STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY SCHOOL BOARD,

Petitioner,

vs.

SHIRLEY BELL,

Respondent.

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) Case No. 06-2294

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this cause on September 22, 2006, in Daytona Beach, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore & Gonzalez, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

For Respondent: Shirley Bell, pro se

221 Haynes Street

Daytona Beach, Florida 32114 STATEMENT OF THE ISSUE

Whether Respondent may be terminated for just cause, in accordance with Article VI, Section 1.A. of the contract between the School Board and the American Federation of State, County and Municipal Employees, Council 79, Local 850 (AFSCME).

PRELIMINARY STATEMENT

Respondent was terminated April 25, 2006, from her position as Campus Advisor at Campbell Middle School, Volusia County.

Respondent timely “appealed” that termination, pursuant to Article VI, Section 1.A. of the collective bargaining contract between her union, AFSCME, and Petitioner School Board.1/

Pursuant to a Section 120.65, Florida Statutes, contract between Petitioner School Board and the Division of Administrative Hearings (DOAH), this cause was referred by the School Board to DOAH on or about June 27, 2006. On August 11, 2006, a Notice of Hearing was entered for September 11, 2006. Petitioner School Board sought, and was granted, a continuance order, entered September 8, 2006, for September 22, 2006.

At the September 22, 2006, disputed-fact hearing, Petitioner presented the oral testimony of Lee Somers, Thomas Harrison, Kevin Percy, and James R. Hollins, and had 12 exhibits admitted in evidence. Exhibit P-12 was the deposition of

James T. Moore, M.D. Respondent testified on her own behalf and had two exhibits admitted in evidence.

At the close of hearing, the parties stipulated that Petitioner School Board would provide a transcript; that the original exhibits in evidence would be attached by the court reporter to the original transcript when it was filed with DOAH; and that a copy of the transcript with copies of the

exhibits would be furnished, without charge, to Respondent. The parties stipulated further that their respective proposed recommended orders would be filed no more than 20 days after the filing of the transcript.

Petitioner filed "Petitioner's Proposed Final Order" [sic] Recommended Order] on October 31, 2006. However, the Transcript, with exhibits, was not filed with DOAH until November 3, 2006. A Post-hearing Order advising how to prepare a proposed recommended order was entered on November 7, 2006.

Respondent filed no timely proposed recommended order.2/

FINDINGS OF FACT

1. Respondent has a twelfth grade education and is a licensed cosmetologist. She has been employed by Volusia County for over 20 years and for about eight years by Petitioner Volusia County School Board. During her years with the School Board, she has worked at Silver Sands Middle School and at Campbell Middle School.

2. At the time the charges herein arose, Respondent was serving as a Campus Advisor at Campbell Middle School and was subject to, and protected by, the contract between the School Board and her union, AFSCME.

3. Article VI of the AFSCME contract (Exhibit P-9) provides as follows:

   Section 1 – Disciplinary Action

   
   

   1. An employee may be disciplined only for just cause. . . .

      
      

      An employee who elects to proceed under Chapter [sic Section] 120.57, Florida Statutes, may further elect to proceed before a hearing officer [sic.

      Administrative Law Judge] whose decision will be regulated under Chapter 120.68, Florida Statutes. . . .

      
      

   2. Under normal circumstances

      the Board will follow the tenets of progressive discipline in the administration of its disciplinary standards.

      
      

      Discipline shall be defined as (1) the suspension of an employee; (2) the termination of an employee during the term of his or her annual contract, after he or she has completed the initial probationary period; or (3) the non-reappointment of an employee who has successfully completed three consecutive years of employment with the District, and been reappointed for a fourth year.

      
      

      * * *

      
      

4. As a Campus Advisor, Respondent was responsible for aiding in maintaining a safe school environment for students. Her duties included monitoring security issues and assisting the school administrative staff with control of students. She monitored the cafeteria, helped to conduct traffic flow, and assisted students and administrators with whatever task was necessary. In her capacity as Campus Advisor, Respondent directly interacted with students on a daily basis.

