STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF POLK COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) Case Nos. 97-0384

) 97-1873

RITA BERGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings, held a formal hearing in this matter on July 31, 1997, in Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Esquire

Lane, Trohn, Bertrand and Vreeland, P.A.

Post Office Box 1578

150 Davidson Street Bartow, Florida 33831

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 2595 Tampa Road

Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES Case No. 97-0384

1. Should Respondent's five-day suspension without pay in December 1996, for her neglect of school policy and procedure be upheld?

   Case No. 97-1873

   
   

2. Should Respondent's five-day suspension without pay in February 1997, for insubordination in failing to complete student assessments be upheld?

3. Should Respondent's employment with the School Board of Polk County, Florida, be terminated for insubordination in failing to complete required student assessments?

PRELIMINARY MATTERS

By letter dated December 10, 1996, Glenn Reynolds, Superintendent of Schools (Superintendent), advised Respondent that he was suspending her without pay for a period of five days based on her neglect of school policy and procedures. By letter dated January 17, 1997, Respondent requested a formal hearing under Chapter 120, Florida Statutes. By letter dated January 22, 1997, the School Board of Polk County (Board) referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing. This matter was assigned Case No. 97-0384. The matter was initially scheduled for hearing on April 1, 1997.

However, on March 26, 1997, the parties filed a Joint Motion to

Reschedule Hearing due to other charges being filed against the Respondent by the Superintendent that were being referred to the Division for hearing which should be consolidated with Case

No. 97-0384. Case No. 97-0384 was placed in abeyance awaiting the arrival of the second case.

By letter dated February 18, l997, the Superintendent advised Respondent that he was suspending her without pay for a period of five days for insubordination in failing to complete student assessments required by school policy and procedure. By letter dated March 19, 1997, the Superintendent advised the Respondent that he was suspending her with pay effective

March 21, 1997, and recommending to the Board that her employment be terminated based upon continued insubordination in failing to complete required student assessments. By letter dated

April 1, 1997, the Superintendent advised Respondent that the Board had approved his recommendation to terminate her employment with the Board and that the effective date of suspension without pay would be April 1, 1997. The Respondent requested a formal hearing under Chapter 120, Florida Statutes, and the matter was referred to the Division for the assignment of an Administrative Law Judge and for the conduct of a hearing. This matter was assigned Case No. 97-1863, and was consolidated with Case

No. 97-0384 for hearing.

At the hearing, the Board presented the testimony of Randall Borland, Toni Bartley, and Jonda Dement. The Board's Exhibits 1

through 29 were received as evidence. Respondent testified on her own behalf and presented the testimony of Randall Borland. Respondent's Exhibit 1 was received as evidence. By agreement of the parties, Respondent's Composite Exhibit 2 was late filed and received as evidence.

A transcript of this proceeding was filed with the Division on August 14, 1997. The parties timely filed their proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Board is the agency responsible for providing public primary, secondary, and adult education in Polk County, Florida. To facilitate that responsibility, the Board hires certified teachers for classroom and administrative activities.

2. Respondent Berger is a teacher, certified by the State of Florida. Berger has been a teacher for 34 years, the last 32 years in Polk County. Berger has taught Exceptional Student Education (ESE) since approximately 1980, Most recently, Berger has been working as an ESE teacher in Polk City Elementary School.

3. During the 1995-96 school year, Randall Borland's first year as principal of Polk City Elementary School, he observed significant discipline problems in Berger's classroom. However,

   Borland recognized that some of the students were behavior problems, and during the school year Borland worked with Berger on the discipline problem, even to the point of removing students from Berger's classroom.

4. Borland continued to observe problems in Berger's classroom at the beginning of the 1996-97 school year. In response, Borland began working with Berger to assist her management system in the classroom. Borland also observed that appropriate materials were not being used for the students at various levels.

5. In September 1996, Borland met with Berger to discuss the Professional Development Plan (PDP) which he had prepared for Berger to assist her in the improvement of the management of student conduct and the monitoring of student progress. Under the goal of monitoring student progress, Berger was to:

   1. Assess students in math, reading, and writing during the first few weeks of school.

   2. Use assessment results in prescribing appropriate instruction and materials.

   3. Continue to utilize ongoing assessment to monitor student progress.

   4. Utilize meaningful and appropriate materials during instructional practices.

6. Ongoing assessments of each student is a requirement of all teachers at Polk City Elementary School. These assessments were to be completed at the beginning of the school year and every nine-week grading period. All teachers are regularly given notice that these assessments are to be reviewed for each grading period.

7. On September 12, 1996, Borland did a classroom observation of Berger's class and reported that she appeared unprepared and unfamiliar with the materials. Borland also made recommendations to assist her in these areas.

