STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 18-6338TTS

CARA SANDERLIN,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on January 15, 2019, in Tavares, Florida, before Garnett W. Chisenhall, a duly designated Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

Elizabeth A. Turner, Esquire Johnson Turner, PLLC

215 North 2nd Street Leesburg, Florida 34748

For Respondent: Mitchell L. Davis, Esquire

Smothers Law Firm, P.A.

523 Wekiva Commons Circle Apopka, Florida 32712

STATEMENT OF THE ISSUE

Whether Petitioner, Lake County School Board (“the School Board”), has just cause to terminate Respondent, Cara Sanderlin,

for the reasons specified in the agency action letter, dated

November 13, 2018.

PRELIMINARY STATEMENT

The Superintendent of Schools for Lake County (“the Superintendent”) notified Ms. Sanderlin, via a November 13, 2018, letter, that the Superintendent would be recommending that the School Board terminate Ms. Sanderlin from her teaching position. This proposed action resulted from an investigation indicating that Ms. Sanderlin had “used a water bottle to shape the behavior of a disabled student by squirting him.” According to the letter, the aforementioned allegation amounted to “misconduct in office” in violation of Florida Administrative Code Rule 6A- 5.056(2) and “incompetency” in violation of rule 6A-5.056(3).

The letter further stated that Ms. Sanderlin’s alleged conduct amounted to a violation of Florida Administrative Code

Rule 6A-10.081(1)(b), (1)(c), and (2)(a).

Ms. Sanderlin responded by requesting a formal administrative hearing, and the Superintendent referred this matter to DOAH on November 28, 2019.

Via a Notice of Hearing issued on December 12, 2018, the undersigned scheduled the final hearing to occur in Tavares, Florida, on January 15, 2019.

The final hearing commenced as scheduled and was completed that day. Ms. Sanderlin testified on her own behalf and

presented testimony from Stephanie Henry, Charlene Hochreiter, and Erin Shropshire. The School Board presented testimony from Laine Obando, Danelle Crinion, Carol Phelps, Abdias Rodriguez, Ms. Sanderlin, and David Meyers.

The School Board’s Exhibits 1 through 7 and Ms. Sanderlin’s Exhibit 1 were accepted into evidence.

The one-volume Transcript of the final hearing was filed on January 31, 2019. Both parties filed timely proposed recommended orders on February 20, 2019. Those proposed recommended orders were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made:

1. The School Board is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ The School Board is also authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat.

2. The School Board utilizes a progressive disciplinary system. It is a five-step process that begins with an undocumented counseling session and can progress to termination.

   
   

   However, if an offense is sufficiently severe, then the School Board can bypass lesser disciplinary measures and proceed directly to termination.

3. Pine Ridge Elementary is within the Lake County School District.

4. Cara Sanderlin has a bachelor’s degree in special education and approximately 16 years of teaching experience during which she has taught students with conditions such as intellectual disabilities, emotional/mental handicaps, and autism.

5. Ms. Sanderlin has taught autistic students at Pine Ridge Elementary since 2015. She did so in a “self-contained classroom” in which the students stayed with her the entire school day.

6. Ms. Sanderlin kept a small, plastic spray bottle2/ in her classroom. The bottle is slightly less than eight inches tall and capable of holding approximately six ounces of water. The spray bottle has a trigger mechanism that enables one to project a stream of water approximately 10 feet. At the outer limit of the spray bottle’s range, the stream loses continuity. The spray bottle’s nozzle can be adjusted so that one can project mist rather than a stream.

7. Ms. Sanderlin used the spray bottle to mist her students when they were on the playground during warm months. That was

   
   

   necessary because there were no water fountains on the playground or her classroom.

8. During the fall of 2018, Ms. Sanderlin had two to four students in her class. D.H. was one of those students.

9. During the time period relevant to the instant case,

   
   

   D.H. was an 11-year-old fifth-grader and had attended Pine Ridge Elementary since second grade. D.H. is nonverbal but is able to understand what is said to him. He indicates that he wants something by pulling someone to the object’s vicinity so that it can be retrieved for him. While D.H. is able to use sign language to communicate the words “more” and “please,” it can be difficult to discern what he wants. For example, D.H. cannot communicate if someone is doing something to him that he does not like.

10. D.H. is unable to use a bathroom on his own. When accompanied by a teacher, he insists on activating the water faucet and flushing the toilet immediately upon entering the bathroom. He also likes to splash water in the bathroom. However, D.H. does not like to wash his hands, and the teacher accompanying him to the bathroom must utilize a hand-over-hand technique in order to get his hands clean. Thus, D.H. and the person accompanying him tend to get wet.

