STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 95-1561

)

KAREN DENBO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on March 18, 1997, in Orlando, Florida.

APPEARANCES

For Petitioner: Frank C. Kruppenbacher, Esquire

Kruppenbacher and Associates, P.A. Post Office Box 3471

Orlando, Florida 32802-3471

James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108

Orlando, Florida 32802-3108

For Respondent: G. Ware Cornell, Esquire

Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301

Thomas H. Yardley, Esquire Building C2

1970 Michigan Avenue

Cocoa, Florida 32922

STATEMENT OF THE ISSUES

An administrative complaint dated March 14, 1995, seeks termination of Karen Denbo’s annual contract of employment pursuant to Section 231.36, Florida Statutes, based on the following alleged falsifications of her Orange County Public Schools employment application:

1. misrepresenting the reasons for separation from her last public school assignment;

   
   

2. falsely stating her prior employment positions; and

   
   

3. falsely identifying her immediate supervisor in her last public school assignment.

The issues for disposition in this case are whether Karen Denbo committed the alleged violations and if so, whether discipline pursuant to Section 231.36, Florida Statutes, is appropriate.

PRELIMINARY STATEMENT

When Karen Denbo requested a formal hearing, the School Board forwarded the case to the Division of Administrative Hearings, where a hearing was scheduled but was later continued. For almost two years hearings were rescheduled and continued for various reasons at the request of the parties: illness of counsel, schedule conflicts, changes in counsel, and assurances of settlement. Finally, counsel for the School Board informed the administrative law judge that settlement was no longer agreed and requested that the hearing be scheduled within sixty (60) days. (Petitioner’s Status Report dated January 21, 1997) The

hearing proceeded as described above in spite of additional motions for continuance by both parties.

At the hearing, the School Board presented testimony of Karen Denbo and Leanne Blackmore, and offered eleven exhibits in evidence. Petitioner’s Exhibits 1, 2, 4, and 8-10, including depositions of Howard Hickman, Julia Bumgarner, and Karen Denbo were received; Exhibits 3 and 5-7 were rejected as irrelevant and as not properly identified and disclosed pursuant to prehearing order.

Karen Denbo testified through her counsel’s cross- examination and submitted Respondent’s Exhibits 1-5, all received in evidence, including a deposition of Fran Baer.

The transcript of hearing was filed on April 11, 1997; after a joint request for extension of time, the School Board filed its proposed order and memorandum of law on May 5, 1997. Karen Denbo’s counsel apparently attempted to file her proposed findings of fact in early May and a copy was filed on June 24, 1997.

FINDINGS OF FACT

1. From approximately 1966, until her suspension without pay by the Orange County School Board in March 1995, Karen Denbo was employed in various teaching and administrative capacities by school boards in Indiana, Georgia and Florida. She also worked on a grant project at the University of Florida, Gainesville, Florida, in 1993 and 1994.

2. On July 6, 1994, Karen Denbo submitted an employment application to the Orange County Public Schools. Her signature appears below this printed statement on the form:

   I certify that all information given on this application is true and complete. I agree, if employed, to abide by all school board rules, regulations and policies, either published or in effect by usage, and all rules, regulations and laws of the State of Florida as may be required by Florida Statutes, Florida State Board of Education, and the School Board of Orange County, Florida. I understand that any misrepresentation, omission or incorrect statement of facts called for in this application is cause for a refusal to hire me or my termination if I am hired. It is understood that as a condition of employment, I must have on file an acceptable health certificate, tuberculin test and medical history form.

   (Petitioner’s Exhibit 1)

   
   

3. The application includes, on the form and again on a separate work history sheet, this information regarding Karen Denbo’s employment in Brevard County:

   YEAR	NAME/ ADDRESS OF SCHOOL	GRADE OR SUBJECT	NO. OF MONTHS	PRINCIPAL/ SUPERVISOR	REASON FOR LEAVING
   86/92	Brevard	Director/	72	Jerry	Budget cut
   	Co. Public	Coordinator		Copeland	backs
   	Schools	EEO/AA			position
   	Melbourne, Florida	Guidance Counselor			eliminated

   (Petitioner’s Exhibit 1)

   
   

4. After an interview in August 1997, Ms. Denbo was hired by Orange County Public Schools as a counselor at Chickasaw Elementary School. Gail Pender was the principal who recommended Karen Denbo for the position. Karen Denbo’s duties included

   serving as a staffing coordinator for exceptional education services at the school.

5. Sometime after it hired Karen Denbo, Orange County Public Schools learned that her employment history in Brevard County was substantially more complicated than was reflected on the small spaces provided on the application form. The whole truth would have taken pages to explain.