8. Individual Education Plans (IEP) are required by State regulation for all ESE students, and the failure to timely prepare IEP's could affect the funding for those students. On September 27, 1996, Berger and another teacher at Polk City Elementary School received verbal reprimands for failing to have IEP's for all of their students.

9. Following the verbal reprimand, Borland met with Berger to discuss her failure to successfully complete her PDP. At this meeting, Borland advised Berger that he intended to request the implementation of a Notice of Evaluation of Assistance in Time (NEAT) procedure. The NEAT procedure is designed to address and improve a teacher's deficiencies.

10. Subsequently, Berger requested the Board to replace her Continuing Contract with a Professional Service Contract under Section 231.36(3)(d), Florida Statutes, and further requested that the process be expedited. The Board acted favorably on Berger's request on October 22, 1996. The effect of the change in contracts was to delay the NEAT procedure. Under the Professional Service Contract Berger would have one year to correct the deficiencies, whereas this benefit was not available under her Continuing Contract.

11. By letter dated October 18, 1996, ESE Supervisor Jonda L. Dement advised Borland that the IEP's for a number of

    students were out of compliance. It is the responsibility of the ESE teacher to have the IEP's in compliance. Some of the IEP's for Berger's students were not in compliance. Berger received a reprimand for failure to have all of her student's IEP's in compliance.

12. On November 4, 1996, the date set for teachers at Polk City Elementary School to review their assessment results with administrators, Borland met with Berger, and it was evident that her student assessments were not complete. Berger gave no explanation why the student assessment were not completed. Berger's failure to have her assessments complete resulted in her receiving a written reprimand. Additionally, Borland reviewed the importance and significance of the assessment results with Berger.

13. To assist Berger, Borland requested that ESE Supervisor Jonda Dement meet with Berger to review available assessment tools. Dement met with Berger on December 2, 1996. However, other than the assistance offered Berger by Dement as set forth in Finding of Fact 26, the record is not clear as to what assessment tools Dement offered Berger at this meeting.

14. On December 2, 1996, Assistant Principal Toni Bartley observed three students outside of Berger's classroom who remained unattended for some period of time. Bartley entered the

    back door of Berger's classroom to inquire about the students. Berger informed Bartley that she was giving a test (part of the student assessment) to a student which had to be administered individually to the student without other students present.

    Therefore, the other students had to remain outside. Upon leaving the classroom by the door where the students were located, Bartley discovered that the door was locked. Berger did not realize the door was locked. However, she admitted that she was not able to always observe the children that were outside the classroom. Subsequently, Borland and Bartley met with Berger concerning this incident. At this meeting, Berger was advised that leaving students unattended was unacceptable and that school policy required that students be supervised at all times.

15. As a result of this incident and because of prior verbal and written reprimands, Borland recommended to the Superintendent that Berger be suspended without pay. By letter dated December 10, 1996, the Superintendent suspended Berger without pay for five days. This five-day suspension is the subject matter of Case No. 97-0384.

16. Although the student assessments were due January 8, 1997, Berger was granted an extension until

    January 13, 1997. By memorandum dated December 12, 1996, Berger was advised that the ongoing assessments of her students were due January 13, 1997, and that a meeting would be held at 2:30 p.m. that day to review those assessments. However, Berger was

    granted an extension until January 15, 1997, to complete the assessments. At the January 15, 1997, meeting, it was clear that Berger's student assessments were not completed. As a result of Berger's failure to complete the student assessments, Borland recommended to the Superintendent that Berger be suspended five days without pay for insubordination.

17. By letter dated February 18, 1997, the Superintendent advised Berger that he was suspending her without pay for five days based on insubordination in failing to complete student assessments as required by school policy and procedures. This five-day suspension is the subject matter of Case No. 97-1873.

18. Review of student assessments for all teachers was scheduled for the week of March 10, 1997. Berger's appointment to review her student assessments was scheduled for

    March 14, 1997. Assistant Principal Bartley reviewed Berger's student files, and determined that numerous student assessments were missing for which there was no explanation by Berger. It is clear that Berger had failed to complete her student assessments at this time.

19. As a result of Berger's repeated and ongoing failure to follow Borland's direction to complete student assessments, Borland recommended to the Superintendent that Berger's employment be terminated due to insubordination in failing to complete student assessments as required by school policy and procedure.

20. By letter dated March 19, 1997, the Superintendent advised Berger that he was suspending her with pay effective March 21, 1997, and would recommend to the Board that her employment be terminated based upon continued insubordination in failing to complete student assessments.

21. By letter dated April 1, 1997, the Superintendent advised Berger that the Board had adopted his recommendation to suspend her without pay effective April 1, 1997, pending the outcome of the administrative hearing. The Board's adoption of the Superintendent's recommendation to terminate Berger's employment with the Board is also the subject matter of

    Case No. 97-1873.

