STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

JOAN MARIE LABRANCHE,

Respondent.

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) Case No. 12-1581PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 22, 2012, in Leesburg, Florida, before Susan Belyeu Kirkland, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: No Appearance.

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated section 1012.795(1)(c), Florida Statutes (2009),1 by being incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.

PRELIMINARY STATEMENT

On May 11, 2011, Petitioner, Eric J. Smith, as Commissioner of Education, filed a one-count Administrative Complaint against Respondent, Joan Marie LaBranche (Ms. LaBranche), alleging that she violated section 1012.795 by proving to be incompetent to teach or perform duties as an employee of the public school system or to teach or to operate a private school.

Ms. LaBranche requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge to conduct the final hearing.

The case was originally assigned to Administrative Law Judge J. Lawrence Johnston, but was transferred on June 14, 2012, to Administrative Law Judge Susan Belyeu Kirkland to conduct the final hearing.

The final hearing was scheduled for June 22, 2012, by video teleconference with sites in Tallahassee and Orlando, Florida.

On June 12, 2012, Petitioner filed Petitioner's Motion for Change of Venue, requesting that the venue be changed to Lake County, Florida, where the majority of the witnesses resided. A telephonic hearing was held on the motion on June 13, 2012, at which time the motion was granted and an Order dated June 13, 2012, was issued changing the venue to Leesburg, Florida.

Ms. LaBranche was aware that the final hearing was to be in Leesburg, Florida.

The final hearing was scheduled to commence at 9:00 a.m., but Ms. LaBranche did not appear. Sometime shortly after

9:00 a.m., Ms. LaBranche contacted the Division of Administrative Hearings advising that she had received the Notice of Transfer and thought that the hearing had been held on June 14, 2012. Nothing in the Notice of Transfer could be construed to mean that the final hearing had been held on

June 14, 2012. Ms. LaBranche was told that the Administrative Law Judge was waiting for her in Leesburg as noticed. She advised staff of the Division of Administrative Hearings that she had "put all her stuff away" and could not come to the hearing in less than two hours. She never stated that she would come to the hearing; thus, it was not known whether she was going to appear at the final hearing.

At 9:19 a.m., the undersigned commenced the final hearing. One of Petitioner's witnesses, Tracy Clark, was unable to attend the final hearing due to commitments out of state. Counsel for Petitioner was granted leave to take the deposition of

Tracy Clark after the final hearing and to file the deposition within 30 days of the final hearing.

At the final hearing, Petitioner's Exhibits 1 through 21

were admitted in evidence. Petitioner called the following witnesses: Thomas Keldorph "Kelly" Sanders, Marta C. Ramirez, Deanne Lyn Cameron, and Rebecca Ann Nelsen. No exhibits for Respondent were admitted.

The deposition of Tracy Clark was filed on August 6, 2012. The one-volume Transcript was filed on July 5, 2012. Petitioner filed its Proposed Recommended Order on August 14, 2012, and it has been considered in the preparation of this Recommended Order. On August 16, 2012, Ms. LaBranche filed a request for extension of time. On August 22, 2012, an Order was entered extending the time to file proposed recommended orders to

August 29, 2012. Ms. LaBranche did not file a proposed recommended order

FINDINGS OF FACT

1. Ms. LaBranche holds Florida Educator's Certificate 911242, covering the areas of general science, which is valid through June 30, 2011. During the 2008-2009 and 2009-2010 school years, Ms. LaBranche was employed by the Lake County School District (District) as a science teacher at Mount Dora Middle School.

2. On January 20, 2009, there was an incident in

   
   

   Ms. LaBranche's classroom involving a student who became ill. The student had requested to go to the front office, and

   Ms. LaBranche had denied her request. The student fell onto the

   
   

   floor and began crying. Ms. LaBranche did nothing for two or three minutes until some of the other students told her that the student was ill. At that time, Ms. LaBranche called administration for assistance. As a result of Ms. LaBranche's inattention to the student, Ms. LaBranche received an evaluation on February 4, 2009, showing that she needed improvement in the area of personal characteristics and professional responsibilities.

3. On March 4, 2009, Ms. LaBranche received an Observation/Assessment of Professional Standards, showing that she failed to meet satisfactory overall performance expectations and performed unacceptably in the areas of adherence to the Code of Ethics and to the Principles of Professional Conduct of the Education Profession of Florida.