6. Karen Denbo worked for the Brevard County School Board from August 6, 1986, until June 30, 1992, when her employment contract was not renewed. Her immediate supervisor for the first four years was Dr. Jerry Copeland, assistant superintendent for personnel. She worked in the district personnel office for five years with various, but similar duties: personnel specialist, administrator, EEO compliance officer, and coordinator of the Florida Educational Equity Act. Her formal position title for funding purposes was something general like “personnel specialist, administrative contract.”

7. In the 1990-91 school year, Daniel Scheuerer was Karen Denbo’s immediate supervisor. When her position was deleted for the 1991-92 school year and the duties assigned to other district employees, Karen Denbo transferred to Challenger Elementary School as a guidance counselor in July 1991.

8. Julia Bumgarner was principal at Challenger Elementary School and was Karen Denbo’s immediate supervisor for the 1991-92 school year. At the close of that school year Ms. Bumgarner

   advised Karen Denbo that she was not recommending her for reappointment for the next year because her performance was unsatisfactory. Mrs. Bumgarner provided a written evaluation to Karen Denbo, dated April 29, 1992, which stated:

   Due to the overall unsatisfactory performance rating as described herein, I am not recommending your reappointment for the

   1992-93 school year.

   (Petitioner’s Exhibit 10,

   Bumgarner deposition)

   
   

   An interim evaluation dated February 19, 1992, had also been unsatisfactory and had warned that failure to show substantial improvement by May 1, 1992, would result in Karen Denbo’s not being recommended for a subsequent annual contract.

9. Karen Denbo responded in writing to both evaluations. Included in those responses and included in her testimony at hearing was her assertion that the evaluations were part of the Brevard County School Board’s continued harassment of her in retaliation for her lawsuit against the school board and various individuals.

10. The lawsuit to which Karen Denbo referred was initiated on August 16, 1990, with her charge of discrimination filed with the Florida Commission on Human Relations. The charge included her allegations that assistant superintendent, Jerry Copeland, sexually assaulted and harassed her. Subsequent charges of retaliation were filed, as well as follow-up lawsuits in the U.S. District Court for the Middle District of Florida. The lawsuits named as defendants the School Board of Orange County, Jerry

    Copeland, Superintendent Abraham L. Collinsworth, and Daniel T. Scheuerer, individually and in their official capacities. Karen Denbo filed a third charge of discrimination with the Florida Commission on Human Relations on February 11, 1993, and filed another federal lawsuit thereafter.

11. All of the claims by Karen Denbo against the Brevard County School Board were settled with a general release dated June 30, 1993. The settlement agreement provides, in pertinent part:

    The Defendants will pay Plaintiff the sum of

    $325,000 and agree to the following conditions: 1) annual reviews for 91 and 92 will be removed from present file and placed in file to be maintained by School Board Attorney; 2) annual reviews will be prepared by last supervisor for 87, 88, 89 and 90 to reflect satisfactory performance; 3) Indiana University placement form will be filled out by Copeland and reflect satisfactory performance.

    (Petitioner’s Exhibit 8)

    
    

12. In abbreviating her Brevard County work history on the Orange County Public Schools application, Karen Denbo relied, in part, on the settlement agreement. Jerry Copeland, her supervisor for four of the six years, was required to provide a satisfactory performance statement for Karen Denbo’s Indiana University placement file. She knows that he was not her “immediate supervisor” for the final two years, but the more recent two annual reviews, clouded by the pendancy of the lawsuits and Karen Denbo’s claims of retaliation, were removed from her personnel file.

13. Karen Denbo also relied on her understanding that in both June 1991 and June 1992 her positions were eliminated for budget reasons. This understanding was bolstered by her knowledge of a newspaper article dated August 6, 1992, reporting that Karen Denbo was “one of the 88 annual-contract teachers who lost their jobs to budget cuts.” (Respondent’s Exhibit 4) The same article quoted the teachers’ union president as stating that the job cut was to make sure Karen Denbo was out of the system.

14. By fall 1992, Karen Denbo began having negative interactions with her Chickasaw Elementary School principal, Gail Pender, in Orange County. Karen Denbo attributes the problems to Ms. Pender’s finding out that Karen Denbo was the person who had the charges against the School Board of Brevard County.

15. In December 1994, the Orange County School Board placed Karen Denbo on relief duty with pay, pending investigation into allegations of falsifications of her application. She was suspended without pay in February 1995, and was recommended for termination on March 14, 1995. The administrative complaint by Superintendent, Dr. Donald Shaw alleges:

    1. The Respondent, Karen Denbo, at all times material to this Administrative Complaint, was employed as a guidance counselor by the School Board of Orange County, Florida.

