STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted by video teleconference on September 9, 2009, between West Palm Beach and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Vicki L. Evans-Pare, Esquire

Palm Beach County School Board Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Peter Perettine, Esquire

190 West Palmetto Park Road Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to discipline the employment of Rebecca Sorensen (Respondent or Ms. Sorensen)

based on the conduct alleged in the “Petition.” Also at issue is the appropriate penalty, if any.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Ms. Sorensen was an assistant principal at Hagen Road Elementary School (Hagen Road). On May 15, 2009, the School Board filed a Petition against Respondent alleging certain facts pertaining to information received by Respondent regarding an allegation of sexual abuse against a male fifth-grade student at Hagen Road, who, to protect his privacy, will be referred to as Student J. Also in an effort to protect the student’s privacy, Student J.’s grandfather, who served as his guardian, will be referred to as Student J.’s grandfather. The alleged abuse occurred at the residence of Student J.’s grandfather and involved a male adult who was serving as a sitter for Student J. while the grandfather was hospitalized for medical tests. The male caretaker also worked as a counselor at the Hagen Road School Age Child Care Program (the after-school care program) during the school day, including the hours the after-school program was open. The adult sitter will be referred to as the male counselor.

Based on the factual allegations of the Petition, Petitioner asserts that Respondent’s employment should be suspended without pay for ten days.

By letter dated March 24, 2009, Arthur C. Johnson, Ph.D., Petitioner’s Superintendent of Schools, advised Respondent in writing that he intended to recommend to the School Board at a special meeting to take place on April 8, 2009, that he would recommended that Respondent’s employment be suspended without pay for ten days. The letter reflects that the recommendation was based on allegations of

. . . failure to exercise best professional judgment, failure to report child abuse, failure to safeguard a student, misconduct- careless disregard for policy/directive/rule and violation of 6B-1.001(3), Florida Administrative Code, [and] The Code of Ethics of the Education Profession in Florida. Furthermore, the allegations included a violation of School Board Policy 1.013(1), Responsibility of the School District Personnel and Staff and 5.3, Reporting Child Abuse, Abandonment, or Neglect.

The letter further reflected the following:

Sufficient just cause exists for you to be disciplined pursuant to Sections 1012.22(1)(f) and 1012.27(5), Florida

Statutes; Palm Beach County School District Policies 1.013 and 3.27 for violations of the foregoing.

The School Board voted to adopt Superintendent Johnson’s recommendation. Respondent thereafter requested a formal administrative hearing, Petitioner filed its formal petition, and the matter was referred to DOAH and this proceeding followed.

The Petition alleges that on September 3, 2008, Respondent became aware of Student J.’s disclosure that he had been the victim of a lewd and lascivious sex act by the male counselor. The Petition charges Respondent with failing to report the child abuse as required by Section 39.201, Florida Statutes, and School Board Policy 5.30. The Petition further charges that the failure to report constituted a breach of Respondent’s “obligation to the student . . . (to) 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” as required by Florida Administrative Code Rule 6B-1.003(3)(a).

The Petition further alleged that the breach was sufficiently serious to impair her effectiveness as an assistant principal at the school and constituted a failure to exercise her best professional judgment. The Petition alleged that Respondent violated School District Policies 1.013 and 5.30; Florida Administrative Code Rules 6B-1.001, 6B-1.006(3), and 6B-4-.009; and Section 39.201, Florida Statutes.

At the final hearing, Petitioner presented the testimony of Respondent; Cheri Rosen (Assistant Director of the after school program); Nicole Lamb (Director of the after school program); Richard Hughes (Principal of Hagen Road); Vincent Mintus (a Detective on Petitioner’s police force); and Angelette Green (Director of Employee Relations for Petitioner). Petitioner

offered the following pre-marked Exhibits, each of which was admitted into evidence: 1, 2, 6, 7, 10, 13, 14, 16, 17, 18, 20,

23, 24, 27, and 28. Respondent offered no further testimony, but she offered one exhibit, which was admitted into evidence.

Unless otherwise noted, all statutory references are to Florida Statutes (2009). References to rules are to the rules in effect as of the entry of this Recommended Order. The relevant statutes and rules have not changed since the date of the events at issue.

As part of their Prehearing Stipulation, the parties stipulated to certain facts. Those factual stipulations have been incorporated as findings of fact.

