STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF MIAMI-DADE ) COUNTY, FLORIDA, )
)
Petitioner, )
)
vs. ) Case No. 98-0623
)
MARILYN L. KLUMPJAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on October 20, 1998, in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
For Respondent: Marilyn L. Klumpjan, pro se
2330 Largo Drive
Miramar, Florida 33032 STATEMENT OF THE ISSUE
Whether the Respondent should be terminated from her employment with the Petitioner.
PRELIMINARY STATEMENT
In a letter dated January 15, 1998, the School Board of Miami-Dade County, Florida ("School Board"), notified Marilyn L.
Klumpjan that it had suspended her from employment with the Miami-Dade County Public Schools and initiated dismissal proceedings against her. The suspension was effective January 14, 1998, and it was alleged in the letter that the action taken was for just cause, including "gross
insubordination, willful neglect of duty, excessive absenteeism, incompetency (due to incapacity), and absence without leave." Ms. Klumpjan timely requested a formal administrative hearing, and the School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge.
On February 12, 1998, the School Board filed its Notice of Specific Charges, in which it charged in Count I that
Ms. Klumpjan had committed gross insubordination and willful neglect of duties by constantly and/or continually refusing to obey direct orders; in Count II that Ms. Klumpjan had committed misconduct in office by engaging in conduct which impaired her effectiveness in the school system; in Count III that
Ms. Klumpjan was incompetent as a result of incapacity because she had demonstrated a lack of emotional stability; in Count IV that Ms. Klumpjan had engaged in conduct unbecoming a school board employee; and in Count V that Ms. Klumpjan was willfully absent without leave and/or was guilty of excessive absenteeism due to her absence from the workplace from May 16, 1997, until her suspension. At the hearing, the Petitioner requested leave
to amend paragraph 3 of the Notice of Specific Charges to correct a typographical error by substituting Section "230.03" for "23.03." This request for leave to amend was granted.
At the hearing, the School Board presented the testimony of eight witnesses: Larry Harmon, Ph.D., an expert in psychology; Gary Fishman, O.D., an expert in psychiatry; Louise Schmitt, coordinator for occupational and physical therapy for the School Board; Esther McVoy, a speech/language pathologist employed by the School Board; Pamela Brannen, a registered physical therapist employed by the School Board; Shelley Quittmar, a registered occupational therapist employed by the School Board; Audrey Cannistraci, a physical therapist assistant employed by the School Board; and Thomasina O'Donnell, Ph.D., director of the School Board's Office of Professional Standards. Petitioner's Exhibits 1 through 14 were offered and received into evidence.
Ms. Klumpjan testified in her own behalf, and Respondent's Composite Exhibit 1 was offered and received into evidence.
No transcript was filed in this case, but the School Board timely submitted proposed findings of fact and conclusions of law, which have been duly considered.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Miami-Dade County School Board is responsible for operating, controlling, and supervising all public schools in the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997).
Ms. Klumpjan is employed by the School Board as a certified occupational therapist assistant. She has worked for the School Board in this position for approximately 17 years, first as an employee of an outside agency under contract with the School Board and, since 1988, as the School Board's direct employee.
Certified occupational therapist assistants are classified by the School Board as educational support employees, and the terms of Ms. Klumpjan's employment are governed by the contract between Dade County Public Schools and the United Teachers of Dade.
Occupational therapy is provided in the Miami-Dade County public schools to children who have been referred for the service by a physician. The goal of the therapy is to improve fine motor and functional living skills and, generally, to assist students in improving their ability to access education.
When a student is referred for occupational therapy, the registered occupational therapist assigned to the student's school consults with the student's teachers and other professionals regarding the student's needs, evaluates the
student, and develops an individualized occupational therapy program for the student. If the student is in the exceptional student education program, the occupational therapy program becomes part of the student's individualized educational program.
Certified occupational therapist assistants carry out the treatment programs developed by registered occupational therapists, who supervise the work of the certified occupational therapist assistants. The formal job description for a certified occupational therapist assistant in the Miami-Dade County school system provides in pertinent part:
BASIC OBJECTIVES
The Certified Occupational Therapist Assistant (COTA) is responsible for the application of occupational therapist procedures under the direction of a Registered Occupational Therapist whose license in Florida is in good standing. The occupational therapist assistant must also be responsible for carrying out the responsibilities set forth by the supervisory [sic] of the physical and occupational therapist program. The occupational therapist assistant is responsible to the managing registered occupational therapist.
