STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

NATALIE SANTAGATA, )

)

Respondent. )

Case No. 11-5197TTS

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on January 23, 2012, in Port Charlotte, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas M. Gonzalez, Esquire

Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez

& Hearing, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

For Respondent: Mark S. Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Charlotte County School Board (the "School Board") has just cause to terminate the employment contract of Respondent, Natalie

Santagata, based upon loss of effectiveness as a teacher due to scandalous materials being disseminated to School Board

employees and parents.

PRELIMINARY STATEMENT

On September 7, 2011, Barbara Melanson, assistant superintendent of Charlotte County Public Schools, issued a letter to Respondent, Natalie Santagata, indicating that the School Board had approved the superintendent's recommendation to terminate Santagata's employment, effective September 6, 2011.

Santagata immediately requested a formal administrative hearing to contest the School Board action.

At the final hearing, the School Board called the following witnesses: Douglass Whittaker, superintendent of the School Board; Lori Davis, principal at Kingsway Elementary School (the "School"); Barbara Melanson, assistant superintendent of the School Board; Christine Mangiafico, parent of a student; and Steve Cummings, security and emergency management manager.

Petitioner's Exhibits 9, 10, 12 through 19, 22, 23, 26 through

28, 30 through 35, and 37 were admitted into evidence without objection. Santagata did not testify, call any witnesses, or offer any exhibits into evidence.

(All hearsay evidence was admitted subject to corroboration by competent, non-hearsay evidence or to support other competent

evidence. To the extent such hearsay was not corroborated, it will not be used as a basis for any finding.)

The parties ordered a transcript of the final hearing and were given ten days from the date the transcript was filed to submit proposed recommended orders. The Transcript was filed on January 31, 2012. The parties thereafter requested and were granted additional time to file their proposed recommended orders. Each party timely submitted a proposed recommended order, and both parties' submissions were given due consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The School Board is the duly authorized entity responsible for the operation, control, and supervision of the School, which is an elementary school within the Charlotte County Public School system. The School is an "A-rated" school with approximately 650 students and 45 members of the teaching staff.

2. At all times relevant hereto, Santagata was employed at the School under a professional services contract. At the time of her termination from employment by the School Board, Santagata was teaching fifth grade at the School. She had been teaching at the School for approximately four years, having transferred from Peace River Elementary School.

   
   

3. By all accounts, Santagata was an excellent teacher when she was hired to work at the School. She was hired to teach third-graders, an important grade due to the "no-child- left-behind" requirements associated with that grade level. Santagata was a "stellar" teacher according to the school principal. When she first came to the School, she taught third grade. Then, she "looped" to fourth grade the next year. One hundred percent of her students' parents agreed to allow their children to loop with her so she could continue teaching them.

4. Santagata continued to be an excellent teacher at the School. However, in the beginning of the 2010-2011 school year, things began to change. At the start of the school year Santagata was operating at about the same proficiency level as in previous years, but in November her supervisor and co-workers began to notice disturbing changes in Santagata's appearance and demeanor. She began to show up at work in a somewhat disheveled state, she began to lose a noticeable amount of weight, and she was absent from the classroom more than usual. There were reports that Santagata was leaving her co-teacher alone in the room with the students more frequently. Her co-teacher at that time was a teacher with three years' experience as a teacher, but was in her first year at the School. Santagata was, however, never unable to perform her duties as a teacher during the school year.

   
   

5. Santagata was experiencing significant difficulties in her personal life at the time she began to struggle as a teacher. She was going through a very unpleasant divorce and was undergoing extreme stress and anxiety because of that event. Beginning late in 2010 and continuing into the early months of 2011, Santagata showed signs that she was not performing up to her normally excellent standards.

6. According to her principal, Santagata began to lose her "with-it-ness," i.e., her ability to maintain interaction and involvement with her students and their parents. One day, Santagata did not show up for work. When the principal called, Santagata said she had overslept. Santagata, ultimately, made it to work, but she was late and was admonished for that failure on her part.

7. As her concerns about Santagata grew, the principal began to take more frequent "walk-throughs" in Santagata's classroom as a means of monitoring her more effectively. As a result of her observations during those walk-throughs, the principal decided to offer Santagata some help by way of the employee assistance program. The program provides teachers a way to deal with private and personal problems more effectively in order to maintain professionalism in their classrooms. The program was first discussed with Santagata in November of the 2010-2011 school year when the principal first learned Santagata

   
   

   was going through her divorce. The program was offered a second time in January after Santagata's behavior and demeanor began to change even more. There was no evidence as to whether Santagata availed herself of the employee assistance program.