5. In August 2003, while she was employed at Silver Sands Middle School, Respondent had been referred for a fitness-for- duty evaluation because she was exhibiting irrational and disturbed behavior at school. This referral was in the nature of an intervention to protect the children in her care, to enable Respondent to get the mental health help she needed, and to permit her to continue her employment.

6. Dr. Timothy Shaw, a psychologist, diagnosed Respondent as suffering from “Delusional Disorder, Persecutory Type,” and School Board officials asked Respondent to sign a contract agreeing to successfully maintain a prescribed program of care for her diagnosed mental condition.

7. On January 14, 2004,3/ Respondent entered into an employment agreement (written contract) with the School Board by which she agreed to, among other things, “. . . participate in whatever treatment is prescribed if it is deemed necessary by the aforementioned professional” and to “successfully complete and maintain the prescribed program of care . . . “ Respondent acknowledged at hearing that part of the prescribed program of care at that time was for her to daily take Clonazepam (possibly Klonopin), a psychiatric medication, prescribed by a psychiatrist, Dr. Wylie.

8. Respondent was compliant with her counseling, medication, and employment agreement for a long period of time.

   As of May 3, 2004, she had been recognized as “Staff Person of the Month” at Campbell Middle School. As of May 13, 2005, she had received a Service Pin as the School Board's recognition of her excellent job performance. Also, all of her attendance records were exemplary and her evaluations highly rated during this period of time. She also was active in her church and in her community during this period.

9. At some point, Respondent felt unwell and left work with the permission of the Campbell Middle School principal. She consulted a private neurologist, who prescribed 25 milligrams of the psychiatric medication Seroquel. However, Respondent did not take this medication, because she had read or heard that it had unpleasant or dangerous side effects. Moreover, she began to take the Clonazepam, required under her contract with the School District, only when she, in her unilateral opinion, believed she needed it.

10. On October 11, 2005, Vicky Presley, Campbell Middle School Principal, reported to Petitioner’s Office of Professional Standards that Respondent was again exhibiting irrational behavior on the job.

11. In response to Ms. Presley's report, Professional Standards Investigator Thomas N. Harrison spoke to Respondent on October 12, 2005. At that time, Respondent told Harrison that she believed that surveillance cameras were in her home, and

    that she knew a red dot followed her around her house. Based on these comments and Ms. Presley's report, Mr. Harrison scheduled a meeting with Respondent to discuss a new fitness for duty evaluation.

12. On October 14, 2005, Mr. Harrison met with Respondent to initiate the new fitness for duty evaluation. During the course of their meeting, Respondent admitted to Mr. Harrison that she had stopped taking her psychiatric medication. She went on to say that she would not take the medication required by her January 14, 2004, contract any longer, because it made her mouth dry and she did not like the way it made her feel. She also affirmatively disclosed to him that she was carrying an unloaded handgun in her purse. Mr. Harrison perceived her comments and behavior as sufficiently irrational, worrisome, or problematic for him to be concerned for her safety and that of her husband. He called in the Daytona Beach Police and Respondent’s husband.

13. The Daytona Beach police officers who responded to Mr. Harrison’s call questioned Respondent but released her to her husband and declined to “Baker Act” her.

14. Mr. Harrison informed Respondent that she was being referred to the Employees Assistance Program (EAP). Initially, Respondent indicated that she would not comply with the referral

    to EAP. However, she ultimately accepted the referral to The Allen Group, which oversees Petitioner’s EAP services.

15. On October 28, 2005, Respondent signed another employment agreement (contract), in which she again agreed to successfully maintain a prescribed program of care for her mental illness. Pursuant to paragraphs eight and nine of that October 28, 2005, contract, Respondent acknowledged that she understood that the document constituted additional terms for her continued employment, as follows:

    1. By signing this agreement The EMPLOYEE is acknowledging that any manifestation of the condition named by the aforementioned professional does not give rise to an obligation of the EMPLOYER to accept such behavior by the EMPLOYEE.