JOB TASKS/RESPONSIBILITIES
Implements treatment programs appropriate to the student's specific needs, as designated by the managing therapist.
Meets periodically with managing occupational therapist for the purpose of reviewing the individual student's status.
Documents any change in student status, treatment program, family visits, consultation with other health personnel.
Established and maintains appropriate working relationships with school staff, parents, and health care personnel.
Consults with managing occupational therapist prior to contacting the student's physician regarding problems and/or unusual changes in a student's program.
Coordinates and schedules all treatment sessions for established students.
Coordinates and schedules all treatment sessions for established students.[sic]
Participates in DCPS inservice programs.
Observes medical ethics.
Conforms to DCPS policies and procedures.
Assists in orientation and training of personnel new to the department.
Maintains the therapy-area equipment by sanitizing and cleaning mats and other materials and equipment.
Coordinates and/or assists in the preparation of materials for student use.
Throughout the years she worked in the Miami-Dade County public school system, Ms. Klumpjan was considered a competent occupational therapist who worked well with the children in her care. Her job performance evaluations consistently rated her work as satisfactory. Nonetheless, since 1988, Ms. Klumpjan has worked at several schools in the Miami-Dade County public school system, having been transferred at the end of the 1989, 1990, 1991, 1992, and 1993 school years. Each time she was transferred, Louise Schmitt, one of the coordinators of the Miami-Dade County public school system's physical and
occupational therapy program, discussed with her the reasons for the transfer, specifically, her inability to get along with her fellow therapists and other education professionals with whom she worked.
Ms. Klumpjan was transferred to Arcola Lake Elementary School in July 1993. The students at Arcola Lake Elementary School are all in the exceptional student education program and have individualized educational programs. In meeting the needs of these students, the school staff, including the therapists and therapist assistants (referred to herein collectively as
"co-workers"), work together as a team to provide the services necessary for the students to access education. At Arcola Lake Elementary School, Ms. Klumpjan and her co-workers also worked in close physical proximity with one another.
In the opinion of a number of her co-workers, including her direct supervisor, Ms. Klumpjan's attitude and behavior made working with her very difficult. She was defensive and combative with her direct supervisor and with her co-workers, who were intimidated and threatened by her and avoided engaging her in conversation about either work-related or general subjects.
Ms. Klumpjan constantly made negative comments regarding the actions of her co-workers and her supervisors, as well as about school procedures and policies. Ms. Klumpjan continually complained that no one would sit down and "hear her out" about her concerns.
For several years, but especially in the months immediately prior to March 1997, Ms. Klumpjan's co-workers observed her become increasingly quick to anger about minor incidents, exhibit increasingly paranoid behavior, and express increasingly paranoid thoughts, including her often-stated conviction that there is a conspiracy against her among her
co-workers, who she believes are agents of the FBI and the CIA. Her co-workers also observed her become more unreasonable, defensive, combative, and vindictive whenever anyone questioned her about her work or her ideas. Ms. Klumpjan talked incessantly about religion and also articulated increasingly bizarre thoughts, including her belief that certain school personnel were practicing voodoo and were engaged in spiritual warfare against persons in the school. When her ideas were challenged by
co-workers, Ms. Klumpjan invariably insisted that her perception of reality was the correct one.
On several occasions, both Ms. Klumpjan's direct supervisor and her co-workers were aware that she did not follow written occupational therapy programs developed by her supervisor or her supervisor's specific instructions regarding the therapy to be given to particular students. Nonetheless, Ms. Klumpjan's supervisor found it difficult to make any adverse comments or to criticize her work because Ms. Klumpjan did not respond reasonably; consequently, her supervisor simply avoided confronting Ms. Klumpjan, even though the supervisor recognized
that her avoidance could impact negatively on the care given the students. Other therapists, therapist assistants, and teachers avoided consulting with Ms. Klumpjan regarding the care to be given students.