11. In order to prevent a therapy session from being interrupted, D.H. would be taken to the bathroom just before

    
    

    another teacher would visit the classroom to administer speech therapy. Therefore, it is possible that a visiting teacher could arrive in the classroom and find D.H. wet.

12. Erin Shropshire, a teaching assistant, usually worked with D.H. on a one-on-one basis until the new teaching assistant, McKenzie Shaw,3/ started on September 28, 2018.

13. In the fall of 2018, Abdias Rodriguez was a full-time teaching assistant in Ms. Sanderlin’s classroom. She observed Ms. Sanderlin spray water in D.H.’s general direction without intending to get him wet. This action was used when

    Ms. Sanderlin needed to get D.H.’s attention and other measures, such as calling his name or tapping her desk, were unsuccessful. While this was not an uncommon occurrence, it did not happen every day.4/

14. Ms. Shaw sometimes used the spray bottle in a similar manner in order to stop D.H. from doing something in the classroom that he was not supposed to be doing.

15. Danelle Crinion began working at Pine Ridge Elementary as the school’s speech and language teacher in the fall of 2018. She and her teaching assistant, Carol Phelps, go from class to class in order to provide instruction.

16. While in Ms. Sanderlin’s class in the fall of 2018, Ms. Crinion and Ms. Phelps saw Ms. Sanderlin and/or Ms. Shaw, on three or four occasions, use the spray bottle to redirect D.H.

    
    

    after a verbal cue was ineffective in prompting D.H. to move from one part of the classroom to another.5/ On one occasion, they saw that D.H.’s shirt was wet.

17. Ms. Crinion did not question Ms. Sanderlin about those instances but did report them to Laine Obando, the principal of Pine Ridge Elementary, on October 19, 2018. Ms. Crinion’s report indicated that Ms. Sanderlin and Ms. Shaw would direct a stream of water directly at D.H.’s person rather than alongside him. After talking to Ms. Sanderlin, Ms. Rodriguez, and Ms. Phelps, Ms. Obando contacted David Meyer, the School Board’s Supervisor of Employee Relations, and Mr. Meyer initiated an investigation, which ultimately led to the Superintendent’s recommendation that Ms. Sanderlin be terminated from her teaching position.

18. Ms. Obando is familiar with the methods used to redirect autistic students and testified that spraying a child with water is an inappropriate means of redirection.

    Ms. Sanderlin concurred with Ms. Obando’s testimony.6/

    
    

19. Ms. Sanderlin has no prior violations of the rules governing teacher conduct in Florida. As for why the School Board is seeking to terminate Ms. Sanderlin rather than utilizing its progressive disciplinary system, Mr. Meyer testified that Ms. Sanderlin’s alleged conduct is sufficiently egregious to justify termination because D.H. is nonverbal and unable to express his feelings.

    
    

    Ultimate Findings

    
    

20. Ms. Rodriguez was the most persuasive witness at the final hearing, and her testimony has been credited as the most accurate description of how Ms. Sanderlin used a spray bottle in her classroom.7/

21. The preponderance of the evidence does not demonstrate that Ms. Sanderlin intended for the streams of water to make direct contact with D.H.’s person.

22. The preponderance of the evidence demonstrates that Ms.

    
    

    Sanderlin directed streams of water to the side of D.H. in order to get him to comply with verbal directions. While this practice should not be condoned as an acceptable means of redirecting a student, it is insufficient to support a finding that Ms.

    Sanderlin committed “misconduct in office” in

    
    

    violation of rule 6A-5.056(2) or “incompetency” in violation of rule 6A-5.056(3). Nor does such behavior amount to a violation of rule 6A-10.081(1)(b), (1)(c), and (2)(a). Therefore, while Ms. Sanderlin should receive some manner of discipline, the School Board lacks justification for bypassing lesser disciplinary measures within its progressive disciplinary system and proceeding directly to termination. There is no just cause for terminating Ms. Sanderlin.

    
    

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction over the subject matter and parties in this case, pursuant to section 1012.33(6) and sections 120.569 and 120.57(1), Florida Statutes.

24. The School Board is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Lake County, Florida, under section 1012.22.

25. The School Board seeks to terminate Ms. Sanderlin’s employment and has the burden of proving the allegations set forth in its November 13, 2018, letter by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence applicable to the loss of a license or certification. Cropsey v. Sch. Bd. of Manatee Cnty., 19 So. 3d

    351 (Fla. 2d DCA 2009), rev. denied, 29 So. 3d 1118 (Fla. 2010); Cisneros v. Sch. Bd. of Miami-Dade Cnty., 990 So. 2d 1179 (Fla.

    3d DCA 2008).