4. By memorandum dated April 23, 2009, from Kelly Sanders, the principal at Mount Dora Middle School, Ms. LaBranche was advised that because of her performance deficiencies listed in the Observation/Assessment of Professional Standards she was being placed on performance probation for 90 calendar days, beginning on August 24, 2009, and ending on November 23, 2009.

5. On September 9, 2009, Mr. Sanders met with

   
   

   Ms. LaBranche to discuss her performance deficiencies from the 2008-2009 school year and performance deficiencies in the 2009- 2010 school year. Performance deficiencies during the 2008-2009

   
   

   school year included her 90-day performance probation, her failure to report grades correctly, and her misplacement of checks written by parents.

6. Ms. LaBranche had performance deficiencies for the first two weeks of the 2009-2010 school year. On August 26, 2009, Ms. LaBranche was yelling so loudly at her class that Mr. Sanders could hear her down at the end of the hall.

   Ms. LaBranche failed to report to a mandatory training session on time. Additionally, Ms. LaBranche had three major incidents with students within six school days. The incidents included a major fight between two of her students in the media center; one student hitting another on the back in her classroom; and two students yelling at each other in the classroom to the extent that Ms. LaBranche called administration for assistance.

   Ms. LaBranche was advised of recommended procedures for correction of the performance deficiencies. On September 9, 2009, as a result of her performance deficiencies, Ms. LaBranche was given a Professional/Personal Action Report Relating to Work Experience Appraisal II (Appraisal II), which included the following areas of concern: classroom management and personal characteristics and professional responsibilities.

7. On October 2, 2009, Maria Ramirez, an assistant principal at Mount Dora Middle School, met with Ms. LaBranche to discuss Ms. LaBranche's conduct toward Mr. Sanders on

   
   

   September 30, 2009, when Ms. LaBranche was argumentative with Mr. Sanders in the presence of students, other teachers, and non-instructional personnel. Ms. LaBranche made such statements as: "You never listen to my side," "You are picking on me," "You are out to get me," and "I'm tired of the way you treat me." Such behavior showed a lack of professionalism toward the teaching profession. As a result of her behavior toward

   Mr. Sanders on September 9, 2009, Ms. LaBranche received an Appraisal II which showed a continuing concern in the areas of professional characteristics and professional responsibilities.

8. As stated in the teacher handbook, Mount Dora Middle School's policies on collecting funds requires teachers to submit monies collected from students on a daily basis. Money was not to be left in the classroom. On October 21, 2009,

   Ms. Ramirez also met with Ms. LaBranche to discuss her failure to meet these directives. On October 15, 2009, Ms. LaBranche submitted checks she had received from students. The dates on the checks ranged from September 28, 2009, to October 2, 2009. Ms. Ramirez reminded Ms. LaBranche that she had been counseled on this issue the previous school year. As a result of

   Ms. LaBranche's failure to submit collected funds appropriately, she received an Appraisal II on October 30, 2009, again showing areas of concern in professional characteristics and professional responsibilities.

   
   

9. Ms. LaBranche submitted a request for leave of absence dated November 4, 2009, requesting leave from November 16, 2009, to August 1, 2010, for an extended illness.

10. By letter dated November 12, 2009, Ms. LaBranche submitted her resignation to the superintendent of Lake County Schools, effective November 20, 2009. She further advised that she would be on sick leave through November 19, 2009. By letter dated November 13, 2009, Ms. LaBranche advised the School District that she was rescinding her letter of resignation dated November 12, 2009.

11. Ms. LaBranche's request for leave was approved from November 18, 2009, through March 2, 2010. Ms. LaBranche submitted another request for leave of absence dated

    February 18, 2010, requesting leave from March 1, 2010, through August 1, 2010, for an extended illness. The request for leave was denied on February 25, 2010.

12. Ms. LaBranche submitted a third request for leave dated March 1, 2010, requesting leave from March 2, 2010, through August 1, 2010, for an extended illness. The request for leave was denied on March 4, 2010.

13. Ms. LaBranche submitted another request for leave of absence dated March 3, 2010, requesting leave from March 4, 2010, through August 4, 2010, due to her illness. She noted on the request form that she had a doctor's appointment on the

    
    

    following day. The request for leave was denied on March 4, 2010.