    
    

22. Basically, prior to the 1996-97 school year, Berger had received good evaluations. Likewise, Berger has not had any serious discipline problems while employed as a teacher with the Board.

23. Berger did not verbally refuse any direct order from Borland, or anyone else with authority, to complete her student assessments. However, although she completed some of the student assessments timely, Berger failed to timely complete all of her student assessments as directed by Borland, and required by school policy and procedure.

24. Since approximately 1980, Berger has been completing county-wide assessments for her ESE students. Other than a small

    problem in 1992, Berger has successfully completed the county- wide assessments since 1980 without incident.

25. Beginning with the 1996-97 school year, Berger, along with the other ESE teacher, was required to complete school-based student assessments. At the beginning of the school year it was Berger's understanding that the students’ classroom teacher would complete the school-based assessments. After being advised that she would be responsible for completing the school-based assessments for her students in certain areas, Berger began to assemble the necessary materials to conduct the assessments.

26. Although Berger was not given any detailed explanation as to how the assessments were to be conducted, she was offered assistance by Jonda Dement, notwithstanding any testimony by Berger to the contrary. Although Dement testified that her office was not entirely familiar with this particular

    school-based assessment, she offered to have someone from her office to come and assist Berger in conducting and completing the assessments. Berger did not make a request of Dement for any assistance in conducting and completing her student assessments.

27. Berger was given ample opportunity and time to complete her student assessments.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

29. At times pertinent to this proceeding, Berger was employed by the Board under a professional services contract. Sections 231.36(1)(a) and (6)(a), Florida Statutes, in pertinent part provide:

    (1)(a) Each person employed as a member of the instructional staff of any district school system. . . . 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.

    * * *

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges against him or her must be based on just cause as provided in paragraph (1)(a). Whenever such charges are made against such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained the employee shall be immediately reinstatd, and his or her back salary shall be paid . . . .

    
    

30. Sections 6Gx53-3.005(1)(A)(4) and (B), School Board of Polk County, Policies and Procedures, provide:

    1. Authority: The superintendent has the authority to direct or arrange for the proper direction and improvement of all employees of the school system and to take the necessary steps to bring about continuous improvement.

       
       

       1. Discipline/Dismissal: Employees will be subject to discipline or dismissal for

          just cause which includes, but is not limited to, misconduct of the following nature:

          * * *

          4. Gross insubordination: A charge of gross insubordination is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, given by and with proper authority.

          
          

       2. Lawful charges: The superintendent shall not be limited to statutory "just cause" provisions in connection with employees' misconduct and may utilize any lawful, rational, non-arbitrary,

    non-statutory, reason for employee discipline or dismissal, subject to approval of the Board. (emphasis furnished)

31. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino vs. Department of Health and rehabilitative Services, 348 So. 2d 349 (2nd DCA Fla. 1977). The Board has the burden of proving such allegation by a preponderance of the evidence. Dileo vs. School Board of Dade County, 569 So. 2d 883 (3rd DCA Fla. 1990).

32. The Board has met its burden of showing that Berger left the children unsupervised on December 2, 1996. However, a five-day suspension under the circumstances of this case is too severe a penalty in light of the fact that it was Berger's first incident of being charged with violating school board policy and procedures by leaving students unsupervised in 32 years of employment with the Board, and no harm came to the students.

33. As to the second five-day suspension in February 1997 and her termination, the Board has met its burden to show that

Berger was insubordinate in that although she did not verbally refuse to obey Borland's direct order to complete the student assessments, Berger was insubordinate in her action by not completing the student assessments when she had the ability and the time to complete them. However, while the five-day suspension is reasonable, termination under the facts of this case is too severe of a penalty. Certainly, an employee with her amount of service to the Board deserves an opportunity to rectify the problem.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board: (a) In Case No. 97-0384 enter a final order rescinding the Superintendent's five-day suspension and giving Berger a written reprimand; (b) In Case No. 97-1873 that the Board enter a final order sustaining the Superintendent's five-day suspension, but rather than terminating Berger, place her on a probationary status, which would allow her to correct any deficiency that the Board feels is necessary.

Additionally, Berger should not be entitled to any back pay since the Board’s suspension.

DONE AND ENTERED this 12th day of September, 1997, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire LANE, TROHN, CLARKE, BERTRAND,

VREELAND & JACOBSEN, P.A.

Post Office Box 1578

150 Davidson Street Bartow, Florida 33831

Mark Herdman, Esquire

HERDMAN and SAKELLARIDES, P.A.

2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Mr. Glenn Reynolds

Superintendent of Polk County School 1915 South Floral Avenue

Bartow, Florida 33830-0391

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: 97-000384

Orders for Case No: 97-000384