A Transcript of the proceedings, consisting of one volume, was filed on October 15, 2009. On a joint motion, the deadline for the filing of Proposed Recommended Orders was extended to October 30, 2009. Each party filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida.

2. Respondent has been an employee of the Petitioner since 1987. At all times relevant to this proceeding, Respondent was

   an assistant principal employed by Petitioner at Hagen Road, which is a public elementary school in Palm Beach County, Florida.

3. Petitioner’s Policy No. 5.30 requires that, “(a) District employees who know or have reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall immediately report such knowledge or suspicion to the Department of Children and Families’ [sic] Florida Abuse Hotline (1-800- 96ABUSE, 24 hours a day)."

4. Section 39.201(1)(a), Florida Statutes, provides, as follows:

   (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare,[1] as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).

   (b) Reporters in the following occupation categories are required to provide their name to the hotline staff:

   
   

   * * *

   
   

   1. School teacher or other school official or personnel;

      
      

   2. Respondent’s position as an Assistant Principal at Hagen Road is included within the definitions of school

      personnel for purposes of Section 39.201(1)(a), Florida Statutes.

   3. The requirement to report suspected child abuse was reiterated in the Faculty Handbook for Hagen Road for the 2008- 09 school year.

   4. Cheri Rosen is the assistant director of Hagen Road’s after school care program. Ms. Rosen’s son and Student J. were in the fifth grade during the 2008-09 school year and have been friends since their first grade year. Labor Day fell on September 1 in 2008. On August 28, 2008, the Thursday prior to Labor Day, Student J. spent the night at Ms. Rosen’s house because his grandfather was hospitalized for medical tests. Student J. told Ms. Rosen’s daughter of an incident that occurred in December 2007, while Student J. was being baby-sat at his grandfather’s house, by the male counselor from the Hagen Road after school care program. Ms. Rosen’s daughter immediately told her father (Mr. Rosen) who instructed his daughter to tell her mother (Mrs. Rosen). Immediately after her daughter talked to her, Ms. Rosen asked that Student J. come tell her firsthand what had happened.

   5. Student J. told Ms. Rosen that while he was being baby- sat by the male counselor at his grandfather’s house in December 2007, just before winter break, the male counselor had taken a live snake and wrapped it around his (the male counselor’s)

      penis and told Student J. to look. Student J. told Ms. Rosen that he looked and then looked away. Student J. related that the male counselor told Student J. “now its your turn.” Student

      J. told Ms. Rosen that he said no and walked out of the room.

      
      

   6. Ms. Rosen told Student J. that she was going to have to tell his grandfather about the incident, and that she was also going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor at the after school care program.

   7. Ms. Rosen spoke to Ms. Lamb shortly after her conversation with Student J. Ms. Lamb advised Ms. Rosen that she should tell the Student J.’s grandfather that he should contact the police. She further told Ms. Rosen, incorrectly, that she did not have to go through the school because the alleged incident occurred at the residence of Student J.’s grandfather, and because Student J. reported the incident at her home.

   8. Two days after Ms. Rosen’s conversation with Student J., his grandfather returned home from the hospital. Ms. Rosen and her husband visited with the grandfather and related to him the incident as Student J. had related it to them. The grandfather, who tried to remain calm because he has a heart condition, asked what he should do next. Ms. Rosen told him he had to go to the police.

   9. When Ms. Lamb returned to school on September 2, 2008, she had a voice mail from Student J.’s grandfather. She tried to return the call, but she could not reach him.

   10. On Thursday, September 4, 2008, Respondent was paged by a Ms. Ciavolino, the school treasurer and bookkeeper.

       Ms. Ciavolino related that Student J.’s grandfather had just called, told her about the incident, and said that he wanted advice from Respondent.

   11. Shortly thereafter on September 4, 2008, Student J.’s grandfather called Respondent to talk with her about the incident. The grandfather was hesitant, so Respondent told him what Ms. Ciavolino had told him, and Respondent also told him that she knew he wanted advice. After the grandfather confirmed what Ms. Ciavolino had related to her, Respondent advised the grandfather that the incident needed to be reported right away. She asked the grandfather where he lived in an attempt to determine whether the Delray Beach Police Department (DBPD) or the Palm Beach County Sheriff’s Office would have jurisdiction. She also told him that it would need to be reported to the Department of Children and Family Services (DCFS). Although he remained hesitant, the grandfather told Respondent that he would report the incident.

