STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing in this proceeding on behalf of the Division of Administrative Hearings (DOAH) in Bartow, Florida, on June 3, 2009, and by telephone conference on June 22, 2009.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause, within the meaning of Subsection 1012.33(6)(a), Florida Statutes (2007),1

to terminate Respondent’s professional services contract for the reasons alleged in a letter dated November 18, 2008.

PRELIMINARY STATEMENT

By letter dated November 18, 2008, the superintendent of the Polk County Public Schools notified Respondent of proposed agency action to terminate Respondent's employment on

January 13, 2009. Respondent requested an administrative hearing by letter dated December 1, 2008. On January 13, 2009, Petitioner adopted the recommendation of the superintendent to terminate Respondent's employment. On February 17, 2009, Petitioner referred the request for hearing to DOAH to conduct an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted 18 exhibits for admission into evidence. Respondent testified, called six witnesses, and submitted four exhibits for admission into evidence. The parties submitted one joint exhibit for admission into evidence.

The identity of the witnesses and exhibits and the rulings regarding each are set forth in the two-volume Transcript of the hearing filed with DOAH on June 25 and July 6, 2009. The parties filed their respective Proposed Recommended Orders on July 23, 2009.

FINDINGS OF FACT

1. Respondent has taught in the Polk County School System since 2000. For the first four school years, Respondent taught drama at the Rochelle School of the Arts. The next school year, Respondent taught English for one year at Kathleen Middle School. Beginning with the 2005-2006 school year, Respondent taught middle school English at Gause Academy until January 13, 2009.

2. The allegations at issue in this proceeding pertain to the 2007–2008 school year at Gause Academy. By letter dated November 18, 2008, the superintendent of the Polk County Public Schools notified Respondent that the superintendent was recommending that Petitioner terminate the professional service contract of Respondent. On January 13, 2009, Petitioner followed the recommendation of the superintendent.

3. The letter dated November 18, 2008, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of her employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are:

   . . . excessive absenteeism, dishonesty, and ongoing gross insubordination. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been

   followed in this case, and the next step of progressive discipline is termination.

   
   

4. A preponderance of the evidence does not support a finding of excessive absenteeism during the 2007-2008 school year at Gause Academy. It is undisputed that the absences for Respondent during the 2007-2008 school year totaled 43 days, of which many were before or after a weekend and resulted in three or four consecutive days. However, it is also undisputed that

   1. absences were due to illness and the remaining 14 absences were suspensions or leave time imposed by Respondent’s employer.

5. During the 2005-2006 school year, Respondent missed

   
   

   1. days due to illness, and Petitioner determined that Respondent was a good, dynamic teacher who related well with students and worked well in the classroom. Petitioner did not show by a preponderance of the evidence any credible and persuasive reason why 30 absences for sickness during the 2005- 2006 school year were acceptable to Petitioner, but that

   29 absences for sickness during the 2007-2008 school year warranted termination of Respondent’s professional service contract.

6. The medical reasons for Respondent’s absences during the 2005-2006 and 2007-2008 school years were the same. Respondent has suffered debilitating migraine headaches from a very young age. When Respondent suffers a serious migraine

   headache, it is difficult for her to function. However, Respondent has managed to control the effects of her migraines. A preponderance of the evidence does not explicate persuasive reasons why 30 absences during the 2005-2006 school year did not prevent Respondent from doing her job satisfactorily, but that

   29 absences during the 2007-2008 school year justifies the termination of Respondent’s professional service contract.

7. The allegation of dishonesty relates to a form, identified as an Employee Application for Leave, that Respondent completed for absences from October 1 through October 3, 2008. The form provides that Respondent was sick and unable to leave her bed from October 1 through 3, 2008. Respondent signed the form on October 6, 2008, and the school principal approved the form on October 7, 2008.

8. Sometime after October 7, 2008, the principal received information that Respondent had been arrested on October 1, 2008. The testimony of the principal during the hearing shows that he has no knowledge of the circumstances of the arrest, including the time of the arrest and the time Respondent was released and returned to her home. Nor does the principal have any knowledge of whether Respondent was ill with a migraine from October 1 through 3, 2008.

9. Local law enforcement officers arrested Respondent at her home at 6:00 a.m. on October 1, 2008, on a charge that

   Respondent had issued a bad check. The officers took Respondent to the courthouse, the amount was paid, and Respondent was back home by 9:00 a.m. Between 6:00 a.m. and 9:00 a.m. on October 1, 2008, Respondent’s mother called the school and told school officials that Respondent was ill and would not be in to work.

10. Neither Respondent’s mother nor Respondent misrepresented Respondent’s illness. Respondent was ill with a migraine headache while she was at the courthouse and, upon her return home, was confined to bed for three days.

11. The remaining allegation is that Respondent did not prepare adequate lesson plans. A preponderance of the evidence does not support a finding of inadequate lesson plans.

12. At the conclusion of the 2006-2007 school year, the principal performed a Quality Performance Summary Assessment for Respondent, which is the equivalent of a year-end evaluation. The principal rated Respondent as “Needing Improvement” in the areas of Planning for Learning Communication and Professionalism and rated Respondent as “Unsatisfactory” in the area of Managing the Learning Environment. The principal indicated an appropriate Professional Development Plan (PDP) would be written for the 2007-2008 school year.

