STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF HENDRY COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 99-3518

)

ANNETTE BENNETT-EDWARDS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing on December 14, 1999, in LaBelle, Florida.

APPEARANCES

For Petitioner: Richard G. Groff, Esquire

Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman Post Office Box 2089

Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUE

Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?

PRELIMINARY STATEMENT

By letter dated May 19, 1999, Edward A. Upthegrove, Superintendent of Schools for Hendry County, advised Respondent that based upon the recommendation of R. Scott Cooper, Principal, LaBelle Middle School (LMS), he was recommending to the Board that Respondent's employment with the District School Board of Hendry County be terminated. Attached to the Superintendent's letter was a Recommendation for Termination before the School Board of the School District of Hendry County, Florida, wherein the Superintendent recommended that Respondent's employment be terminated. The Superintendent's recommendation for dismissal was based on the Hendry County School Board Policy 218. On

May 25, 1999, the Board approved the Superintendent's recommendation and terminated Respondent's employment. By letter dated June 8, 1999, Respondent, through counsel, requested a formal hearing in accordance with Article 8, Section 8.09(b), Collective Bargaining Agreement Between the District School Board of Hendry County and the Hendry County Educational Support Personnel Association (Collective Bargaining Agreement), for the period July 1, 1998, to June 30, 2001 and the Florida law. A Petition for Dismissal dated August 13, 1999, was filed with the Division of Administrative Hearings (Division) on August 17, 1999, along with a Request For Hearing referring the matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, the Board presented the testimony of Annette Bennett-Edwards, Jodi Bell, Patricia Steel, Erin Berg Hayes, Dorothy Anne Lomago, and Robert Scott Cooper. Petitioner's Exhibits numbered 1 through 12 were admitted in evidence.

Respondent testified in her own behalf and presented the testimony of Cathy Lipford. Respondent's Exhibits numbered 1 through 11 were admitted in evidence.

A Transcript of this proceeding was filed with the Division on January 20, 2000. By agreement between the parties at the hearing, additional time was granted to file proposed recommended orders with the understanding that any time constraint imposed under Rule 28-1.06.216(1), Florida Administrative Code, was waived in accordance with Rule 28-1.06.216(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders under the extended time frame.

FINDINGS OF FACT

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

1. At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS.

2. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement

3. Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three

   (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis

   furnished).

   
   

4. Respondent was first employed with the HCSD on

   
   

   August 18, 1986, and worked continuously through May 25, 1999, when she was terminated.

5. Since Respondent achieved "continued employment status," she can only be terminated for "just cause."

6. The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218.

7. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year.

8. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear.

9. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent.

10. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone.

11. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension.

12. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS.

    Respondent again was by herself in Internal Suspension and was not assisting a teacher.

13. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS.

14. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved.

15. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part:

    These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically

    with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out

    for their safety and welfare. (Emphasis furnished).

16. The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip.

17. Respondent's annual "Overall Evaluation" for the

    
    

    1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement."

18. Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent.

19. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them.

20. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice.

21. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory.

22. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise,

    Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year.

23. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students.

24. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory."

25. Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column.

26. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I

    have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!"

27. Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998.

28. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students.

29. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of

    Respondent for failure to perform her assigned duties or other sufficient cause.

30. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999.

31. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants.

32. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers.

33. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by

    Mr. Cooper when he arrived at LMS in March 1999.

    
    

34. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal,

    Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise.

35. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling.

36. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999.

37. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year.

38. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis.

39. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully

work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms.

Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance"

1. Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days.

2. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation.

3. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999.

4. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement.

5. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance.

6. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.

   CONCLUSIONS OF LAW

   
   

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

8. In accordance with Section 230.23(5)(f), Florida Statutes, the Board may dismiss its employees.

9. Sections 231.3605(1)(a) and (2)(c), Florida Statutes, provide in pertinent part as follows:

   1. As used in this section:

      1. "Educational support employee" means any person employed by the district school system who is employed as a teacher assistant, an educational paraprofessional, . . . 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.

         (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school board rule in cases where a collective

         bargaining agreement does not exist.

      2. Upon successful completion of the probationary period by the 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 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.

      3. In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement. (Emphasis furnished).

10. Article 8, Section 8.09, Collective Bargaining Agreement, gives an educational support employee, such as Respondent, the choice of a direct hearing conducted by the Board or a formal hearing conducted by an Administrative Law Judge from the Division of Administrative Hearings.

11. Article 8, Section 8.013, of the Collective Bargaining Agreement provides as follows:

    When an employee has completed three (3) years of the past five (5) with satisfactory service with Hendry County School Board, except for duly authorized leave, and has been appointed for a subsequent year, he will be eligible for continued employment status,

    which status will continue year to year unless the Board terminates the employee for just cause

    or in the case of a reduction in force. (Emphasis furnished.)

12. Just cause is not defined in the Collective Bargaining Agreement or in Section 231.3605, Florida Statutes. However, Section 231.36(1)(a), Florida Statutes, concerning the termination of school board instructional staff certified by the State Board of Education provides as follows:

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

    misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. (Emphasis furnished.)

    In Rosario v. Burke 605 So. 2d 523 (Fla. 2d DCA 1992) the Second District Court of Appeal concluded that the provisions of section 236.36, Florida Statutes, were applicable to non-certified school board personnel. However, following the decision in Rosario, the Florida Legislature enacted Section 231.3605, Florida Statutes, which provides the procedure for termination of "educational support personnel" such as Respondent. The provisions of section 231.36, Florida Statutes, can no longer be reasonably construed

    as being directly applicable to non-certified school board personnel. However, these provisions along with the rules of the State Board of Education defining such terms as "misconduct in office," "incompetency," and "willful neglect of duty" may be looked to for guidance in determining what constitutes just cause for termination, within the meaning of Article 8, Section 8.013, of the Collective Bargaining Agreement.

13. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Department of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Board must establish facts upon which its allegations are based by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3rd DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3rd DCA 1990), and Section 120.57(1)(j), Florida Statutes (1999). The Board has failed to meet its burden in this regard and therefore, has failed to establish "just cause" or any "other sufficient cause" for terminating Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment

of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999.

DONE AND ENTERED this 6th of March, 2000, 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

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2000.

COPIES FURNISHED:

Edward A. Upthegrove Superintendent

Hendry County School District Post Office Box 1980

LaBelle, Florida 33935-1980

Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206

Robert J. Coleman, Esquire Coleman and Coleman

Post Office Box 2989

Fort Myers, Florida 33902-2089

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 99-003518

Orders for Case No: 99-003518