    
    

26. The preponderance of the evidence standard requires proof by “the greater weight of the evidence,” Black’s Law

    Dictionary 1201 (7th ed. 199), or evidence that “more likely than not” tends to prove a certain proposition. See Gross v. Lyons,

    763 So. 2d 276, 289 n.1 (Fla. 2000).

    
    

27. It is well-established under Florida law that determining whether alleged misconduct violates a statute or rule

    
    

    is a question of ultimate fact to be decided by the trier-of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387,

    389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489,

    
    

    491 (Fla. 1st DCA 1995). Thus, determining whether alleged misconduct violates the law is a factual, rather than a legal, inquiry.

28. The Superintendent’s November 13, 2018, letter alleged that Ms. Sanderlin is guilty of “misconduct in office” in violation of rule 6A-5.056(2) and “incompetency” in violation of rule 6A-5.056(3). The letter further stated that Ms. Sanderlin’s alleged conduct amounted to a violation of rule 6A-10.081(1)(b), (1)(c), and (2)(a).

    The Principles

    
    

29. The School Board alleges that Ms. Sanderlin violated provisions within rule 6A-10.081, which is entitled “Principles of Professional Conduct for the Education Profession in Florida” (“the Principles”). Subsection (1) of the Principles provides that “Florida educators shall be guided by the [] ethical principles” enumerated in rule 6A-10.081.

30. The School Board specifically alleges that Ms. Sanderlin violated the following provisions of the Principles:

    
    

    6A-10.081(1)(b): The educator’s primary professional concern will always be for the student and 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.

    
    

    6A-10.081(1)(c): 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.

    
    

    6A-10.081(2)(a): 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 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.

          
          

          * * *

          
          

          (5) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

31. The Principles are divided into two sections: subsection (1), which consists of ethical principles; and subsection (2), which provides disciplinary principles with which educators “shall comply.”

    
    

32. The ethical principles in subsection (1) have been described as “aspirational in nature, and in most cases [are] not susceptible of forming a basis for suspension or dismissal,” Sarasota County School Board v. Simmons, Case No. 92-7278 (Fla. DOAH Nov. 9, 1993), and “of little practical use in defining normative behavior.” Miami-Dade Cnty. Sch. Bd. v. Lantz, Case No. 12-3970 (Fla. DOAH July 29, 2014); Broward Cnty. Sch. Bd. v.

    Weinberg, Case No. 15-4993 (Fla. DOAH Apr. 13, 2016; Fla. Broward

    
    

    Cnty. Sch. Bd. Aug. 23, 2016). By contrast, the disciplinary principles enumerate specific “dos” and “don’ts” to put a teacher on notice concerning what conduct is forbidden. See Miami-Dade Cnty. Sch. Bd. v. Brenes, Case No. 06-1758 (Fla. DOAH Feb. 27,

    2007; Fla. Miami-Dade Cnty. Sch. Bd. Apr. 25, 2007). “Thus, it is concluded that while any violation of [subsection (2)] would also be a violation of [subsection (1)], the converse is not true.” Id. “Put another way, in order to punish a teacher for

    misconduct in office, it is necessary but not sufficient that a violation of a broad ideal articulated in [subection (1)] be proved, whereas it is both necessary and sufficient that a violation of a specific rule in [subsection (2)] be proved.”

    Id.; see also Miami-Dade Cnty. Sch. Bd. v. Regueira, Case No. 06-

    
    

    4752 n.4 (Fla. DOAH Apr. 11, 2007; Fla. Miami-Dade Cnty. Sch. Bd. May 25, 2007).

    
    

33. Spraying water alongside a student is an inappropriate means of getting an autistic student’s attention, but it does not rise to the level of violating rules 6A-10.081(2)(a)1. or 6A- 10.081(2)(a)5. Nor does it amount to just cause for terminating Ms. Sanderlin. See generally Polk Cnty. Sch. Bd. v. Smith, Case

    No. 18-2983TTS (Fla. DOAH March 6, 2019)(final order pending)(concluding that “[s]leeping in class on one occasion, with students present, should not be condoned, even if the safety of the students is not placed in jeopardy. This action warrants no more than a dated reprimand following a conference. Just cause does not exist to terminate Respondent.”).

    Criteria for Suspension and Dismissal

    
    

34. Rule 6A-5.056 is entitled “Criteria for Suspension and Dismissal.”

35. The School Board alleges that Ms. Sanderlin committed “misconduct in office” by violating the following provisions of rule 6A-5.056(2):

    6A-5.056(2)(b): A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.;

    
    

    6A-5.056(2)(c): A violation of the adopted school board rules;

    
    

    6A-5.056(2)(d): Behavior that disrupts the student’s learning environment;

    
    

36. The School Board also alleges that Ms. Sanderlin is guilty of “incompetency,” which rule 6A-5.056(3) defines as “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.”