Ms. Klumpjan's co-workers became particularly concerned when she discussed an incident in which a person in Broward County had gone to the office of his former employer and killed several of his former co-workers. Ms. Klumpjan stated that she understood why a person would do such a thing, and she attributed the motive for the shootings to the failure of people to listen to the killer's concerns. Because this was one of Ms. Klumpjan's frequent complaints about her supervisors and because of her increasingly bizarre behavior, Ms. Klumpjan's co-workers began to fear for their safety.
In March 1997, several of Ms. Klumpjan's co-workers went to Louise Schmitt, one of the two coordinators of the Miami- Dade County public school system's physical and occupational therapy program, and told her that they found it impossible to work with Ms. Klumpjan and that they felt that her inappropriate behavior was becoming more pronounced, creating a great deal of tension among the staff at Arcola Lake Elementary School and causing them to fear for their safety. Dr. Fishman asked them to write letters to her describing the behaviors that caused them concern. When Ms. Schmitt reviewed the letters she received in
response to this request, she contacted the School Board's Office of Professional Standards.
On March 13, 1997, Ms. Klumpjan was relieved of her duties at Arcola Lake Elementary School and told to report for an alternate work assignment at the Region I administrative office.
Thomasina O'Donnell, Director of the School Board's Office of Professional Standards, scheduled a Conference-for-the- Record for March 20, 1997. At the conference, the letters and concerns of Ms. Klumpjan's co-workers and supervisors were reviewed, and Ms. Klumpjan's fitness for duty was discussed. While not specifically denying the statements and behavior attributed to her in the letters, Ms. Klumpjan stated that her statements and behavior were "blown out of proportion" by her
co-workers.
At the March 20 conference, Ms. Klumpjan was given a list of doctors approved by the School Board and asked to select one to conduct an evaluation of her fitness to continue work. Her March 13, 1997, alternate work assignment to the Region I office was ratified, and Ms. Klumpjan was directed not to contact
anyone at Arcola Lake Elementary School or anyone who had written a letter outlining their concerns about her. Finally,
Ms. Klumpjan was given a supervisor's referral to the School Board's Employee Assistance Program. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any non-compliance with the stipulated activities
would compel District disciplinary measures to include suspension, demotion, or dismissal."
Ms. Klumpjan chose not to participate in the Employee Assistance Program. However, on April 7, 1997, she was evaluated by Gary L. Fishman, D.O., a psychiatrist who has done "Fitness to Return to Work" evaluations for the School Board for the past ten years. Dr. Fishman spent approximately two hours interviewing Ms. Klumpjan and concluded that she suffers from a major psychiatric disorder evidenced by pronounced paranoid delusional symptoms. In his report, Dr. Fishman described Ms. Klumpjan as appearing "fragile, alone and isolated" and observed that she appeared to be out of touch with reality and completely unaware of the negative effect her comments and behavior had on her
co-workers.
In Dr. Fishman's opinion, Ms. Klumpjan was not capable of carrying out several of the job responsibilities assigned to certified occupational therapist assistants. Specifically,
Dr. Fishman felt that, because of her problems dealing with others, her disturbed thinking patterns, and her impaired judgment, Ms. Klumpjan could not successfully consult with the managing occupational therapist, she could not establish and maintain appropriate working relationships with school staff and others, and she could not assist in training new personnel.
Dr. Fishman counselled against allowing Ms. Klumpjan to resume her duties as a certified occupational therapist assistant
until she received adequate medical and psychiatric care.
Dr. Fishman recommended that Ms. Klumpjan receive a comprehensive medical examination from the physician of her choice, preferably an internal medicine specialist; that she have a complete psychological battery and profile prepared; and that she be referred for psychotherapy.
A second Conference-for-the-Record was held on April 16, 1997, in order to review Dr. Fishman's report.
Ms. Klumpjan was informed that she would not be allowed to return to work until she had met three conditions, which were essentially the recommendations made by Dr. Fishman: First,
Ms. Klumpjan was told to have a comprehensive medical examination; second, she was told to obtain a complete psychological battery; and third, she was told to participate in a psychotherapy program. Ms. Klumpjan was informed that she could return to work only when cleared by Dr. Fishman, and she was again warned not to contact anyone at Arcola Lake Elementary School. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance with the stipulated conditions would result in the recision [sic] of site disciplinary action and compel District disciplinary measures to include suspension, demotion, or dismissal."