       
       

    2. By signing this agreement the EMPLOYEE is acknowledging his/her understanding that any violation of Federal Law or Regulation of the State of Florida, the Rules and Regulations of the State Board of Education, or the policies of the EMPLOYER will subject the EMPLOYEE to a recommendation by the superintendent to the school board for the EMPLOYEE’S termination from employment by the EMPLOYER. Further, the EMPLOYEE understands that this agreement does not constitute a guarantee of employment but merely constitutes additional terms for the period of employment. (Emphasis supplied.)

    
    

16. Based on the delusional behavior and paranoia Respondent exhibited during her EAP assessment, The Allen Group referred her for a psychiatric evaluation. That psychiatric evaluation was conducted by James T. Moore, M.D., a Florida-

    licensed psychiatrist, on or about November 3, 2005. Dr. Moore considered Respondent to be clearly psychotic on that occasion. She continued to talk about being under surveillance from the red dot in her home and stated that she was subjected to untrue rumors that she inappropriately watched school children and that she had stolen food. This was the same situation that she had complained-of at Silver Sands Middle School. Dr. Moore diagnosed her condition as “presumably delusional disorder, persecutory type,” and provided her with samples of 100 milligram tablets of Seroquel. His deposition and report in evidence do not reflect that he ever wrote a prescription for Seroquel for Respondent. In fact, his testimony was that he felt Respondent needed more than 100 milligram tablets of Seroquel daily but that he believed he should not provide/prescribe more than 100 milligrams unless he were treating Respondent as his patient in an on-going fashion.

17. Respondent’s testimony acknowledged that with or without a prescription for Seroquel, she would not take that drug, because she had heard of its side-effects and that a “lawyer” was going to remove it from the market. She did, however, continue her psychological therapy with The Allen Group.

18. On November 30, 2005, James Hollins, Director of the Office Of Professional Standards, was informed by Kevin Percy,

    M.Ed., CEAP, LMHC, and a member of The Allen Group who had met with Respondent on several occasions, that Respondent had been assessed and a treatment plan had been developed for her.

    However, Mr. Percy, who is a Florida-licensed mental health counselor, went on to report to Mr. Hollins that Respondent's illness was "uncontrolled and she refuses to follow medical orders." Additionally, he reported that Respondent was not pursuing any acceptable alternative course of treatment. In summation, he opined that Respondent was "non-compliant" with the prescribed treatment plan, because she would not take her medicine.

19. No evidence was presented that any medical or psychological professional had ever considered offering, or had offered, Respondent a substitute for Seroquel.

20. On December 2, 2002, Dr. Moore reported to Mr. Hollins that Respondent's condition was an impediment to the fulfillment of her duties as Campus Advisor. Dr. Moore recommended, after consultation with Mr. Percy and others in The Allen Group, that Respondent not be returned to work, because he felt she should not be around children in her condition. By this time, Respondent had told Messrs. Harrison, Percy, and Moore that she would not take Seroquel.

21. Based on Respondent's failure to adhere to the terms of the two contracts, each entitled “Employment Agreement,” and

    due to the report by properly licensed and qualified medical and psychological personnel that Respondent was not mentally fit to successfully carry out her duties as a Campus Advisor for the School Board, Mr. Hollins recommended to the Superintendent of Schools, Dr. Margaret Smith, that Dr. Smith request that the School Board terminate Respondent's employment.

22. Mr. Hollins’ recommendation and Ms. Smith's decision to follow that recommendation were reached after they had determined that the School Board had no position available for which Respondent was qualified and which did not require her to be around children.

23. On April 11, 2006, Dr. Smith informed Respondent, by letter, of her intent to recommend to the School Board that Respondent be dismissed from employment at the April 25, 2006, School Board meeting, explaining that the reason for her recommendation was that:

    1. The Respondent has breached an agreement dated January 14, 2005, [sic] in which she had agreed to successfully maintain a prescribed program of care for a mental illness which had been previously diagnosed as a result of the Respondent having been referred for a fitness for duty examination. Properly licensed and qualified medical and psychological personnel have determined that the Respondent is no longer following the prescribed program of care, and the Respondent has admitted such to investigators employed by the School Board in its Professional Standards Department.