13. The PDP was presented to Petitioner at the beginning of the 2007-2008 school year. The primary strategies identified for improving classroom planning included: maintenance of a

    plan book to be turned in at the end of each week to the assistant principal and participation in in-service training for expanded classroom strategies.

14. The PDP identified a Professional Resource Team to assist Respondent in the implementation of the PDP. The team consisted of the assistant principal, guidance counselor, and dean of students.

15. Lesson planning at Guase Academy is left to the discretion of individual teachers. There is no template for lesson plans. Each teacher is left to develop lesson plans in a manner that is appropriate for his or her purposes.

16. The assistant principal and guidance counselor did not provide Respondent with meaningful assistance toward the PDP goals. The assistant principal instructed all teachers that they could use documents identified in the record as “curriculum maps” as lesson plans. Respondent relied on the assistant principal and utilized curriculum maps to develop her lesson plans.

17. Respondent worked extensively with the dean of students to formulate and complete lesson plans in a manner that was satisfactory to the principal. Respondent also worked with three fellow teachers who evaluated Respondent’s lesson plans and found them to be sufficient.

18. None of the lesson plans were ever satisfactory to the principal. Respondent met with the principal on numerous occasions during the 2007-2008 school year. At each meeting, the principal gave only a cursory review of the plans, concluded they were inadequate, and gave no explanation of a specific deficiency. Respondent never refused to provide lesson plans and never failed to submit lesson plans until after it was apparent that no lesson plan from Respondent would satisfy the principal.

    CONCLUSIONS OF LAW

    
    

19. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2008). DOAH provided the parties with adequate notice of the administrative hearing.

20. The termination of employment that occurred on January 13, 2009, is proposed agency action, rather than final agency action taken previously that DOAH reviews as would an appellate court. The purpose of a proceeding conducted pursuant

    to Subsection 120.57(1) is to formulate final agency action rather than to review final agency action previously taken. McDonald v.

    Department of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

21. The final hearing is a de novo proceeding in which either party may submit relevant and material evidence through the

    date of the hearing. Relevant evidence is not limited to that evidence available to Petitioner when Petitioner proposed the termination of Respondent's professional service contract. Id.

22. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

23. For reasons stated in the Findings of Fact and not repeated here, a preponderance of the evidence does not show that Respondent committed the acts alleged in the charging document. A preponderance of the evidence does not support a finding of gross insubordination within the meaning of Florida Administrative Code Rule 6B-4.009(4).

24. The fact-finder must resolve conflicts in the evidence and decide fact questions one way or the other. Dunham v. Highlands County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995); Heifetz v. Department of Business Regulation, Division of

    Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Department of Professional Regulation v. Wagner, 405 So. 2d 471, 473 (Fla. 1st DCA 1981).

25. The trier of fact resolved the evidential conflict in favor of Respondent. The fact-finder is the sole arbiter of credibility. Bejarano v. State, Department of Education, Division of Vocational Rehabilitation, 901 So. 2d 891, 892 (Fla. 4th DCA 2005); Hoover, M.D. v. Agency for Health Care Administration, 676 So. 2d 1380, 1384 (Fla. 3d DCA 1996); Goss v. District School Board of St. Johns County, 601 So. 2d 1232, 1234 (Fla. 5th DCA 1992).

26. Respondent’s non-disclosure of her arrest for a bad check is not specifically alleged in the charging document. An agency cannot find a respondent guilty of a charged violation based on evidence of grounds not specifically alleged in the charging document. Cf. Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998), and Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996)(involving license discipline proceedings).

27. Even if evidence of the pretermitted arrest were considered, a preponderance of evidence does not support a finding of dishonesty. The adequacy of Respondent’s conduct is not infused with agency expertise. The evaluation of Respondent’s conduct is a question of fact to be determined by the trier of fact. See Yeoman v. Construction Industry Licensing Board, 919 So. 2d 542 (Fla. 1st DCA 2005); Palamara v. State, Department of Professional Regulation, 855 So. 2d 706 (Fla. 4th DCA 2003); Bush

    v. Brogan, 725 So. 2d 1237, 1239-1240 (Fla. 2d DCA 1999); Dunham v. Highlands County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995); Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So. 2d 187 (Fla. 3d DCA 1991).

28. In assessing conduct involving the non-disclosure of the arrest for a bad check, the ALJ has been guided by analogous judicial precedent involving applicants for admission to the Florida Bar. As officers of the court, licensed attorneys are not held to a lesser standard of conduct than classroom teachers. The Florida Supreme Court has held that an attorney who omitted a prior criminal conviction for possession of marijuana from his application to the Florida Bar is not precluded from practicing law in the state. In Re: Application of VMF For Admission To The Florida Bar, 491 So. 2d 1104 (Fla. 1986).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order reinstating Respondent’s professional services contract with back pay.

DONE AND ENTERED this 20th day of August, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2009.

ENDNOTE

1/ All references to subsections, sections, and chapters are to Florida Statutes (2007), unless otherwise stated.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Gail McKinzie, Superintendent Polk County School Board

1915 South Floral Avenue Bartow, Florida 33831-0391

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 09-000955TTS

Orders for Case No: 09-000955TTS