Ms. Klumpjan was absent without leave from her alternate work assignment beginning on May 16, 1997.
Ms. Klumpjan was examined on June 25, 1997, by Larry Harmon, Ph.D., a clinical psychologist who works with the School Board's Employee Assistance Program and who was asked to evaluate Ms. Klumpjan's fitness to return to work. Dr. Harmon diagnosed Ms. Klumpjan with paranoid personality disorder; this diagnosis was based on his clinical interview, the results of
Ms. Klumpjan's mental status exam, corroborative information, and the results of psychological testing. Although Ms. Klumpjan tested within the normal range on the psychological tests,
Dr. Harmon is of the opinion that the results on several of the tests, including the Minnesota Multiphasic Personality-2, the Millon Clinical Multiaxial Inventory-III, and the Beck Depression Inventory, are not valid indicators of her true psychological condition.
Dr. Harmon is particularly concerned about
Ms. Klumpjan's very deep-seated delusions of persecution, together with her unshakable conviction that her delusions are true and accurately reflect reality. In his report, which is dated July 28, 1997, Dr. Harmon noted that Ms. Klumpjan refused to acknowledge that her behavior and comments in the workplace were inappropriate and would not agree to refrain from voicing her thoughts and suspicions to her co-workers, insisting that she has the right to speak the truth. Ms. Klumpjan rejected any suggestion that she should change her behavior at work and steadfastly attributed the "problem" to her co-workers.
Consequently, Dr. Harmon predicted that the poor interpersonal work relationships would continue and, most likely, worsen.
Dr. Harmon found that, even though Ms. Klumpjan is paranoid, she has no history of violence and is unlikely to pose a threat to the health and safety of the school staff and students. In his opinion, however, Ms. Klumpjan is unfit for duty because her symptoms of paranoia impair her ability to maintain the interpersonal work relationships necessary to carry out those job responsibilities of a certified occupational therapist assistant that require cooperation and working with others. Dr. Harmon also noted in his report that Ms. Klumpjan adamantly refused to consider seeking psychotherapeutic treatment; in his opinion, Ms. Klumpjan's symptoms will worsen unless she receives such treatment.
Ms. Klumpjan was examined by her physician on July 1 and 2, 1997, and the results of the examination,
laboratory work, and EKG were sent to the School Board's Office of Professional Standards.
A Conference-for-the-Record was held on August 19, 1997, for the purpose of addressing Ms. Klumpjan's medical fitness to perform her assigned duties and her future employment in the Miami-Dade County public school system. At the conference, Ms. Klumpjan was again advised that services were available from the School Board's support referral agency, the Employee Assistance Program. She was given the opportunity to
resign her position with the Miami-Dade County public school system, but she was directed to arrange for medical leave if she chose not to resign, with the caveat that she must apply for leave by September 19, 1997, or face an employment action for abandonment of position. Ms. Klumpjan was encouraged to seek psychological treatment and was advised that she would be considered for re-employment only when she had successfully completed treatment and received a medical clearance from
Dr. Harmon. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any
noncompliance, with the stipulated condition, would result in District disciplinary measures to include dismissal."
In a memorandum dated October 15, 1997, entitled "Employment Intention," Dr. O'Donnell notified Ms. Klumpjan that, because she had been absent from her employment since May 16, 1997, she must notify her worksite immediately regarding her employment intentions. Dr. O'Donnell also directed Ms. Klumpjan to implement one of four options: She could comply with the conditions of employment imposed at the August 19, 1997, Conference-for-the-Record; she could notify the Office of Professional Standards of the date she intended to return to work; she could resign from her employment with the Miami-Dade County public school system; or she could initiate the retirement process.
Ms. Klumpjan did not respond to this memorandum and, in a letter dated October 27, 1997, she was informed that she had been absent from her employment with the Miami-Dade County public school system without authorized leave. She was further advised that the School Board would take action to dismiss her from her employment for willful neglect of duty and that, if she did not request a review of the facts relating to her termination within
10 days of the date she received the letter, the matter would be submitted to the School Board for final action.