8. At about the time Santagata began showing signs of stress, the School received a few anonymous telephone calls from individuals saying that Santagata was using drugs and making inappropriate life choices. The School knew that Santagata's estranged husband was attempting to hurt her in any way he could. It was believed that he may be the source of the anonymous calls. The School also received an anonymous email advising about a You-Tube video purportedly showing Santagata in a room where other people were apparently smoking marijuana. When confronted with those allegations, Santagata voluntarily agreed to take a drug test to prove her innocence. The School decided not to test Santagata at that time.

9. At a school field day held in the spring, a couple of parents reported to a teacher that Santagata looked "terrible." The teacher reported the observation to the principal, who went to see for herself. The principal found Santagata not to be up to her normal standards, but she did not look terrible. Shortly thereafter, the principal received another anonymous email saying Santagata was abusing drugs. At that time, the School decided to ask Santagata to submit to a drug test. Santagata

   
   

   was placed on administrative leave pending the result of the test, and when the test returned with a negative result, Santagata was reinstated. The reinstatement occurred just a few days before the end of the 2010-2011 school year.

10. After the conclusion of the school year, various administrators at the School received packages from an anonymous sender. The packages contained videos and still photographs that purported to be Santagata engaged in sexual activities and smoking marijuana. The person in the videos and photographs resembled Santagata. The school principal recognized Santagata's house from one of the videos or still photographs. However, there was no verification that the person in the videos and photographs was indeed Santagata. Santagata neither admitted, nor denied that the videos and photographs were of her.

11. One of the videos shows a woman engaging in oral sex with a man. Both appear to be adults and the sexual activity appears to be consensual. The videos also show the man and woman smoking cigarettes, but holding the cigarettes between the thumb and forefinger, i.e., in the manner which is generally associated with smoking marijuana cigarettes. The man in the videos at one point asked the woman whether she was "high" or some such reference to drug use. One of the videos also shows the woman moving from room to room, seemingly gathering clothes

    
    

    and other items as if she were packing. The man and woman appear to be angry at each other during this particular video. The woman appears to be preparing to terminate whatever relationship existed with the man.

12. Once the videos were received at the School Board, they were turned over to the School Board security officer so that an investigation could be conducted. As part of the investigation, the security officer reviewed the videos and pictures, pleadings and other documents concerning Santagata's divorce proceedings, newspaper articles, and other documents. The officer interviewed school employees, but did not interview any parents of students from the School. The officer did not interview Santagata.

13. Mrs. Mangiafico, a parent of students at the school, also received the pictures that had been sent to the School and School Board. Mangiafico's children were never in Santagata's classroom, but they were friends with Santagata's children. Mangiafico may have, at the time she turned over the pictures to the School, stated that she did not want Santagata teaching her children. However, she considered Santagata to be an excellent teacher and that "everybody wanted their kid in her class." Mangiafico did not know whether any other parents of students received the videos or pictures. She did not believe there had

    
    

    been any change in Santagata's reputation as a result of the pictures being disseminated.

14. A local newspaper published an article about Santagata saying she was under investigation due to "inappropriate photos" the School had received. The article was published on

    August 10, 2011. There is no mention in the article as to what the photographs may have depicted.

15. The School Board recognized that Santagata was not responsible for releasing the videos and pictures. It was, however, concerned about the possible perception of the School and Santagata by the general public. Specifically, the superintendent worried that "because the pictures and videos had been sent out to parents, that would affect [Santagata's] effectiveness in the classroom." The School principal was concerned about "the doubt that was placed in parents' minds" about Santagata as a teacher. Likewise, the assistant superintendent's concern was that once the pictures got out into the public, "it would lessen her effect [sic] as a teacher."

16. The School Board was genuinely worried that if the videos and pictures were distributed more widely, the School may experience some negative public scrutiny. The School and School Board took strong measures to ensure that they were not the source of dissemination of the information to the public, but they could not be sure that some anonymous person might do so.

    
    

17. Based upon those concerns, the School Board decided to terminate Santagata's employment. Santagata was offered the opportunity to resign, rather than being fired, but she refused to do so.

18. Santagata was placed on administrative leave with pay, effective August 1, 2011. On September 6, 2011, the School Board voted to terminate Santagata's employment; she was notified by letter the next day.