    2. That Respondent, Karen Denbo, holds an annual contract of employment with Petitioner.

    3. That on or about July 6, 1994, Respondent, Karen Denbo, did falsify her Orange County Public Schools employment application which is just cause for

       termination of Respondent’s employment contract with the School Board.

       The falsifications are:

       1. Misrepresenting the reason for separation from her last public school assignment.

       2. Falsely stating her prior employment positions.

       3. Falsely identifying her immediate supervisor in her last public school assignment.

    4. That actions by the Respondent, Karen Denbo, constitute just cause for termination of her employment agreement with the School Board, for reasons including but not limited to gross insubordination, willful neglect of duty, misconduct, a violation of the code of ethics for professionals in the education profession in the State of Florida and a violation of the terms of her employment with the School Board of Orange County, Florida. Such grounds are sufficient to sever the contract status of Respondent and to terminate her employment with the School Board of Orange County, Florida.

16. When Karen Denbo stated on her employment application that her position was eliminated through budget cuts, this was the truth, if not the whole truth. She had ample basis to assume that her positions for 1991-92 and 1992-93 were eliminated. For example, and in addition to the news article and statements of her union president, Karen Denbo had a copy of this February 25, 1993, letter from Howard Hickman, Director of Personnel Services, Brevard County School Board, to the superintendent of an Indiana school district who was seeking a reference:

    Dear Superintendent Fulk:

    
    

    Please find my response to your recent letter of inquiry regarding the employment history of Ms. Karen Denbo with the School Board of Brevard County, FL.

    Ms. Denbo began her employment with the School Board of Brevard County on 08/06/86 as a Compliance Officer/Personnel Specialist.

    Her primary responsibilities were to represent the school district in issues of compliance and equity.

    
    

    Due to budget consideration, the position of Compliance Officer, along with several other district positions, was eliminated for the 1991-92 school year. Compliance and equity issues were assigned to other district employees. Ms. Denbo transferred to Challenger Elementary School as a guidance counselor in July, 1991.

    Based upon staffing priorities at Challenger

    7 Elementary School, Ms. Denbo was not reappointed for the 1992-93 school year.

    (Respondent’s Exhibit 1)

    
    

    In his deposition, Howard Hickman responded to questions by counsel for the Orange County School Board:

    By Mr. Kruppenbacher:

    Q. Mr. Hickman, am I correct that in School Board language, or School Boardese...the non- renewal of an annual contract teacher is not considered to be disciplinary action but is considered, to be the School Boards’ right to simply non-renew?

    A. That would be my understanding. (Petitioner’s Exhibit 9, p. 21, ll. 7-16)

17. Karen Denbo’s designation of Jerry Copeland as her “principal/supervisor” was likewise a justified over- simplification. He was her supervisor for four years, and the settlement agreement super-imposed him above or replaced, the two other subordinate supervisors whose roles were clouded by the charges of retaliation.

18. Jerry Copeland’s employment recommendation, in Karen Denbo’s possession and attached to her Orange County School Board application, is consistent with his role:

    July 28, 1993

    
    

    EMPLOYMENT RECOMMENDATION

    
    

    RE: Ms. Karen K. Denbo To Whom it May Concern:

    Ms. Karen K. Denbo was employed on August 6, 1986 as Compliance Officer. She bravely accepted the challenge of this assignment even though her prior experience was one of school based administration and/or guidance/student services. To accept this assignment with such confidence was appropriately interpreted by this agency as being an individual who is academically competent, professionally aggressive and with a full capacity to grasp a new job which is controlled by regulations, statutes, administrative rules, board rules, labor contracts, case law, past practice, and a list of other detailed items to numerous to mention. During this time of service, Ms.

    Denbo has responded to more employment

    charges and complaints on behalf of the district in a shorter period of time than all of her predecessors combined. To date, every case has been dismissed without a finding of probable cause, settled without economic impact on the district or referred to another agency due to circumstances beyond the control of the school system.

    
    

    Ms. Denbo has an unusual gift for the written word. These materials contain, at times, an unbelievable degree of materials requiring hours of analytical compilation.

    
    

    It is, therefore, with pleasure that I offer this unequivocal employment recommendation. To find these talents in an individual in my opinion, is unique and offers a very promising opportunity for your agency.

    Sincerely,

    
    

    Jerry P. Copeland Assistant Superintendent Personnel Services

    (Petitioner’s Composite Exhibit 1)

    
    

19. Finally, the descriptions of Karen Denbo’s positions in Brevard County on her application form are plainly descriptions of her functions, rather than formal position titles. She was a guidance counselor and revealed that; she also was an EEO/affirmative action compliance officer, and based on her own uncontroverted testimony and the several recommendations attached to her application, she directed the Brevard County School Board’s compliance in those areas. There is no evidence that she was one of several individuals performing the same function under a separate “director.”