In a letter dated November 7, 1997, to Dr. Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, Ms. Klumpjan stated that she had not been willfully absent from her duties but was absent because of actions taken against her by the Office of Professional Standards. She explained that she was abruptly removed from her duties at Arcola Lake Elementary School and told to report for work to Ms. Martha Boden. Ms. Klumpjan stated that she was willing to return to her duties as a certified occupational therapist assistant on November 10, 1997.
Nothing further was heard from Ms. Klumpjan, and, at its January 14, 1998, meeting, the School Board suspended her from employment with the school system, without pay.
Ms. Klumpjan had not, as of the final hearing, participated in psychotherapy, resigned her position, or applied for medical leave.
The evidence presented by the School Board is sufficient to establish that Ms. Klumpjan committed gross insubordination, that she committed misconduct in office, that she is incompetent because of incapacity, and that she was willfully absent from duty without leave. These violations are sufficient to constitute just cause for the termination of her employment with the School Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (1997).
Because this case is a proceeding to terminate
Ms. Klumpjan's employment and does not involve the loss of a license or certification, the School Board has the burden of proving the allegations in the Notice of Specific Charges by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990).
Section 230.23(5), Florida Statutes (1995), provides that a school board has the power to suspend and dismiss employees as follows:
(f) Suspension and dismissal and return to annual status.--Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may
be discharged, removed or returned to annual contract except as provided in chapter 231.
Certified occupational therapist assistants are classified as educational support employees pursuant to Section 231.3605(1)(a), Florida Statutes:
"Educational support employee" means any person employed by a district school system who is so employed as a teacher aide, a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725.
This section does not apply to persons
employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require 20 or more hours in each normal working week.
Section 231.3605(2)(b), Florida Statutes, defines the conditions under which an educational support employee can be terminated and provides as follows:
Upon successful completion of the probationary period by the [educational support] employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a districtwide basis for financial reasons.
The collective bargaining agreement that governs Ms. Klumpjan's employment with the Miami-Dade County public
school system provides that educational support employees can be terminated from employment by the School Board for just cause and that just cause for termination can be based on those infractions defined in Rule 6B-4.009, Florida Administrative Code. See Article V, Section 1, and Article XXI, Section 3D, of the contract between the Dade County Public Schools and the United Teachers of Dade.
In Count I of the Notice of Specific Charges, the School Board claims that Ms. Klumpjan's employment should be terminated on the grounds of insubordination and willful neglect of duties. This offense is defined in Rule 6B-4.009(4) as follows: "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." In determining the meaning of the term "intentional" as used in the definition of gross insubordination found in Rule 6B-4.009(4), the court in Forehand v. School Board of Gulf County, 600 So. 2d 1187, 1193 (Fla. 1st DCA 1992), stated: "An 'intentional' act has been defined as one 'done deliberately.'" (Citation omitted.)
The evidence presented by the School Board establishes that Ms. Klumpjan has a paranoid personality disorder that significantly inhibits her ability to maintain the interpersonal work relationships necessary for her to carry out those job responsibilities of a certified occupational therapist assistant
that require interaction, consultation, and cooperation with others. Both Dr. Fishman and Dr. Harmon are of the opinion that Ms. Klumpjan cannot successfully fulfill her job responsibilities as a certified occupational therapist assistant unless she receives psychotherapy. Ms. Klumpjan unequivocally rejected
Dr. Harmon's suggestion that she needed psychotherapy to help her modify her behavior at work.
The requirement that Ms. Klumpjan seek treatment for her mental condition through psychotherapy was included as a condition of employment in the Conferences-for-the-Record held April 16, 1997, and August 19, 1997; at the August 19 conference, Ms. Klumpjan was also directed to apply for medical leave or to resign her position, with consideration to be given to her
re-employment by the School Board upon successful completion of psychological treatment. In the School Board's Intention of Employment letter dated October 15, 1997, one of the options presented to Ms. Klumpjan was that she comply with the conditions of employment imposed at the August 19 conference. The orders that she obtain psychotherapy or apply for medical leave were direct, reasonable, and given by a person with authority to give such orders, and her continued refusal to obey these orders was intentional, as that term is defined in Forehand. Therefore, based on the facts found herein, the School Board has proven by a preponderance of the evidence that Ms. Klumpjan has committed
gross insubordination, in violation of Rule 6B-4.009(4), Florida Administrative Code.