    2. The Respondent is unable to perform out [sic] the essential duties and functions of campus advisor for the School Board, as determined by properly licensed and qualified medical and psychological personnel.

       
       

24. Based on the foregoing, the School Board voted to terminate Respondent's employment on April 25, 2006. Respondent was informed of her right to “appeal” that decision, and this case followed.

25. At hearing, Respondent testified that her reasons for not taking her prescribed psychiatric medication were that she "didn't feel [it] was needed at the time it was prescribed." She admitted that no licensed medical professional had instructed her to stop taking her medication. Her decision to stop the medication was her own unilateral decision, and as of the hearing date, September 22, 2006, she had taken no psychiatric medications (neither Clonazepam nor Seroquel) for over a year. She refused to take the drug Seroquel under any conditions.

26. Respondent’s testimony is not entirely clear, but either she believes that the medicine she was taking or her problems with the School Board in 2005 added to the stress in her marriage and thus led to a subsequent divorce, or the stress in the marriage caused her problems with the medication and School Board. Petitioner still believes that adults encouraged

    school children to pose suggestively for her and that a white dot she calls her "little furry dot" follows her around her house, but the dot no longer bothers her. She is currently attending a community college in a degree program and doing very well. She intends to "not be negative."

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1), and 120.65, Florida Statutes (2006), and the School Board’s AFSCME Contract, Article VI, Section 1.A.

28. Despite the holding in School Board of Volusia County v. Gravelding, DOAH Case No. 91-8269 (RO 12/30/92; FO: 3/8/93), the undersigned is satisfied that under the circumstances of the instant case, the duty to go forward is upon Petitioner School Board, and the School Board’s burden of proof to establish just cause for termination is by a preponderance of the evidence.

1. The collective bargaining contract herein (see Finding of Fact 3) makes no attempt to define "just cause.” No School Board Rule was introduced to define “just cause.” Finally, no Florida Statute or portion of the Florida Administrative Code has been pointed out as definitive or applicable.4/ The undersigned’s independent research reveals that “just cause” was once defined for similar employees in Section 231.36, Florida

   Statutes, as “misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.” At a later date, "just cause" was defined, at Section 231.35(4), as “. . . immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.” These definitions have since been repealed, and they have not been picked up in Sections 1012.23(1) and 1012.40, Florida Statutes, concerning non- educational school personnel. Similar definitions for educational personnel appeared at Florida Administrative Code Rule 22A-7.10(7), which was repealed and replaced with Florida Administrative Code Rule 60K-4.010. That rule also is now no longer in existence. Recent Florida cases, of every description, tend to use the terms “for cause,” and "for good cause,” but not necessarily in relation to employee discipline matters. Although there are many Florida cases dismissing school employees for "just cause," they usually are based on a definition of "just cause" contained in s collective bargaining agreement, which is not part of the instant case. The only definition of “cause” within administrative/employment law that the undersigned can find is Fantozzi v. Board of Fire and Police

   Commissions, 189 N.E. 2d 275 (1963); and its progeny, Sutton v. Civil Service, 348 N.E. 2d 147 (1982) and Humbles v. Bd. Of Fire

   & Police Commissioners, 368 N.E. 2d 1049 (Ill. App. Ct. 2d Dist. 1977). These cases define “just cause” as “some substantial shortcoming which renders continuance in his [the employee's] office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” This definition of “just cause” will be applied here.

2. Of equal importance to the foregoing definition of "just cause" is the concept that any adverse action taken against Respondent Employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Lusskin v. Agency fro Health Care Administration, 731 So. 2d 67, (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); and Delk v. Department of Professional Regulation, 595 So. 2d 966, (Fla. 5th DCA 1992).

3. However, the typographical error in referring to a January 14, 2005, employment contract instead of a January 14, 2004, employment contract in the charging documents is a de minimis error and non-prejudicial to the defense herein.

