code Rule 6B-1.006(3)(a), (e), and (i), (4)(b), and (5)(d) and (c).

155. The COE suggests a penalty of permanent revocation and permanent denial of re-application for an educator's certificate.

156. As to penalty, Section 1012.796(7), Florida Statutes (2007) and (2008), provides in pertinent part:

     1. A panel of the commission shall enter a final order either dismissing the complaint

        or imposing one or more of the following penalties:

        
        

        1. Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant's application, for a specified period of time or permanently.

           
           

        2. Revocation or suspension of a certificate.

           
           

        3. Imposition of an administrative fine not to exceed $ 2,000 for each count or separate offense.

           
           

        4. Placement of the teacher . . . on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher . . . to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. . . .

           
           

        5. Restriction of the authorized scope of practice of the teacher . . .

           
           

        6. Reprimand of the teacher in

           writing, with a copy to be placed in the certification file of such person.

           
           

        7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

           
           

        8. Refer the teacher . . . to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

     
     

157. Florida Administrative Code Rule 6B-11.007 provides disciplinary guidelines for the violations demonstrated ranging from probation to revocation. Additionally, suspension and revocation includes a comparable period of denial of an application for an educator's certificate. Furthermore, the said rule provides for the consideration of relevant mitigating factors. Noteworthy is that the said rule provides for permanent revocation, notwithstanding the guidelines, where the Commission has imposed a penalty on two prior occasions, with the current disciplinary resulting in a third penalty. As mitigation, Ms. Maynard actually believed that Ms. Portman was directing her to falsify PMPs or Title I documents and her actions were dictated by this belief; the evidence failed to demonstrate that she was incompetent; at the time of hearing, she had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board; and no evidence was presented to demonstrate that, on two prior occasions, the COE had imposed disciplinary action against Ms. Maynard.

158. Considering the totality of the circumstances, a penalty of permanent revocation and permanent denial of re-

application for an educator's certificate is too harsh, but probation is too lenient. However, the totality of the circumstances indicates that the appropriate penalty is suspension of Ms. Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the COE.

RECOMMENDATION

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

RECOMMENDED that the Commissioner of Education enter a final order:

1. Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16;

2. Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and

   
   

3. Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education.

DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 21st day of July, 2011.

ENDNOTES

1/ The parties' post-hearing submissions were due on August 30, 2010. Ms. Maynard filed her post-hearing submission on the due date. Although the Docket of the Division of Administrative Hearings reflects that the COE's post-hearing was filed on the due date, the post-hearing submission was actually filed on October 20, 2010, almost two months later. It is noteworthy to note that the Certificate of Service of the COE's post-hearing submission reflects that the post-hearing submission was served on August 30, 2010.

2/ Three types of transfers were available: Regular, Hardship, and Guaranteed.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock and Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Doreen Maynard

1530 Northeast 43rd Street Oakland Park, Florida 33334

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief Bureau of Professional

Practices Services Department of Education

Turlington Building, Suite 224-E

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: 09-003047PL

Orders for Case No: 09-003047PL