In Count II of the Notice of Specific Charges, the School Board claims that Ms. Klumpjan's employment should be terminated on the grounds of misconduct in office. Misconduct in office is defined in Rule 6B-4.009(3) as follows:
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.
The School Board identified the following provisions of the Code of Ethics, found in Rule 6B-1.001, Florida Administrative Code, as those violated by Ms. Klumpjan:
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.
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.
The School Board identified the following provisions of the Principles of Professional Conduct, found in Rule 6B-1.006, Florida Administrative Code, as those violated by Ms. Klumpjan:
Obligation to the student requires that the individual:
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.
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Obligation to the public requires that the individual:
Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.
Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
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Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
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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.
Shall not make malicious or intentionally false statements about a colleague.
The evidence presented by the School Board fails to establish that Ms. Klumpjan's behavior reflected a lack of professional concern for the students to whom she provided occupational therapy or for the development of the students' potential. Although there was some testimony that Ms. Klumpjan sometimes deviated from the occupational therapy treatment plans in the therapy she provided some students, this testimony was not sufficiently specific to establish that she did so out of a lack of concern for the students. The evidence presented by the School Board likewise fails to establish that Ms. Klumpjan did not "achieve and sustain the highest degree of ethical conduct." Therefore, based on the facts found herein, the School Board has not proven by a preponderance of the evidence that Ms. Klumpjan committed misconduct in office by violating Rule 6B-1.001(2) or (3), Florida Administrative Code.
The evidence presented by the School Board fails to establish that Ms. Klumpjan exposed the students with whom she worked to conditions harmful to their learning, their health, or their safety. Although there was testimony that Ms. Klumpjan was observed on several occasions leaving disabled students at the activity table and moving an unspecified distance away from them, this testimony was not sufficiently specific to establish that Ms. Klumpjan created a condition harmful to any student's ability to learn or to his or her health or safety. Based on the findings of fact herein, the School Board failed to prove by a preponderance of the evidence that Ms. Klumpjan committed misconduct in office by violating Rule 6B-1.006(3)(a), Florida Administrative Code.
Implicit in a violation of Rule 6B-1.006(4) is the requirement that the School Board employee be involved in some type of interaction with the public during which the employee expresses his or her personal views or distorts or misrepresents facts concerning an educational matter. The evidence presented by the School Board fails to establish that Ms. Klumpjan made any public expression of her opinions, either directly or indirectly. Therefore, based on the facts found herein, the School Board has failed to prove by a preponderance of the evidence that
Ms. Klumpjan committed misconduct in office by violating Rule 6B- 1.006(4)(a) or (b), Florida Administrative Code.
The evidence presented by the School Board fails to establish that Ms. Klumpjan was not honest in her professional dealings or that she made malicious or intentionally false statements about a colleague. The overwhelming weight of the evidence establishes that Ms. Klumpjan suffers from a mental disorder that affects her ability to perceive reality in the same way others perceive it and which renders her incapable of judging the reaction of others to her behavior, comments, and the ideas she articulates. Ms. Klumpjan is totally convinced of the truth of her perception of reality, and, therefore, the comments she made about colleagues were not made with malice and were not intentionally false. Based on the facts found herein, the School Board has failed to prove by a preponderance of the evidence that Ms. Klumpjan committed misconduct in office by violating
Rule 6B-1.006(5)(a) or (e), Florida Administrative Code.
The evidence presented by the School Board is sufficient to establish that, whether intentional or not, Ms. Klumpjan harassed her co-workers and created a hostile,
intimidating, and oppressive environment in the workplace. To "harass" is defined in Webster's New Twentieth Century Dictionary (2d ed. 1980) as to "trouble, worry, or torment, as with cares, debts, repeated questions, etc." Ms. Klumpjan continually complained to her co-workers about the actions taken and decisions made by her superiors; she disagreed and argued with her supervisors regarding the proper therapy plans for the
students under her care and reacted in a hostile manner when her opinions or actions were questioned; she continually expressed to her co-workers her theories about conspiracies against her among school personnel, about the practice of voodoo at the school, and about spiritual warfare being waged at the school; and she expressed what her co-workers interpreted as her understanding of, and sympathy for, persons who commit violence in the workplace. As a result of Ms. Klumpjan's behavior, her direct supervisor and other co-workers ultimately refused to work with her. Based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Ms. Klumpjan committed misconduct in office by violating Rule 6B-1.006(5)(d), Florida Administrative Code, and that her conduct was so serious that her effectiveness in the school system was impaired.