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction in this case pursuant to Section 120.57(1), Florida Statutes.

21. The School Board of Orange County seeks to discipline Karen Denbo pursuant to Section 231.36(1)(a), Florida Statutes, which provides:

    231.36 Contracts with instructional staff, supervisors, and principals.–

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to s. 231.17 or employed pursuant to

    s. 231.1725 and shall be entitled to and

    shall receive a written contract as specified in chapter 230. 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, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

22. The School Board must prove its allegations supporting the discipline by a preponderance of the evidence. Dileo v. School Bd. Of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990); Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986). As found above, the School Board in this case failed to meet its burden of proof.

23. Karen Denbo is charged with misrepresenting her prior employment with the Brevard County School District. At most she failed to disclose that she had been involved in murky litigation with the school board, which litigation was resolved by a substantial sum of money and the revision of Karen Denbo’s employment records to reflect a positive or at least neutral experience.

24. As found above, Karen Denbo’s application to Orange County was consistent with the settlement agreement and was consistent with the complicated circumstances surrounding the end of her six-year employment in Brevard County. Her responses to the information sought on the application forms were true, and no less circumspect or more disingenuous than Jerry Copeland’s recommendation or Howard Hickman’s response to inquiry. For good

    reason, neither party cared to re-open what had been resolved by mutual agreement and through a legal process. The duty of the parties in this unique situation is not so circumscribed as the statutory duties described in Section 943.059(4), Florida Statutes, when a criminal history record is sealed by a court.

    See, Walley v. Florida Game and Fresh Water Fish Commission, 501 So. 2d 671 (Fla. 1st DCA 1987).

25. The administrative complaint describes the alleged actions by Karen Denbo as constituting “gross insubordination, willful neglect of duty, misconduct, a violation of the code of ethics for professionals in the education profession in the State of Florida, and a violation of the terms of her employment with the School Board of Orange County, Florida”. These alleged misdeeds are addressed and described in Rule 6B-4.009, Florida Administrative Code, in pertinent part:

    6B-4.009 Criteria for Suspension and Dismissal.

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    ...

    1. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

    2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a

    direct order, reasonable in nature, and given by and with proper authority.

    
    

26. The Code of Ethics, at Rule 6B-1.006(5)(g),(h), and (i), Florida Administrative Code, proscribes misrepresentation of one’s own professional qualifications and making a fraudulent statement or failing to disclose a material fact in one’s or another’s application for a professional position. Neither the underlying misrepresentations nor the elements of the violations described above were proven by the School Board in this case.

RECOMMENDATION

BASED on the foregoing, it is, hereby RECOMMENDED:

That the School Board of Orange County issue a Final Order dismissing its charges against Karen Denbo and providing back pay from the date of her suspension without pay through the end of the 1994-95 contract year.

DONE AND ORDERD this 27th day of June, 1997, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.

COPIES FURNISHED:

Frank C. Kruppenbacher, Esquire Kruppenbacher and Associates, P.A. Post Office Box 3471

Orlando, Florida 32801-3471

James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108

Orlando, Florida 32802-3108

G. Ware Cornell, Esquire Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301

Thomas H. Yardley, Esquire Building C2

1970 Michigan Avenue

Cocoa, Florida 32922

Dr. Donald Shaw, Superintendent Orange County School Board

Post Office Box 271

Orlando, Florida 32802-0271

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 must be filed with the agency that will issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 95-1561

)

KAREN DENBO, )

)

Respondent. )

)

NOTICE CLARIFYING THE RECORD

On June 27, 1997, the same date and that the recommended order was issued in this case, Respondent filed a Motion to Supplement the Record. On July 7, 1997, Petitioner filed its opposition to the Motion.

The Motion to Supplement the Record, and the attachments to the Motion s were not considered by the Administrative Law Judge, and were not removed from her in-coming mail until after the recommended order was signed and was prepared for mailing.

The Recommended Order and the record of proceeding have been sent to the agency with jurisdiction to issue a final order and the Administrative Law Judge has no further jurisdiction in the case.

DONE AND ORDERD this 8th day of July, 1997, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1997.

COPIES FURNISHED:

Frank C. Kruppenbacher, Esquire Kruppenbacher and Associates, P.A. Post Office Box 3471

Orlando, Florida 32801-3471

James G. Brown, Esquire Brown and Green, P.A. Post Office Box 3108

Orlando, Florida 32802-3108

G. Ware Cornell, Esquire Victoria Park Centre, Suite 204 1401 East Broward Boulevard Fort Lauderdale, Florida 33301

Thomas H. Yardley, Esquire Building C2

1970 Michigan Avenue

Cocoa, Florida 32922

Docket for Case No: 95-001561

Orders for Case No: 95-001561