   12. On September 4, 2008, Respondent instructed Ms. Lamb to keep the male counselor away from Student J. and all other

       students. At that time, the male counselor was preparing to leave in a week or two to join the military. In the interim, he had been assigned to train new counselors, which did not require that he have direct contact with children. The male counselor remained on Hagen Road campus until he was removed as a result of the police investigation that ensued.

   13. Other than her instructions to Ms. Lamb, Respondent took no further action to ensure that the male counselor would have no contact with children.

   14. Respondent did not report the allegation of abuse to her principal (Mr. Hughes), to any law enforcement agency, or to the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or Ms. Ciavolino to file any type of written report.2

   15. Respondent testified that she did not feel she had to file a report because Student J.’s grandfather agreed to file a report. Respondent further testified that she did not feel she had to file a report because she heard of the allegations from the grandfather and not the student.

   16. On September 9, 2008, Student J.’s grandfather reported the incident to the DBPD which immediately began an investigation in conjunction with a DCFS investigator.

   17. As a result of the DBPD/DCFS investigation, Mr. Hughes learned of the allegations and immediately barred the male counselor from the school campus.

   18. Thereafter, Petitioner’s Police Department began its own investigation of Respondent based on her conduct and failure to act as described in this Recommended Order.

   19. All relevant procedural steps were taken by Petitioner in bringing these charges against Respondent. Part of the procedure requires a pre-disciplinary meeting at which the subject of an investigation is given the opportunity to give his or her version of the events. Respondent declined to attend the pre-disciplinary meeting on advice of counsel because at the time of the meeting a criminal investigation was being conducted.3

   20. After the pre-disciplinary meeting, the matter was referred to Petitioner’s Employee Investigatory Committee (EIC),4 who recommended that the subject charges be brought against Respondent with the recommended disposition of a ten-day suspension of employment without pay. That recommendation was forwarded to Dr. Johnson in his capacity of Superintendent of Schools, who agreed with the recommendations of the EIC and submitted the recommendation to the School Board. On April 8, 2009, the School Board voted to accept the recommendation, subject to Respondent’s rights pursuant to the provisions of Chapter 120, Florida Statutes.

   21. The greater weight of the credible evidence established that Respondent had a reasonable basis to believe

       that Student J. had been subjected to sexual abuse and that she did not report that abuse to her principal, the FDCS hotline, or law enforcement.

   22. The greater weight of the credible evidence also established that Respondent took insufficient steps to protect Student J. from the male counselor after she learned of the allegations of abuse. In reaching this finding, the undersigned has considered that Principal Hughes barred the male counselor from school premises as soon as he learned of the allegations. Respondent did not bar the male counselor from the school premises, but merely instructed Ms. Lamb to make sure that the male counselor “. . . would not be with children until this was resolved.”5

   23. Respondent’s employment has not previously been disciplined. Other than the facts set forth above, Respondent has been, in the words of Principal Hughes, a fantastic assistant principal who has performed above expectations.6

       CONCLUSIONS OF LAW

       
       

   24. The Division of Administrative Hearings has jurisdiction over the subject matter parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   25. Because Petitioner seeks to suspend Respondent’s employment without pay and does not involve the loss of a license or certification, Petitioner has the burden of proving

       the allegations in its Administrative Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v.

       School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990).

   26. The preponderance of the evidence standard requires proof by "the greater weight of the evidence," Black's Law Dictionary 1201 (7th ed. 1999), or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

       Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

       
       

       quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

       
       

   27. Pursuant to the provisions of Section 1012.27, Florida Statutes, the School Superintendent has the authority to recommend to the School Board that members of the instructional staff be disciplined.

   28. Pursuant to Section 1012.27(1)(f), Florida Statutes, the School Board has the authority to act on such recommendations.

   29. Section 1012.33(6)(b), Florida Statutes, pertains to contracts between school boards and members of the supervisory staff, including school principals, and provides that such a

       contract can be suspended or terminated for just cause, which includes, relevant to this proceeding, misconduct in office.

   30. Petitioner has charged Respondent with “misconduct in office.” The State Board of Education has defined the term “misconduct in office” by Florida Administrative Code Rule 6B- 4.009(3), as follows:

       (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

       
       

   31. The definition of “misconduct in office” requires a two-pronged analysis. The first prong is whether the educator violated the Code of Ethics of the Education Profession or the Principles of conduct for the Education Profession in Florida. The second prong is whether the breach is so serious as to impair the individual’s effectiveness in the school system.