4. It is troubling on both a legal and a human level, that so much of the School Board’s case was devoted to proving that Respondent would not take 100 milligrams daily of Seroquel, prescribed by a psychiatrist who saw her only on one occasion

   and who testified that 100 milligrams of Seroquel daily probably would not be sufficient to control Respondent's irrational, persecutory ideation. It is also troubling that those who counseled Respondent apparnetly never responded to Respondent’s concerns about the possible side effects of Seroquel or substituted another, similar psychiatric medication for the Seroquel. However, Respondent is not charged with failure to use Seroquel, per se. She is charged with breaching her contract of January 14, 2004, which included continued psychological counseling, with which she did comply, and with failing to use Clonazepam, which she refused to continue using. Assuming that the second contract of October 28, 2005, somehow revamped the prior January 14, 2004, agreement and can be interpreted to require that Respondent use Seroquel, she also refused to use that medication authorized by Dr. Moore.

5. Herein, Respondent breached a contract(s) by which she agreed to successfully maintain a prescribed program of care for her mental illness. Respondent has admitted to the School Board's investigator; to Mr. Hollins, Director of Professional Standards; to the EAP counselors; and to Dr. Moore; and has testified at the hearing herein, that she no longer takes any psychiatric medication as prescribed. Despite her own view on why she should not be required to take any medication, her failure to take the medication is in direct violation of the

   terms of contract(s) by which she was retained on the School Board’s payroll. Furthermore, qualified and licensed psychiatric and psychological personnel were persuasive herein that Respondent is unable to perform the essential duties and functions of her job as a Campus Advisor without such medication.

6. It is axiomatic that Respondent’s inability to perform the essential duties and functions of her job description constitutes just cause to terminate her employment. Because duly educated, trained, experienced, and Florida-licensed psychological and psychiatric personnel have concluded that she cannot be around children without taking some form of medication, Respondent cannot be retained to work around children if she refuses all medication.

7. While the undersigned is sympathetic to the reasons Respondent has refused to take her medication as prescribed, those reasons will not support her actions. She could have requested different medications, different strengths, or even different counselors. There is no evidence that she did any of these things. Rather, she just stopped taking her first medication (Clonazepam) and did not take the Seroquel against "best medical advice." In doing so, she became non-compliant with her agreement with the employing School Board.

8. Petitioner is to be commended on her determination to "not be negative" and to further her education with a college degree, but her testimony concerning a continuing belief that she may be observed or listened to in her own home by a white furry dot is the sort of irrational fixation or persecution ideation which renders her currently unfit to be around children.

9. There is a preponderance of evidence that the School Board was justified in terminating Respondent.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the School Board of Volusia County enter a final order ratifying its previous termination of Respondent.

DONE AND ENTERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 18th day of December, 2006.

ENDNOTES

1/ Once the case reaches DOAH, it is not an "appeal" but a de novo evidentiary proceeding. The School Board is designated the Petitioner herein because it bears the duty to go forward and the burden of proof to alter the status quo. See Florida Department of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Pursuant to Sections 120.569, 120.57(1), and 120.65, Florida Statutes, and the contract between DOAH and the School Board, the Recommended Order herein is rendered to the School Board. The School Board, in turn, enters its final order, which final order is subject to appeal to a district court of appeal, pursuant to Section 120.68.

2/ Due to the agreed filing date for proposed recommended orders falling on November 23, 2006, a legal holiday, Respondent had until November 27, 2006, in which to file her proposal.

Therefore, this Recommended Order could not be drafted until after November 27, 2006, and is not “due” until December 27, 2006.

3/ Exhibit P-2 clearly shows the date of this Agreement was 2004.

4/ The DOAH website permits cases to be found in a variety of ways, but Petitioner chose to cite to case compilations (i.e. BNA) which are unavailable to the undersigned, even via Lexis Nexis. These citations would be of dubious value in this jurisdiction, anyway.

COPIES FURNISHED:

Erin G. Jackson, Esquire

Thompson, Sizemore & Gonzalez, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

Shirley Bell

221 Haynes Street

Daytona Beach, Florida 32114

Dr. Margaret A. Smith Superintendent of Volusia County Post Office Box 2118

Deland, Florida 32721-2118

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: 06-002294

Orders for Case No: 06-002294