19. According to the superintendent of schools and the School principal, the pictures and videos were not sufficient, in and of themselves, to warrant discipline against Santagata, nor had any discipline been imposed against Santagata prior to her being placed on administrative leave. The basis of the School Board's action was simply the possibility that Santagata may lose her effectiveness, if the public was made aware of the photographs and videos.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to a contract with the School District of Charlotte County. The proceedings are governed by sections

    1. and 120.569, Florida Statutes (2011). Unless specifically stated otherwise herein, all references to Florida Statutes are to the 2011 codification.

       
       

21. The superintendent of the School Board has the authority to recommend to the School Board that an employee be suspended or dismissed from employment. § 1012.27(5), Fla. Stat. The School Board has the authority to terminate the employment of or to suspend teachers without pay and benefits. See §§ 1012.22(1)(f) and 1012.40(2)(c).

22. The burden of proof in this proceeding is on the School Board to prove, by a preponderance of the evidence, that just cause exists to terminate the employment of Santagata by revoking her professional services contract. McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3rd DCA 1990). Preponderance of the evidence is evidence that more likely than not tends to prove the proposition set forth by a proponent. Gross v. Lyons, 763 So. 2d 276 (Fla. 2000).

23. In the absence of a rule or written policy defining just cause, the School Board has discretion to set standards which subject an employee to discipline. See Dietz v. Lee Cnty. Sch. Bd., 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless, just cause for discipline must rationally and logically relate to an employee's conduct in the performance of the employee's job duties and be in connection with inefficiency, delinquency, poor leadership, and lack of role modeling or misconduct. State ex.

    
    

    rel. Hathaway v. Smith, 35 So. 2d 650 (Fla. 1948); In Re: Grievance of Towle, 665 A.2d 55 (Vt. 1995).

24. Just cause for purposes of discipline is discussed in section 1012.33:

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

    immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted and found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."

    
    

25. Misconduct in office has been defined as a violation of the Code of Ethics of the Education Profession, as adopted in Florida Administrative Code Rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted in Rule 6B-1.006, which is so serious as to impair the individual's effectiveness in the school system.

26. There are four specific portions of the rules set forth by the School Board as its basis for taking action to terminate Santagata's employment:

    • Rule 6B-1.006(3)(a), which requires a teacher to take reasonable efforts to protect students from conditions harmful to learning;

    • Rule 6B-4.009(2), which says a teacher shall not be engaged in immoral conduct;

      
      

    • Rule 6B-1.001(2), which states a teacher's primary professional concern shall be for the student; and

    • Rule 6B-1.001(3), which says an educator shall remain aware that maintaining respect and confidence of one's colleagues, students and parents is important.

27. There is insufficient evidence in the record to conclude that Santagata violated any of the rule provisions set forth above. Santagata was not responsible for the dissemination of any of the photographs or videos. She was not proven to have engaged in immoral conduct. She struggled, but did not lose the ability to do her duties as an educator. There was no testimony by a fellow teacher or parent that Santagata had lost their respect and confidence.

28. The School Board has the authority to terminate the employment of any employee who has lost effectiveness as a teacher, according to the superintendent. There was no persuasive evidence presented, however, that Santagata had lost her effectiveness as a teacher. There was merely speculation by the School Board as to Santagata losing her effectiveness, should the public be made more aware of the actual content of the videos and pictures. The only parent to testify affirmed Santagata's continued effectiveness as a teacher.

    
    

29. As to the videos and photographs, no one ever properly authenticated them at final hearing. See § 90.901, Fla. Stat. No one testified that they were true and accurate representations of the scenes depicted. There was no testimony to establish how the pictures and videos were produced. It is not possible, therefore, to make a finding of fact based upon the depictions in the videos and photographs. See Cirillo v. Davis, 732 So. 2d 387 (Fla. 4th DCA 1999). Rather, it can only be stated that the videos and photographs exist and they were sent to school employees.

30. The School Board failed to meet its burden of proof in this matter.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Charlotte County School Board, rescinding the termination of Respondent, Natalie Santagata's, employment and that she be reinstated to her position with back pay and benefits for the reasons set forth above.

DONE AND ENTERED this 13th day of March, 2012, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 13th day of March, 2012.

COPIES FURNISHED:

Dr. Douglas Whittaker, Superintendent Charlotte County School Board

1445 Education Way

Port Charlotte, Florida 33948-1052

Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Thomas M. Gonzalez, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez

& Hearing, P.A.

201 North Franklin Street, Suite 1600 Tampa, Florida 33602

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: 11-005197TTS

Orders for Case No: 11-005197TTS