   32. Petitioner alleged in paragraphs 13 and 14 of its Petition that Respondent failed to file a report of child abuse mandated by Section 39.201, Florida Statutes, and School Board Policy 5.30. Respondent had a reasonable basis for believing that Student J. had been sexually abused in the manner reported to her and consequently she was mandated to file a child abuse report as required by statute and the School Board policy.

       Respondent failed to do so. The mandatory nature of the rule and the statute did not give Respondent the option she chose, namely, waiting to see if the grandfather would file a complaint with either a law enforcement agency of DFCS.

   33. Petitioner alleged in paragraph 16 through 19 that Respondent’s failure to report the child abuse violated The Principles of Professional Conduct for the Education Profession in Florida set forth at Florida Administrative Code Rule 6B- 1.006(3)(a), which imposes on Respondent an “. . . obligation to the student . . . [to] 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.” Petitioner established that Respondent failed to take adequate steps to protect Student J. from the male counselor after Respondent learned of the allegations of abuse from Student J.’s grandfather.

   34. Petitioner alleged in paragraph 21 of the Petition that Respondent failed to exercise her best professional judgment in failing to report the allegations of abuse and in failing to protect Student J. from the male counselor. Petitioner relies generally on the provisions of the Code of Conduct of Ethics of the Education Profession in Florida as codified in Florida Administrative Code Rule 6B-1.001. Subsection (2) of the Code includes a requirement that an

       educator “. . . seek to exercise the best professional judgment and integrity.” Respondent’s conduct following her conversation with Student J.’s grandfather on September 4, 2008, demonstrated poor judgment and constituted a failure to adhere to the requirements set forth in Florida Administrative Code Rule 6B- 1.001(2), as alleged in paragraph 21 of the Petition.

   35. Petitioner established the first prong of the two- pronged analysis required by the definition of the term “misconduct in office.” Petitioner established that Respondent’s conduct in failing to file mandatory reports required by statute and rule, her failure to take appropriate action to protect Student J. from the male counselor, and her failure to utilize her best professional judgment following her conversation with Student J.’s grandfather, violated Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.001(2) as alleged in the Petition.

   36. The evidence as to the second prong of the analysis was not as clear as the evidence establishing the first prong. Mr. Hughes received a few calls from members of the public about the incident, and there was at least one newspaper article published about the matter. However, it is clear that

       Mr. Hughes is pleased with Respondent’s overall job performance. The only other testimony as to impairment came from Ms. Green,

       whose background is in law enforcement, not school administration.

   37. “Misconduct in office” may be established, even in the absence of “specific” or “independent” evidence of impairment, where the conduct engaged in by the educator is of such a nature that it “speaks for itself” in terms of its seriousness and its adverse impact on the educator’s effectiveness. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127, 128-129 (Fla. 2d DCA 2000); and Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995). The misconduct at issue in this proceeding is of such a nature. Failing to report an allegation of abuse from an elementary student directed against an employee of that school and failing to immediately take meaningful action to protect that student and the other students from the alleged perpetrator is such a lapse of judgment that it of necessity impairs the effectiveness of an assistant principal.

   38. Petitioner established by the requisite standard that Respondent is guilty of misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the final order suspends Respondent’s employment without pay for a period of ten days.

DONE AND ENTERED this 18th day of November, 2009, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 November, 2009.

ENDNOTES

1/ Pursuant to Section 30.01(46), Florida Statutes, an adult sitter is an "ther person responsible for the child's welfare."

2/ Ms. Rosen and Ms. Lamb were subsequently disciplined by Petitioner for their failures to properly report the allegations of abuse.

3/ On December 8, 2008, an assistant state attorney filed a statement indication that no information would be filed for failure to report child abuse with the following statement:

Based on the evidence presented, the State cannot prove the allegations beyond every reasonable doubt. This matter will be handled administratively.

4/ The EIC is composed of administrators, including an area superintendent, a district administrator, and principals at the high school, middle school, and elementary school levels.

5/ See Transcript, page 23, beginning at line 16.

6/ See Transcript, page 63, beginning at line 6.

COPIES FURNISHED:

Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239

West Palm Beach, Florida 33416-9239

Peter Perettine, Esquire

190 West Palmetto Park Road Boca Raton, Florida 33432

Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869

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

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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: 09-002749TTS

Orders for Case No: 09-002749TTS