37. While rule 6A-5.056(3) sets forth multiple definitions of “inefficiency,” the School Board specifically alleges that Ms. Sanderlin acted inefficiently in violation of subsection (3)(a)2. by failing “to communicate appropriately with and relate to students.”

38. With regard to rule 6A-5.056(2)(b), the alleged violations of the Principles were discussed in the preceding section.

39. As for whether Ms. Sanderlin violated rules 6A- 5.056(2)(d) or 6A-5.056(3)(a)2., her conduct does not rise to the level at which it disrupted D.H.’s learning environment nor does it demonstrate that she is “incompetent.” See Lake Cnty. Sch.

    Bd. v. Ockerman, Case No. 12-2270TTS (Fla. DOAH Nov. 14, 2012),

    
    

    rejected in part, (Lake Cnty. Sch. Bd. Jan. 28, 2013)(concluding that “Petitioner proved, by a preponderance of the evidence, that Respondent slapped the hands of one or more students over the course of the 2011-2012 school year on, at most, a few occasions. The incidents occurred when a student took something that was not his, tried to place his hands on or hurt another student, or struck Respondent. The incidents were isolated and mild, and

    
    

    could have been defensive techniques that were misperceived by the observer. There was no evidence that the incidents were harmful to any student’s learning, adversely affected any student’s mental or physical health, or compromised any student’s safety.”).

40. In sum, the preponderance of the evidence fails to demonstrate that Ms. Sanderlin violated any of the School Board’s rules. Nor does the preponderance of the evidence demonstrate that just cause exists to terminate Ms. Sanderlin. See generally Lake Cnty. Sch. Bd. v. Mays, Case No. 18-5014TTS (Fla. DOAH March

4, 2019)(final order pending)(finding that “[b]ased on the weight of the evidence detailed above, the School Board failed to establish by a preponderance of the evidence that Ms. Mays exposed the students to unnecessary embarrassment or disparagement [by making them clean a floor with a toothbrush], much less that she did so intentionally.”).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board issue a Final Order rescinding Ms. Sanderlin’s termination and imposing a lesser disciplinary measure within its progressive disciplinary system.

DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL 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 22nd day of March, 2019.

ENDNOTES

1/ Unless indicated otherwise, all references will be to the 2018 version of the Florida Statutes.

2/ The School Board utilized Ms. Sanderlin’s spray bottle as a demonstrative exhibit during the final hearing. However, the parties agreed that the undersigned could use the demonstrative exhibit as a means of making findings of fact regarding the spray bottle’s height and other characteristics.

3/ Ms. Shaw did not testify during the final hearing.

4/ There was no allegation that Ms. Sanderlin or Ms. Shaw ever repeatedly sprayed D.H. in order to obtain compliance or to get his attention.

5/ This action was generally referred to as “redirection” during the final hearing, and Ms. Obando described redirection as “a strategy that is used in a classroom, I would say most often when a student is - - for example, if a student is off task, the teacher would intervene in some way to redirect a student back to task. If a student is exhibiting a behavior that is not compliant, then a teacher may redirect that student back to task. So it is where the teacher intervenes with some skill or strategy

in order to redirect that student back to whatever the task is at hand or the behavior that is requested.”

6/ In a statement to Ms. Obando, Ms. Sanderlin supposedly said that she sprayed water “away from him” but “not on him.” During the final hearing, Ms. Sanderlin testified that she would spray water to the side of D.H. in the classroom in order to ascertain if he wanted the spray gun, and Ms. Sanderlin denied using the spray gun to redirect D.H.

7/ In making this finding, the undersigned is not implying that Ms. Crinion or Ms. Phelps’ testimony was untruthful. While

Ms. Phelps testified that she witnessed Ms. Sanderlin spray water “at” D.H. and saw the water make contact with his face, it is possible that D.H. was inadvertently struck with residual water from a stream that was directed to his side. Nevertheless,

Ms. Sanderlin’s actions do not amount to violations of the rules cited in the School Board’s November 13, 2018, letter.

COPIES FURNISHED:

Mitchell L. Davis, Esquire Smothers Law Firm, P.A.

523 Wekiva Commons Circle Apopka, Florida 32712 (eServed)

Stephen W. Johnson, Esquire Johnson Turner, PLLC

215 North 2nd Street Leesburg, Florida 34748 (eServed)

Elizabeth A. Turner, Esquire Johnson Turner, PLLC

215 North 2nd Street Leesburg, Florida 34748

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

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

Richard Corcoran Commissioner of Education Department of Education

Turlington Building, Suite 1514

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

Diane Kornegay, Superintendent Lake County School Board

201 West Burleigh Boulevard Tavares, Florida 32778-2496

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: 18-006338TTS

Orders for Case No: 18-006338TTS