In Count III of the Notice of Specific Charges, the School Board claims that Ms. Klumpjan's employment should be terminated on the grounds of incompetency based on incapacity.1 "Incompetency" is defined in Rule 6B-4.009(1), Florida Administrative Code, which provides in pertinent part:
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:
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(b) 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.
The evidence presented by the School Board is sufficient to establish that Ms. Klumpjan suffers from Paranoid Personality Disorder with delusions of persecution. This mental disorder causes her to be emotionally unstable, and she is unfit to perform those duties of a certified occupational therapist assistant that require interaction with co-workers and others. Based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Ms. Klumpjan is incompetent as a result of incapacity, pursuant to Rule
6B-4.009(1)(b), Florida Administrative Code.
In Count IV of the Notice of Specific Charges, the School Board claims that Ms. Klumpjan's employment should be terminated because she engaged in conduct unbecoming a School Board employee. The School Board bases this claim on School Board Rule 6Gx13-4A-1.21(I), which sets forth the responsibilities and duties of permanent School Board employees. Subsection I of Rule 6Gx13-4A-1.21 provides:
Employee conduct
All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such,
they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly forbidden.
The evidence presented by the School Board fails to establish that Ms. Klumpjan engaged in unseemly conduct or used abusive or profane language in the presence of students or others. Although there was some testimony that she may have made inappropriate comments in front of students, this testimony was not sufficiently specific to establish that Ms. Klumpjan conducted herself in an unseemly manner in front of students.
The evidence presented by the School Board related only to
Ms. Klumpjan's interaction with her co-workers in the workplace. There was no evidence that Ms. Klumpjan ever conducted herself in the presence of students, parents, or in public in a manner that would reflect discredit on herself or the school system. Based on the findings of fact herein, the School Board has failed to prove by a preponderance of the evidence that Ms. Klumpjan has engaged in conduct unbecoming a School Board employee.
In Count V of the Notice of Specific Charges, the School Board claims that Ms. Klumpjan's employment should be terminated because she was absent from work without leave. The School Board bases this claim on School Board Rule 6Gx13-4E- 1.011, which governs absences and leaves and provides:
No leave shall be granted for any reason without prior approval of the Superintendent
of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without such prior approval, shall be deemed to have been willfully absent without leave.
The School Board also relies on Section 231.44, Florida Statutes, which provides: "Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board."
The evidence presented by the School Board establishes that Ms. Klumpjan was absent from her alternate work assignment without leave from May 16, 1997, until the School Board suspended her from employment on January 14, 1998. The evidence presented by the School Board also establishes that Ms. Klumpjan was informed twice in writing that she must either resign her position with the School Board or arrange for medical leave, and she failed to do either. Based on the findings of fact herein, the School Board has proven by a preponderance of the evidence that Ms. Klumpjan was willfully absent from duty without leave from May 16, 1997, until her suspension by the School Board on January 14, 1998. Pursuant to Section 231.44, this provides a ground for terminating her employment with the School Board.
In summary, the School Board has proven by a preponderance of the evidence that Ms. Klumpjan committed gross insubordination, as alleged in Count I of the Notice of Specific Charges; that she committed misconduct in office, as alleged in
Count II of the Notice of Specific Charges; that she is incompetent because of incapacity, as alleged in Count III of the Notice of Specific Charges; and that she was willfully absent from duty without leave, as alleged in Count V of the Notice of Specific Charges. The School Board has, therefore, established just cause for terminating Ms. Klumpjan's employment pursuant to Article XXI, Section 3D, of the contract between the Dade County Public Schools and the United Teachers of Dade.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order
Sustaining Marilyn L. Klumpjan's suspension without
pay,
Terminating the employment of Marilyn L. Klumpjan for
just cause, and
Dismissing Count IV of the Notice of Specific Charges dated February 9, 1998.
DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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
Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998.
ENDNOTE
1/ The School Board argues in its Proposed Recommended Order that Ms. Klumpjan is incompetent because of inefficiency, based on her alleged "repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes)." Rule 6B-4.009(1)(a)(1), Florida Administrative Code. This claim was not included in the Notice of Specific Charges and, therefore, cannot be a ground upon which to terminate Ms. Klumpjan's employment with the School Board. Cf. Cottrill v. Department of Insurance, 685 So. 2d. 1371 (Fla. 1st DCA 1996).
COPIES FURNISHED:
Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400
Miami, Florida 33132
Marilyn L. Klumpjan 2330 Largo Drive
Miramar, Florida 33032
Frank T. Brogan Commissioner of Education Department of Education
The Capital, Plaza Level 08 Tallahassee, Florida 32399-0400
Roger C. Cuevas, Superintendemt Miami-Dade County School Board School Board Administration Building 1450 Northeast Second Avenue
Miami, Florida 33132
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.
1 The School Board argues in its Proposed Recommended Order that Ms. Klumpjan is incompetent because of inefficiency, based on her alleged "repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes)." Rule 6B-4.009(1)(a)(1), Florida Administrative Code. This claim was not included in the Notice of Specific Charges and, therefore, cannot be a ground upon which to terminate Ms. Klumpjan's employment with the School Board. Cf. Cottrill v. Department of Insurance, 685 So. 2d. 1371 (Fla. 1st DCA 1996).
| Issue Date | Proceedings |
|---|---|
| Dec. 15, 1998 | Final Order filed. |
| Nov. 18, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 10/20/98. |
| Oct. 27, 1998 | Letter to M. Klumpjan from M. Schere Re: Sample proposed recommended order (No Enclosure) filed. |
| Oct. 26, 1998 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 20, 1998 | CASE STATUS: Hearing Held. |
| Jun. 15, 1998 | Order Cancelling and Rescheduling Hearing sent out. (hearing reset for Oct. 20-21, 1998; 9:00am; Miami) |
| Jun. 10, 1998 | Order Permitting Withdrawal of Counsel for Respondent sent out. (for L. Meek) |
| Jun. 01, 1998 | Petitioner`s Motion to Reset Hearing (filed via facsimile). |
| May 28, 1998 | Order Rescheduling Hearing sent out. (hearing set for June 18 & 19, 1998; 9:00am; Miami) |
| May 27, 1998 | Petitioner`s Amended Motion to Set Hearing (filed via facsimile). |
| May 27, 1998 | (Petitioner) Motion to Set Hearing (filed via facsimile). |
| May 27, 1998 | (Leslie Meek) Unopposed Motion to Withdraw (filed via facsimile). |
| May 13, 1998 | Order Denying Amended Motion to Withdraw and Canceling Hearing sent out. (parties to file joint status report by 5/22/98) |
| May 10, 1998 | Petitioner`s Response to Amended Motion to Withdraw (filed via facsimile). |
| May 08, 1998 | (Respondent) Amended Motion to Withdraw (filed via facsimile). |
| May 08, 1998 | (Respondent) Motion to Withdraw (filed via facsimile). |
| May 07, 1998 | Petitioner`s Unilateral Prehearing Statement (filed via facsimile). |
| Mar. 11, 1998 | Notice of Hearing sent out. (hearing set for May 18-19, 1998; 10:00am; Miami) |
| Mar. 11, 1998 | Prehearing Order sent out. |
| Feb. 20, 1998 | Letter to Judge Malono from Madelyn Schere (RE: Request for Subpoenas) filed. |
| Feb. 17, 1998 | Joint Response to Initial Order filed. |
| Feb. 12, 1998 | (Petitioner) Notice of Specific Charges filed. |
| Feb. 10, 1998 | Initial Order issued. |
| Feb. 05, 1998 | Agency referral letter; Request for Administrative Hearing, letter form; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 10, 1998 | Agency Final Order | |
| Nov. 18, 1998 | Recommended Order | Occupational therapy assistant should be terminated from employment for misconduct in office, incompetence due to incapacity, gross insubordination, and absence without leave. |
