STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 16-0588TTS

KRISTEN TURNER,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice on June 14, 2016, in Lakeland, Florida, a hearing was conducted before J. D. Parrish, an administrative law judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

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

Boswell and Dunlap, LLP

245 South Central Avenue Bartow, Florida 33830

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether there is just cause to terminate Respondent’s employment with the school district.

PRELIMINARY STATEMENT

On or about January 19, 2016, Petitioner, Polk County School Board (Petitioner), notified Respondent, Kristen Thomas (Respondent), of its intent to terminate her employment with the school district. Thereafter, Respondent timely challenged the proposed action and requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on or about February 1, 2016.

Petitioner’s letter dated November 16, 2015, advised Respondent that the district would recommend her termination to the Board on January 19, 2016, based upon the following allegations: that Respondent had entered false grades into the school district’s Pinnacle grading system; that the grades entered by Respondent did not match the grades recorded by Respondent elsewhere; and that the grades entered did not reflect the students’ actual performance on the assessment.

Petitioner alleged that such action violated the Principles of Professional Conduct that require honesty in all professional dealings and prohibit the submission of fraudulent information on any document in connection with professional activities.

Subsequent to a joint agreed request to reschedule the hearing, the case was rescheduled and heard on June 14, 2016. The parties’ Pre-hearing Stipulation was filed on June 8, 2016.

At the hearing, the Petitioner presented the testimony of Melissa Durrance, Karen Irace, and Ann Everett. Respondent testified on her own behalf and offered the testimony of Wendy Winchester. The Transcript, filed on June 30, 2016, outlines the exhibits received into evidence. The parties were granted ten days within which to file their proposed recommended orders. The proposed orders have been fully considered.

FINDINGS OF FACT

1. The Petitioner is the entity responsible for the operation and administration of the Polk County School District. Such duties include all personnel decisions affecting employees of the school district.

2. The Respondent was an employee of the school district and was assigned to teach third grade at Sleepy Hill Elementary School in Lakeland, Florida. Respondent’s employment was pursuant to a professional services contract.

3. In accordance with the negotiated contract for professional educators working within the Polk County School District, Petitioner follows a progressive discipline program. All Board employees are afforded opportunities to improve performance deficiencies before termination of their employment. In this case, Petitioner asserts that the falsification of student grades into the Pinnacle grading system was Respondent’s final action supporting just cause for termination.

   
   

4. On March 17, 2014, Respondent received a verbal warning with written confirmation due to ongoing absenteeism and the failure to timely complete paperwork regarding absences from school.

5. On March 31, 2014, Respondent received a written reprimand due to Respondent’s continuing absences and other irregularities in taking leave. Respondent had been an employee of the school district long enough to understand the leave procedures required in order to take absences from school.

6. On January 25, 2015, despite the two prior notifications regarding leave, Respondent was absent without following the proper leave procedures.

7. On February 3, 2015, Respondent’s principal recommended to the superintendent of schools that Respondent be disciplined by suspension without pay.

8. On March 16, 2015, Respondent was suspended without pay for three days. The superintendent cited the grounds for the suspension as Respondent’s continued failure to comply with leave procedures and restrictions.

9. Thereafter, based upon Respondent’s poor classroom performance coupled with observed deficiencies, Respondent was put on a professional development plan that set forth criteria that required Respondent’s improvement.

   
   

10. On April 15, 2015, Respondent, her representative, and her principal met to review the Respondent’s performance of her responsibilities. During the discussion, a report from the school district’s Pinnacle grading system was reviewed. The Respondent’s students all received the same grade. When questioned, Respondent assured her principal that she had accurately entered the students’ grades.

11. In fact, Respondent did not accurately enter her students’ grades. In the course of less than a minute on the Pinnacle system, Respondent entered all “4s” for her students on one section of a reading test.

12. The grades entered by Respondent did not match the grades reflected on her grading sheets. Additionally, four of the grades entered on a second section of the weekly test were entered incorrectly.

13. Respondent did not truthfully answer questions regarding the entry of the grades and did not accept responsibility for falsifying the grades entered. Had Respondent simply confessed error in entering the grades and truthfully stated why she hurriedly entered the grades incorrectly, her character would not be called to question. Instead, Respondent wrongly maintained she had accurately entered the grades.

    
    

14. Respondent’s honesty was called into question when she did not readily acknowledge her error. Thereafter Respondent’s principal recommended to the district’s superintendent that Respondent’s employment be terminated. By letter dated

    November 16, 2015, the superintendent advised Respondent that it would be recommended to the Board that her employment be terminated.

15. The teachers’ bargaining agreement pertinent to this case provides for progressive discipline. Prior to termination (step 4), there are three prior levels of discipline: verbal warning; written warning; and suspension. In this case Petitioner complied with the progressive discipline required by the bargaining agreement.

    CONCLUSIONS OF LAW

    
    

16. Pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015), DOAH has jurisdiction over the subject matter of and the parties to this proceeding.

17. Section 1012.33, Florida Statutes (2015), provides in pertinent part:

    Contracts with instructional staff, supervisors, and school principals.

    
    

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written

    
    

    contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education:

    immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under

    s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under

    s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

    
    

18. Petitioner bears the burden of proof to establish by a preponderance of the evidence that there is just cause to terminate Respondent’s employment. See Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. Sch. Bd.

    of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

    
    

19. Florida Administrative Code Rule 6A-5.056, Criteria for Suspension and Dismissal, provides in pertinent part:

    “Just cause” means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335, F.S. In fulfillment of these laws, the basis for each such charge is hereby defined:

    
    

    * * *

    
    

    1. “Misconduct in Office” means one or more of the following:

       
       

       1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;

          
          

       2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.; . . .

          
          

20. At all times material to this case, Florida Administrative Code Rule 6A-10.080, Code of Ethics of the Education Profession in Florida, provided:

    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 professional 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.

    
    

21. Rule 6A-10.081, Principles of Professional Conduct for the Education Profession in Florida, provides, in part:

    
    

    1. Florida educators shall be guided by the following ethical principles:

       
       

       * * *

       
       

       1. 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.

          
          

    2. Florida educators shall comply with the following disciplinary principles. 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.

    
    

    * * *

    
    

    1. Obligation to the public requires that the individual:

       
       

       * * *

       
       

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

       
       

       * * *

       
       

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

    
    

    1. Shall maintain honesty in all professional dealings.

    
    

22. In this case Petitioner has established by a preponderance of the evidence that Respondent failed to maintain the highest degree of ethical conduct.

    
    

23. Respondent maintains that neither she nor her students gained any benefit from the erroneous grades entered into the Pinnacle system. Had Respondent honestly admitted she hurriedly entered grades without accuracy, perhaps the Board would not have taken disciplinary action. Instead, Respondent misrepresented her actions, falsified the grades entered into the Pinnacle system, and refused to accept professional responsibility for her errors. Such conduct demonstrates Respondent failed to maintain the level of honesty required of professional educators in the State of Florida. Respondent’s effectiveness as an educator rests on her honesty and integrity in the performance of her professional duties.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order terminating Respondent’s employment with the school district.

DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2016.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

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

245 South Central Avenue Bartow, Florida 33830 (eServed)

Jacqueline Byrd, Superintendent Polk County School Board

1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 16-000588TTS

Orders for Case No: 16-000588TTS