14. Ms. LaBranche submitted an undated request for leave of absence for March 5, 2010, due to illness. This request was denied on March 4, 2010. Ms. LaBranche submitted another undated request for leave of absence from March 5, 2010, through March 8, 2010, for an illness. This request was also denied on March 4, 2010.

15. By letter dated March 11, 2010, the School District advised Ms. LaBranche that she had not requested any accommodation that would allow her to perform her duties. Therefore, the School District directed Ms. LaBranche to be examined by the Lake County School Board's physician for the purpose of evaluating her fitness for duty. She was required to contact Dr. Magy Shanawany before the close of business on

    March 17, 2010. Ms. LaBranche did not make an appointment with Dr. Shanawany.

16. The School District sent Ms. LaBranche a letter dated March 23, 2010, which stated:

    Your March, 2010 requests for extended illness leave beginning March 1, 2010 and extending through August 1, 2010[,] is [sic] denied based on the following:

    
    

    You were on Family and Medical Leave Act beginning November 17, 2010[,] and extending through March 2, 2010. You currently have no sick leave available for you to use.

    
    

    You have refused to get a fitness for duty evaluation by the School Board's physician, Dr. Shanawany, as you were required to do in a letter dated March 11, 2010[,] from district staff.

    
    

    Ms. LaBranche, since you have no available sick leave to use, you must report to work or be considered Absent Without Approved Leave. Being Absent without approved Leave is in violation of School Board policy 6.511 and could lead to your termination from employment with Lake County Schools. Please report to work no later than Monday,

    March 29, 2010.

    
    

17. By letter dated March 24, 2010, Ms. LaBranche advised the Lake County School Board that she was currently on medical leave and intended to return to Mount Dora Middle School in August 2010.

18. Ms. LaBranche did return to Mount Dora Middle School on March 29, 2010. At the time that Ms. LaBranche began her medical leave in November 2009, she had not completed her 90-day performance probation, which was to have ended on November 23, 2009; therefore, Mr. Sanders went to Ms. LaBranche's classroom on March 29, 2010, to observe and evaluate her performance in the classroom. Ms. LaBranche informed Mr. Sanders that her physician had told her that she did not have to teach and walked out of the classroom.

19. Mr. Sanders returned to Ms. LaBranche's classroom the next period. Ms. LaBranche refused to teach and walked out of

    
    

    the classroom. Mr. Sanders did an Appraisal II, finding that Ms. LaBranche's performance was unacceptable.

20. By memorandum dated March 29, 2010, Mr. Sanders informed the superintendent of Lake County Schools that

    Ms. LaBranche's 90-day performance probation had ended and that Ms. LaBranche had failed to correct her performance deficiencies. In his opinion, Ms. LaBranche could not correct her performance deficiencies and recommended the termination of her employment.

21. By letter dated March 29, 2010, the Superintendant of the Lake County Schools advised Ms. LaBranche that she was suspended for four days without pay and a recommendation would be made to the Lake County School Board that Ms. LaBranche's employment be terminated. Ms. LaBranche's employment was terminated effective May 10, 2010.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2011).

23. Petitioner has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner alleges that Ms. LaBranche violated section 1012.795(1)(c).

    
    

24. Section 1012.795(1)(c) provides:

    
    

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

       
       

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       (c) Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.

       
       

25. Petitioner has established by clear and convincing evidence that Ms. LaBranche has violated section 1012.795(1)(c). She failed timely to aid an ill student; did not maintain control of her classroom, failed to follow policies concerning

the submittal of funds received from students on a daily basis; yelled at her students; argued with her school principal in the presence of students, other teachers, and non-instructional staff; refused to be examined by the Lake County School Board's physician; refused to teach; and walked out of her classroom when she was to be observed by her principal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Ms. LaBranche violated section 1012(1)(c), and revoking her educator's certificate for five years, with reinstatement pursuant to the provisions of section 1012.795(4), Florida Statutes.

DONE AND ENTERED this 30th day of August, 2012, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 30th day of August, 2012.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2009 version.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois S. Tepper, Interim General Counsel Department of Education

Turlington Building, Suite 1224

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154

Joan LaBranche 2721 Dorado Court

Apopka, Florida 32703

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: 12-001581PL

Orders for Case No: 12-001581PL